Posts

Bankrupt!

/118 Comments/in /by

Rudy Giuliani admits he is bankrupt.

It’s unclear, given the Chapter 11 bankruptcy petition he filed today, whether it was his lying to cheat or his “scheme” to avoid paying taxes that was the final straw. He owes just shy of $1 million, to NY State and IRS, for two years of taxes.

Republicans have been quite clear that they believe that kind of tax negligence merits immediate incarceration — at least it does in Hunter Biden’s case.

In addition to the $148M judgement he owes Ruby Freeman and Shaye Moss, he also owes his co-defendant in the Hunter Biden lawsuit, Robert Costello, over $1.3M for past representation.

Ultimately, this is expected and a direct response to Beryl Howell’s order that he pay up immediately.

 

Rudy’s Seized Devices Were More Useful for Investigating January 6 than Marie Yovanovitch’s Firing

/39 Comments/in , , , /by

On April 28, 2021, the FBI seized up to 18 devices from Rudy Giuliani. On Tuesday, DOJ unsealed the affidavit behind that seizure.

The affidavit, read in conjunction with Barbara Jones’ Special Master reports, Rudy’s privilege log from the Ruby Freeman lawsuit, and a filing he submitted in that suit provide abundant evidence that the devices FBI seized on April 28, 2021 were more useful for investigating January 6 than any suspected FARA violations involved in the firing of Marie Yovanovitch.

And this goes well beyond Robert Costello’s claim that a number of the devices seized from Rudy were corrupted.

The affidavit, as written, was narrow: it only covered FARA violations tied to the role of Yuriy Lutsenko and other Ukranians in the firing of Ambassador Yovanovitch in spring 2019. While there is evidence cited in the affidavit from a broad period of time (for example, describing Rudy’s public admissions that he did certain things in early 2019 later that year), the last overt act described in the affidavit is of someone — probably Victoria Toensing — texting Rudy on May 9, 2019, complaining that people were asking about whether she had registered under FARA and denying that she had a client.

Remarkably, then, the affidavit asked for — and Judge Paul Oetken authorized — the authority to seize “any and all” devices at Rudy’s office and home almost two years after that last overt act.

Judge Oetken authorized that search and seizure even though one of the phones described in the affidavit — an Apple iPhone X that Rudy first started using on January 20, 2021 — could not possibly have been used in the suspected crime described in the affidavit. And three more of the devices described in it, including another iPhone, were only put in use later in 2019.

I’ve long argued that by September 2021, DOJ at least contemplated obtaining other warrants to access that content (because SDNY successfully argued to do the privilege review on all content that post-dated January 1, 2018). But given the scope of those devices, it looks likely that there was at least one other affidavit presented to Oetken in April 2021, one that would justify seizing those later devices.

This table shows (on the vertical axis) the devices that Rudy says were seized and (on the horizontal axis) the devices that FBI thought they’d find.

While Rudy’s own description of these devices (including the model number of the MacBook used in planning January 6, here listed as A22251) is as unreliable as everything else about him, the FBI didn’t find the two iPhone Xes — one used between January 8, 2018 and August 13, 2019, the other used between April 5 2018 and August 27, 2019, both marked in yellow above — that would have been Rudy’s primary phones during the events described in the affidavit.

Just three devices — two iPads and one iPhone 11 — clearly match the description of what the FBI expected to find.

All of them were, according to Rudy’s description (marked in the vertical “January 6 column”), among those used in planning January 6.

Whichever iPhone 11 they did find is almost certainly device that Special Master Jones labeled as device 1B05, the privilege review of which she described this way:

I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1

Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.

1 Additional non-designated items were released on January 19, 2022.

Those 25,000 chats were easily the most voluminous content turned over from any one device to the FBI. Of all the chats that Rudy attempted to withhold from that phone, he ultimately only succeeded in withholding 40 items. 40 chats or texts out of 25,000 total.

262 items in Rudy’s privilege log come from that phone. Another 127 come from a device, 1B09, also used to text about January 6 (including with Mark Meadows), which — given the date scope — must have been among the first devices Jones reviewed. That’s one possible source of a Ken Chesebro document included in the indictment but not identified in the January 6 Report.

And while Rudy withheld those documents from Ruby Freeman, since Jones only permitted Rudy to withhold 43 items total from DOJ, those must have been deemed non-privileged in the Special Master review. (I’ve noted before that there are easily 40 items that clearly relate to Rudy’s own lawyers.)

They were all turned over to DOJ, for use with whatever investigative teams had obtained warrants to access them, no later than January 21, 2022.

This is one thing Rudy accomplished by defaulting on discovery: Withholding from Ruby Freeman, and therefore from a public trial that would precede Republican primaries, documents that were turned over to DOJ in January 2022.

By April 2021 when — using warrants approved on Lisa Monaco’s first day on the job, but nevertheless a year after Bill Barr started obstructing this investigation — the FBI came looking for devices involved in Rudy’s suspected FARA violations tied to getting Marie Yovanovitch, they didn’t find the devices he would have been using at the time.

They did, however, find three devices on which Rudy planned January 6. And because of the way DOJ did the privilege review on those devices, those records would have been made available to any investigators with a lawful warrant no later than January 21, 2022.

Perjury Trapped: Rudy Giuliani’s Sync Sink

/27 Comments/in , , /by

As I noted here, I’m just beginning to go through the warrants from SDNY’s Lev Parnas and Rudy Giuliani investigation the NYT liberated.

I want to start with a very minor point about the apparent inconsistencies between what SDNY found when they conducted searches on Rudy’s cloud and what Rudy claimed — purportedly under penalty of perjury — before Beryl Howell.

In the Ruby Freeman case — the first one, not her renewed suit to enjoin him from continued lies about her — Rudy claimed that he didn’t need to separately search his messaging accounts, because his phones were all synced to his iCloud.

All of my [redacted]@icloud.com iCloud data would have also been included in the TrustPoint data because I synced my iCloud to my devices.

But SDNY, when they searched his iCloud back in 2019, discovered that known messages were not there.

On or about November 4, 2019, the USAO and FBI sought and obtained from the Honorable J. Paul Oetken, United States District Judge for the Southern District of New York, a warrant (the “November 4 Warrant”) for records in iCloud accounts belonging to Giuliani and [Victoria Toensing].

[snip]

As discussed above, on November 4, 2019, the FBI and USAO sought and obtained a search warrant for, among other things, Giuliani’s iCloud account. However, the iCloud did not contain many of the text messages outlined above with Parnas and [Fruman] during the December 2018 to April 2019 time frame. Based on my training and experience, as well as my review of records provided by Apple, I believe the iCloud account did not contain text communications from early 2019 because Giuliani did not backup that content, or removed it from the backup, and not because it does not exist. Indeed, for the reasons set forth below, including Giuliani’s public statement that he has retained potentially relevant communications on his cellphones, there is probable cause to believe that, unlike the iCloud account, evidence of the Subject Offenses continue to be maintained on the Subject Devices.

But, according to Robert Costello, in a declaration that — unlike Rudy’s — was actually notarized and so worth something if you ignore the obvious spin in his representations of what SDNY told him — when SDNY reviewed at least seven of those devices, they were corrupted.

Rudy’s messaging wasn’t in his iCloud when SDNY looked in 2019. And it wasn’t in his phones when SDNY looked in 2021. And yet this year, he claimed the content in both places would be the same.

Say Her Name: The Story of Ruby Freeman and Shaye Moss’ Vindication

/82 Comments/in , , /by

After a jury awarded Ruby Freeman and her daughter $148 million for the intentional lies the former president’s former lawyer told about them in an attempt to steal an election, this is some of what Freeman had to say:

Good evening everyone. I am Lady Ruby. Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter and held him accountable. And for that I’m thankful. Today is not the end of the road. We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable too. But that is tomorrow’s work. For now, I want people to understand this. Money will never solve all of my problems. I can never move back to the house that I called home. I will always have to be careful about where I go and who I choose to share my name with. I miss my home, I miss my neighbors, and I miss my name.

Freeman’s daughter, Shaye Moss, said this:

As we move forward, and continue to seek justice, our greatest wish is that no one — no election worker, or voter, or school board member, or anyone else — ever experiences anything like what we went through. You all matter and you are all important. We hope no one ever has to fight so hard just to get your name back.

For the women — vindicated by a jury of their peers, Rudy Giuliani’s peers, doing their civic duty — winning this substantial recognition of the damage done to them was about getting their name back.

The comments from the women said so much about the damage that Trump and Rudy’s bullying have done to the nation’s civic fiber.

But that’s not what led the coverage of their victory.

Rudy did.

Here’s how WaPo covered it.

WaPo first named Freeman and Moss in ¶3 of the story. The entire story quotes just 23 of their collective words after the verdict (though quotes or describes their testimony at more length, starting 24¶¶ into the story, after repeating Rudy’s false accusations about the women and the debunking presented at trial.

The damages verdict came in a defamation lawsuit filed against Giuliani, 79, by Fulton County, Ga., election workers Ruby Freeman and Wandrea ArShaye “Shaye” Moss, whom Trump and others on the former president’s campaign and legal teams falsely accused of manipulating the absentee ballot count in Atlanta.

“Today is a good day,” Freeman said, standing outside the courthouse with Moss after a jury awarded the mother and daughter pair $75 million in punitive and $73 million in compensatory damages for defamation and emotional distress.

[snip]

Their attorneys in closing arguments had urged jurors to “send a message” to Giuliani and others in public life that the “facts matter.” On Friday Moss added, “Giuliani was not the only one who spread lies about us, and others must be held accountable, too.”

By comparison, WaPo cited 58 words from Rudy’s post-verdict comments, with pushback on his claims that he hadn’t had a chance to present a case, but not on his comment that if the 2020 election weren’t exposed we wouldn’t have a country anymore.

Though the story described the verdict as a “potentially worrying sign for him as he faces criminal charges in Georgia accusing him of related efforts to overturn Biden’s victory there,” it didn’t talk about how some of the evidence Rudy withheld in discovery might have made that plight worse.

Here’s how Politico covered it (placed on the front page behind a 1,250-word story purporting to describe how impeachment will work, without mentioning there’s no evidence of wrongdoing).

Politico got the names of Ruby Freeman and Shaye Moss in the subhead and the second paragraph.

Politico sandwiched some of Freeman’s comments, 47 quoted words in ¶19, in-between two paragraphs — starting at ¶9 and in ¶24– quoting 49 words of Rudy’s comments.

A few minutes later, Giuliani stood outside the courthouse and declared, “I don’t regret a damn thing.”

The former mayor and federal prosecutor called the monetary award “absurd” and said he would appeal. He denied responsibility for the threats and harassment that Freeman and Moss received — including a bevy of unambiguously racist, violent messages — and said that he receives “comments like that every day.”

[snip]

“Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter — and held him accountable,” Freeman told reporters after the verdict was delivered. “We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable, too,” she said, without elaborating.

[snip]

But after the verdict on Friday, Giuliani offered a different reason for declining to take the stand: “I believe the judge was threatening me with the strong possibility that I’d be held in contempt or that I’d even be put in jail,” he said.

Giuliani didn’t repeat his false claims about Freeman and Moss Friday, but continued to air false claims that the 2020 election was stolen. “My country had a president imposed on it by fraud,” he declared.

Rather than mentioning Moss’ tribute to other civil servants, Politico focused closely on tensions between Rudy and his attorney, Joe Sibley.

Even though the reporters on this story, Kyle Cheney and Josh Gerstein, provide some of the best coverage of all things January 6, the story didn’t mention that by blowing off discovery in this case, Rudy may have tried to keep evidence hidden from Jack Smith.

Like the other outlets, NYT’s story led with an image of Rudy.

But it focused paragraphs two through four on the women.

Judge Beryl A. Howell of the Federal District Court in Washington had already ruled that Mr. Giuliani had defamed the two workers, Ruby Freeman and Shaye Moss. The jury had been asked to decide only on the amount of the damages.

The jury awarded Ms. Freeman and Ms. Moss a combined $75 million in punitive damages. It also ordered Mr. Giuliani to pay compensatory damages of $16.2 million to Ms. Freeman and $16.9 million to Ms. Moss, as well as $20 million to each of them for emotional suffering.

“Today’s a good day,” Ms. Freeman told reporters after the jury delivered its determination. But she added that no amount of money would give her and her daughter back what they lost in the abuse they suffered after Mr. Giuliani falsely accused them of manipulating the vote count.

Because of that early focus, the dead tree version of today’s paper got Freeman’s name — and her declaration that it was a good day — on page A1 three times.

It closed with Freeman’s promise of more.

“Our greatest wish is that no election worker or voter or school board member or anyone else ever experiences anything like what we went through,” she said.

And while this is a an artificial measure, this NYT story also managed to quote more of Freeman’s speech — 31 words — than Rudy’s — 28. While it quoted Rudy attacking the verdict and standing by his lies, it did not repeat his other lies.

As with all the others, this story didn’t consider whether Rudy was protecting himself criminally by withholding related information in discovery.

I get that these measures are totally artificial. I mean this as observation, not criticism.

I get that Rudy is the famous one, Rudy makes this a tale of downfall. Even bmaz made this about Rudy, not the women who faced him down, Ruby Freeman and Shaye Moss.

But I was really really struck by how, even in their vindication, the heroism of what these women did, the heroism of election workers refusing to be bullied, still wasn’t the focus.

Hunter Biden Accused Rudy Giuliani of Hacking His Data, Not Defamation

/58 Comments/in , , , /by

Ruby Freeman and Shaye Moss’ civil trial against Rudy Giuliani goes to trial tomorrow.

In a number of the scene setters for the trial, people are making claims like this:

In addition to his criminal charges, disbarment proceedings and the lawsuit brought by Freeman and Moss, Giuliani has been sued by various other individuals — including President Joe Biden’s son Hunter — who claim he spread false allegations about them in 2020.

Or this:

He and one of his lawyers are being sued by Hunter Biden for allegedly mishandling the presidential son’s laptop,

Hunter Biden is not suing Robert Costello and Rudy Giuliani for defamation. He’s not suing Robert Costello and Rudy Giuliani for mishandling “his laptop,” which (even if John Paul Mac Isaac and Rudy Giuliani have told the truth about everything) would never have been in Rudy’s possession.

Hunter Biden is suing the former President’s former personal lawyer and that lawyer’s former personal lawyer for hacking his data. Hunter Biden is suing Rudy for violating the criminal Computer Fraud and Abuse Act: for accessing a computer without authorization or exceeding authorized access.

41. Defendants have violated the CFAA, specifically section 1030(a)(2)(C) of
the CFAA, by intentionally accessing a computer without authorization or exceeding
authorized access, and thereby obtaining information from any protected computer
which, pursuant to the CFAA, is a computer used in or affecting interstate commerce
or communication.

42. Defendants have violated the CFAA, specifically section 1030(a)(4) of the
CFAA, by knowingly and with intent to defraud, accessing a protected computer
without authorization or exceeding authorized access, and by means of such conduct
furthering the intended fraud and obtaining one or more things of value.

We will have to wait to see whether he can prove that claim. But particularly given that Hunter has since been charged with 12 criminal charges by a US Attorney appointed by Trump, let’s be clear what the claim is.

Hunter Biden has accused Rudy Giuliani of violating the criminal hacking statute.

One reason people make this mistake all the time — on top of the non-stop Fox News propaganda about this — is they think of the laptop like this:

The laptop, as it was brought to John Paul Mac Isaac’s shop, is better thought of like this.

There were dick pics on the laptop (I’m using artistic license in my choice of dick pics).

There were emails, including emails hosted by Google and emails tied to Hunter Biden’s iCloud account. But the laptop also included on it the means to get into Hunter’s iCloud account and at least some of his Google accounts.

There were other digital keys on the laptop and probably enough bank data to get into financial accounts.

And there was the contents of an iPhone, stored in encrypted form. As I’ve described, I first went down this rabbit hole — the entire Hunter Biden rabbit hole — when I read Gary Shapley’s description that the FBI needed a password to access some of the content, the content from the phone, on what was an actual laptop. That’s when I realized that anyone who accessed the encrypted contents of that phone without a warrant might be at risk for CFAA charges.

Several of the people who’ve been offering up Hunter Biden data confess, openly, that they broke the encryption on that phone.

In other words, no matter how all that stuff got put onto Hunter’s laptop, and no matter how it got brought to John Paul Mac Isaac’s shop, and no matter whether JPMI was perfectly in his legal rights to take possession of the laptop itself — all things that are very much contested — the laptop included the means to get into other data, data hosted in the cloud, to which neither JPMI nor anyone else had authorized access.

And then the blind computer repair man, after having chosen to copy that hard drive that, contrary to his claims was a removable hard drive, by cutting and pasting it and reading it along the way, packaged that all up on a hard drive and sent it, without Hunter’s consent, to the then-President’s lawyer.

We don’t know what kind of hard drive JPMI used — he said he constructed his own, to make it untraceable.

Instead of buying external drives from a local store, where the purchase might be traced back to me, or online, which also could be traced and moreover might lead to damage in transit, I built my own.

It took about a week to collect all the pieces and clone the drive from the store’s backup server. In essence, I created a copy that was as close to the original drive as possible.

As I have shown, at a time when Rudy says he (or Robert Costello) were in possession of that hard drive that had on it means to access several of Hunter’s cloud accounts, an email Hunter sent in 2016 was resent, showing some alterations.

Hunter Biden is not accusing Rudy Giuliani of saying things about him that aren’t true. Hunter Biden is accusing Rudy Giuliani of accessing data — whether on a hard drive copied from a laptop or in the cloud — to which he did not have legal access.

DOJ Will Show that Trump’s Campaign Intended to Cause a Riot at TCF Center in Detroit

/45 Comments/in , /by

Jack Smith’s team has submitted a 404(b) notice — evidence that may not be intrinsic to the case but that describes Trump’s criminal propensity and helps prove his motive — in Trump’s DC case.

Along with providing examples where Trump continued to target someone (in this case Ruby Freeman) long after his prior targeting of her had resulted in threats and Trump’s celebration of insurrectionists like Enrique Tarrio, DOJ includes a heavily-redacted passage describing a Trump campaign employee’s attempt to cause a riot at the TCF Center, where election workers were counting the votes of Detroiters.

The Government also plans to introduce evidence of an effort undertaken by an agent (and unindicted co-conspirator) of the defendant who worked for his campaign (“the Campaign Employee”) to, immediately following the election, obstruct the vote count. On November 4, 2020, the Campaign Employee exchanged a series of text messages with an attorney supporting the Campaign’s election day operations at the TCF Center in Detroit, where votes were being counted; in the messages, the Campaign Employee encouraged rioting and other methods of obstruction when he learned that the vote count was trending in favor of the defendant’s opponent.

[seven lines redacted]

The Government will also show that around the time of these messages, an election official at the TCF Center observed that as Biden began to take the lead, a large number of untrained individuals flooded the TCF Center and began making illegitimate and aggressive challenges to the vote count. Thereafter, Trump made repeated false claims regarding election activities at the TCF Center, when in truth his agent was seeking to cause a riot to disrupt the count. This evidence is admissible to demonstrate that the defendant, his co-conspirators, and agents had knowledge that the defendant had lost the election, as well as their intent and motive to obstruct and overturn the legitimate results.

This is may be a reference to Mike Roman. Roman — Trump’s Director of Election Day Operations and a key ratfucker in other ways — posted a video falsely claiming that the challengers were being ejected improperly from the counting center.

According to the Election Integrity Project, Roman was also one of the most efficient spreaders of disinformation during the post-election period, wildly out of proportion to his number of Twitter followers (suggesting he had offline ways to help make things go viral).

Trump’s effort to make it harder to count the votes of Black voters has never gotten enough attention — not even though this specific tactic is a replay of Roger Stone’s Stop the Steal efforts in 2016, in some of the very same cities, as well as the Florida Brooks Brother’s riot. But it’s a key part of proving not just that Trump tried to throw out Joe Biden’s votes, but specifically the votes of Joe Biden’s Black supporters.

Willie Floyd’s Curiously Inactive Docket

/62 Comments/in , /by

You’ve no doubt been following the parade as one after another of Trump’s alleged co-conspirators in the Georgia case show up at the Fulton County Jail to be processed. Thus far, nine people have been processed, including three of Trump’s unindicted co-conspirators from his Federal indictment: Rudy Giuliani, John Eastman, and Sidney Powell.

Yesterday, Judge Steve Jones denied requests from Mark Meadows and Jeffrey Clark to avoid arrest in Georgia pending their bid to remove their cases to a federal court, so they’ll have to join the parade in the next day and a half, as well.

Trump himself is making a campaign event out of his processing this evening.

Thus far, none of the three people charged in conjunction with the Ruby Freeman coercion — Stephen Lee, Harrison William “Willie” Floyd, and Trevian Kutti –have been seen showing up (though, as noted, Scott Hall, who coordinated with them, has been booked, as has David Shafer).

That’s interesting given the strangely inactive Willie Floyd docket WaPo discovered in Maryland.

It seems that when two FBI agents went to Floyd’s house in Rockville, MD, on February 23 to serve a DC subpoena, Floyd — a former Marine and professional MMA fighter — went after one of them as the other recorded the incident.

16. Victim 1 and Victim 2 observed FLOYD running down the stairs after them. Victim 1 tells Victim 2, “Get ready,” as FLOYD rushed down the stairs at them screaming, “YOU FUCKING PIECE OF SHIT!” Victim 2 yells back in response, “Back up! Back up!” But FLOYD continued to rush toward Victim 1 and 2 and then ran straight into Victim 1 on the stair landing, striking him chest to chest. Victim 1 was knocked backward, and FLOYD continued rushing forward to close the gap, striking Victim 1 chest to chest again. FLOYD then put his face directly in Victim 1’s face, standing chest to chest, while screaming at Victim 1, including stating, “YOU HAVEN’T SHOWN ME A BADGE OR NOTHING. I HAVE A FUCKING DAUGHTER. WHO THE FUCK DO YOU THINK YOU ARE.” While doing so, FLOYD’s spit was flying into the face and mouth of Victim 1, and FLOYD was jabbing Victim 1 with a finger in Victim 1’s face.

17. Victim 1 remained still while FLOYD was bumping him chest to chest, striking him with his fmger, and screaming in his face. Victim 2 continued to yell at FLOYD to back up, while pulling back his suit coat jacket to display and place his hand on his firearm. Victim 2’s firearm was located on his right hip, directly behind where his FBI badge was clipped to his belt. Victim 2 observed FLOYD notice his firearm, and at that point FLOYD began to back up. Victim 2 yelled, “Back away!” FLOYD yelled back, “YOU BACK AWAY!” Victim 2 responds, “We are. We are backing away.” FLOYD screamed, “GET OUT! GET OUT!” Victim 2 responded, “We are, we’re backing up.” FLOYD then screamed, “I HAVEN’T SEEN ANYTHING, YOU HAVEN’T GIVEN ME ANYTHING. I DON’T KNOW WHO THE FUCK YOU ARE.” Victim 2 responded, “Happy to show you a credential, sir. We’re backing away, we’re leaving.” Victim 1 and Victim 2 then completed their descent down the stairs and exited the apartment building. [my emphasis]

Floyd then called the cops on the FBI, allowing the local cops to confirm that Floyd had been told by his mother-in-law, in advance, that the two FBI agents had shown FBI business cards, and that he had received the subpoena.

19. The Rockville City Police Department ( “RCPD”) went to the apartment as a burglary response. RCPD officers arrived and knocked on the door to FLOYD’s apartment. The interaction was recorded on body worn cameras. Visible on the ground in front of the apartment door is the Federal Grand Jury subpoena. FLOYD opens the door and speaks with the RCPD officers. FLOYD stated two men wearing suits aggressively approached him, followed him into his apartment building, and threw papers at him. FLOYD told the RCPD officers that his mother-in-law called him earlier in the day to report two men stopped by her house and wanted to speak with him, and FLOYD showed the photograph of the business cards to RCPD officers, and the business cards were the FBI business cards of Victim 1 and Victim 2. During that conversation, FLOYD refers to the subpoena on the floor and states, “I don’t know what that is, I’m not touching it, I’m not picking it up.” FLOYD claimed to the RCPD officers that Victim 1 and Victim 2 “touched me,” and that he felt he was being he was “pulled back,” like he was being grabbed by his feet while he was going up the stairs. FLOYD could not elaborate further. Victim 1 and Victim 2 reported that neither touched FLOYD as they walked up the stairs, which is corroborated by the audio documenting the footsteps and exchange between Victim 1, Victim 2, and FLOYD while they were going up the stairs. FLOYD also told the RCPD officers that after Victim 1 and Victim 2 followed him up the stairs, he slammed the door so he could go to the kitchen and “get a weapon.” FLOYD also stated that after he dropped his daughter off inside, he went back “to go after” Victim 1 and Victim 2, that “because I was in the Marine Corps, I gotta go fight two guys,” and that “I turned around to make sure they don’t come back.” FLOYD falsely stated that the agents “never introduced themselves” and that he “didn’t know if they were reporters.” In addition, FLOYD stated that when he saw Victim 2’s firearm, he “almost went for it.” [my emphasis]

Floyd was arrested locally that night, and arrested on a single Federal assault charge on May 15.

Since then — 101 days ago — almost nothing has happened in that Maryland docket. There’s no sign of an indictment on the assault charges against him, which under the Speedy Trial Act DOJ would have had to do within 30 days. There’s no sign of a trial, which — absent some continuance — DOJ would have had to do within 70 days.

That either means DOJ has simply forgotten a guy who assaulted two FBI agents when they came to serve a subpoena or there’s a bunch of sealed activity going on, either in MD or DC.

Given how justifiably touchy FBI agents are about being assaulted when they try to serve a subpoena, I’d say the former is vanishingly unlikely (though DOJ has lost track of three January 6 defendants, resulting in dropped charges for two and a dropped conspiracy indictment for the other).

So it’s highly likely something is going on.

We just can’t see it.

And that’s instructive. As I’ve noted, the treatment of Ruby Freeman and Shaye Moss in Trump’s DC indictment is circumspect, focused on Rudy’s lies about them — which is charged in count 7 of the Georgia indictment — but making no mention of an orchestrated campaign against Freeman, starting just days later.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

“The two election workers received numerous death threats.”

We can be reasonably certain that in the 2.5 months between the assault and the federal arrest, and the 2.5 months between the arrest and Trump’s indictment, Jack Smith came to understand that some of those death threats were not organic. Heck, we can be sure Smith — and the prosecutors working the case even earlier — knew a great deal of that in February, because the FBI warned Freeman she was in danger.

It’s yet another indication of the way that the Trump indictment, which already clocks in at 45 pages, is a tailored document designed to get him to trial quickly, possibly also designed to protect various areas of the investigation that would be beyond the scope of required discovery.

Unless I’m missing it, none of the people involved in the Ruby Freeman campaign are identified in Trump’s DC indictment — not Floyd, who had worked for the campaign, not Kanye’s former publicist, not the right wing minister, not David Bossie’s brother-in-law, not the Georgia lawyer working for the campaign. Not even David Shafer, then Chair of the GA GOP, who orchestrated the fake electors from the state side (with the exception of Ronna McDaniel, the indictment focuses on government officials in the swing states, not party operatives).

Jack Smith could, if he wanted, include the Ruby Freeman campaign at trial to substantiate that one line — “the two election workers received numerous death threats” — presenting the entire network of people who shared the same goal and acted as agents of Donald Trump’s plan who exploited those death threats. But he doesn’t have to. He only has to demonstrate how the people responsible for implementing the larger plan interacted directly with Trump.

The Guts of the Alleged Conspiracy: Scott Hall

/139 Comments/in , , /by

Much of the attention on Georgia’s processing of Trump’s co-conspirators in advance of the former President’s glorious fourth arrest on Thursday has been focused on the high profile perps: John Eastman turned himself in and issued a statement repeating his conspiracy theories, all so he could return in timely fashion to California for further disbarment hearings. Fani Willis informed Mark Meadows’ lawyers, “Your client is no different than any other criminal defendant in this jurisdiction.” Jeffrey Clark based his request for an emergency stay of his self-reporting in Fulton County on the risk that, “Mr. Clark [would be] required to book a flight to Georgia under such extreme time pressure.”

Another charged co-conspirator turned himself in yesterday as well, one whose role continues to be understated: Scott Hall, a Georgia bail bondsman.

In the indictment, Hall is charged just in the RICO charge and the Coffee County tabulator conspiracies.

But he allegedly played a much more sustained role in the conspiracy, including in one way that has escaped much notice.

David Bossie’s brother-in-law’s conspiracies about the Georgia vote count

As Anna Bower describes in a superb chronicle of the Coffee County plot, after an initial hearing in Georgia, Hall reached out to Lin Wood with allegations of impropriety.

Hall, like Latham, believed that something nefarious had gone on in Georgia during the election. On Nov. 17, as Trump’s legal team prepared litigation in Georgia, Hall and his wife, Robin, reached out to [Lin] Wood, claiming that they had “proof” of voter fraud in Fulton County. “We watched them count boxes of mail-in votes that were 100% Biden and 0% Trump,” Robin wrote in an email to Wood obtained by Lawfare.

On the same day, an attorney named Carlos Silva sent an email to Wood and other lawyers working on Georgia election matters. “Just had a long conversation with Scott Hall,” Silva wrote in an email obtained by Lawfare. “He seems very knowledgeable when it comes to algorithms and other material information that he has on the Dominion voting system that was used in this election. He also has personal knowledge of the fraud that took place and is providing an affidavit.” In another email obtained by Lawfare, Silva wrote to Wood and others that he intended to meet Hall the next morning at the office of Ray Smith, an attorney also charged in the indictment for alleged crimes related to statements he made at Georgia legislative hearings.

Later that evening, Hall’s affidavit was filed as a part of a suit, Wood v. Raffensperger, which sought to halt certification of the presidential election in Georgia. In his sworn statement, Hall alleged that he had personally observed ballots that “appeared to be pre-printed with the selections already made.” “Hundreds of ballots at a time were counted for Biden only,” he wrote.

On November 20, then Georgia GOP Chair and now charged co-conspirator, David Shafer, asked Trump campaign worker Robert Sinners (known to be cooperating in investigations and described as co-conspirator 4 in the indictment) to help Hall chase down the names of absentee voters.

Scott Hall has been looking into the election on behalf of the President at the request of David Bossie.

David Bossie, of course, helped Trump win the 2016 election and has all sorts of ties to Republican rat-fuckery. Hall is reportedly Bossie’s brother-in-law.

Scott Hall ties Jeffrey Clark to Georgia

By January 2, Hall was coordinating with Jeffrey Clark. They spoke for over an hour on January 2.

On or about the 2nd day of January 2021, SCOTT GRAHAM HALL, a Georgia bail bondsman, placed a telephone call to JEFFREY BOSSERT CLARK and discussed the November 3, 2020, presidential election in Georgia. The telephone call was 63 minutes in duration.

By order in the indictment, this call precedes Clark’s renewed effort to get his superiors at DOJ to write a letter to Georgia about “significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia,” suggesting that Hall’s allegations were one thing that triggered renewed pressure on Jeffrey Rosen and Richard Donoghue, which would lead in turn to the confrontation at the White House on January 3.

Today at 3PM, Fani Willis will have to respond in both the Meadows and Clark motions for removal, to explain why both men should have to come to Georgia and turn themselves in before their efforts to remove the proceedings. One challenge Clark has already raised is that he doesn’t have enough ties to Georgia to be prosecuted there.

Mr. Clark also possesses a substantial defense based on insufficient contacts with the State of Georgia to permit the assertion of personal jurisdiction over him under the Due Process Clause of the Fourteenth Amendment. We reserve that defense, however, for presentation by separate motion at the appropriate time.

Indeed, one reason he doesn’t want to turn himself in is to prevent Willis from “making the argument that he has voluntarily accepted that he is subject to the criminal jurisdiction of Fulton County, which Mr. Clark decidedly does not accept).”

Like Meadows’ bid, Clark’s bid to remove his prosecution is not frivolous, particularly given that (unlike Meadows) he is not alleged to have gone to Georgia during this period. Both Jack Smith and Fani Willis will have a challenge explaining why efforts Clark made on Trump’s orders were not part of his job, explaining why Trump’s choice to bypass DOJ contact guidelines to leverage Clark against his superiors at DOJ is proof of a conspiracy rather than just executive prerogative.

So this call with Hall, the content of which Willis may not know, could be a key part of proving jurisdiction over Clark.

The call between Clark and Hall also precedes, at least by order in the indictment, Trump’s call to Brad Raffensperger the same day.

David Bossie’s brother-in-law coordinates with the pressure campaign on Ruby Freeman

The part of the Georgia indictment that has largely escaped notice, however, is that Scott Hall also had a tie to the pressure campaign on Ruby Freeman.

You’ll recall there were several attempts to pressure Freeman into lying about fraud in Fulton County. In the first, minister Stephen Lee, traveled to her home on both December 14 and 15, in the guise of helping her, in an attempt to get her to admit to fraud that didn’t occur. Those efforts are charged as counts 20 and 21 of the indictment.

Lee coordinated on a second effort with Black Voices for Trump operative Harrison Floyd and Trevian Kutti, Kanye’s former publicist. Kutti met with Freeman, again feigning an attempt to protect her, and allegedly tried to get her to confess to fraud. Those efforts are charged as counts 30 and 31 of the indictment.

As described in the RICO conspiracy, that second effort started shortly after Lee’s first failed attempt, when he recruited Floyd, believing a Black man could win the trust of Freeman. On January 3, Floyd makes ten calls or texts, including several failed efforts to speak to Freeman. One of those calls is to unindicted co-conspirator 23, who may be the sole witness to the topic of these contacts.

The next day, Kutti traveled to Atlanta, reached out to Freeman, and ultimately met with her for an hour in a Cobb County police station (with Floyd calling in on the phone), offering her protection but still attempting to get her to confess to fraud.

According to public reports, Kutti told Freeman that people would come to her home in 48 hours if she didn’t confess.

According to the indictment, Ms Freeman met the publicist at a Cobb County Police Department precinct on 4 January 2021.

During the meeting, Ms Kutti allegedly asked Ms Freeman to confess to voter fraud and told her she was “in danger”.

Ms Kutti allegedly also warned people would come to Ms Freeman’s home in 48 hours if she didn’t confess.

On that day, Floyd seemingly reports in about all this to Shafer, the GOP Chair, at 8:10PM.

The day after Floyd seemingly checks in with Shafer, Robert Cheeley — a Georgia lawyer charged in the conspiracy count and on Trump’s side of the fake electors plot (Shafer is charged on the Georgia side) and Hall get involved with the Ruby Freeman plotters.

Act 127 of the RICO charge describes the following calls that it suggests (presumably based off testimony from CC23) are all connected:

  • 11:32AM: Lee calls Kutti
  • 12:14PM: The three Ruby Freeman plotters have a four-way call with CC23
  • 12:19PM: Hall calls Cheeley
  • 12:34PM: Hall calls Cheeley
  • 1:07PM: Cheeley calls Hall
  • 1:09PM: Cheeley calls Hall
  • 2:30PM: Cheeley calls Floyd
  • 2:45PM: Floyd calls Cheeley
  • 3:59PM: Cheeley calls Hall
  • 4:42PM: Lee calls Cheeley
  • 4:50PM: Lee calls Floyd
  • 5:05PM: Lee calls Floyd
  • 7:19PM: Kutti calls Cheeley
  • 7:48PM: Cheeley calls Kutti
  • 8:27PM: Cheeley calls Kutti
  • 8:49PM: Cheeley calls Lee
  • 9:18PM: Hall calls Cheeley
  • 9:31PM: Kutti calls Cheeley
  • 10:14PM: Cheeley calls Lee
  • 11:16PM: Cheeley calls Kutti
  • 11:25PM: Hall calls Cheeley
  • 11:35PM: Cheeley, Kutti, and Hall have a call
  • 12:09AM: Kutti calls Cheeley

On January 4, Kutti allegedly told Freeman that people would be coming to her house in 48 hours if she didn’t confess to fraud (that didn’t occur).

Then, for over 12 hours on January 5, extending past the period when, in DC, Trump was riling up his mob and targeting Pence, Cheeley, Hall, and the charged Ruby Freeman conspirators exchange a series of over twenty calls.

Less than a day later, as Bowers lays out, Hall was focusing his attention on obtaining the code from the Coffee County election hardware.

At 4:17 p.m. on Jan. 6, 2021, the president of the United States belatedly tweeted out his video message to the mob that had forcibly disrupted the counting of electoral votes. “You have to go home now,” he finally said.

But even as Giuliani was keeping up pressure on senators to “slow it down,” Coffee County officials were undeterred.

Nine minutes after the president’s tweet, at 4:26 p.m. that afternoon, Hampton sent a text to Chaney: “Scott Hall is on the phone with Cathy about wanting to come scan our ballots from the general election like we talked about the other day,” she wrote.

The next morning, on Jan. 7, Latham texted Hampton to tell her that the SullivanStrickler forensics team had departed Atlanta and were on their way to Coffee County. Hall, she added, was flying in, too. “Yay!!!!” Hampton responded. These events are also mentioned in Acts 142-143 of Count 1 of the Fulton County indictment.

The Ruby Freeman pressure campaign has often been described as a separate track of the RICO conspiracy — first the fake electors, then the effort to dupe Freeman into confessing to fraud, and finally the effort to seize the Dominion data. But between Shafer, Cheeley, and Hall, they all overlap on those series of calls on January 4 and 5, with Shafer and Cheeley playing central roles in the fake elector plot and Hall playing a central role in the Coffee County plot.

So while we’re all awaiting the next mugshot of a high profile charged co-conspirator, the key to understanding how all these strands fit together may lie with the lower profile Georgia bail bondsman, released yesterday on bail himself.

Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

/203 Comments/in , , /by

The Georgia indictment and Trump’s federal indictment tell the same story. But those stories have some key differences, that will create an interesting prisoner’s dilemma for those involved. The different exposure of Sidney Powell in both and the different treatment of Ruby Freeman show how they’re different.

Sidney Powell’s lawsuits and alleged hacking

The last overt act described in the federal indictment against Donald Trump describes how, at 3:41AM, Mike Pence certified the election for Joe Biden.

123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.

But two of the charged conspiracies — the 18 USC 371 conspiracy to defraud the US and the 18 USC 241 conspiracy against rights — go through January 20. Since they are charged as conspiracies, anything Trump’s co-conspirators said and did after January 6 can also be used to prove the case against Trump.

That’s particularly notable for Trump’s Crazy Kraken Conspirator, Sidney Powell. As noted, the only overt act of hers described in Trump’s federal indictment has to do with her lawsuits targeting Dominion.

Those lawsuits don’t figure in the Georgia indictment at all — not even the November 25 one against Georgia explicitly described in the federal indictment. Instead, Powell’s primary criminal exposure in the Georgia indictment has to do with her conspiracy to get access to Dominion data from Coffee County, a conspiracy that — the Georgia indictment alleges — started on December 1, continued through their access of the data on January 7, after which the data continued to be exploited until at least April. Powell’s larger effort to exploit Dominion data, even that obtained in Michigan, plays a part in the RICO conspiracy.

In the federal case, Powell’s lawsuits serve both to justify backstopping of the electoral certification (meaning, you had to have lawsuits to justify having fake electors) and to prove that Trump was magnifying fraud claims from someone — Powell — everyone openly labeled as batshit. If and when Jack Smith ever adds charges — against Powell, Trump, or his PAC — for fraudulent fundraising, his embrace of claims sourced to Powell will be important to prove he knew he was lying in his fundraising.

In the Georgia case, by contrast, she is charged with outright conspiracy to illegally access computers and election fraud associated with accessing the Dominion data.

The overall arc of the conspiracies is the same; the criminal exposure is radically different.

Death threats and interstate entrapment efforts

Paragraph 26 of the federal indictment describes how Rudy Giuliani lied in a Georgia hearing, including but not limited to about Ruby Freeman and Shaye Moss, which resulted in death threats.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

Prosecutors are well aware of the import of Trump’s bullying — they made it part of their bid for a protective order. But, probably in an effort to stave off any real claim about charging First Amendment protected speech, such bullying is not charged, not even Trump’s targeting of Mike Pence.

The Georgia indictment, as Rick Hasen also notes, focuses much more on crimes targeting Freeman and Moss.

Rudy is charged for the lies he told on December 10 in Count 7. He and Ray Stallings are charged with soliciting Georgia Representatives to violate their oaths in Count 6.

But in addition to that, Lutheran minister Steve Lee is charged with two counts for trying to trick Freeman, once on December 14 and again on December 15, into confessing to voter fraud that didn’t happen. And he is charged along with Kanye’s publicist, Trevian Kutti, and Black Votes for Trump official Harrison Floyd with another attempt to get her to confess to voter fraud on January 4 and an attempt to get her to lie to the state.

These are alleged crimes that arise from Freeman’s status as a Fulton County election worker and as such are properly the concern of Fani Willis, not Jack Smith.

All of which is to say that even though both the RICO charge and Trump’s conspiracies map the same conduct, they tie to different crimes, with different kinds of exposure for different people.

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

In other words, if people who are likely to be indicted by Jack Smith think the charges in Georgia are at all serious, they may flip sooner rather than later, which will likely lead them to cooperate in the DC case as well.

There’s a reason why prisoner’s dilemma is the basis for so much game theory. The way these two competing indictments intersect may rewrite that doctrine, something called Trump defendant dilemma.

Then consider the timing. Later this month — potentially on August 28, three days after all Willis defendants have to turn themselves in — Jack Smith’s prosecutors will fight for a January 2 trial date, which is ambitious. Last night, Fani Willis said she wanted to bring all 19 defendants to trial within 6 months, which would be late February or March.

Even if one or both of those dates would hold, it might require Alvin Bragg be willing to reschedule his own trial on the hush payment cover-up.

But if even just one of these trials goes forward on such an ambitious schedule, it would mean that this Trump defendant dilemma will be playing out even as GOP primary voters go to the polls.

The Bubble Three

One of the most interesting other ways the Georgia indictment and the federal one will interact is in how the three men on the bubble — Mike Roman, Boris Epshteyn, and Mark Meadows — respond. While we’re not yet sure whether Boris or Roman is CC6 in the federal indictment, there’s more support right now for it being Boris. Both men had their phones seized by DOJ in September. Both men sat (or said they’d sit) for proffers with Jack Smith’s team; neither has been (publicly) charged by DOJ yet.

Roman is charged in the Georgia indictment, both with the RICO charge and the Trump side of each of the fake elector charges. He’s the guy who was interacting directly with people in Georgia (and with CC4, Robert Sinners, who cooperated even with the January 6 Committee). If Roman actually did start cooperating with Jack Smith’s team, there’d be no down-side to doing so with Willis’ team, either.

Boris, by contrast, is almost certainly CC3; Act 109, describing a Chesebro email to Eastman and CC3 matches this passage from the January 6 Report.

By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that thereare two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”122

So Boris is not facing the charges that can’t be pardoned but may he facing the charges that can be.

Finally, there is Meadows. The slim exposure for Meadows in this indictment — he is charged in the RICO charge and the solicitation charge tied to the Raffensperger call — may explain why he was not listed as a co-conspirator, yet, for the Jack Smith indictment. The most damning acts attributed to him in the indictment were:

  • Sometime in December: Meeting with Johnny McEntee and asking him for a plan to throw out half the electoral votes in some states
  • December 22: Unsuccessfully attempting to enter the audit site in Georgia
  • December 27: Offering Trump campaign funds if it would help get signature verification done by January 6

Other than that, Meadows’ actions entail setting up phone calls on which Trump lied and solicited unlawful acts. Meadows has a superb lawyer and might try his luck with these charges.

If any of these men cooperated — if any already is (though I really think Meadows is not) — then it would provide both prosecutors a pivotal person in the conspiracies (and, in Boris’ case, the stolen documents conspiracy as well).

As I said above, the interaction of these two indictments, along with the uncertainty as Jack Smith continues to investigate, creates a fierce game of prisoner’s dilemma. And that’s before Smith charges any financial crimes tied to fraudulent fundraising.

Update: Meadows has moved to remove the charges against him to federal court — a move he may have more success doing than Trump.

Trump’s Means of Bullying and His Co-Conspirator Volunteer Lawyers

/88 Comments/in , /by

There were three developments in the dispute over the protective order in Trump’s January 6 indictment yesterday.

Trump’s team filed their response to Judge Tanya Chutkan’s order and the government’s motion for a protective order, including not just a redline of the government’s proposed protective order, but also a rant claiming that Dark Brandon made public comments about Trump’s indictment he did not.

The government’s reply used John Lauro’s five Sunday show appearances to demonstrate that Trump is explicitly demanding to try this case in the public sphere rather than the courtroom.

Then Judge Chutkan issued an order that they find time for a hearing on this this week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the government’s 10 Motion for Protective Order and Defendant’s 14 Response, as well as the government’s 15 Reply, the court will schedule a hearing on the parties’ respective proposals. The court will waive the requirement of Defendant’s appearance. Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023, the parties shall meet and confer and file a joint notice of two dates and times on or before August 11, 2023 when both parties are available for a hearing. Signed by Judge Tanya S. Chutkan on 08/07/2023.

Both linked filings are worth reading, but I want to focus on two minor details in the government’s filing.

The method of Trump’s bullying madness

The government pitches their argument as one of regular order, about trying the case in the courtroom rather than the public. It is about John Lauro’s stated goals, not Donald John Trump’s.

The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.

[snip]

Defense counsel’s stated goal—to publicly disseminate and discuss discovery materials in the public sphere—is contrary to the general principle against pretrial publicity and inconsistent with this District’s local rule regarding conduct of attorneys in criminal cases, and the Court should not enter a protective order that permits such harmful extra-judicial publicity. As an initial matter, the Court can and should exercise its discretion, with respect to the protective order, to prevent dissemination of discovery material that could prejudice the jury. Accord Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”); United States v. Brown, 218 F.3d 415, 423 n.8 (5th Cir. 2000) (“Other principal dangers [of pretrial publicity] include disseminating to the press inadmissible evidence, the exclusion of which at trial ‘is rendered meaningless when news media make it available to the public,’ as well as creating a ‘carnival atmosphere,’ which threatens the integrity of the proceeding.” (quoting Shepherd v. Maxwell, 384 U.S. 333 (1966)).

This District’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he identity, testimony, or credibility of prospective witnesses.” This is because such statements risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“Because lawyers have special access to information, through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”). The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. See Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). The goal of the defendant’s proposed protective order—prejudicial publicity—is antithetical to the interests of justice.

[snip]

The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings. The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.

As many people have noted, however, as an aside to the description of Lauro’s press blitz over the weekend, the government included this reference to Trump’s attack on Mike Pence.

1 The defendant himself has made a number of additional social media posts related to this case since the Government filed its motion for a protective order. For example, the day before his counsel made comments about Mr. Pence, the defendant posted the following to social media: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!”

Nevertheless, the government doesn’t address whether this tweet violates Trump’s release condition, which would prohibit him from talking to Mike Pence about the case.

Given the inclusion of that tweet, though, I’m more interested in this note addressing one of Trump’s requested changes. It describes why Trump’s lawyers should have to inspect Trump’s own notes of discovery to make sure he’s not taking notes about specific witnesses.

In paragraph 10, the defendant seeks to prohibit his counsel from confirming that his notes do not contain personally identifying information subject to Federal Rule of Criminal Procedure 49.1. But this condition—which is included in the protective order on which the defense claims to model its proposal—is particularly important here because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals. See, e.g., ECF No. 1, Indictment, at ¶¶ 26, 32, 42, 44, 97.

DOJ justifies having Trump’s lawyers babysit his own note-taking because of “the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.”

It then cites as examples the following paragraphs of the indictment:

  • The death threats that followed Rudy Giuliani’s baseless accusations against Ruby Freeman and Shaye Moss.
  • Trump’s accusation that Brad Raffensperger “has no clue” after he refused to find Trump 11,780 votes.
  • The death threats that followed Trump’s public attack on Al Schmidt.
  • Trump’s retweet of a tweet attacking PA GOP legislative leaders for stating that they could not throw out the popular vote in PA.
  • In response to Mike Pence telling Trump he would not throw out the vote certification, Trump telling Pence he would have to publicly criticize him.

It’s the last one I find so interesting. DOJ does not cite the various tweets Trump sent on January 6 or the revisions addressed to Pence Trump made sure to include in his Ellipse speech — comments that led directly to death threats targeted against Pence. Rather, DOJ pointed to what must rely on Pence’s testimony, of Trump telling Pence he would send those tweets and make those public comments.

Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

Trump’s non-attorney of record consigliere

Another specific objection — one of several objections to Trump’s attempts to expand the circle of people with whom he can share discovery — pertains to the definition of lawyers permitted to obtain discovery. In a wildly pregnant comment, DOJ notes that “several” co-conspirators are IDed as attorneys.

In paragraph 2, the defendant proposes including “other attorneys assisting counsel of record.” Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

In fact, four people are identified as attorneys in the indictment’s description of them: Rudy, John Eastman, Sidney Powell, and Kenneth Chesebro.

This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney (perhaps because, while undoubtedly an attorney, he never had an attorney-client relationship with Trump during the conspiracy). Though he is obviously an attorney.

And then there is co-conspirator 6, described in the indictment as a political consultant and so someone who could be either Mike Roman (who does not have a JD) or Boris Epshteyn (who does). One reason it is not confirmed which of these two men it was is both were closely involved in the December recruitment of fake electors, the indictment’s primary focus on CC6’s activities. (The one other overt act was to help Rudy chase down contact information for Senators on January 6.)

As it happens, though, Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.