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The Various Kinds of Georgia Crimes in the RICO Indictment

August 15, 2023/161 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

There’s so much good reporting out of Georgia that I’m going to mostly leave close coverage of the Georgia case to them going forward.

But the Georgia prosecution will interact with Jack Smith’s ongoing investigation in interesting ways. To explain how, I want to first show that the indictment is, fundamentally, about protecting the integrity of Georgia’s government and elections. To see that, it helps to read counts 2 through 41 before reading the RICO charge, which is laid out in 70 pages describing 161 overt acts, many of which took place outside of Georgia.

Those counts fall into the following groups:

Lies to and solicitation of Georgia officials

Count 2 though Count 7: False claims and illegal requests made, many by Rudy Giuliani, before the fake electors scheme. These were lies told to official bodies of Georgia state government, and charging them is an attempt to prevent corruption in state government.

Count 23 through Count 26 charge Rudy, Ray Smith, and Robert Cheeley with false claims and solicitations on December 30 — similar in structure and purpose to Counts 2 through 7.

Count 28 charges both Trump and Mark Meadows for the January 2 call to Brad Raffensperger. Count 29 charges Trump for the lies he told during the call.

Counts 38 and 39 charge Trump with lies and solicitations of Brad Raffensperger on September 17, 2021.

Fake electors

Count 8 through Count 19: These are a series of six paired charges tied to various kinds of fraud involved with the fake electors. In each pair, the first count charges David Shafer, Shawn Still, and Cathleen Latham for doing the fraudulent thing, and the second count charges Trump, Rudy, John Eastman, Ken Chesebro, Ray Smith, Robert Cheeley, and Mike Roman with soliciting the fraudulent thing. They’re a near parallel to the Michigan charges against the fake electors, except that in Georgia only the three most culpable fake electors are charged, and there’s a mirror charge for Trump’s side of the conspiracy.

Attempts to entrap Ruby Freeman

Counts 20 and 21 and : These charge two efforts to defraud Ruby Freeman by offering her help when in fact they were an attempt to entrap her.

Count 30 and Count 31 charge aspects of a plot to get Kanye’s publicist to travel from Illinois to Georgia to entrap Ruby Freeman into making false claims.

Lies about Georgia

Count 22 charges Jeffrey Clark for his attempts to get DOJ to claim the Georgia election was fraudulent.

Count 27 charges Trump and Eastman with lying about Georgia’s results in a lawsuit.

Tampering with Coffee County tabulators

Count 32 through Count 37 charge Sidney Powell, Latham, and two others for tampering with the Coffee County vote tabulators. Again, this has a parallel in the Michigan charges against Matt DePerno and two others.

Lies during the investigation

Count 40 charges David Shafer with false statements told during the investigation.

Count 41 charges Robert Cheeley with perjury for false claims made during the investigation.

As I understand it, these are the charges on which the RICO conspiracy is built. The RICO conspiracy gives prosecutors additional tools and penalties with which to prosecute this (similar to the conspiracy law charged at the federal level). But ultimately it is built on a series of crimes charged to protect the integrity of Georgia’s government. They stand for the principle that you can’t simply come into Georgia and lie and defraud in an attempt to get state officials to violate their oaths of office.

Update: Corrected spelling of Cheeley’s last name.

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

August 9, 2023/86 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

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

August 8, 2023/88 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

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.

The Elements of Offense in the Trump January 6 Indictment

August 3, 2023/163 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In the last day, Maggie and Mike and Devlin and Dawsey came out with twin pieces that purport to assess the legal strength of the indictment against Trump, but instead simply say, “well, Trump believes his bullshit and so do we and so the charged conduct may be First Amendment protected.”

Neither of these articles even mention that 18 USC 371, conspiracy to defraud the US, is about lying to the US, even though one of the lawyers cited by WaPo attempted to explain that to them.

Here’s why all those claims that Trump knew he was lying are in the indictment: because his false claims were the means Trump used to carry out the conspiracy to defraud.

The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:

This indictment will be measured not by what Maggie and Mike and Devlin and Dawsey claim about legal statutes they haven’t bothered to explain.

It will be measured by whether the government presents evidence to prove the elements of offense for each charge beyond a reasonable doubt.

Here, in abbreviated form, is what the elements of the offense are for the four charged crimes, which is what the jury will be given to judge the former President’s crimes. DOJ will need to prove that Trump entered into three parallel conspiracies with his alleged co-conspirators, then show that they attempted to:

Use deceit to undermine the Electoral College Act
Prevent the certification of the Electoral votes on January 6
Prevent the Biden voters votes in swing states from being counted

Conspiracy

Trump is charged with conspiring with six people: Rudy Giuliani (CC1), John Eastman (CC2), Sidney Powell (CC3), Jeffrey Clark (CC4), Kenneth Chesebro (CC5), and either Boris Epshteyn or Mike Roman (CC6). DOJ did this because to prove the case against Trump, it plans to introduce the words and actions of each of these six people as co-conspirators. To admit that as evidence, DOJ will need to convince Judge Tanya Chutkan that Trump entered into an agreement with each of them to carry out the goal of each of three conspiracies, which are:

18 USC 371: The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified. The government function Trump is accused of seeking to thwart with all his lying is the Electoral Count Act, the means by which the government ascertains the winners of each state’s electoral college votes.
18 USC 1512(k): The purpose of the conspiracy was to corruptly obstruct the vote certification on January 6.
18 USC 241: The purpose of the conspiracy was to prevent people’s votes from being counted, probably best defined as the Biden voters whose votes made him the winner of swing states, with Georgia, Michigan, Nevada, Pennsylvania, and Arizona mentioned explicitly.

The government doesn’t have to prove that all seven of these people sat in a room and made an agreement on November 14, the day after Trump’s campaign conceded Arizona, which is when the alleged conspiracies began. Nor does it have to prove they entered into an explicit agreement. They just need to prove that each of these people agreed to pursue the goal of each conspiracy.

The kinds of things the government will use to prove the co-conspirators joined this conspiracy are:

Rudy: The government will show that on November 14, Rudy took over Trump’s efforts to contest the vote (remember that DOJ subpoenaed whatever legal arrangement he had with Trump, but note that Special Master Barbara Jones appears to have found none of Rudy’s post-election plotting to be privileged). It will show that, acting on Trump’s instructions, Rudy repeatedly contacted both state officials and members of Congress to assert fraud that even he admitted he had no evidence for. “We don’t have the evidence, but we have lots of theories.” It will show that Trump repeatedly publicly ratified Rudy’s lies, often by Tweeting the claims Rudy made, and often by pushing them both with state officials he was personally trying to pressure, but also with US government officials, including DOJ.

John Eastman: The government will show that as Trump tried to find some justification for stealing the election, he turned to Eastman to give it legal cover. It will point to things like the Georgia lawsuit certification Trump signed on December 31 that Eastman acknowledged included false data. It will show Eastman’s calls in support of fake electors. It will rely heavily on the meetings Eastman personally attended in the days leading up to January 6. It will show that Trump decided, after being told repeatedly that Mike Pence wouldn’t throw out the votes, to have Eastman (as well as Rudy) speak at the Ellipse rally.

Sidney Powell: As I noted in this post, the role of Powell as alleged in the conspiracy is actually quite narrow. The indictment shows that on November 16, Trump asked Powell and others to use the Dominion voting machine allegations in lawsuits, and starting on November 25, she did so. Trump ratified her actions, even though Rudy had publicly split from her, on Twitter. One of the lies the indictment claims Trump knowingly told — in addition to very specific lies about swing states he repeated in his Ellipse speech — pertains to the voting machines, and to prove that lie, the government will show Trump knew Powell was batshit crazy but didn’t care.

Jeffrey Clark: The government will show that, starting on December 22, after Bill Barr, Jeffrey Rosen, and Richard Donoghue all debunked Trump’s false claims, Clark had secret communications with Trump that violated DOJ’s contact policy. As a result of those secret communications, Clark drafted a letter he attempted to coerce Rosen and others to sign, endorsing the fake elector scheme. Trump endorsed his actions by attempting to (and briefly at least, in fact replacing) Rosen with Clark so Clark could, “use the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.”

Kenneth Chesebro: The government will show that, acting at the direction of people acting for Trump, Chesebro wrote a series of increasingly radical memos laying out how each swing state ascertained electors and describing how fake electors could attempt to comply with those laws, even while acknowledging that in several states they couldn’t meet the legal requirements. (Here’s the J6C Report on the memos.) The government will show that Chesebro entered into the conspiracy via communications with Rudy and, later, Eastman, not directly with Trump.

Co-Conspirator 6: It’s not yet certain whether CC6 is Boris Epshteyn or Mike Roman. Whoever it is, DOJ will show that CC6 played a key role in recruiting people to implement the fake elector scheme and then was involved in Rudy’s attempts to persuade members of Congress to reject the swing state electoral certificates.

Conspiracy to Defraud the United States

Assuming DOJ can convince Judge Chutkan that each of these people entered into a conspiracy with Trump, it will then use his own actions and theirs to prove the elements of offense for each of the charged conspiracies.

For 18 USC 371, the government needs to prove that Trump and his co-conspirators attempted to use deceit to pretend that Trump had won 306 electoral college votes, rather than Joe Biden. This statute is why the discussion of all the lying is in there.

Notably, assuming Chutkan agrees these are all co-conspirators, DOJ won’t have to rely entirely on Trump’s lies. They’ll also rely on:

Rudy’s admission to Rusty Bowers they had no evidence to back their claims
Eastman’s admission to Mike Pence his claims about ECA were untested, and his admission to Greg Jacob that SCOTUS would reject them
Trump’s description of Sidney Powell’s claims as crazy
Jeffrey Clark’s attempts to deceive his bosses about what he was doing with Trump
Kenneth Chesebro’s admission that the fake electors in several states could not comply with the law

As I have laid out, DOJ has set up 5 specific lies that Trump recycled in his Ellipse speech after having them repeatedly debunked by Republicans, along with the voting machine lies Sidney Powell told. They have also laid out that Trump lied about what Pence had just told him (and there are contemporary witnesses that it happened before Trump made his false claims about Pence).

Even if jurors believed Trump believed his own bullshit about some or all of the claims about fraudulent votes, DOJ would still have Trump’s lies about Dominion voting machines and Pence to prove that he knowingly defrauded the US.

Obstruction of the Vote Certification

As I have repeatedly noted, for both obstruction counts (charged as a conspiracy and against Trump alone), dozens of other January 6 defendants have already tried the defense that Maggie and Mike and Devlin and Dawsey present (and not for the first time by Maggie and Mike) as if Trump would be making it for the first time.

It didn’t work. I will link, once again, Royce Lamberth’s recent findings of fact in the Alan Hostetter case in the futile hope that Maggie and Mike and Devlin and Dawsey might decide to learn how this statute has already been applied in hundreds of January 6 cases.

To prove that Trump (and his co-conspirators for the 1512(k) charge) obstructed the vote certification, DOJ will need to:

Prove that Trump knew the significance of the vote certification (possibly both the December 14 and January 6 ones). DOJ will point to both the effort to get fake elector certificates created on December 14, and Trump’s publicity of January 6 and his repeated public claims that unless Pence intervened, he wouldn’t be President anymore.
Prove that Trump took steps to obstruct the certification of the votes. DOJ will point to the pressure on Mike Pence, both covertly in meetings leading up to January 6 and overtly after Pence told Trump he would not reject the certifications. DOJ will also point to things Trump did to ensure that a mob of bodies physically occupied the Capitol, and after they had ,refuse to take steps in response to requests from people like Kevin McCarthy and Pat Cipollone to get them out of there.
Prove that Trump had a corrupt purpose in doing all this. As I keep saying, what the standard for corrupt purpose will be is being decided as we speak by the DC Circuit (and yesterday, the effective solicitor general for the mobsters filed for cert at SCOTUS in an attempt to preempt the DC Circuit). It will be some combination of the following:
- Otherwise illegal acts: DOJ would prove that Trump violated the law to obstruct the vote certification by looking at the fake elector plot and the knowingly illegal order to Pence.
- Corrupt personal benefit: Among the hundreds of people charged with obstruction, this definition of corrupt purpose is probably easiest to prove for Trump, because he was attempting to remain President after being fired by voters. This is one area where Trump’s awareness that he lost might matter, but ultimately, the Lamberth decision would lay out that even if Trump really believed he won, the means he used to prevent Biden’s vote from being certified were corrupt.

Conspiracy to Prevent Biden’s Voters Votes from Being Counted

After laying out the elements of offense for joining a conspiracy, the jury instructions in the Douglass Mackey case used the following language for the objective of the conspiracy.

The indictment alleges that the objective of the charged conspiracy was to injure, oppress, threaten or intimidate one or more persons in the free exercise and enjoyment of their right to vote. The government must therefore prove beyond a reasonable doubt that the defendant knowingly and intentionally joined the conspiracy with the intent to further that objective. In this case, the government has alleged that the object of the conspiracy was specifically to “injure” one or more persons in the free exercise and enjoyment of their right to vote. I instruct you that the statute covers conduct intended to “obstruct,” “hinder,” “prevent,” “frustrate,” “make difficult or impossible,” “or indirectly rather than directly assault” free exercise of the right. For example, “hinder” is defined as “to make slow or difficult the progress of, to hamper, to hold back, to prevent, to check.”

It does not require the possibility of physical force or physical harm. Thus, conduct that makes the right to vote more difficult, or in some way prevents voters from exercising their right to vote can constitute an “injury” within the meaning of the law.

Here, the object of the conspiracy was twofold: to prevent people from voting, but also to prevent their votes from being counted.

Curiously, the timeline on this conspiracy only starts at November 14, after all the votes were cast.

The indictment notes several instances where Trump intimidated people counting the vote, mentioning the death threats that he caused Al Schmidt and Ruby Freeman and Shaye Moss to suffer. It explicitly states that Trump, “attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.” It describes how the lies (as well of those from Eastman and Rudy) in his Ellipse speech:

gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification

It describes how, after being told of the riot, Trump further inflamed the crowd with a tweet targeting Pence the minute before Pence was evacuated for his safety (thereby shutting down the vote count). It describes how Trump refused the requests of Pat Cipollone, Pat Philbin, Mark Meadows, a Deputy Chief of Staff (possibly Tony Ornato), and Eric Herschmann to tell the rioters to leave. It describes how Trump refused Cipollone’s request that he withdraw his objections to the vote certification.

The comments and actions of both Rudy and John Eastman also nakedly show that the intent was to prevent Joe Biden’s votes from being counted.

“Conspiracy Shit Beamed Down from the Mothership:” The Prehistory of Trump’s Ellipse Lies

August 2, 2023/132 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In Jack Smith’s statement announcing the Trump indictment yesterday, he emphasized how Trump’s lies “fueled” the attack on the Capitol.

The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.

The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.

For each sub-section in the section of the indictment that lays out Trump’s pressure on states, the indictment shows how Trump repeated false claims on January 6 that he had been told were false. While the indictment doesn’t cite the actual language that would appear in Trump’s Ellipse speech, it invokes these five lies (it doesn’t include the lies he told about Nevada):

In the state of Arizona, over 36,000 ballots were illegally cast by non-citizens. Two thousand ballots were returned with no address. [cited here]

[snip]

Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election. [cited here]

[snip]

That’s Detroit. One hundred and seventy-four thousand ballots were counted without being tied to an actual registered voter. Nobody knows where they came from. [cited here]

[snip]

There were over 205,000 more ballots counted in Pennsylvania. Think of this, you had 205,000 more ballots than you had voters. That means you had two. Where did they come from? You know where they came from? Somebody’s imagination, whatever they needed. [cited here; also cited in January 4 meeting with Pence]

[snip]

In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes. [cited here]

With each of these lies, the indictment shows when he was told these claims were false (Arizona, Georgia, Michigan, Pennsylvania, Wisconsin). In several cases, the indictment also shows DOJ officials telling Trump those lies were false (Georgia, Michigan, Pennsylvania, Wisconsin).

The actual citations from Trump’s Ellipse speech, which appears in the section on his pressuring of Mike Pence, focus on that — his false claims about what Pence could do (and the indictment describes Rudy Giuliani and John Eastman’s speeches as further effort to pressure Pence).

But before that, the indictment tracks the lies in the speech that Trump used to mobilize the mob.

The Structure of the Donald Trump Indictment

August 1, 2023/177 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

It’s late here, so this may be my only analysis before you all wake up.

But I wanted to lay out the structure of the Trump indictment.

The indictment charges him, alone, with four crimes:

18 USC 371 (conspiracy to defraud the US)
18 USC 1512(k) (conspiracy to obstruct the vote certification)
18 USC 1512(c)(2) (obstructing the vote certifcation)
18 USC 241( conspiracy to violate civil rights)

They all are entirely overlapping. That is, Trump’s conduct, and those of 6 alleged co-conspirators, is cited in all those charges.

These are four charges for the same crime. So if the DC Circuit or SCOTUS overturns how DOJ has applied 1512, there are two back stops.

The other most important part of this indictment is who is named as a co-conspirator (and who might well be charged, as far as we know, today, separately by sealed indictment):

Co-Conspirator 1, an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not. [Rudy Giuliani]
Co-Conspirator 2, an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election. [John Eastman]
Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nevertheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation. [Sidney Powell]
Co-Conspirator 4, a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud. [Jeffrey Clark]
Co-Conspirator 5, an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. [Kenneth Chesebro]
Co-Conspirator 6, a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. [Mike Roman; update: NYT says it is Boris Ephsteyn]

I will fill in who these people are later. They are uncharged and I want to be fairly sure.

The key detail, though, is that there is a separate conspiracy branching off involving most of them, and many other paragraphs of this indictment.

I argued since April 2022 that DOJ could — and should — charge Trump first and build in the stuff around him. I reiterated that a few weeks ago.

There’s a lot here.

But — with some awesome exceptions, which I’ll come back to — not much beyond what’s in the January 6 Report. Credit where it’s due, much, but not all, of this indictment follows their map.

Update: I’ve added Mike Roman as Co-Conspirator 6. The January 6 Report matches a report from the indictment.

A campaign operative named Michael Roman was also tapped for a major operational role in the fake elector effort. When Findlay sent his email handing off certain responsibilities for the initiative, he also wrote that Giuliani’s team had designated Roman “as the lead for executing the voting on Monday” December 14th.73 Roman was the Trump Campaign’s Director of Election Day Operations (EDO), with team members who specialized in political outreach and mobilization in battleground States wherethe Trump team now urgently needed the fake electors to meet on December 14th. With help from his EDO staff, as well as Giuliani’s team and RNC staffers working alongside the Campaign as part of the Trump Victory Committee, Roman ran an improvised “Electors Whip Operation.”74 For example, Roman sent an email on December 12th directing an aide to create “a tracker for the electors” with tabs for Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, listing contact information, whether they hadbeen contacted, whether they agreed to attend on December 14th, and names of “[s]ubstitute electors” to replace any reticent or unavailable participants as needed.75 Roman referred to others on this email as the “WHIPTEAM” and directed them to fill out the spreadsheet, to update him on “what you have and what you need,” and to plan on a call that evening.76

Rudy Giuliani Appears to be Claiming Privilege Over Hundreds of Items He Already Agreed Were Not

July 26, 2023/25 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Based on statements that Rudy Giuliani and his attorney Robert Costello have made in the Ruby Freeman suit, he should be claiming privilege over no more than 43 items total.

He is claiming privilege over around 400.

We can say that based on two claims, made in sworn declarations.

First, Rudy submitted this declaration stating that all his comms from the coup conspiracy would be in the materials archived by TrustPoint as part of the SDNY search of his devices.

Mind you, there’s a claim in that declaration that Costello’s declaration debunks — and it explains a lot about Rudy’s failure to provide discovery. Rudy claims that all his iCloud emails would be in the TrustPoint materials.

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 Costello’s declaration reveals that prior to October 18, 2021, he had observed to the Special Master that many of the email files, “contain no ‘body’ text” and by October 18, 2021, he learned that the reason for that is that “this is the way the iPhone stores backup data.”

Rudy’s lawyer, at least, learned before this lawsuit was filed that the TrustPoint material wouldn’t have his emails intact. Nevertheless, Rudy claimed his emails would be available in the TrustPoint materials, and apparently never checked his existing iCloud, Gmail, and ProtonMail accounts for relevant emails.

Meanwhile Costello confirmed something still more damning: that ultimately he and Rudy never appealed any of the designations that the Special Master in that case, Barbara Jones, came to on his content.

Trustpoint would then send me sections of the electronic material, so that I could designate whatever communications I believed were covered by attorney client, work product, or executive privilege. Those identified communications would then be sent to Judge Jones for her ruling. If there was a dispute between Judge Jones and myself, the matter would be referred to Judge J. Paul Oetken, the sitting SDNY Judge who had authorized the search warrants. We never needed to have Judge Oetken resolve a dispute.

That’s important, because we know how many files, total, Barbara Jones ultimately deemed to be privileged: 43.

Remember: per Judge Paul Oetken’s order, this privilege review covered all material post-dating January 1, 2018, regardless of topic.

Here’s what Jones said about the results of her review in a January 22, 2022 filing (filed before this lawsuit moved towards discovery):

As indicated in my November 2, 2021 Report, I initially reserved decision on the first 3 items that were designated as privileged by Mr. Giuliani’s counsel. After further discussions regarding these items, I agree that they are privileged and should not be turned over to the Government’s investigative team.

B. Device 1B05 – Chats and Messages

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.

43 documents total, across Rudy’s 16 devices, were privileged. Most were on an iPhone referred to as 1B05.

Rudy actually used the device identifiers from the search in his privilege log. Most are from 1B05 — and the Bates numbers show that there were over 21,000 items on that phone.

Indeed, we can see that around 40 really are privileged — because they pertain to Rudy’s own representation by Joe Sibley (indeed, those appear to be the only emails that were preserved).

That says Rudy and Costello already agreed that all the rest of the things in this privilege log (save potentially 3 files) — around 220 of which are just from that one phone — are not privileged.

That is, if you put Costello’s declaration together with Rudy’s, it suggests that Rudy claimed, in the Ruby Freeman lawsuit, that hundreds of things were privileged when he and his attorney had already agreed, before this case moved towards discovery, they were not.

I emailed both Costello and Freeman’s attorney Michael Gottlieb to check whether I understand these details correctly and got no response from either.

Damages

July 26, 2023/81 Comments/in 2020 Election, 2020 Presidential Election, Galactic Stupidity /by bmaz

Rudy has effectively, apparently legally, admitted liability for defamation.

The thing is, in a civil case, once you admit liability, you are on to damages.

That is just how it goes.

What are the damages for these women?

They are far from negligible as Rudy will argue. Damages are huge.

So, what are the damages? And why is Rudy admitting to liability? Does Rudy have no money to be attached?

That is really it, isn’t it? Rudy is admitting he has no money, otherwise would never make this argument.

Rudy’s Corrupted Devices

July 26, 2023/21 Comments/in 2020 Presidential Election, emptywheel, Foreign Influence, January 6 Insurrection /by emptywheel

In a remarkable set of filings, Robert Costello — Rudy Giuliani’s defense attorney and a key player in the effort to package up a doctored laptop and pitch it as Hunter Biden’s — has provided an explanation for why his client wasn’t charged for doing the bidding of Russian-backed Ukrainians without registering as a foreign agent: Because many of the devices seized on April 28, 2021 were “corrupted” (his word).

Here are the filings:

Joe Sibley’s response to Ruby Freeman’s motion for sanctions
Robert Costello’s declaration purporting to describe the Special Master process in Rudy’s Ukraine influence-peddling case
A nolo contendere declaration from Rudy stipulating that he will not contest that he made the defamatory statements about Ruby Freeman and Shaye Moss or that the statements were false, but preserving his ability to argue the statements were opinion or otherwise protected speech

No contest that Rudy lied

The last of these, Rudy’s nolo contendere declaration, may be an attempt to put all these discovery disputes behind him by simply stipulating that the information he would have turned over had he complied with discovery would show that he made the defamatory claims about Freeman and Moss and there was no basis for them. His stipulation is limited to this case, so could not be used in an 18 USC 241 case against him.

Rudy is attempting to stop digging himself deeper in a hole.

Let’s see where we might go if we dig further, shall we?

Costello blames the government contractor for “corrupting” Rudy’s devices

Costello’s declaration claims that he encountered numerous technical problems with the data on the devices, and attributes those problems to the government’s vendor. Based on having blamed the government’s discovery vendor for any technical problems, he claims it is impossible for Rudy to have spoiled any of the materials on the phones.

In reviewing the materials, I encountered numerous non-user generated files and what I referred to as computer gibberish. In addition, there were many emails that contained the header with the sender and recipient addresses, but no text in the body of the email. With respect to this material, in September and October of 2021, I made inquiries of the Special Master’s electronic discovery people, and they informed me that this was exactly how they received the electronic materials. The Special Master’s lawyers informed me that they had made similar inquiries to the Government and the Government reported that any errors in the production of the electronic data, would have occurred when PAE, the Government vendor, performed their extraction procedure. I have attached some of the contemporaneous communications with the Special Master’s office in September and October of 2021. See Exhibit C attached.

As a result of that information, you can see that the allegations made by Mr. Gottlieb are false and not based upon any factual material. Mr. Giuliani has not spoliated any electronic evidence. What has been produced is what Mr. Giuliani received from the United States Government. Mr. Giuliani has never possessed the electronic materials since they were seized in April 2021. It was, and is, physically impossible for Mr. Giuliani to have spoliated any of this evidence as Mr. Gottlieb claims. [my emphasis]

Later, Costello outright claims that the government “had apparently corrupted some of the files as they were extracting the data,” and then wiped them.

There was no way for Mr. Giuliani or I, to know that the Government had apparently corrupted some of the files as they were extracting the data. Likewise, there was no way for Mr. Giuliani or I, to know, [sic] that when the devices were returned by the FBI, AFTER they concluded there would be no charges forthcoming, that the actual devices would be wiped clean. [my emphasis]

That, Costello claims, is proof that Rudy couldn’t have destroyed any electronic evidence.

In short, there is simply no factual basis for Mr. Gottlieb’s allegations of spoliation. It was physically impossible for Rudy Giuliani to do what Mr. Gottlieb swears to.

Except that’s not clear at all. That’s true because Costello’s own evidence doesn’t support his claim that the government attributed all of this to the vendor. That leaves the possibility that Rudy spoiled the evidence before SDNY seized his phones. If so, Costello’s claim that Rudy couldn’t have spoiled the evidence after Ruby Freeman’s lawsuit, in December 2021, is true, but it doesn’t rule out Rudy or someone else — perhaps his Russian spy friends — spoiling evidence before the search in April 2021, at which point he was already lawyered up for at least the Smartmatic suit.

Costello misrepresents review scope

Before I show that Costello’s own evidence about the evidentiary problems doesn’t support his claims, let me demonstrate something more basic.

Costello repeatedly claims (and Sibley repeats) that the government reviewed 26 years of electronic evidence. It’s true that there was evidence from 26 years on the devices. But as I’ve explained repeatedly, even the government asked to limit the scope of review to everything after January 1, 2018. And that’s what Judge Paul Oetken approved on September 16, 2021.

An email Costello included with his declaration — directing Rudy what to review next — shows that’s what the scope of the review was.

Costello may have a reason he wants to obscure the scope of the review, which I’ll return to. Or it may be that after discovering the “corruption” on Rudy’s phones, FBI’s technical experts had to look further, using a warrant that is not yet public. But at least given the public record, it is not an honest representation of what was reviewed, as distinct from what was extracted.

The corruption found on Rudy’s phones

Based on Costello’s evidence, there were five different problems found with Rudy’s devices:

The dates on emails adopted the date of extraction — July 2021 — as the last modified date
Some .jpg files could not be viewed
Emails from Rudy’s phone lacked the text of the email
There were unreadable files on the larger devices
The WhatsApp texts had gotten garbled

Costello includes some cherry-picked emails to substantiate those problems. I’ll put them in order.

The first identified problem was the last-modified date, which Costello wrote someone from Trustpoint to identify on September 15 and which I first noted days later. Costello does not mention whether or how that problem was fixed.

Then, Costello quoted from his own email sent on September 30, which described that everything on seven devices was non-readable non-user created.

The bottom line of which is that there is virtually No User Created Info on the first seven devices. The screen shots of data we observed was non- readable non user created data which is clearly non- responsive and so we shouldn’t raise any objections to it being turned over to the Government.

Additionally we are getting the Special Master to go to the Government and its vendor to see if they can eliminate all of the non- user created data from the 9 remaining devices to make our future work more manageable.

A response from the Special Master on October 1, 2021 describes the problems with those seven devices somewhat differently, this way:

.jpg files that cannot be viewed
missing email/text body issue
unreadable “computer files” on the larger devices

Those devices were reviewed for files through seizure, so they likely had contemporaneous records.

Then, an instruction email from the Special Master team, written on October 15, 2021 — regarding the iPhone from which the bulk of the files were turned over — suggests that on that phone only the missing email/text issue remained. This is one of the only communications that describes something the government represented. And at least per them, it’s not a matter of corruption, it’s a matter of how iPhones work.

It is our expectation that these documents can be reviewed quickly, given that many are very short, and others — as you’ve pointed out previously — contain no “body” text. We have asked the Government why many messages do not contain bodies, and their understanding is that this is the way the iPhone stores backup data.

Then, on October 21, 2021, Costello sent an email noting that the WhatsApp texts were muddled.

Trustpoint reports to us that within the field of approximately 25,000 data items there are approximately 7500 “WhatsApp” entries. The way the Government’s expert presented this evidence almost all the Whats App entries consist of garbled words in English. For example the phrase “In God we trust” would likely appear to us now as “God we trust in”.

[snip]

Frankly we do not know how to deal with this, and we wanted to alert you to his latest glitch which will be found on more than 25% of the items to be searched.

The Special Master responded the following week that they “hope to have a solution shortly.”

As noted above, the Special Master turned over virtually everything on that phone, so they found a way to deal with the WhatsApp issue.

Given the number of files found on the remaining 8 devices, may well have found the same problem on those devices as they did on the first seven.

In short, at least per the record Costello himself provides, he has no evidence the government attributed any of this to the vendor. Costello claimed that the government had told the Special Master that,

the government reported that any errors in the production of the electronic data, would have occurred when PAE, the Government vendor performed their extraction procedure.

But, unless I’m missing it, he provides no evidence of that.

It appears likely that 15 of 16 devices lacked substantive information, and the only thing he provides an explanation for is that some emails — emails that Rudy would have separate access to — weren’t downloaded onto a backup of his phone.

Costello spins on Rudy’s non-compliance on emails

According to Rudy’s own declaration, he helped Trump plot a coup attempt using three different emails, which other documents (including Costello’s own declaration!) reveal must be:

rudolphgiuliani at icloud
helen0528 at gmail
TruthandJustie4U at proton

Rudy’s own privilege log shows that he retained both the gmail and icloud emails — but for things after January 6 and before the seizure, which in the log are fairly presented as privileged.

Rudy’s own privilege log shows none of the protonmail accounts used, even though Bernie Kerik’s does (more on that later).

That’s why it’s so interesting that Costello attacks rather than addresses why Epshteyn (and Christina Bobb) had responsive records that Rudy didn’t turn over.

In paragraph 5 of Mr. Gottlieb’s affirmation, he states that they obtained a December 13, 2020 email from Defendant Giuliani to Boris Ephsteyn [sic] which ” reiterates Defendant’s false claims about Plaintiffs that: “Georgia has video evidence of 30,000 illegal ballots cast after the observers were removed.”” Note first, that the Plaintiffs in in this case were not mentioned, but further note, that when one reviews the citation for this email (ECF-56-7), there is a later email in that same exhibit from Jason Miller that reports: “Statement on hold until further notice, pending Rudy’s talk with the President.” In the spirit of lack of candor, Mr. Gottlieb failed to mention that email.

Here’s the email in question (which redacts which email it went to, but one Bobb turned over was sent to Rudy’s Gmail). But whichever one it came from, it’s an email that Rudy still had access to in 2021, as evidenced by the exhibits presented in this case.

There seems to be good cause to conclude Rudy deleted the email or refused to look for it.

Costello and Sibley’s exaggeration of the investigative closure

Again, 15 of 16 of these devices had some as yet unexplained data that was not user created. I don’t see where Costello substantiated that the government’s vendor did this. Short of doing that, he can’t rule out that Rudy — or, again, the Russian spies he was cozy with at the time — destroyed the data on the devices.

And that’s why I find it notable how Costello and Sibley misrepresent the nature of DOJ’s notice the grand jury investigation into Rudy’s Ukraine influence peddling had concluded.

At the same time as NY State was asking Barbara Jones to serve as the monitor over Trump Organization’s legal woes with the state, SDNY filed this letter, asking Judge Oetken to terminate the appointment of Jones.

The Government writes to notify the Court that the grand jury investigation that led to the issuance of the above-referenced warrants has concluded, and that based on information currently available to the Government, criminal charges are not forthcoming. Accordingly, the Government respectfully requests that the Court terminate the appointment of the Special Master, the Hon. Barbara S. Jones.

As I noted at the time, Costello ran to the press and claimed this meant Rudy would not be charged.

But Costello never claimed to have received a declination letter. And contemporaneous reporting made clear the case remained open.

We now know why: Instead of whatever prosecutors expected to find on at least 7 of Rudy’s phone, they found non-user generated non-readable files. Maybe their vendor fucked up. Maybe something else happened to the devices. But there was nothing there for them to build their case on.

Which is why Costello’s spin on what happened is so interesting. He faults Ruby Freeman’s lawyer for not mentioning that Rudy wasn’t charged.

In his Affirmation, Mr. Gottlieb referenced a criminal investigation run by the SDNY involving Mr. Giuliani, but conveniently failed to mention that it was resolved in Mr. Giuliani’s favor.

[snip]

First, let me state that after the Government, be it the FBI or the U. S. Attorney’s Office for the Southern District of New York (“SDNY”) reviewed 26 years’ worth of electronic data, the SDNY, [sic] issued an unusual public statement declaring that it was not charging Mr. Giuliani with any violation of federal law.

But he overstates the filing, which only addresses the grand jury in question. And the only reason the statement was unusual is that it wasn’t a declination letter sent to Costello himself.

Given the revelation that at least 7 and possibly as many as 15 of these devices were — to use Costello’s word — “corrupted,” it makes other details of the Rudy investigation more interesting, including a request, reported in April 2022, for help accessing other phones.

If the vendor didn’t “corrupt” the data on 15 of 16 of Rudy’s devices — and I don’t see where Costello shows they did — I can imagine that the SDNY might pursue how they got corrupted.

And that may be why Rudy is attempting to end any further review of why he can’t even find emails that Boris Epshteyn had access to.

Ruby Freeman’s Revenge: Rudy’s Blobs and Bernie’s Glitches

July 25, 2023/96 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The other day I had the privilege of receiving an angry response from pardoned felon Bernie Kerik to a Twitter (Xitter?) thread I wrote in response to this article, which puzzled through why Bernie had an interview scheduled next month if Jack Smith already sent Trump a target letter.

Bernie’s Tweet was an attempt to explain how he was responding to a subpoena with a delay. It was not a denial of my larger thread, which I’ll return to.

The pardoned felon has posted a similar Tweet in response to this article, which describes that, “Bernie Kerik has been engaged in a legal battle over turning over documents” but claims, “He’s finally cooperating,” pointing in part to a filing in the Ruby Freeman case over the weekend as evidence of cooperation.

For those of you responding to this article believing there’s some nefarious stuff going on, I hate to break it to you, but it’s exactly what the article says.

To clarify, I was subpoenaed several months ago and cooperated with that subpoena, giving the Special Counsel the documents that I could.

Any document covered under attorney-client privilege, or executive privilege, was held until my attorney @timparlatore/@ParlatoreLaw, recently received the appropriate waivers from President Trump to allow us to relinquish those documents to the Special Counsel.

No one has flipped, no one is selling out Trump or Giuliani.

This is about giving the Special Counsel the evidence that the legal team collected under the supervision of @RudyGiuliani, and was reviewing in the aftermath of the 2020 election relating to voter/election fraud, and improprieties in that election.

Those conspiracy theorists and haters with #TDS, please go find a hobby, instead of promoting lies and disinformation.

Bernie seems determined to explain that compliance with a subpoena — which he claims was delayed due to Trump’s privilege claims — does not equate to flipping.

I’m sure it doesn’t. Too many diehard Trump dead-enders have participated in what are being called proffers — Boris Epshteyn, then Rudy, Mike Roman, and now Bernie — for them to be preludes to a flip. I think the press is simply misunderstanding how Smith is using those proffers.

But he also seems intent on spinning how this “cooperation” came about.

As far as we know, Jack Smith’s visibility into what Rudy and Bernie were up to came via a process that looked something like this:

April 2021 to unknown: Seizure of Rudy’s phones on April 28, 2021 and at some unknown point thereafter sharing of fully privilege reviewed documents with January 6 investigators
Early 2022: Covert collection of metadata and cloud content
May, June, September, and November 2022: A series of subpoenas naming both Rudy and Bernie served on fake electors and other electoral shenanigans
September 2022: Seizure of Boris Ephsteyn and Mike Roman’s phones
November 2022: Rudy subpoena limited to Trump’s fundraising and spending
“Several months ago”: Bernie subpoena
April 20-21: Proffer session with Boris Ephsteyn
Week of June 19: Two day proffer session for Rudy with Jack Smith’s prosecutors
Mid-August: Anticipated proffer session for Bernie

At least three of Bernie’s closest associates have had their phones exploited, albeit via privilege reviews conducted using at least two different methods (the Special Master in Rudy’s case, and unknown means with Epshteyn and Roman). Based on how much got destroyed, Smith should have pretty good idea of what Bernie was up to.

But he subpoenaed him several months ago anyway.

For much of that period, Ruby Freeman has been suing Rudy for the false claims he made about her actions in the Fulton County vote count process. In October 2022, Beryl Howell rejected Rudy’s motion to dismiss and discovery has been going on more than a year.

In recent months, Freeman’s lawyers have filed a series of motions revealing the various methods by which Rudy and Bernie have been blowing off the lawsuit, which generally have consisted of relying on productions they made (or did not) for the January 6 Committee and other lawsuits, while (in Rudy’s case) claiming to have no access to the devices that got seized:

April 10: A status report describing how Rudy still claimed to have nothing
April 17: A motion to compel describing that Rudy was still relying on his earlier production and had not searched the archive of his seized devices, held by Trust Point, which Rudy would claim included all relevant communications from the time; the motion revealed Rudy had provided some documents on Hunter Biden
June 9: A motion to compel Bernie describing extensive efforts to refuse service and recent claims that a “technical glitch” prevented him from sharing documents with Rudy for a more detailed privilege review; it included the privilege log Bernie used with the January 6 Committee, which he had “reactivated” in August 2022
July 5: A response to Bernie’s bid to avoid compulsion that pointed to several ways his compliance was still insufficient; it included this privilege log which he turned over June 28
July 11: A motion for sanctions against Rudy that points to several communications from others that Rudy had not included on this privilege log, which dates to October 2022

A few highlights matter from this. First, Rudy and Bernie have two different sets of almost exclusive documents; there should be a great deal of overlap between these submissions, but there is virtually none. I’ll show in a follow-up, but Rudy claims to have almost no emails (including the several gmail accounts the government could have obtained without his knowledge). Bernie claims to have almost no texts.

The men adopted inconsistent approaches in the depositions, with Rudy answering more than Bernie, including on basic details about how Rudy’s team operated.

Freeman’s team claims that Rudy’s lawyer Joe Sibley conceded on May 19 that meetings in anticipation of lobbying aren’t privileged.

THE COURT: Okay. Well, I just want to be sure that you understand the law in this Circuit. The Circuit has made it clear in In re Lindsey — all the way back to 1998 — that it’s only legal advice that’s subject to the privilege, not a lawyer’s advice on political, strategic, or policy issues; that would not be shielded from disclosure by the attorney-client privilege.

[snip]

JOE SIBLEY: We actually did not claim privilege on some of the meetings that Mr. Giuliani had with staff members and things like that before these Georgia hearings because, after looking at it, this was not in anticipation of litigation but in anticipation of presenting at a hearing which would not be privileged. So we withdrew privilege assertions on that basis.

In the motion for sanctions, Freeman’s team disclosed that the things Rudy turned over from Trust Point, most were unusable for technical or content reasons, including the prevalence of “blobs” Rudy blames on DOJ corruption of the files.

Of those txt files, 2,350 are completely non-readable, non-usable computer files known as “blobs.” Id. In his position statement, Defendant Giuliani opined that, in his nonexpert view, the large volume of blank and/or non-responsive documents in his June 16 production of materials from TrustPoint “appears to be a result of file corruption resulting from the DOJ seizure.” ECF No. 77 at 20. The non-txt files are overwhelmingly non-responsive junk including: non-readable computer code; emails advertising a year-long spiritual apprenticeship course; informational packets regarding Microsoft auto-updates (in five different languages); articles and memes about George Floyd; and death notices from The Washington Post.

From the start it seems that Rudy and Bernie attempted to blow off Freeman’s team altogether, perhaps to minimize their criminal exposure, perhaps out of sheer contempt for the women whose lives they allegedly ruined.

But Beryl Howell (who I can’t help but remember, has seen what DOJ did with January 6 grand juries prior to April) chipped away at those efforts. She has excluded lobbying from privilege claims (which may represent a narrowing over what was adopted in SDNY). She has imposed sanctions on Rudy for blowing this off, is close to doing the same for Bernie. She has threatened to impose still more sanctions, potentially including contempt or default, on Rudy. At some point, even in this civil case, Rudy’s risks go beyond financial.

And all the while, Rudy and Bernie’s efforts to blow this off without expanding their potential exposure to obstruction in the January 6 investigation may have backfired. At the very least, they seem to have narrowed the scope of Bernie’s potential privilege claim and expanded his disclosure requirements.

On June 7, Bernie’s lawyer Tim Parlatore told Freeman’s lawyers, “there are other more pressing matters that have taken priority.”

Perhaps. Or perhaps Bernie made those other matters more pressing in an attempt to blow Freeman off. And that’s before you get into the conflicts between their discovery.