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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.

“Super:” The Day after IRS Got a Warrant for the Hunter Biden Laptop, DOJ Sent Bill Barr a Laptop

July 24, 2023/31 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Thanks to Gary Shapley, we have notes from an October 22, 2020 meeting at which the Hunter Biden investigative team scrambled to make sure they had taken care on their handling of the two devices — a laptop that once belonged to Hunter Biden, and a hard drive containing the attempted recovery of the items on the laptop — turned over by John Paul Mac Isaac.

Among other things, Shapley’s notes reflect that on December 9, 2019, the FBI took possession of the laptop. Even before that, starting on December 3, IRS case agent Joseph Ziegler started drafting a warrant to access it.

On December 12, DOJ’s Office of Enforcement Operations authorized seeking a warrant for it. Then on December 13, Ziegler got a magistrate judge, probably in Delaware, to approve his warrant.

In advance of the October 22 meeting, on October 19, Shapley sent an email that has not been made public. In it, he expressed a belief that John Durham had a copy of the laptop.

On October 19th, 2020, I emailed Assistant United States Attorney Wolf: “We need to talk about the computer. It appears the FBI is making certain representations about the device, and the only reason we know what is on the device is because of the IRS CI affiant search warrant that allowed access to the documents. If Durham also executed a search warrant on a device, we need to know so that my leadership is informed. My management has to be looped into whatever the FBI is doing with the laptop. It is IRS CI’s responsibility to know what is happening. Let me know when I can be briefed on this issue.” [my emphasis]

That’s one of the reasons I find it acutely interesting that on December 14 — the day after a magistrate approved the first known warrant for the “Hunter Biden” “laptop,” Will Levi — who was heavily involved in Barr’s micromanagement of the Durham investigation (including in setting up meetings with the UK, Australia, and Italy) — texted his boss’ personal cell phone and told him a laptop was “on way to you.”

Leading up to December 14, Durham was in the thick of a Russian-Ukrainian disinformation operation. It is totally possible that he did get a copy of the laptop. That’s one reason I pointed to DOJ’s discussion of Patrick Byrne’s disinformation in August 2019. Bill Barr’s DOJ was willing to go anywhere to get information discrediting the Russian investigation into Trump, even Russian-backed sources.

Durham’s consideration of Ukrainian disinformation became a prominent issue during the impeachment investigation, the next month, September 2019.

In the FOIA releases showing Barr’s involvement in the Durham investigation released so far, it’s not clear when Durham met with the Ukrainians. It could be this exchange on August 31, 2019, in which Barr suggested Durham reach out to someone. After Durham responded, Barr commented, Having fun.

Levi sent Barr a text, which remained totally redacted on most recent release, the day after the whistleblower complaint went public.

That may not be related.

But by September 22, Barr was definitely in damage control mode, reaching out to Lindsey Graham.

On the morning of September 24, the day Nancy Pelosi would announce support for impeachment and the day the White House declassified “the perfect transcript” showing Trump instructed Volodymyr Zelenskyy, two months earlier, to coordinate with Barr on investigations of Biden, Barr texted Durham and told him to call ASAP.

That night, Barr texted Will Levi to call ASAP.

An hour and a half later, he texted what is probably Eric Herschmann — who at that point was still at Marc Kasowitz’s firm (though he would soon join Trump’s impeachment team) — and instructed him not to call.

Herschmann, of course, would attempt to pitch the laptop himself a year later, before Rudy blew its credibility.

Then later on the night of September 24, Durham texted Barr asking to talk, which may have been a second call that day.

The next day, September 25, DOJ issued a statement revealing that Durham had received information from several Ukrainians who weren’t part of government.

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

At 3:44 PM on September 26, the day the White House released the whistleblower complaint, someone from Durham’s team — probably Durham himself — participated in a chat with 8 people.

Less than an hour later, a bunch of people — including Will Levi, Seth DuCharme, and “John” — convened in a lobby bar together, waiting for Barr to arrive.

The following day, when Kurt Volker resigned, there was another group chat.

Barr was still focused on CYA regarding his own involvement. In advance of Lindsey Graham going on the Sunday shows, Barr made sure to get Lindsey his statement claiming not to have spoken to the Ukrainians personally.

On September 29, Michael Mukasey did a column in the WSJ where he pitched the value of speaking to Ukrainians. He suggested that Durham might find the Ukraine leads Trump was looking for.

That Justice Department statement makes explicit that the president never spoke with Attorney General William Barr “about having Ukraine investigate anything relating to former Vice President Biden or his son” or asked him to contact Ukraine “on this or any other matter,” and that the attorney general has not communicated at all with Ukraine. It also contains the following morsel: “A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election. While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

The definitive answer to the obvious question—what’s that about?—is known only to Mr. Durham and his colleagues. But publicly available reports, including by Andrew McCarthy in his new book, “Ball of Collusion,” suggest that during the 2016 campaign the Federal Bureau of Investigation tried to get evidence from Ukrainian government officials against Mr. Trump’s campaign manager, Paul Manafort, to pressure him into cooperating against Mr. Trump. When you grope through the miasma of Slavic names and follow the daisy chain of related people and entities, it appears that Ukrainian officials who backed the Clinton campaign provided information that generated the investigation of Mr. Manafort—acts that one Ukrainian court has said violated Ukrainian law and “led to interference in the electoral processes of the United States in 2016 and harmed the interests of Ukraine as a state.”

I can fathom no way Mukasey would have written this without Barr’s support, and so Barr’s support for continued outreach with Durham.

Barr’s press secretary Kerri Kupec sent him the Mukasey column first thing the next day.

On September 30, Brian Rabbitt told Barr to contact Mick Mulvaney.

On October 2, Barr asked the same Eric — probably Herschman given the person’s contacts with Jared Kushner and Pat Cipollone — if he could call.

Later on October 2, Kerri Kupec apologized to Barr that “Sadie” hadn’t gotten editors to change a particular story, probably a reference to this WSJ story, which discusses Barr’s request that Trump give introductions to some foreign leaders.

On October 11, the day after Igor Fruman and Lev Parnas were arrested, Barr sent Eric a one word text — “Ok.”

On October 30, the day after the Democrats released the impeachment resolution, Kupec sent Barr the statement he had made about Ukraine back in September.

A minute later Barr sent that statement to Will Levi, with no further comment.

In spite of all this, DOJ still made little effort to convince Trump to stop Rudy Giuliani from flying to meet Andrii Derkach in December 2019, in precisely the same period Levi sent Barr a laptop. FBI prepared but did not give Rudy a defensive briefing.

Sometime shortly after this, in 2020, IRS Agent Joseph Ziegler got a new supervisor, Gary Shapley. Shapley replaced Matt Kutz, who had concerns about — and documented — what are probably confrontation clause problems (meaning the investigation was relying on sources that Hunter Biden would never be able to cross-examine) and Trump’s push for this investigation.

Around the same time in 2019, I had emails being sent to me and the Hunter — and the prosecutors on the case, the Hunter Biden prosecutors, from my IRS supervisor. So this was Matt Kutz still. From what I was told by various people in my agency, my IRS supervisor, Matt Kutz, created memos which he put in the investigative files regarding the investigation potentially violating the subject’s Sixth Amendment rights. He also referred to Donald Trump’s tweets at the time.

I recall that at one point I had to go around my supervisor and ask his boss, ASAC George Murphy, to tell him to stop sending me and the Hunter Biden prosecution team these emails and that I was searching media articles on a weekly basis and was aware of everything being written in the media regarding the case.

[snip]

A So it was actually Matthew Kutz. He was my supervisor at the time and from the articles that he was sending me, I would say he had more of a liberal view than I had and it was pretty obvious from the things he would send me and discuss. And that’s just me making an observation.

So I later found out about these memos that were put in the file regarding the issues that he saw with the investigation, the fact that we even had it opened. So I only learned about those after. And then it came to a point to where he’s sending us so many media articles about different issues that I had to tell him stop, please.

And I had to go around him. And that’s when I went to my ASAC at the time, George Murphy, who was above him.

Per Shapley’s testimony, he became the primary managerial liaison interacting directly with David Weiss’ office in October 2020, the same month as the laptop was made public.

By that point, someone else was in charge of ingesting Russian disinformation. Scott Brady’s assignment pushing Russian from Rudy may have simply represented a reassignment of the task, from Durham to Brady.

But Durham didn’t stop thinking about it. On January 11, Durham sent an aide the group chats that had occurred at the height of DOJ’s panic on September 26 and 27.

January 11 is the day Treasury sanctioned several more Ukrainians as part of Andrii Derkach’s 2020 influence operation.

Former Ukrainian Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current Ukraine Member of Parliament Oleksandr Dubinsky have publicly appeared or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent and unsubstantiated allegations involving a U.S. political candidate. They have made repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine.

I don’t know whether Bill Barr got a copy of the laptop or not.

I know that years latter — at a time when he was selling a book that attempted to distance himself from all this criming — Barr was nevertheless joining in false claims about the laptop.

So when former staffer Larry Kudlow on Thursday interviewed former attorney general William P. Barr for his Fox Business show, the conversation operated from shared assumptions about Trump’s successes and the toxicity of the political left. The result was that Barr outlined a remarkable hierarchy of importance for actions that might have affected the results of a presidential contest.

Russian interference in 2016, he said, was just “some embarrassing emails about Hillary Clinton and Bernie.” The effort to “suppress” information about Hunter Biden’s laptop, meanwhile, was “probably even more outrageous” and “had much more effect on an election.”

And I know that when Hank Johnson mocked John Durham because he hadn’t indicted Hillary Clinton, Barack Obama, Joe Biden — and “couldn’t even indict Hunter Biden” — Durham responded, “We didn’t investigate Mr. Hunter Biden.”

Obtaining a warrant for Hunter Biden’s laptop would surely qualify as investigating Mr. Hunter Biden.

In 2020, the right wing’s favorite so-called whistleblower believed that John Durham got a copy. And one day after the IRS first obtained a warrant for the laptop, DOJ sent the Attorney General, who was micromanaging the Durham witch hunt, a laptop.

Chuck Grassley Must Think the FD-1023 Informant Is Worth Killing Off

July 23, 2023/109 Comments/in 2016 Presidential Election, 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

In their panic to do something to stave off the Hunter Biden guilty plea next week — and perhaps to bail Gary Shapley and Joseph Ziegler (who are represented by lawyers tied to Chuck Grassley) out of wild and in some cases inconsistent claims they made in their House Oversight debut — Grassley and James Comer have released the FD-1023 form on which they’ve hung their latest conspiracy theories about an attempt to bribe Joe Biden.

They’ve released it with almost no redactions, so it will be very easy for anyone who came in contact with the FBI informant whose interview it recorded — an international businessman — to reverse engineer who he is.

Virtually anyone bound by the principles of physics, by time and space, who has looked at the FD-1023 closely has recognized that the allegation in the report does not match known reality.

Lev Parnas swears it didn’t happen. In this Twitter thread, Thomas Fine calls the report, the Science Fiction Double Feature Bribery Scheme. ABC provided multiple ways the allegations conflict with reality and even notes that Chuck Grassley waged war on the exploitation of such unvetted intelligence with Christopher Steele. Phil Bump last month described how James Comer was spinning his wheels (and the press) but couldn’t find any substance to it; he even noted Ron Johnson’s admission that he couldn’t substantiate a key claim in it.

The most interesting thing, to me, is that FBI agents working with then-Pittsburgh US Attorney Scott Brady, the partisan Republican whom Barr put in charge of ingesting Rudy’s Russian disinformation, didn’t ask, or record, on what date in 2019, a meeting in London addressing an entirely different topic took place at which Oleksandr Ostapenko placed a call to Mykola Zlochevsky so Zlochevsky could provide to the informant very specific numbers of recordings he had involving Hunter Biden and his father.

Brady’s team didn’t get (or record) this date even after a follow-up conversation three days after the original meeting with the informant, even though it would have been the freshest memory for the informant and fairly easy to pinpoint given travel records. They identified with some specificity at which coffee house the meeting with Ostapenko happened (possibly this place), but not the date.

That’s not how the FBI works.

But given the informant’s reference to “recent news reports about the investigations into the Bidens and Burisma,” it is likely the meeting happened during the impeachment investigation, possibly even after Rudy Giuliani met with soon-to-be-sanctioned Russian agent Andrii Derkach in December 2019.

If the meeting came after mid-February, “Hunter Biden’s” “laptop” was already being packaged up for a later political hit job. If the meeting came after October 9, 2019, which is when Parnas’ visibility onto these matters ended because he was arrested but Rudy was not, then it might reflect what happened to the plan to meet Burisma’s CFO and Dmitry Firtash in Vienna to obtain a copy of “Hunter Biden’s” “laptop” after his arrest. It could be possible, after all, that Zlochevsky had said one thing to Parnas earlier in 2019 and another thing after Victoria Toensing had met with Bill Barr.

There’s something else that debunks the story: that Chuck Grassley apparently cares so little about substantiating it he’s willing to risk the life of the informant.

Both ABC and this weaker CNN report describe that the FBI warned releasing this could get the informant killed. The Messenger provides more detail on the various warnings the FBI gave Congress about protecting this information (contrary to its claim, this is not an exclusive; WaPo’s Jacqueline Alemany and Politico’s Jordain Carney both posted one of these letters on Twitter, but don’t appear to have written it up).

FBI officials cautioned lawmakers on several occasions about the dangers that releasing the document could pose to confidential informants and others, according to materials obtained by The Messenger.

“We have repeatedly explained to you, in correspondence and in briefings, how critical it is to keep this information confidential,” the FBI said in a June 9 letter, obtained by The Messenger, to the Democratic ranking member and chairman of the House Oversight Committee, Rep. James Comer, R-Ky., who has been scrutinizing the Biden family.

“We are concerned that Members disregarded the Committee’s agreement that information from the document should not be further disclosed,” the FBI said in the letter, which came one day after lawmakers on the Oversight Committee were permitted to view the document in a secured room.

Other documents obtained by The Messenger show that the FBI’s warnings not to release the confidential information extended back to May — before Comer and others were allowed to view the FBI form.

The FBI told lawmakers that protecting the secrecy of the FBI form is “critical” to the “physical safety” of the source and others, according to a May 30 letter sent to Comer.

[snip]

Members of Congress were also provided with a warning that the information contained in the document “should be treated confidentially,” before they viewed the form on June 8, saying the agency “expressly does not consent” to the release of the material.

The FBI also raised concerns that lawmakers were taking notes in the meeting, which was prohibited, according to the letter.

Grassley and Comer released this FD-1023 — in almost unredacted form — after FBI warned, multiple times, of the danger of doing so.

This, to my mind, is the biggest tell of this stunt.

If you want to fuel a controversy, you release the FD-1023, even at the risk of getting the informant killed or, at the very least, burning his value as an informant permanently. If you want to pursue the allegation, you do everything you can to protect the FD-1023 and the informant.

Especially given David Weiss’ notice to Lindsey Graham that there is an ongoing investigation into matters pertaining to the FD-1023.

Your questions about allegations contained in an FBI FD-1023 Form relate to an ongoing investigation. As such, I cannot comment on them at this time.

Unless, of course, the GOP is so desperate to kill that investigation that they’d be willing to get the informant behind it killed as well.

Update: Federalist Faceplant Margot, who occasionally gets fed disinformation from Bill Barr, says a source has told her the FBI verified that the human source traveled where he had claimed he had traveled at the times he said he had.

Following the late June 2020 interview with the CHS, the Pittsburgh FBI office obtained travel records for the CHS, and those records confirmed the CHS had traveled to the locales detailed in the FD-1023 during the relevant time period. The trips included a late 2015 or early 2016 visit to Kiev, Ukraine; a trip a couple of months later to Vienna, Austria; and travel to London in 2019.

She’s really one of the few people stupid enough to report this as news. After all, the FBI corroborated that Igor Danchenko traveled to Moscow when he said he had, too. All that meant was that he was in Moscow being fed disinformation when he said he was.

The same is especially likely here because, if the FBI had actual dates for the 2019 trip to London — as Faceplant Margot says they did — then it raises still more questions why they didn’t include the date.

Unless the date would have given up the game by making it clear it happened after Rudy’s made further deals for disinformation.

How and Why to Charge Trump First

July 21, 2023/58 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

In the wake of the news of Trump’s target letter in the January 6 investigation, journalists have found no Trump associate willing to admit, on the record, to having received a target letter themselves, leading to questions about whether Jack Smith might charge Trump and only later add co-conspirators.

In this thread, I suggested there might be (unusual) merit to charging Trump — the head of the conspiracy — first, then add in everyone else. A bunch of people asked what I meant — so this post attempts to explain my thinking.

It builds on this post, written before the first January 6 Committee hearings. That post relied on three judge’s opinions conceiving Trump’s role in the January 6 attack:

Amit Mehta’s opinion sustaining the lawsuits against Trump for January 6
David Carter’s opinion finding crime-fraud exception for some John Eastman’s email
Reggie Walton’s opinion that proving Trump’s effect on the rioters must stem from the Trump communications the rioters actually knew of, including Trump’s December 19 tweet announcing the event and (for those who watched) his Ellipse speech; the Proud Boys are a special case because of Trump’s September 29 debate comment and because almost all Proud Boys skipped Trump’s speech

I used those opinions to lay out what the judges — two who were familiar with January 6, one who relied on J6C’s representations about it — viewed as evidence supporting that Trump committed a crime. Once you understand that the bodies at the Capitol were a key way Trump obstructed the vote certification (something included in Judge Carter’s opinion but often overlooked), then the import of Trump’s impact on rioters becomes more clear. It narrows the evidence needed to prove Trump’s obstruction beyond what most people understand — and very nearly maps the dozens of successful obstruction prosecutions DOJ already obtained, which I first started mapping out in August 2021.

This table updates my earlier one (and remains mostly a talking document — there’s a lot missing). It adopts the two most likely standards for “corrupt purpose” that the DC Circuit might adopt in the Thomas Robertson appeal. And it includes a number of details — largely focused on Mike Pence — on which both J6C and the investigation have focused for over a year.

My argument is that, to prosecute Trump, you need to obtain proof of the stuff highlighted in yellow, largely focused on his effect on Pence and on the mob. To prosecute Trump’s lackeys, you need to collect a lot more information and, likely, will need to flip some people. The rest of the table shows what it would take to include the others.

Jack Smith obviously thinks he has the evidence to charge Trump (though the circus involving Will Russall yesterday could have created a few hurdles).

With the obstruction charge — assuming the reports of a “witness tampering” charge really refer to 18 USC 1512(c)(2) — Smith has obviously already secured almost all the Pence-related people whose testimony really matters, including Pence himself. Two key exceptions are Rudy Giuliani and John Eastman. But the testimony of the former was locked in in a two-day proffer a few weeks ago and the testimony of the latter was locked in in sworn testimony in Eastman’s disbarment trial in the same time period.

The one other exception I can think of is Ivanka.

With regards to the mob, Smith can rely on the statements of offense of hundreds of convicted defendants, including people who had a key role in the attack, including the Proud Boys and even some others who played a key role in specific breaches.

That’s my understanding of how you could charge Trump (at least with obstruction) before charging a bunch of his lackeys: the evidence requires less proof of the conspiring on comms that may still be in filter reviews.

Why is another matter.

First, if you’re going to charge Trump you need to do so as soon as possible, because of the election. If you charge Trump alone (though it’s not clear that’s really happening), you might be able to get to trial before August 2024.

Another reason to charge Trump is that it undercuts his ability to buy silence from other witnesses. If people are no longer protecting Trump, they may be less willing to add to their own legal jeopardy by lying.

It’s possible, too, that some of the charges would be prophylactic. If Smith were charging Trump as well for attempting to tamper with Cassidy Hutchinson’s testimony to J6C — something about which we know she gave testimony last September — it might give Trump somewhat more caution before tampering with the testimony of others.

If Smith charged Trump with attempting to discount Black and Latino voters, as opposed to just all Biden voters, it might raise the stakes on Trump’s efforts to disenfranchise minority voters in 2024.

In both cases, such charges might give prosecutors cause to include specific prohibitions in release conditions (though Trump will undoubtedly still be released).

It’s still not clear what conduct Smith would charge as a conspiracy (18 USC 371). It could be attempting to install Jeffrey Clark to aid his attempts to discredit the election (privilege reviews for which started in May 2022). It could be the fake electors plot (though I’m not convinced that Smith has locked in the testimony of all relevant witnesses yet). But here, too, charging Trump with conspiracy while identifying as-yet uncharged co-conspirators might lead them to hesitate before helping Trump.

I think, in general, anxious commentators underestimate the degree to which Smith is going to want to lock in each and every witness before charging a certain part of this larger conspiracy. J6C’s delay in releasing transcripts actually contributed to the difficulty, and probably added several months of delay in January and February. But if Smith were to charge obstruction on a narrowly targeted Pence-and-the-mob charge, then it would limit the necessary evidence to testimony and evidence DOJ already spent years collecting.

Update: Very belatedly fixed Will Russell’s last name.

The Three Reported Charges against Trump: 371, 1512, and (maybe) 242

July 19, 2023/109 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I want to caution about the reports on the charges named in Trump’s target letter. Even after Jim Trusty got the summons for Trump’s Espionage Act indictment, reporting based on his representation of the charges turned out to be inaccurate — not least, because what was assumed to be one 18 USC 793 charge turned out to be 31.

All the more so here, where Trump’s team has even less information to work with.

That said, since comments on that other thread on the target letter have gotten so long, I’ll note that Rolling Stone says the target letter cites three charges.

The letter mentions three federal statutes: Conspiracy to commit offense or to defraud the United States; deprivation of rights under color of law; and tampering with a witness, victim, or an informant.

Once you’ve translated from the legalese, two of these are totally expected:

18 USC 371: Conspiracy to Defraud the US has generally been discussed in terms of the fake elector scheme — basically, an effort to get 16 electors in all the swing states to submit fraudulent certificates to NARA. That the scheme was fraudulent is easy to prove. What’s harder to prove is Trump’s personal involvement it, which will have required DOJ to breach several levels of privileged communication to prove (something they took steps to do on Lisa Monaco’s first day on the job). That said, we’ve seen that they’ve been doing that, most recently with proffers from both Boris Epshteyn and Rudy Giuliani, who implemented the scheme.

But this is a broad statute, and DOJ could also charge Trump with ConFraudUS for campaign finance crimes, among other known Trump acts.

18 USC 1512(c)(2): What is described as witness tampering here is almost certainly obstruction of an official proceeding, the same crime with which 300 other alleged January 6 criminals have been charged. The title for that crime is witness tampering. (Though Jack Smith could also charge Trump for attempting to tamper with Cassidy Hutchinson’s testimony.) I first started laying out how Trump might be charged for this in August 2021. More recently, I’ve recommended people read Royce Lamberth’s Findings of Fact in the Alan Hostetter case — a VIP, like Trump, who was prosecuted in part for inciting others to obstruct the vote certification — to see how judges are applying this law to January 6.

In summary, if my assumptions that this would be charged in conjunction with January 6 are correct, it would require the government to prove that:

Trump took steps to obstruct the certification of the votes. I would expect this to consist both of his pressure on Mike Pence, but also on his support for the mob, including for the threats the mob made on Congress.
Trump intended to obstruct the vote certification. This would require proving that he knew the significance of the event, which DOJ will prove with the weeks of plotting he put in before the event.
Trump had corrupt purpose in doing so. The standard for corrupt purpose as regards this statute is still being decided by the DC Circuit, but it will end up being some combination of “otherwise illegal activity” and “corrupt benefit.” The former might be proven by showing that Trump knowingly gave an illegal order to Mike Pence. The latter would easily be proven by showing that Trump wanted to retain an office he didn’t win.

Note that DOJ has been charging conspiracy tied to this statute under 18 USC 1512(k) and I would be unsurprised to see that happen with Trump.

The last of these statutes is more of a surprise.

[See correction below] 18 USC 242: It prohibits someone from impeding someone’s rights “under color of law,” which can mean “beyond the scope of one’s official duties.” Charging Trump with 242 may be a way to charge him for attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely. Charging him under 242 would eliminate any dodge Trump might make — for example on the call to Brad Raffensberger — that he was simply acting within his official role as President.

This charge may be why, since last year and increasingly in recent weeks, Jack Smith has focused on the harassment of election officials. Just today, AJC reported that Smith subpoenaed footage from the State Farm arena counting center, suggesting Ruby Freeman might be treated as a victim here as well, which would be well, well deserved.

Two other potential implications of this. When January 6 defendants have argued that Trump authorized them to attack the Capitol, DOJ has always responded that the President has no role in the vote certification. So if DOJ were to include January 6 in such a charge, it would be an area — one of the most clear cut areas in the Constitution — where the President literally has no authority, and so easy to show that Trump was exceeding his authority.

Additionally, as noted above, the standard for corrupt purpose on obstruction is not yet settled. The DC Circuit might yet require “corrupt purpose” to be shown via some “otherwise illegal activity.” If that happens, DOJ may want to have several other crimes charged that will prove that prong of the offense, of which 242 could be one.

In other words, the thinking may be, in part, that it’s clear the President has no authority in the Electoral vote certification. Trump tried to deprive Biden voters of their franchise with his efforts on January 6. And that is one of a number of other crimes he committed in his efforts to obstruct the vote certification.

All that said, note my caution about the giant game of telephone this discussion relies on. Ultimately, we’ll learn what the charges are soon enough.

Update: Both the NYT and Guardian have reported that the third charge is 18 USC 241, not 242. Jack Smith is going to accuse Donald Trump of voting fraud.

WaPo Is Suppressing Information that Might Debunk Devlin Barrett’s Latest Spin

July 18, 2023/56 Comments/in 2020 Presidential Election, 2024 Presidential Election, emptywheel, Hunter Biden /by emptywheel

Last week, I asked the WaPo if they would release the two reports — one from Johns Hopkins professor Matt Green and the other from InfoSec expert Jake Williams — that were the basis of this report on the “Hunter Biden” “laptop.”

I had asked once before, in May 2022.

But since I had originally asked, a bunch of things had happened to make those reports more newsworthy. Hunter Biden had countersued John Paul Mac Isaac (here’s the WaPo’s report). James Comer has stumbled over and over in his unabashed effort to manufacture a scandal (in which the WaPo has played along, still treating it as a credible investigation). Delaware US Attorney David Weiss’ office released a plea deal to which Hunter Biden is expected to plead guilty next week (here’s the WaPo report). IRS agents claiming to be whistleblowers, Gary Shapley and Whistleblower X, shared notes that raised questions about the FBI treatment of the device (but WaPo didn’t mention that in their report). Abbe Lowell claimed that Shapley misidentified Hunter Biden’s interlocutors in some key WhatsApp messages (something else WaPo didn’t mention even while repeating the substance of the contested WhatsApp texts). Denver Riggleman, who has been working as part of a Hunter Biden team to examine what has been released, has alleged some of the data has been manipulated (something WaPo hasn’t bothered to cover at all).

That all led me to start looking at the publicly released (but unreliable) emails at BidenLaptopEmails dot com, where I’ve discovered that during a period when Hunter Biden was getting Ketamine treatment and bookended by two communications from him that indicated he was not getting outside comms, someone:

Split Hunter’s Uber account, on which his two iCloud accounts had previously been joined
Accessed Hunter’s rhb iCloud account from a browser
Changed the password and related phone numbers to his rhb iCloud account
Installed and gave full access to his droidhunter gmail account a real app, called Hunter, that can send email on someone else’s behalf
Signed into that droidhunter account using a new device
Again changed emails and phone numbers associated with his rhb account
Asked for a full copy of his rhbdc iCloud account
Reset the password of that rhbdc iCloud account
Made droidhunter account the notification email for the rhbdc account
Downloaded all Hunter’s Apple Store purchases
Made changes to the Uber (and Waze) account associated with an XS phone that would be included in the “laptop”
Restored rhb as an alternate address to the account
Restored contacts from an unidentified prior change
Obtained — including at the droidhunter email account — a download link of the entire rhbdc iCloud account
Backed up the XS phone to the laptop
Gotten a trial app of a photo editor
Backed up an iPad to the laptop
Changed the iTunes password
Added the Dr. Fone account, allowing you to adopt a chosen second phone number for a phone, to a second of Hunter’s accounts
Signed into the droidhunter account from a burner phone
Restored the prior trusted phone number
Added software that could record calls
Started erasing and then locked a laptop — probably the one that would eventually end up in Mac Isaac’s store
Got a new Mac phone for the droidhunter account

That series of changes are not the only emails in the MarcoPolo set that should raise questions about whether Hunter Biden’s digital identity may have been compromised.

Two that are important to the topic of this post are, first, that a great many devices logged into Hunter Biden’s iCloud accounts in 2018 and 2019, yet many of them don’t appear to be tied to him getting his own new iPhone or computer, and only rarely are the existing devices shut down or passwords changed afterwards. The sheer number should have raised alarms that people had broken into Hunter Biden’s iCloud accounts when the IRS asked Apple for Hunter Biden’s subscriber information in November 2019, in advance of writing a subpoena for the laptop in custody of John Paul Mac Isaac. Additionally, there were a bunch of attempts to get into Hunter Biden’s Venmo account, and the account added two new Remembered Devices within 12 minutes of each other in August 2018, one in the LA foothills and the other in Las Vegas. That and other details (including texts and emails) might have raised questions about whether sex workers from the very same escort service on which the IRS had predicated this entire investigation took steps to compromise Hunter Biden’s devices.

But the timeline above provides some reason to believe that at the time the “laptop” was packaged up for delivery to John Paul Mac Isaac, Hunter Biden did not have complete — if any — control of his own communications.

I wouldn’t be able to prove whether Hunter Biden was hacked during this key period in 2019. It would require subpoena power and access to reliable data. But as it happens, Whistleblower X had subpoena power — and was already watching Hunter Biden closely — in precisely the period this happened.

For those of us who don’t have subpoena power, though, we have to rely on publicly available evidence, filtered through partisan gatekeepers alleged to have tampered with the device.

The two reports done for the WaPo are the only known assessments of the drive containing the “laptop” primarily using forensic — as opposed to a correlative — methodology. The correlative methodology, which shows all the communications on the drive confirm the others, unsurprisingly concludes that the “laptop” came from one of Hunter Biden’s several iCloud accounts.

The forensic methodology looked for digital verification — not just of email signatures, but also of the drive itself. Both Green and Williams raised questions about the treatment of and missing digital signatures on the drive, questions that seem to match what Riggleman’s team is seeing.

Indeed, the concerns that Green and Williams raised may explain something the FBI itself found. Shapley’s notes recorded that on March 31, 2020, someone wrote an email “about quality and completeness of imaged/recovered information from the hard drive” — an email that was being intentionally withheld from the agents (especially Whistleblower X) who might one day testify at trial.

This sounds like it might reflect the same concerns raised by anyone external examining the drive forensically. If it does, it would suggest that some of the irregularities everyone can see in drives released via Rudy Giuliani and Steve Bannon always existed, including in the one shared with the FBI and in any separate drive shared with Republicans in Congress.

Because of all the new questions raised about the “laptop,” and because of the centrality that the Republicans want it to have on the upcoming election, I thought it reasonable to ask the WaPo to do what even the Washington Examiner was willing to do: show their work. While the Examiner’s report from Gus Dimitrelos tellingly excludes many of the details I’ve laid out above and hides both some key later device accesses and types of apps — especially spyware — loaded onto Hunter Biden’s iCloud accounts, while the way the Examiner released it exacerbated the privacy violations on Hunter Biden himself, it nevertheless was useful for explaining how two iCloud accounts were loaded up onto one laptop and how the government was able to obtain WhatsApp texts that don’t show up on the unencrypted parts of the laptop.

After I made several requests, WaPo PR manager Savannah Stephens declined to release the reports, calling the two reports, “foundational reporting documents.”

Marcy, thank you for reaching out. We do not release foundational reporting documents. Our coverage at the time was transparent about how the study was conducted, including this report.

Even though it has two reports that could significantly impact fairly pressing debates — debates the WaPo itself treats as important — the WaPo refuses to release more on these expert reports on the laptop.

Instead of doing that, the WaPo is instead paying Devlin Barrett to do what he does best — write down as true what right wingers tell him to write, not what the public evidence actually shows.

In a story with Matt Viser (the same guy who repeated the content of contested WhatsApp texts without revealing that Abbe Lowell had contested them), Barrett wrote that the testimony of the men he calls “whistleblowers” “show Hunter Biden’s laptop had little role in the investigation into Hunter Biden.”

Barrett and Viser utterly misrepresent the debate over the laptop — dodging the question, in the lede, at least, of whether the laptop can help get to the truth — something once considered the purview of journalism and something WaPo’s own report on this drive had previously done.

For more than two years, Democrats and Republicans have hotly debated the importance of the “Hunter Biden laptop” — insisting that it was either key evidence of corruption or fool’s gold meant to con 2020 voters into abandoning then-candidate Joe Biden.

Both theories were largely wrong, according to two of the agents closest to the investigation of tax crimes allegedly committed by President Biden’s son.

[snip]

But the agents’ accounts also indicate that the laptop played at best a small role in the criminal investigation into potential tax and gun-purchasing violations. Far from a smoking gun, the laptop appears to have been mostly an afterthought to the reams of text messages, emails and other evidence that agents gathered from Hunter Biden’s cloud data. A lawyer for one of those agents said he nevertheless was frustrated by the Justice Department’s refusal to let them review the laptop’s contents.

I’m very interested in the project of this column, because not only is this not what Shapley and Whistleblower X’s testimony said, but it misrepresented and misunderstands how evidence works.

This is a tax investigation. It came from, per Whistleblower X, his examination of what is probably a Russian escort service. But it’s a tax investigation: it relies on financial data that comes directly from banks and other financial institutions, institutions that are — to the extent they aren’t tainted by identity theft or hacking, like people seem to have tried to do to Hunter Biden’s Venmo — inherently reliable.

As for emails and texts, the IRS agents’ testimony (taken in conjunction with the report that the Washington Examiner was ethical enough to release), shows that the IRS didn’t obtain what is probably Hunter Biden’s rhb iCloud account — from which the cited, contested WhatsApp messages were probably obtained a second time — until August 2020, after it got some of the same material on the laptop. That potential taint may be why someone told Barrett to downplay the import of the laptop.

While the laptop may not have played a key role in substantiating a tax case against Hunter Biden, it may well have tainted the evidence in the case. It may well be part of the reason why Hunter Biden is getting to plead to misdemeanor rather than felony tax charges — because as even Whistleblower X explained that he had been told, there are emails that raised concerns about whether this could be charged at all, suggesting this case couldn’t withstand discovery.

Plus, WaPo is being coy here: The laptop may have played little part in a tax investigation reliant on bank records. But it did play a central part in allegations, including WaPo’s own reporting, of foreign influence peddling involving (among others), Burisma, the hack of which became public between the time the IRS started using this laptop as evidence and the time they learned Rudy Giuliani had a role in it.

That part is all pitch, though — yet another instance where Devlin Barrett writes down what right wingers tell him to say and WaPo reports it as if it were true. It’s what WaPo pays him to do.

It’s the claims about the laptop — from an outlet sitting on two reports that raise questions about its reliability — that I find especially curious. Start with this paragraph, which conflates the steps FBI took in November 2019 to authenticate that the laptop was Hunter Biden’s — subscriber information from Apple, a purchase record in Delaware, two but maybe only two phone calls with Mac Isaac, and “other intelligence” — with what the AUSA on the case said about it almost a year later.

After being handed the device by a Wilmington, Del., computer shop owner in 2019, the FBI quickly concluded by examining computer data as well as Hunter Biden’s phone records that the laptop was genuinely his and did not seem to have been tampered with or manipulated.

That last bit — “did not seem to have been tampered with or manipulated” — published by an outlet sitting on two reports that show the laptop was tampered with? It is a paraphrase from a meeting in October 2020, not a description of legal process served in November 2019. And therein lies a big part of the scandal.

In the actual quote, Wolf — painted as the bad guy here by the IRS agents — was saying that it “is not a priority” for the investigative team to see “if anything was added to the computer by a third party” even after learning that the lawyer for the President, whose demands for this investigation had raised influence problems from the start of the investigation, had some kind of tie to it.

This is as if Peter Strzok, rather than just failing to make sure people writing FISA applications had adverse information about the Steele dossier (which is what frothers think the IG Report showed), had instead said, “fuck it, I don’t care if it is tainted.” These notes show the Hunter Biden investigative team did what right wingers accuse the Crossfire Hurricane team of doing, blowing off the import of the involvement of a campaign in a key piece of evidence.

When the WaPo conflates those two items again later in the piece, they date the quote to May 2020.

Democrats suggested the data might have been doctored or possibly a Russian-backed disinformation campaign. The information provided by IRS agents to Congress seems to put both the accusations and counter-accusations to rest.

FBI agents were able to determine in early November 2019 that the device they had was registered to Hunter Biden, and phone records showed he had been in contact with the computer shop owner.

“We have no reason to believe there is anything fabricated nefariously on the computer and or hard drive. There are emails and other items that corroborate the items on the laptop,” Shapley wrote in notes that dated that determination to around May 2020.

Dating Lesley Wolf’s comment saying they had no reason to believe anything on the laptop was fabricated to May 2020 is either a deliberate error or a confession that two journalists proclaiming the laptop to lack any taint have no fucking clue what they’re reading.

Wolf said this, at a meeting the investigative team had on October 22, 2020, in the wake of the discovery that Rudy Giuliani had some tie to the laptop, as the team scrambled to memorialize how they had treated a key piece of evidence about which a bunch of questions would now be raised.

A Yes. So there are a couple significant parts of this. One was that, at this time, the laptop was a very big story, so we were just making sure that everything was being handled appropriately.

So we wanted to go through the timeline of what happened with the laptop and devices.

Because the laptop had become a huge story, “we were just making sure that everything was being handled appropriately,” Devlin Barrett’s star “whistleblower” explained.

And Shapley shows Wolf saying that they had no knowledge, in October 2020, of any fabrications on the laptop. But he records her saying that after “computer guy” said “they could do a csv list that shows when everything was created.”

That is, Wolf said this after “computer guy” described something they had not yet done ten months after obtaining the laptop, had not yet done two months after getting warrants relying on the laptop, that they would need to do to make sure the laptop had not been altered by third parties. Wolf said this after “computer guy” described that the FBI had not done very basic things to verify the integrity of the laptop they should have done ten months earlier, before relying on it.

Again, I’m not sure whether WaPo’s journalists are dishonest or just stupid. But this exchange is critical for another reason. Lesley Wolf’s assertion about the integrity of the laptop relied on correlation: by matching emails on the laptop with emails that could be obtained directly from the provider.

There are emails and other items hat corroborate the items on the laptop and hard dive.

This is the method that Washington Examiner’s expert used to proclaim the laptop authentic. It’s the method that a bunch of other right wing journalists have gotten experts to use to validate the laptop.

If you steal someone’s iCloud account, the way to prove that it is authentic is by proving that it is their iCloud account, which is what correlation does.

But “computer guy” was suggesting using a forensic method, ten months after the fact, to test the integrity of the laptop itself. DDOSecrets has done this test on the publicly released emails — and half of them have a last modified date of February 11, 2019, right towards the end of the timeline I show above.

Lesley Wolf made her comment on October 22, 2020. No one in Gary Shapley’s interview asked him what happened after that. Nor does Devlin Barrett seem curious to ask.

If “computer guy” subsequently did this test, there’s good reason to believe he would have found what DDOSecrets did: that while these emails match the ones in Hunter Biden’s accounts, they were all packaged up on February 11, 2019, at a time it’s not clear Hunter Biden had control of his own digital accounts.

If you use a forensic method to validate these files, you’re not going to get the same results as a correlative method. That’s why it would be very useful for the debate about the laptop for WaPo to share the two known expert reports done using forensic methods on the drive itself, rather than correlation.

There’s one more hilarious thing about this Devlin Barrett creation. He, predictably, repeats his “whistleblower’s” complaints about not getting stuff pertaining to the laptop.

Shapley said a federal prosecutor on the case, Lesley Wolf, told him that the IRS agents couldn’t see the laptop. “At some point, they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items,” Shapley told the committee, voicing his frustration that he would have liked to see all the data.

Devlin Barrett — dishonest or stupid? — quotes Shapley’s testimony out of context. The full quotation makes it clear Shapley is referring, again, to a discussion that took place on October 22, 2020. More importantly, Shapley is not referring to the laptop!!

And when it came down to item number 33 on page 2, Special Agent [Whistleblower X] is saying like, well, I haven’t seen this information. And AUSA Lesley Wolf says, well, you haven’t seen it because, for a variety of reasons, they kept it from the agents. And she said that at some point they were going to give a redacted version, but we don’t even think we got a full — even a redacted version. We only got piecemeal items [my emphasis]

That particular quotation, identified clearly as item number 33, is the report about the laptop — which I’ll copy again here to make it so easy even Devlin Barrett might understand it:

To help a right winger allege corruption, Devlin Barrett quotes his complaint that his team was not given the actual forensic report about the laptop. Corruption, in this story, is withholding a forensic report that might tell people what they need to know about the laptop.

And yet that is precisely what WaPo itself refuses to do: release two reports that raise questions about the quality and completeness of the drive.

According to Devlin Barrett’s own standard — at least the standard he applies when he’s parroting right wingers — withholding such a report is a sign of corruption.

Even the plain language of Gary Shapley’s contemporaneous notes show that Devlin’s claim that, “information provided by IRS agents to Congress” “put[s] … the accusations” that “the data might have been doctored or possibly a Russian-backed disinformation campaign” … “to rest” is wildly false (dishonest or stupid?). It does the opposite: It shows that ten months after beginning to rely on the laptop, the FBI still had not done basic forensic checks of the data on it and the AUSA leading the investigation didn’t think doing so was a priority.

That should be the story. That’s the scandal.

And true to form, Devlin Barrett spins the exactly opposite tale.

The WaPo has in its possession some of the only available information that can help to explain what the FBI saw by March 2020, two independent equivalent reports to the one that Shapley implies it is corrupt to withhold.

And unlike the Washington Examiner, they won’t release it.

The Blind Squirrel’s Nut: Chuck Grassley Unwittingly Debunks Bill Barr

July 10, 2023/67 Comments/in 2020 Presidential Election, Hunter Biden /by emptywheel

Last month, Bill Barr got Federalist Faceplant Margot Cleveland to claim that Jamie Raskin was lying when he said that the lead from an informant claiming that Joe Biden had been bribed was assessed by Pittsburgh US Attorney Scott Brady and then shut down.

It’s not true. It wasn’t closed down,” William Barr told The Federalist on Tuesday in response to Democrat Rep. Jamie Raskin’s claim that the former attorney general and his “handpicked prosecutor” had ended an investigation into a confidential human source’s allegation that Joe Biden had agreed to a $5 million bribe. “On the contrary,” Barr stressed, “it was sent to Delaware for further investigation.”

Then James Comer relied on that to claim that Raskin was wrong when he said that it was shut down as an assessment.

Bill Barr to Margot Cleveland to James Comer: At each new level, this Matryoshka doll of disinformation gets less and less credible.

So incredible, in fact, that even Chuck Grassley debunked them.

Unwittingly.

Like the proverbial blind squirrel finding a nut.

You see, Chuck is outraged that the IRS agents conducting the investigation into Hunter Biden’s alleged tax crimes were not included in a meeting at which Pittsburgh FBI agents briefed the Delaware US Attorney’s office about the informant report. He has written Delaware US Attorney David Weiss a letter demanding an explanation of why.

The answer is clear from the timing of the briefing, which Senator Grassley reveals in his letter: October 23, 2020.

Based on information provided to my office from individuals aware of the meeting, on October 23, 2020, Justice Department and FBI Special Agents from the Pittsburgh Field Office briefed Assistant U.S. Attorney Lesley Wolf, one of your top prosecutors, and FBI Special Agents from the Baltimore Field Office with respect to the contents of the FBI-generated FD1023 alleging a criminal bribery scheme involving then-Vice President Biden and Hunter Biden; however, the meeting did not include any IRS agents. In addition, based on information provided to my office, potentially hundreds of Justice Department and FBI officials have had access to the FD-1023 at issue, which begs the question that I’ve been asking since the start of my oversight in this matter: what steps have the Justice Department and FBI taken to investigate the allegations?

This briefing was nine days after a NYPost story would have made clear that Rudy Giuliani had ties to the “Hunter Biden” “laptop” that the IRS agents had been relying on for investigative materials for the better part of a year.

It was one day after an October 22, 2020 meeting that the IRS agents did attend. As Gary Shapley confessed to the House Ways and Means Committee, the meeting was largely an effort to make sure that the government had used proper legal process before acquiring two devices that — it had only recently became clear — had become and may always have been part of a political hit job.

A Yes. So there are a couple significant parts of this. One was that, at this time, the laptop was a very big story, so we were just making sure that everything was being handled appropriately.

So we wanted to go through the timeline of what happened with the laptop and devices. I thought one of the most important first parts was that on November 6 of 2019, the FBI case agent, Josh Wilson, called up the computer shop owner, John Paul, and basically got the device numbers from him.

If Shapley’s notes are at all reliable, prosecutors at the meeting instead discovered that the FBI broke the most basic rules of forensics when exploiting the laptop purportedly owned by the former Vice President’s dissolute son, and in the process may have destroyed evidence about who was really behind it. I’m still not convinced his notes are reliable, but if they are, then the meeting should have raised all sorts of alarms within DOJ.

As I laid out here, Shapley has instead pitched the meeting as one that served the primary purpose of giving Whistleblower X opportunity to complain that the US Attorney’s office had prevented the IRS agents from being tainted by dodgy materials on the laptop. Whistleblower X did complain, mind you, but those complaints mostly raise questions about the extent to which he had already been accessing materials from the laptop that Rudy Giuliani had been tampering with, thereby tainting the investigation.

Shapley’s propaganda has worked, because that’s what our blind squirrel from Iowa focuses his letter on.

But as Shapley described in his prepared statement, even before that meeting he had written to AUSA Lesley Wolf complaining about how the laptop was being referred to in the news.

On October 19th, 2020, I emailed Assistant United States Attorney Wolf: “We
need to talk about the computer. It appears the FBI is making certain representations
about the device, and the only reason we know what is on the device is because of the
IRS CI affiant search warrant that allowed access to the documents. If Durham also
executed a search warrant on a device, we need to know so that my leadership is
informed. My management has to be looped into whatever the FBI is doing with the
laptop. It is IRS CI’s responsibility to know what is happening. Let me know when I can
be briefed on this issue.”

Shapley appears to have been concerned, in the weeks before the Presidential election, that people believed the laptop was being investigated by the FBI as an information operation targeting Joe Biden, when in his view, it remained the cornerstone of his investigation into Hunter Biden.

But if DOJ was not already investigating both topics by October 23, 2020 — both Hunter Biden’s tax crimes and a potential information operation targeting Joe Biden — if it has not spent years doing so, then the FBI has become even more captured than I already suspected.

Indeed, if the FBI hasn’t already significantly substantiated that Hunter Biden was hacked in early 2019, then I may renounce my citizenship. I know FBI’s cyber agents can be incompetent, but they can’t be that incompetent, can they?

Can they?

Chuck Grassley may not realize it because he is very old and he is staffed by a bunch of partisan cranks. But he’s basically complaining that DOJ might have learned their lesson after the Steele dossier — the lesson that Chuck Grassley spent years demanding they learn! — and decided, upon the revelation that a key piece of evidence they had been relying on for months had ties to a political hit job, they should figure out precisely what tie that key piece of evidence had to the political hit job.

Chuck Grassley may also not realize that the political cranks who staff him got him to sign a letter effectively complaining that the FBI thought it worthwhile to figure out if the information operation Russian spies had been bragging about for over a year at that point had actually succeeded. Chuck is bitching that the FBI decided to protect a presidential candidate.

Chuck Grassley also likely doesn’t realize his staffers got him to sign a letter bitching that David Weiss attempted to maintain the integrity of the tax investigation even while DOJ assessed whether they had been caught in another information operation. That’s why you don’t include the IRS agents in a meeting where Pittsburgh FBI agents explain to Delaware lawyers how sketchy was the information Rudy Giuliani was collecting from known Russian agents in Ukraine. If you include them, you risk blowing the otherwise meritorious tax investigation.

And Chuck Grassley definitely doesn’t realize that he has debunked Bill Barr.

You see, Bill Barr, who is a very adept liar, was sort of telling the truth to Faceplant Margot that the FD-1023 was referred to DE USAO for further investigation. It surely was. But Pittsburgh FBI agents shared it on October 23, 2020, because the US Attorney’s office was frantically trying to figure out whether the entire tax investigation had been blown, or only parts of it. The US Attorney’s office was undoubtedly trying to understand what kind of other garbage Rudy had produced that got shared with the FBI, in addition to any role he had with the “laptop” that had been used in the tax investigation.

Even Gary Shapley admitted that in the wake of the NYPost story, the Delaware US Attorney’s office did some quick CYA to figure out whether they had been using a tainted information operation for the better part of a year (they had!). The October 23 briefing would have had substantially the same purpose as the October 22 one: to figure out how tainted the investigation was.

And Bill Barr instead got even stupider people to believe that that an attempt to triage the damage done by Rudy’s political hit job amounts to an investigation for bribery.

Rudy’s Even Worse Week

July 8, 2023/29 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Back in May, I wrote a post called, “Rudy’s very bad week.”

It described:

He had lost his lawyer for a PA suit against him
Judge Beryl Howell was forcing him to cooperate in the Ruby Freeman lawsuit against him
Rudy claiming he faced no legal risk from Jack Smith
He was being sued by a former associate Noelle Dunphy who claimed to have two years of his email

He had a worse week this week.

That’s true, in significant part, because yesterday the DC Board on Professional Responsibility recommended he be disbarred in DC. the committee basically said he made false claims based on no evidence to disrupt the peaceful transfer of power.

The documentary evidence that Respondent did produce is fundamentally vague, speculative, or facially incredible. We have reviewed it and have examined with particularity the materials cited by Respondent in his posthearing filings. Respondent’s PFF 36-37. Although the materials identify a handful of isolated election irregularities, they completely fail to demonstrate that the observational boundaries or Notice and Cure procedures facilitated any meaningful fraud or misconduct that could have possibly affected the outcome of the presidential election.

[snip]

Mr. Giuliani’s argument that he did not have time fully to investigate his case before filing it is singularly unimpressive. He sought to upend the presidential election but never had evidence to support that effort. Surely Rule 3.1 required more.

[snip]

Mr. Giuliani brought a case that had no factual support. It caused an astonishing waste of the resources of the District Court, the Third Circuit, and multiple defendants in a compressed time frame.

[snip]

We cannot blind ourselves to the broader context in which Mr. Giuliani’s misconduct took place. It was calculated to undermine the basic premise of our democratic form of government: that elections are determined by the voters. The Pennsylvania claims were carefully calibrated to blend into a nationwide cascade of litigation intended to overturn the presidential election. FF 9. Since John Adams established the precedent in 1800, no president – until 2020 – refused to accept defeat and step away from that office. And no lawyer – until 2020 – used frivolous claims of election fraud to impede the peaceful transition of presidential power and disenfranchise hundreds of thousands of voters.

[snip]

His frivolous claims impacted not only the court and parties involved but threatened irreparable harm to the entire nation.

Even before that, though, Rudy was taking steps to settle a lawsuit for his conduct after he gave up filing frivolous lawsuits based on no evidence — the attacks he made on Ruby Freeman and her daughter.

On Thursday, Rudy’s attorney Joe Silbey reached out to Freeman’s lawyers and, less than a day later, they asked for time to come to some settlement.

On July 6, 2023, counsel for Defendant Giuliani approached counsel for Plaintiffs to discuss a potential negotiated resolution of issues that would resolve large portions of this litigation and otherwise give rise to Plaintiffs’ anticipated request for sanctions. Throughout July 6 and July 7—and into the evening on July 7, counsel for both parties have worked diligently to negotiate a resolution and believe they are close.

Silbey’s approach for a settlement came one day after Freeman’s lawyers asked for $89,172.50 in legal fees for all the stalling that Rudy has already done.

The same day as Freeman asked for sanctions, they also filed a motion to compel Bernie Kerik’s cooperation. They included a revised privilege log that — while they still argue it is noncompliant with legal standards — nevertheless points to a whole slew of interesting communications in Kerik’s possession. For example, there’s a January 4, 2021 briefing for members of the Senate on which Steve Bannon was CCed (note, Katherine Freiss used both protonmail and hushmail to conduct her coup plotting; I’m leaving these emails unredacted to show the stealth with which these people were trying to steal an election).

There’s a FISA proposal from Mark Finchem.

There is what appears to be a request that Mark Meadows clear them into the White House for the December 18 meeting that doesn’t even get Meadows’ first name right.

There’s an email showing MI fraudster Matthew DePerno receiving Peter Navarro’s report even before Trump sent it out, right along with the rest of Rudy’s team (and other emails show that Victoria Toensing was closely involved in the MI shenanigans).

And the emails give a better sense of what Sidney Powell and Mike Flynn were up to.

Almost none of this would be privileged, because Rudy was no longer pursuing litigation after the PA lawsuit.

All this comes amid more reporting on Rudy’s recent 8 hour interview with Jack Smith’s team, which itself follows voluntary interviews with (at least) Mike Roman and Boris Epshteyn.

During Rudy’s last really really bad week, he had the fantastic belief he wasn’t in any legal trouble.

He may finally understand how ridiculous that is.

Update: I hadn’t been tracking the Dunphy suit, but Rudy narrowly missed being assessed attorney fees there, too, this week.

“Nonzero:” On Evidence-Based Investigations and Rudy Giuliani’s Devices

June 26, 2023/42 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

After the WaPo published its 8,000-word story purporting to describe the January 6 investigation, and after I pointed out key gaps and problems with it, Carol Leonnig reached out to me to find out why I found WaPo’s silence about Rudy Guiliani’s devices so problematic.

Even after my post, Leonnig still understood the exploitation of Rudy’s devices to be limited to the FARA investigation out of SDNY. “I hear you re search of Rudy phones but to be clear that is for probe of lobbying law violations – not a plan to look at Trump orbit plot to overturn elex results,” she described.

To be clear: Her understanding was correct with regards to the known warrant used to seize Rudy’s devices. It was badly wrong with regards to the process used to review them, something that has been public for a long time.

As I first laid out over 18 months ago, after seizing Rudy’s devices, SDNY successfully requested that the Special Master process review everything on Rudy’s devices between January 1, 2018 through the date of seizure, irrespective of scope:

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ approved a warrant for Rudy’s devices in SDNY FARA investigation
April 29, 2021 (the day after seizure): Citing the Michael Cohen case, SDNY asked Judge Paul Oetken to appoint Special Master
August 18, 2021: Special Master Barbara Jones notices a dispute about the range of privilege review, sets schedule for briefing
September 3, 2021: SDNY generously offers to limit Special Master review to files post-dating January 1, 2018 through date of seizure
September 16, 2021: Judge Oetken rules that the Special Master shall review for privilege all content between January 1, 2018 and date of seizure

Oetken’s decision pertained to more than just timeline. It made clear that the government would conduct any responsiveness review.

First, this Court appointed the Special Master for the purposes of reviewing the materials for privilege, not for responsiveness. While a general exclusion [of material that pre-dated January 1, 2018] as proposed by the Government is appropriate, the imposition of detailed date restrictions or other responsiveness criteria would risk further delay in the review process.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

Once this Special Master privilege review finished, then, any content responsive to any probable cause warrant targeting those devices would be available to the government without further privilege review.

Note, when DOJ suggested Barbara Jones to serve as Special Master in Trump’s Florida Special Master matter last September, Trump raised a specific and secret objection to her, though he had raised no such objections after her review of Michael Cohen’s devices in 2018.

Based on that series of decisions — starting with a decision made on Lisa Monaco’s first day, followed by a successful argument that prosecutors, not a Special Master, would do any scope review for responsiveness with warrants (the reverse process as used for James O’Keefe’s phone) — DOJ guaranteed that the January 6 investigation could immediately access Rudy’s content, either based off a plain view discovery of evidence pertaining to a crime (which is how the investigation into Michael Cohen evolved from a FARA investigation to include the hush money payment that is the basis of Alvin Bragg’s indictment), or later warrants obtained as the January 6 investigation progressed. If DOJ obtained a new January 6 specific warrant, Rudy — and any journalists he wanted to complain to — would get no notice, because (as happened repeatedly in the Cohen investigation) the new warrant would be served internally.

DOJ secured the availability of Rudy’s content (pending a new warrant) by September 2021, before Matthew Graves was confirmed and before Thomas Windom was brought in to head up an investigation focusing on Trump’s people, personnel changes that WaPo claims drove the renewed focus on Trump.

In its 8,000-word piece, WaPo raised legitimate concerns about evidence being deleted as DOJ investigated. But within a week of Monaco’s start date, DOJ had preserved the content of Rudy’s devices and started a process that would eventually make it easier for January 6 investigators to access it.

To be sure, we don’t know when or how (via plain view or via a January 6 specific warrant) Rudy’s content was shared with January 6 investigators.

We do know that Special Master Jones prioritized the content on phones that were in current use in April 2021. The first 8 devices she reviewed all included content through seizure. This table shows all the content known to be seized by SDNY; the red rectangle shows the devices, clearly including Rudy’s main phone, Device 1B05, that were reviewed through seizure date.

And, to the limited extent that a sworn declaration from Rudy is reliable, we know that the devices Jones reviewed included all of Rudy’s January 6 content. According to a declaration Rudy submitted in the Ruby Freeman lawsuit, seven of those personal devices seized using a warrant obtained on Lisa Monaco’s first day included all the digital content pertaining to January 6 in his possession at the time.

Apple iPhone 11 ProMax

Apple MacBook Model A22251

Apple iPhone 11 Pro Max

Apple iPad Model: A1709

Apple iPad Model: A2013

Blackberry Model: RGVI6ILW

Apple iPad Model: A1395

[snip]

The TrustPoint One documents consist of all documents that were extracted from the electronic devices taken by the DOJ in April 2021 when the DOJ seized those devices.

The content from the first seven of devices Rudy was currently using was shared with SDNY by November 2, 2021, still before Graves was sworn in as US Attorney in DC. Jones started turning over content from what appears to be Rudy’s main phone on November 11, 2021, with the balance turned over on January 19, 2022.

Again, this information would have been turned over to SDNY, not DC USAO, and we don’t know when and via what means January 6 related content got passed on to DC. But whenever it was, it was available because of decisions made well before WaPo’s timeline, decisions that would have involved approval from people WaPo described as “slow” and “cautious.”

Whatever else it did, the way DOJ did the Special Master review of Rudy’s devices shaved nine months off any investigation pertaining to Trump’s personal lawyer, one of the most central players in Trump’s coup attempt, because whenever DC developed probable cause to access that content, the privilege review would already be done. By comparison, the privilege review for John Eastman and Jeffrey Clark’s content began on June 17, 2022, and NYT describes that privilege reviews of people like Mark Meadows and Cleta Mitchell started after July 2022.

One reason it is likely that Rudy’s content — and not just pressure generated in January 2022 from the January 6 Committee, as WaPo quotes an anonymous source claiming — drove the fake electors investigation is the focus of the investigation. The first fake elector warrants sent in May 2022 (not June, as WaPo implies) as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known interviews always list 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.

Q. Who was on your team at that point [November 5]?

A. You know, it was put out in a press release some days later. So it’s hard to know exactly who joined. Very early on, there was Jenna Ellis, Vicki Toensing, Joseph DiGenova, Boris Epshteyn. That was the main team. We were joined by Christian Bobb about 5 days later, and by — by Katherine Friess, maybe 3 or 4 days later.

So if you look at the list of the team — now, it took about — that was the original team, meaning in the first 3, 4, 5 days. Within about a week or two, I can give you all the names if you want them.

Q. Who else joined the team after that group you just mentioned, lawyers? I’m just talking about lawyers for the moment.

A. Just lawyers, okay. So Toensing, DiGenova, Bob[b], Friess, Ellis, Epshteyn.

Neither appears to have been interviewed; neither is mentioned in the final report. Nor did they get much focus in the investigation. Christina Bobb and Eric Herschmann mentioned them in passing. Sidney Powell described that they may have been at a White House meeting on November 8. Alex Cannon was asked about an urgent demand that the campaign provide Toensing with a paralegal on November 29. Jacqueline Kotkiewicz, a campaign researcher, described doing at least one project for Toensing, the only substance of which that she could remember was a fight over whether “nonzero” meant “zero” or “a number greater than zero.” Cleta Mitchell described connecting Toensing with John Eastman and admitted having, “quite a number of calls with Victoria,” but couldn’t remember the substance. According to an email Mitchell reviewed, Toensing then shared Eastman’s whack theories with state legislators.

Nothing that came from the January 6 Committee explains why Toensing and DiGenova would be a persistent focus of DOJ’s fake electors investigation. But they were. (As I have noted, Boris Epshteyn and Bernie Kerik were also a focus of DOJ subpoenas before they were mentioned in J6C coverage, but unlike Toensing and DiGenova, they soon became a public focus of J6C.)

As far as is public, Toensing’s phone, which was seized in the same week as Rudy’s devices, was only reviewed for the period covered by the FARA warrants, ending in 2019 (though the content would have been preserved if DOJ ever later had an interest that post-dated that). Additionally, she belatedly invoked spousal privilege over all communications on her seized phone with DiGenova.

But Rudy’s phones — or possibly even the Sidney Powell prong of the investigation that was overt by September 2021, another thing WaPo doesn’t mention — might explain why DOJ’s fake elector investigation doesn’t look like the version that got told in the press or the one told by the January 6 Committee, starting a month later.

There’s one other thing. As I laid out here, Ruby Freeman’s lawyers are pursuing further testimony from Kerik, who served as Rudy’s chief investigator after the election. They’re contesting the privilege claims Kerik has sustained from J6C, based off an argument that Kerik’s communications were not created as work product in anticipation of litigation. As Rudy explained to J6C, his team abandoned the plan to sue to overturn the vote after about the first week post-election in favor of going to legislatures, so any work product Kerik created would have been in anticipation of legislative hearings, not litigation. As stated in emails exchanged between lawyers, Rudy is not claiming privilege over Georgia-related work product done in anticipation of sharing information with legislatures (as distinct from litigation).

The position we took was that communications and work product in connection with presenting testimony and evidence before the Georgia Legislature in December 2020 was not privileged. Not that it was privileged but that we were waiving it.

[snip]

I would say that any communications or materials created in anticipation of the December 2020 Georgia Senate hearings are not privileged and should not be withheld.

Rudy had claimed similar communications were privileged in his January 6 Committee deposition given in May 2022, so this is a change in stance.

There are a lot of things that have happened since that could explain the changed posture. A different lawyer, Joe Silbey, is handling Rudy’s civil challenges. Rudy testified last August in Fani Willis’ investigation. Beryl Howell issued a ruling on the application of privilege before her on May 19 of this year (the latter of which Freeman’s lawyers cited in discussions with Kerik lawyer Tim Parlatore). But another possible explanation for Rudy’s willingness to share information on pressuring legislatures when he hadn’t before would be if the material had been deemed non-privileged in the past, perhaps one of the 56 documents on Rudy’s phone over which an initial privilege claim was either withdrawn or overridden.

To the extent it presents a coherent timeline, WaPo’s story largely tells when former FBI Assistant Director Steve D’Antuono vetoed DOJ requests and when formal investigative decisions were made. But such formal decisions always follow evidentiary collection, often by months. That’s especially true here; it’s what Merrick Garland and Lisa Monaco demanded. Even with Stewart Rhodes, whose prosecution this story makes a far more central part of January 6 than Rhodes’ actions merit, this story doesn’t talk about known evidence and cooperating witnesses that advanced the investigation (not even Joshua James, the sole witness who would play a function in WaPo’s narrative). The only mention — at all — of evidence that might drive such decisions describes J6C investigator Timothy Heaphy sharing information about Trump pressuring Pence and others.

But the January 6 fake electors investigation does not resemble the DOJ one, certainly not as to the relative import of Toensing and DiGenova.

The most obvious place that focus might have come from, and come from in time to shape the May 2022 subpoenas, would be Rudy’s phones — phones that DOJ started the process of exploiting well before J6C even started investigating.

Update: Fixed an error re: Matthew Graves’ timeline. He was confirmed on October 28, 2021 but sworn in on November 5. So SDNY started obtaining Rudy’s content before Graves was sworn in.