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

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

Sidney Powell’s lawsuits and alleged hacking

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

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

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

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

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

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

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

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

Death threats and interstate entrapment efforts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bubble Three

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

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

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

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

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

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

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

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

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

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

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

Pardoned Felon Bernie Kerik’s Three Stories

Before I lay out the three different versions of Berie Kerik’s testimony with Jack Smith’s prosecutors last Monday, I want to make a separate observation. After turning a bunch of documents over to Jack Smith, Kerik’s stance regarding the privilege claims in the Ruby Freeman lawsuit changed.

Previously, he had said that the privilege was Trump’s and Trump had to decide.

But first on July 24 (three days after Kerik handed over documents to Jack Smith’s team) and then again in a status filing filed on Friday, August 4, he consented to let Beryl Howell review any that Freeman’s attorneys still contested, though Trump’s lawyers will get to challenge her decisions.

Following the Court’s order, on July, 23, Mr. Kerik produced a privilege log, (the “Revised Privilege Log”), see Exhibit 1, and 562 documents previously withheld as privileged (the “Previously Withheld Documents”) that were de-designated by the Trump Campaign. ECF. No. 83 at 2. On July 24, 2023, after meeting and conferring, Plaintiffs and Mr. Kerik filed the Joint Stipulation where the parties agreed that:

• should Plaintiff choose to challenge the privilege designation for any documents in the Revised Privilege Log, “Mr. Kerik takes no position and consents to their disclosure for in camera review by the Court;”

Freeman’s attorneys are asking Howell to review everything (unless Howell rules that Rudy has defaulted on the whole suit).

Plaintiffs have now reviewed the 562 Previously Withheld Documents and the Revised Privilege Log. It is Plaintiffs view, having completed this review and consistent with Plaintiffs’ predictions, that the vast majority (if not all) of the Previously Withheld Documents were not properly withheld as privileged. Apparently at the instruction of third parties, Mr. Kerik continues to withhold 318 documents based on both attorney-client and work product privilege. Plaintiffs have identified 97 documents that, on the face of the privilege log, appear not to be privileged, and also appear to be related to Plaintiffs’ claims. (See Ex. 2.) At minimum, Plaintiffs request that the Court should review these 97 documents in camera. However, because Plaintiffs’ assessment of what warrants further review is based on the descriptions in the Revised Privilege Log, and because Mr. Kerik previously logged documents which we not privileged, Plaintiffs respectfully submit that the more prudent course of action may be an in camera review of the full set of 318 documents. Mr. Kerik has previously stated that he has no opposition to this relief. See ECF No. 83 at 3.

It matters that Howell, who until March presided over the grand jury investigating Trump, would preside over that review.

Among the documents that Kerik is still withholding — at least from Freeman — is a document forwarding something from (!!!) 4Chan to both Kerik and Phil Waldron, alleging a Ukrainian role in Dominion Voting Systems.

Minutes after the 4Chan tip, Waldron and Kerik were also exchange claims that seem centrally pertinent to Freeman’s lawsuit.

Keep that in mind as you read the various stories that pardoned felon Bernie Kerik told the press about his testimony to Smith’s prosecutors.

The first version, from CNN, posted shortly after Kerik left the interview. Kerik’s lawyer, Tim Parlatore, claims that Kerik (who was receiving pitches from 4Chan) operated in good faith.

Kerik’s attorney Timothy Parlatore told CNN on Monday that Kerik told investigators about what Giuliani was doing in late 2020 to hunt down potential evidence of fraud that would show that Trump actually won a second term.

Kerik discussed “what the Giuliani team was doing” and “all the efforts they took at the time to take all the complaints of fraud, to see what they could do to chase them down,” Parlatore said. “Really kind of establishing that at that time, when they weren’t really able to necessarily establish proof, they had probable cause and they were pursuing investigation in good faith.”

Investigators also asked about the seven states that were the focus of Giuliani’s efforts, doing a deep dive on each state to understand the basis for making election fraud claims. Investigators went state by state, asking about each claim of fraud and what it was based on and who they talked to.

Monday marked first meeting with the special counsel team. Smith was not in the room during the closed-door interview, Parlatore said. The interview was conducted by three special counsel prosecutors and two FBI agents.

Parlatore scoffed at the idea Rudy would be charged, basing that claim on whether Rudy — who is trying to avoid further discovery in the Freeman suit by stipulating that the claims he made about Freeman tampering with the vote — knowingly lied about voter fraud, not if Rudy knowingly plotted with Ken Chesebro to set up fake electors.

Asked if he thinks Giuliani will be charged by the special counsel, Parlatore told CNN, “No, not a chance.”

“The idea that Rudy Giuliani was intentionally pushing claims he knew were false is not something supported by the evidence,” Paraltore said. In the 45-page Trump indictment, prosecutors say the co-conspirator that CNN has identified as Giuliani “was willing to spread knowingly false claims.”

CNN may have been the only outlet to note — in the very last paragraph — that Kerik was convicted of fraud and then pardoned by Trump.

Years before Trump became president, Kerik was federally indicted and pleaded guilty to tax fraud and related financial crimes. He served three years in prison, was released in 2013, and received a full pardon from Trump in 2020.

Contrast CNN’s acknowledgment that Kerik was convicted for fraud with NYT’s focus, instead, on his background as a cop.

The word “fraud” shows up seven times in the NYT story, because of its centrality to the charges against Trump. Never once does it mention Kerik’s past fraud.

Instead, NYT describes that if Save America PAC had paid Rudy’s team, their claims of fraud might actually have been vetted better. (Politico’s story also focuses on the financial aspect.)

Among the questions prosecutors asked Mr. Kerik were several related to Mr. Trump’s main postelection fund-raising entity, Save America PAC. The special counsel’s office has been drilling down for months into whether the political action committee raised millions of dollars on claims that there was widespread fraud in the election, but ultimately earmarked the money for things other than investigating those claims.

Mr. Kerik told prosecutors that the team Mr. Giuliani had assembled to look into the allegations of fraud received no money from Save America PAC, even though it was one of the chief groups assigned the task of hunting down evidence that the election had been marred by cheating, Mr. Kerik’s lawyer, Timothy Parlatore, said on Tuesday.

Mr. Kerik also told prosecutors that if Save America had provided money to Mr. Giuliani’s team, it might have more accurately vetted the claims of fraud, Mr. Parlatore said.

Remember: this was the topic of a subpoena sent to Rudy last year, how he got paid.

Friday, Rolling Stone put Kerik’s testimony at the center of a third story: how Trump’s associates are trying to make Sidney Powell the fall-gal for everything.

On Monday, Bernie Kerik — a longtime Rudy Giuliani associate and a Trump ally who worked on the Giuliani-led legal team challenging Trump’s 2020 defeat — sat with special counsel investigators for a roughly four-and-a-half-hour interview, according to his lawyer Tim Parlatore. (Parlatore previously served as a top attorney to Trump, advising the ex-president on Special Counsel Smith’s probes.)

“Based on the contents of their questions, and my understanding of criminal law, the main individual who was discussed who Mr. Kerik gave any information that could be incriminating would be Sidney,” Parlatore tells Rolling Stone on Thursday. Parlatore added that what Kerik told investigators included: “That there was no back-up for anything she said, that when she was asked to provide proof she didn’t produce anything, and when she was cut loose [from the official Trump legal team], how she kept trying to push her way in.”

[snip]

Kerik, a former New York police commissioner, is one of the individuals who recently described to federal investigators — among other topics — details regarding Powell’s private behavior as she aided Trump’s attempts to subvert the 2020 election outcome. According to Parlatore, the ex-commissioner did not mince words: “During Bernie Kerik’s interview with the special counsel’s office, the issue of a possible mental health break and change in her demeanor and personality was discussed,” the attorney says.

Parlatore adds that during the investigators’ multi-hour interview with his client, the word “lunatic” was indeed used to describe Powell.

[snip]

However, the intense nature of the recent line of federal questioning has led various witnesses, lawyers, and others intimately familiar with the situation to the conclusion that Powell likely has a heavy amount of legal exposure in the current stage of Smith’s probe.

Or, as one source who’s been in the room recently with federal investigators succinctly puts it: “Sidney’s fucked.”

Asked to comment on the source’s two-word characterization, Parlatore simply replied with his own two-word statement: “I agree.”

The focus seems to misunderstand how Sidney Powell functions in the indictment. The more Trump advisors say she was a lunatic, the more Trump’s reliance on her makes his conduct problematic.

NYT hit on this part of the story too. In its version, it said prosecutors had specifically asked about Waldron.

Prosecutors asked Mr. Kerik on what factual basis he believed Ms. Powell had filed her suits and he responded that he was unaware of one.

Prosecutors also asked Mr. Kerik about Phil Waldron, a former Army colonel from Texas who served as a kind of liaison between Ms. Powell and members of Mr. Giuliani’s team. Mr. Smith’s investigators wanted to know how seriously Mr. Kerik and others on the team had vetted Mr. Waldron’s claims that there were mathematical irregularities in the vote results in some key swing states that indicated fraud, Mr. Parlatore said.

These stories are not necessarily inconsistent. Over a four hour interview, prosecutors may well have hit on all these topics.

But I’m not sure they fit together the way that Kerik or Parlatore think.

Update: This story from CNN, tying Rudy and Kerik to the Coffee County voting software breach in GA, may explain why everyone is trying to pin all this on Sidney Powell, and may likewise explain the curious status of Powell in Trump’s own indictment.

Shortly after Election Day, Hampton – still serving as the top election official for Coffee County – warned during a state election board meeting that Dominion voting machines could “very easily” be manipulated to flip votes from one candidate to another. It’s a claim that has been repeatedly debunked.

But the Trump campaign officials took notice and reached out to Hampton that same day. “I would like to obtain as much information as possible,” a Trump campaign staffer emailed Hampton at the time, according to documents released as part of a public records request and first reported by the Washington Post.

In early December, Hampton then delayed certification of Joe Biden’s win in Georgia by refusing to validate the recount results by a key deadline. Coffee County was the only county in Georgia that failed to certify its election results due to issues raised by Hampton at the time.

Hampton also posted a video online claiming to expose problems with the county’s Dominion voting system. That video was used by Trump’s lawyers, including Giuliani, as part of their push to convince legislators from multiple states that there was evidence the 2020 election results were tainted by voting system issues.

Text messages and other documents obtained by CNN show Trump allies were seeking access to Coffee County’s voting system by mid-December amid increasing demands for proof of widespread election fraud.

Coffee County was specifically cited in draft executive orders for seizing voting machines that were presented to Trump on December 18, 2020, during a chaotic Oval Office meeting, CNN has reported. During that same meeting, Giuliani alluded to a plan to gain “voluntary access” to machines in Georgia, according to testimony from him and others before the House January 6 committee.

The only overt act of Powell in the indictment is including Dominion in lawsuits after Trump asked — and after Rudy distanced her from his team and after Trump pardoned Mike Flynn.

But Dominion plays a key role, because it — including this Coffee County allegation — served as the basis for Trump’s demands of Brad Raffensperger to find more votes.

The Elements of Offense in the Trump January 6 Indictment

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

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

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

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

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

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

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

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

Conspiracy

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

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

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

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

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

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

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

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

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

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

Conspiracy to Defraud the United States

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

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

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

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

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

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

Obstruction of the Vote Certification

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

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

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

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

Conspiracy to Prevent Biden’s Voters Votes from Being Counted

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

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

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

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

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

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

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

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

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

The “Crazy” Kraken Conspirator

Sidney Powell is undoubtedly co-conspirator 3 in Trump’s January 6 indictment.

Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation.

But her role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

What a remarkable structure, then, for including Sidney Powell in this indictment.

From the description of Powell at the beginning, it makes it sound like she is in there as proof that Trump knew his claims were false: In November, he declared her crazy. But he nevertheless kept magnifying her craziness.

That would almost help prove that Trump knew she was a liar when he used her propaganda.

But paragraph 20 says something different: It says that on November 16, on a date she was still ostensibly on Rudy’s team, Trump fed her the Dominion voting machine false claims and told her — Trump told Powell, not vice versa — to include the Dominion claims.

The false claims about Dominion, according to this, came from Trump.

And then, after Rudy and Jenna Ellis publicly separated themselves from her, Powell submitted the first of a number of lawsuits that would rely on the Dominion claim.

And when called on her crazy, Sidney Powell claimed that, “no reasonable person would conclude that [her] statements were truly statements of fact.”

It’s not just Trump who thinks she’s crazy, she thinks she’s crazy.

But once she filed that lawsuit, on November 25, Trump boosted it.

That’s all pretty interesting timing given something else that was occurring at the very same time. At a time when they were both together in South Carolina plotting how to steal the election for Trump, Trump pardoned Mike Flynn.

The same crazy that went into Sidney Powell’s election disinformation went into her claims about Flynn. If Trump thought she was crazy, he should never have pardoned Flynn.

It gets still more interesting from there — including to where Powell funded at least some of the Oath Keepers’ defense — including, possibly, Kelly Meggs’ attorney, Stan Woodward.

You get the idea.

Even without her plan to seize the voting machines on December 18, even without Flynn’s call for martial law in the days leading up to it, the timeline laid out in the indictment — where Trump gave Powell the Dominion claims, then decided she was crazy, then pardoned her client based off her crazy claims — sure piles up some interesting implications in what are just two paragraphs of a 130-paragraph indictment.

“$$$$$$:” Josh Dawsey Comes Full Circle on Trump’s Fundraising Corruption

I’m going to share something I’ve been laughing to myself about for months, since before I wrote this post on how the financial aspect of Jack Smith’s investigation would be a way to break through the otherwise formidable wall of lawyer-witnesses between investigators and Trump’s crimes.

There’s a reason why the fundraising aspect of Trump’s Big Lie has been accessible to investigators, even beyond the fact that there’s boatloads of financial evidence available with a subpoena. That’s because reporters, including Josh Dawsey, were able to track Trump’s fundraising in real time back in 2020, and when they saw what he was doing, they asked the Director of Communications for Trump’s campaign, Tim Murtaugh, about it.

Heck, Dawsey even wrote a story on December 1, 2020, over a month before the Big Lie led to an insurrection, reporting on this scam.

President Trump’s political operation has raised more than $170 million since Election Day, using a blizzard of misleading appeals about the election to shatter fundraising records set during the campaign, according to people with knowledge of the contributions.

The influx of political donations is one reason that Trump and some allies are inclined to continue a legal onslaught and public relations blitz focused on baseless claims of election fraud, even as their attempts have repeatedly failed in court and as key states continue to certify wins for President-elect Joe Biden.

Much of the money raised since the election is likely to go into an account for the president to use on political activities after he leaves office, while some of the contributions will go toward what is left of the legal fight.

[snip]

The donations are purportedly being solicited for the Official Election Defense Fund, whose name is featured prominently atop the Trump campaign’s website.

There is no such account, however. The fundraising requests are being made by the Trump Make America Great Again Committee, a joint fundraising effort of the Trump campaign and the Republican National Committee. As of Nov. 18, that committee also shares its funds with Save America, a new leadership PAC that Trump set up in early November and that he can use to fund his activities after the presidency.

Dawsey appears to have gotten no response from Murtaugh.

What happened with his inquiry instead — along with one Politico’s Maggie Severns sent on November 11 and a follow-up question CNN’s Jeremy Diamond sent on November 24 — is that Murtaugh, who could have no conceivable attorney client privilege, sent the query to Justin Clark, who otherwise would have attorney-client privilege, along with a bunch of other senior campaign officials, to ask whether they should “still ignore” press inquiries about the fundraising.

In the case of Dawsey’s email, they said things like this to each other:

On Nov 30, 2020, at 7:03 PM, Tim Murtaugh <[email protected]> wrote:

I side with no comment. He’s going to write about the split and if we say stuff about legal expenses it will serve to highlight the argument that the fundraising pitch is misleading.

From: Jason Miller <jmi[email protected]> Sent: Monday, November 30, 2020 7:24 PM

To: Tim Murtaugh <[email protected]> Cc: Sean Dollman <[email protected]>; Justin Clark <[email protected]>; Bill Stepien <[email protected]>

Subject: Re: [EXTERNAL]$$$$$$

Fair points. Sean -what are the reporting deadlines for these respective entities -12/15? It will be tougher to dodge such answers after reporters can find it themselves.

[snip]

Re: [EXTERNAL]$$$$$$

We should talk tomorrow about whether to just announce this by press release like we would any other fundraising announcement. If we have the numbers we can discuss how the breakdown among entities needs to be messaged. Also key, as Jason pointed out, that POTUS is on board with how it will be described. [my emphasis]

In response to Dawsey’s query back on November 30, 2020, Murtaugh, Clark, Jason Miller, CFO Sean Dollman, and Campaign Manager Bill Stepien exchanged emails recognizing that the fundraising pitch they were using was misleading, strategizing how they were going to continue to distract journalists from the misleading aspect of their pitches after they had to disclose their fundraising, and noting that they were going to ask Trump if he was comfortable with them fluffing journalists on how they were misleading small donors.

And Murtaugh, because he had no conceivable privilege in these exchanges, sent this exchange to the January 6 Committee and, I assume, to DOJ when they subpoenaed him.

That’s why I find it hilarious that Dawsey, in a report on a new set of subpoenas sent out in March that follow ones sent in December or November and September, wonders whether prosecutors will find the same kind of damning evidence that Trump’s campaign knew they were engaged in fraud as the Steve Bannon Build the Wall fraud did.

It’s unclear whether prosecutors will find similar kinds of evidence to support an indictment in this case.

I’m pretty sure they’ll find it, because that evidence has your name on it, Josh! One way Jack Smith will prove that Trump’s people knew they were lying to the rubes sending in their spare cash is by showing how panicked the campaign was when people like Dawsey started to ask about it.

WaPo suggests the subpoenas he describes disclose “the breadth of Smith’s investigation” and claims this prong of the investigation follows the release of the January 6 Committee Report.

The special counsel’s increased interest in fundraising follows the December release of the final report of the House select committee that investigated the Jan. 6 attack, which concluded that the Trump campaign and Republican National Committee’s joint fundraising operation brought in $250 million between the November election and Jan. 6, sending as many as 25 emails to supporters each day, many claiming that the election had been “rigged” or that Democrats had tried to steal the presidency and urging people to join the “Trump Army.” The Trump campaign sent several emails on Jan. 6 itself, including one declaring, “TODAY. This is our LAST CHANCE … The stakes have NEVER been higher. President Trump needs YOU to make a statement and publicly stand with him and FIGHT BACK.”

But not only have other outlets been reporting on it, CNN reported in December that this financial prong of the probe (which like NYT, they reported in September) had been going on, at that point, for a year, though the PAC prong of it may have post-dated the J6C presentation of this scam last June.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

That may be why Merrick Garland has been saying the investigation was following the money since October 2021, at which point the similar fraudulent fundraising investigation into Sidney Powell was reported by … the Washington Post.

The investigation into fundraising fraud is important by itself for the (outside) possibility it’ll lead Trump’s supporters to turn on him for cheating them. It could help to prove that Trump’s efforts to obstruct the vote certification on January 6 were “corrupt” by any definition of the term that the DC Circuit will ultimately adopt. But it likely also serves as a useful prosecutorial tool not just because it had a public-facing aspect that resulted in non-privileged conversations like the one above, but also because a goodly number of Trump people who weren’t implicated in the actual election theft were involved and cognizant of the financial fraud.

Release the Kraken: Fox News’ Revolving Sidney Powell Conspiracy Theory Door

It does Dominion Systems no good, in their defamation lawsuit against Fox News and Fox Corporation, to prove that Sidney Powell was a long-time Fox News commentator. They are suing Fox for defamation based on Fox’ platforming of Sidney Powell after the time the Murdoch outlet had internally recognized her as a bullshit artist, not during the time when she routinely showed up to lie about another topic — Mike Flynn’s innocence.

That explains why that prehistory, the long period when Powell was just another personality on Fox News, doesn’t appear in Dominion’s motion for summary judgement or its response to Fox’s MSJ.

What appears, instead, are two inflammatory claims which — taken together — may be as important as the billion dollar lawsuit and the sordid truth about Fox that Dominion has aired as part of it.

First, as Dominion lays out in response to Fox’s attempt to blame Trump for all the outrageous false claims about Dominion, Fox started it,

Fox went beyond the claims that Rudy Giuliani made in court, and Fox aired Sidney Powell’s false claims before she made those claims in court (which is one reason why, Dominion argues, Fox can’t simply claim they were covering newsworthy lawsuits).

Dominion lays out a timeline showing that Powell didn’t make any of the allegedly defamatory claims again Dominion in court until November 25, after Fox had floated them in 12 of the claimed instances of defamation.

As Giuliani himself told the court in one Pennsylvania lawsuit brought by the campaign, the lawsuit is not a fraud case. See Donald J. Trump for President,Inc.v.Sec’y ofPennsylvania,830 Fed.Appx. 377,382 ( Cir. 2020). Or to quote the headline of a November 23,2020 Wall Street Journal article: “Trump Cries Voter Fraud. In Court, His Lawyers Don’t.” Ex.702. Only Powell’s lawsuits, the earliest of which was filed on November 25 (after she had been disavowed by the Trump campaign), made allegations along the lines of the defamatory statements accused in this case allegations that Fox had been broadcasting for weeks before Powell’slawsuits were filed.9

The facts about the cases Fox focuses on are as follows:

November 7: The Trump campaign files an Arizona election challenge alleging defects in the ballots and poll worker deviation from protocols, not a technological failure of vote tabulation machines. See generally Ex.C1. Dominion is not mentioned.

November 11: The Trump campaign files a challenge to results in Antrim County. The gravamen of the complaint is interference with Republican election observers, disputes about voter eligibility, and ballots being run through tabulating machines multiple times–not mechanical tabulation errors. See Ex.C227-60. The complaint concedes that the Secretary of State found that the Antrim error was a result of the failure of a county clerk to properly update media drives, and does not allege any intentional misconduct by Dominion. See id. 60-62.

November 13: Lin Wood files a Georgia election contest, challenging certain changes in Georgia’s election laws. See Ex.C425-50. The lawsuit was not filed on behalf of the President or his campaign, nor does it make any misconduct allegations against Dominion or even mention Dominion by name.

November 17: Lin Wood files an affidavit in his Georgia lawsuit alleging certain misconduct by Smartmatic (not Dominion). The affidavit was irrelevant to the subject matter of the underlying suit, and was never filed in any case brought by the Trump campaign. Ex.C5.

November 25: More than two weeks after Fox first gave her a platform to promote her conspiracy theories, and days after the campaign expressly disavowed her, Powell files lawsuits in Georgia and Michigan. These lawsuits parrot the lies amplified by Powell and others on Fox. Exs.C8-C9.

December 1& 2: Powell files two more lawsuits in Wisconsin and Arizona–repeating the false allegations against Dominion. Exs.C11-C12. [italics my emphasis]

More importantly, Dominion lays out that Fox had Powell on to float these allegedly defamatory claims before Trump embraced them. Dominion suggests that having Trump embrace them was part of luring Trump back to the network.

It is also belied by the record for at least four reasons :(1) President Trump followed lead, making the same allegations against Dominion only after Fox had made them; (2) Sidney Powell was not on the President’s legal team when she started making the Dominion allegations and was disavowed after being associated with that team for at most 8 days; (3)Powell received some of her information via Fox hosts,who then laundered the lies by hosting her on their shows; and (4) neither Trump nor his campaign ever filed a lawsuit alleging the at-issue statements.

First, Fox’s own recitation of the timeline of Trump tweets establishes that Fox went first, Trump went second. On November 7, 2020, President Trump retweeted a report of Georgia using the same machines as Antrim County. Ex.G6. Notably Trump did not name Dominion, and certainly did not accuse Dominion of participating in an election-rigging conspiracy. The Trump campaign then filed a lawsuit on November 11 regarding the events in Antrim County that merely asserted there had been a “glitch” in the Dominion software. Ex.C2 . It was not until November 12 that Trump first made any allegations about Dominion intentionally switching votes, which he did via a tweet crediting OAN’s reporting. See Ex.G6 p.3. Though this tweet refers to OAN, it demonstrated Trump could be pulled back to Fox–provided the network broadcast what he wanted to hear. Indeed, later that same day, Trump tweeted his approval of Fox hosts attacking Dominion, telling his followers that they “[m]ust see @seanhannity takedown of the horrible, inaccurate and anything but secure Dominion Voting System which is used in States where tens of thousands of votes were stolen from us and given to Biden. Likewise, the great @LouDobbs has a confirming and powerful piece!” Ex.683. From here on out, Trump had Dominion in his sights.

Dominion argues that what got Trump to start attacking Dominion was seeing Fox focus on the claims of fraud; it suggests Fox was airing those claims of fraud to appease Trump.

What changed between November 7 and November 12? Fox entered the fray. Specifically, on November 8 Maria Bartiromo brought Powell onto her show to air the false claim that Dominion machines used an algorithm to calculate the votes that they would need to flip. Ex.A2 p.15. The Fox platform gave Powell the stamp of credibility, and reach, needed to spread the lies about Dominion. And while Trump was widely known to be a voracious consumer of Fox, Bartiromo did not leave anything to chance. [three lines redacted]

These redacted lines suggest that Bartiromo spoke with the Trump campaign directly to highlight these false claims; in the earlier filing, Bartiromo told Powell, “I just spoke to Eric [Trump] & told him you have very imp[ortant] info.” In that same reference, the filing revealed that Bartiromo “also provided information directly to Powell,” suggested that Bartiromo was a go-between between Powell and the campaign.

But that’s not the craziest part.

The crazy part — which is only clear from reading both Dominion’s recent filings — is that Fox got Trump to disavow Sidney Powell.

Remember how this looked in real time. After the embarrassing Four Seasons Total Landscaping press conference, the campaign publicly distanced itself from Powell on November 22.

Here’s the explanation offered by Maggie Haberman at the time.

According to Dominion, however, after Powell came after Tucker Carlson, Raj Shah — who used to work as a spox in Trump’s White House — inquired about her status with Trump. He learned two days before Rudy made a show of publicly ousting her from the campaign that she never worked for the campaign.

Second, Fox ignores what it knew better than the public at the time: Powell was never officially on the Trump campaign’s legal team, having never signed an engagement agreement. Ex.605, Shah 246 :4-12; id. 273:11-20. When Fox was finally motivated to get to the bottom of the relationship between Powell and Trump (which only happened after Powell came after one of Fox’s own, Tucker Carlson), it took Fox but a day or so to get the truth. See, e.g.,infra pp.163-164.

[snip]

Shah believed the Decision Desk got the Arizona call right (see,e.g.,Ex.725);that the November 19,2020,press conference featuring Sidney Powell and Rudy Giuliani was not credible ,including the claims about Dominion (see, e.g., Ex.605 , Shah 214 :21-215 :7); see also Ex.726 ( crazy fucking presser );and that Sidney Powell was generally nuts (Ex.727).

Yet Shah did nothing when on or around November 20,2020, he learned that Sidney Powell never had a retention agreement with Trump or his campaign. This was explosive news. For several weeks Shah’s network had been airing false allegations from Powell, in part, so they say now, because she was the President’s lawyer. But upon learning that she was not the President’s lawyer what did Shah do? Effectively nothing. See Ex.605, Shah 297:18-298:2. [italics my emphasis]

Fox learned that Sidney Powell never had a retention agreement with the Trump campaign, but still covered her, purportedly, based on the claim that what she did for the campaign was newsworthy.

It’s these two comments that are particularly interesting though: Fox brought her on and off the campaign, and had a role in her conspiracy theories.

And while Powell appeared on Fox only four times when she was even arguably part of the President’s team, and six times when Fox was clearly aware that she was not. As important, Fox was instrumental in maneuvering Powell both into the Trump campaign and then out of it.

Third, Fox ignores its own role in developing the conspiracy theories it then aired See Dom. MSJ pp.39-44

These two claims — that Fox “maneuvered Powell … out of” the Trump campaign and that they played a role in developing these conspiracy theories, are discussed in heavily redacted passages of the earlier filing (probably redacted because Fox has claimed it pertains to internal business deliberations).

The first — describing how Fox “maneuvered Powell … out of” the Trump campaign after Tucker came under fire for questioning Powell — consists of almost four full paragraphs introduced with a description that Fox, including Tucker and Raj Shah, “mobilized.”

“We won the battle with Powell. Thank god,” the passage quotes a Tucker text later. Dominion is now explaining that that “battle” pertained to getting Powell ousted from Trump’s orbit.

The second claim — that Fox was the source of some of these conspiracy theories — incorporates the description of how Fox got Powell ousted from the campaign, but also includes redacted passages describing Lou Dobbs’ role in “promoting the narrative,” another making a redacted reference to Hannity, as well as the unredacted reference to Bartiromo chasing an email from Sidney Powell that Powell herself said relied on a “wackadoodle” source. The later filing suggests the earlier filing goes as far as saying that Fox played part in developing the conspiracy theories.

To be sure: Fox’s real-time knowledge that Sidney Powell never had a formal relationship with Trump and Tucker’s [apparent] role in getting her ousted from Trump’s orbit are critically important for Dominion’s case that Fox properties continued to air her conspiracy theories, falsely claiming to do so because they reflected Trump’s strategy, are both crucial pieces of evidence in their case that Fox knew they were allowing Powell to make false claims on their shows.

But they are important for another reason: because Jack Smith is investigating at least one and possibly two (the Sidney Powell investigation that went overt in September 2021) prongs based on claims that the people raising money were knowingly lying.

Fox likely still has no criminal exposure for the campaign finance violations that Smith is investigating (though the report that Rupert gave Jared confidential information on Biden’s ads may give Smith reason to look more closely).

But, as I noted after the last filing, all this material about what Fox was being told by Trump’s team is directly relevant to those suspicions of fraud.

It’s not just that Dominion has laid out damning evidence that Fox knowingly and falsely accused it of fraud. But discovery in this suit appears to have produced abundant evidence that the campaign itself knew it was recycling fraudulent claims Fox was peddling to keep Trump loyal.

Fox may have no more than this civil exposure. But Dominion lays out plenty of evidence that Fox was part of Trump’s suspected fraud on his own voters.

“A Demonic Force:” Dominion Just Gave Jack Smith Useful Evidence

As you read through Dominion’s motion for summary judgment against Fox News — and trust me, you should read it! — keep in mind not just how it proves Fox to be nothing but a propaganda platform aiming to help the Republican Party, but also the evidence it makes available to Jack Smith as he considers charges against those who used false claims about voting fraud to gin up a coup attempt.

Just as one example, Sean Hannity has played a role in every Trump legal scandal — serving as a back channel to Trump for Paul Manafort, participating in Rudy Giuliani’s attempts to gin up dirt on Hunter Biden as the first impeachment unfolded, and helping White House officials stave off the resignations of Trump’s White House Counsels in advance of January 6. But in each case, investigators only got his communications via other subjects of the investigation, as when DOJ found Manafort’s WhatsApp texts to Hannity saved in Manafort’s iCloud account or when the January 6 Committee got Signal texts Hannity exchanged with Mark Meadows from the former Chief of Staff’s production. Republicans chose not to call Hannity as a pro-Trump witness in the Ukraine impeachment.

With its filing, Dominion has given a snapshot of the ways and whys in which Fox News helped magnify false voter fraud claims, especially (though not exclusively) those of Sidney Powell.

It all takes place against the backdrop of a huge backlash against Fox after it called AZ for Joe Biden. When Fox presented the truth about the election, viewers started fleeing to Newsmax, with Trump’s encouragement. The filing describes the panic that ensued.

[O]n November 9, the impact of Fox’s Arizona call became more evident to Fox executives. Carlson told [Fox News CEO Suzanne] Scott directly: “I’ve never seen a reaction like this, to any media company. Kills me to watch it.” Ex.211. Scott immediately relayed the email to Lachlan Murdoch. Ex.212 . She told Briganti that Sammon “did not understand the impact to the brand and the arrogance in calling AZ,” which she found “astonishing” given that as a “top executive” it was Sammon’s job “to protect the brand.” Ex.213. And on that day–“day one,” as Scott termed it, Fox executives made an explicit decision to push narratives to entice their audience back. Ex.214 at FoxCorp00056542. Scott and Lachlan Murdoch exchanged texts about the plan going forward: “Viewers going through the 5 stages of grief. It’s a question of trust the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them . at FoxCorp00056541 . Murdoch: “Yes. But needs constant rebuilding without any missteps. Id. Scott Yes today is day one and it’s a process.” [Dominion’s emphasis removed]

Hannity described how much reporting the truth (and Chris Wallace serving as a competent moderator for a Presidential debate) had undermined Fox’s brand.

Hannity told Carlson and Ingraham on November 12: “In one week and one debate they destroyed a brand that took 25 years to build and the damage is incalculable.”

The response to Jacqui Heinrich’s fact check of a Trump tweet is particularly stunning, as Carlson immediately called to have her fired for uttering the truth.

Meanwhile, later that night of November 12, Ingraham was still texting with Hannity and Carlson. In their group text thread, Carlson pointed Hannity to a tweet by Fox reporter Jacqui Heinrich. Ex.230 at FNN035_03890511 . Heinrich was “fact checking” a tweet by Trump that mentioned Dominion–and specifically mentioned Hannity’s and Dobbs’ broadcasts that evening discussing Dominion. Ex.232; Ex.231. Heinrich correctly fact-checked the tweet, pointing out that top election infrastructure officials said that, “‘There is no evidence that any voting system deleted or lost votes ,changed votes ,or was in any way compromised'” Id Ex.232.

Carlson told Hannity: Please get her fired. Seriously …. What the fuck? I’m actually shocked…It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ex.230 at FNN035_03890511. Tucker added: “I just went crazy on Meade over it.” Id. at FNN035_03890512 . Hannity said he had “already sent to Suzanne with a really?” He then added: “I’m 3 strikes . Wallace shit debate [] Election night a disaster [.] Now this BS? Nope. Not gonna fly. Did I mention Cavuto?”

The filing describes how after Hannity “dropped a bomb” about Heinrich’s fact check with Scott, Heinrich deleted her tweet.

Hannity indeed had discussed with Scott. Hannity texted his team: “I just dropped a bomb.” Ex.292 at FNN055_04455643. Suzanne Scott received the message. She told Jay Wallace and Fox News SVP for Corporate Communications Irena Briganti: “Sean texted me–he’s standing down on responding but not happy about this and doesn’t understand how this is allowed to happen from anyone in news. She [Heinrich] has serious nerve doing this and if this gets picked up, viewers are going to be further disgusted.” Ex.233 . By the next morning, Heinrich had deleted her fact-checking tweet. Ex.283.

For over two years, the right wing has squealed about a media outlet prohibiting the dissemination of dodgy claims from a Murdoch outlet. It turns out that Murdoch was, in that same time period, “censoring” true facts about Trump’s dodgy claims.

I wait with bated breath for James Comer to scheduled a hearing on the “censorship.”

Tucker Carlson, especially, recognized Trump’s role in this. He warned that Trump “could easily destroy us if we play it wrong.

“What [Trump]’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”

After January 6, Tucker called Trump,”a demonic force, a destroyer.”

Fox appears to have perceived that they had to play along with Trump’s false claims or risk permanent damage to their brand.

As noted, this lawsuit focuses closely, though not exclusively, on Sidney Powell’s false claims, from which even Trump publicly dissociated on and off. As such, much of this evidence may be more useful to DOJ in any ongoing investigation (if there still is one) of Powell’s monetization of claims she knew to be false. But even there, the evidence is key for Smith’s lawyer inquiry into Trump’s lies.

In an effort to rebut any Fox claim that it was simply reporting on lawsuits, Dominion lays out how the lawsuits filed served only as a vehicle to make false claims publicly.

Infact, none ofthe accused statements even meets the basic requirement that it report on a pending proceeding. As the Court recognized in its prior ruling, any statement made in a broadcast that occurred before November 25, 2020 could not possibly satisfy the “of … proceedings” requirement because the lawsuits filed by Sidney Powell–the only Fox guest who actually filed a lawsuit containing the defamatory allegations about Dominion–had not been filed by that date. See FNN MTD Order, p.46. And even after that date, the broadcasts in question hardly mentioned the existence of legal proceedings concerning Dominion, let alone purported to be a substantially accurate report ofthose proceedings. “[A]t no point did Dobbs or Powell attribute the statements … to an official investigation or a judicial proceeding. A reasonable observer would have no grounds to believe that her statements constituted a report of an official proceeding.” Khalil, 2022 WL 4467622 at 6.

Fox wasn’t covering lawsuits. It was magnifying false claims, and doing so because it knew that’s what its viewers, and Trump, demanded.

One accused false claim is of particular import, given the bases Powell and others used to pursue outrageous actions: A December 10 Lou Dobbs broadcast on which Sidney Powell claimed there had been a Cyber Pearl Harbor.

Nonetheless, on the next day, December 10, Dobbs had Powell on again, where she repeated the false (and repeatedly debunked) story about the Smartmatic and Dominion machines being designed to flip votes to rig elections for Hugo Chavez,and allowing people to login and manipulate votes . See ¶179(q );Appendix D. But rather than questioning Powell’s claims, Dobbs attacked Attorney General Barr for saying he’d seen no sign of any significant fraud that would overturn the election and told Powell “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” noting “we have tremendous evidence already,” id. which he now admits was not true. See Ex.111,Dobbs 46:25-47:10,86:20-24 . Dobbs had seen no evidence from Powell, nor has he since. Id.

Powell had sent her claims about a “Cyber Pearl Harbor” to Dobbs (who forwarded to his team) in advance of the show. Ex.450;Ex.451. Prior to the show, Dobbs published a tweet to the @loudobbs Twitter account with the claim that “The 2020 Election is a cyber Pearl Harbor,” and embedding the very document Powell had sent to him just hours before which stated that Dominion was one off our entities that had “executed an electoral 9-11 against the United States” and “a cyber Pearl Harbor,” that “there is an embedded controller in every Dominion machine,” and that they had “contracts ,program details, incriminating information ,and history” proving these claims.¶179(p); Appendix D.

Later the same day, after Powell appeared on the 5pm broadcast and before the 7pm unedited rebroadcast of the show, Dobbs again tweeted “Cyber Pearl Harbor @SidneyPowell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.” ¶179(r); Appendix D. Dobbs conceded at his deposition that this tweet was false Powell had not presented any such evidence on his program that day. Ex.111,Dobbs 269 :2-271:5.

People have long used Trump’s favored Fox programs to lobby Trump (for example, Roger Stone did so spectacularly well to get a pardon). And this story appeared on one of Trump’s favorite shows just over a week before Powell and Patrick Byrne would use the Solar Winds hack (which would be exposed in the interim week, starting on December 14) as their excuse to get Trump to use a claim of foreign election interference to seize the voting machines. In other words, this was the national security excuse Powell and Byrne were seeking to give Trump an excuse to assert Executive authority to seize the voting machines.

Worse still, as Dominion notes, Fox did all this not just knowing that it would harm Dominion. They did this knowing the intent was to harm the United States.

On November 10, Steve Bannon told Maria Bartiromo, straight out, that THE PLAN was to delegitimize Joe Biden.

“71 million voters will never accept Biden. This process is to destroy his presidency before it even starts; IF it even starts … We either close on Trumps victory or del[e]gitimize Biden … THE PLAN.” Steve Bannon to Maria Bartiromo, November 10, 2020 (Ex. 157)

Carlson, too, knew what he was doing.

On November 18, [Tucker producer Alex] Pfeiffer texted Carlson that powerful election fraud allegations like Powell’s “need to be backed up” and could lead to undermining an elected president if Biden’s confirmed,to which Carlson responded, “Yep. It’s bad.”

“It’s bad,” Tucker recognized from the start. But that didn’t stop him from participating in efforts to undermining the duly elected President.

We’ve long known that Fox was better understood as a wing of the Republican party than as a news organization (indeed, the filing describes Rupert Murdoch looking for ways to “help[] any way we can” in Georgia).

But this filing makes it clear that in a bid to cater to viewers who were fed false claims by Trump, Fox played right along with the false claims that would lead to insurrection. Jack Smith is already examining multiple parts of this effort. This filing makes evidence that would otherwise be unavailable accessible to prosecutors.

Fox News knew their platforming of Trump’s false claims was doing damage to the country. And they did it anyway.

Update: Corrected that Tucker, not Hannity, is the one who immediately said Heinrich should be fired for speaking the truth.

Jeff Gerth Declares No There, Where He Never Checked

In Part One of this series, I noted that Jeff Gerth couldn’t make it through his first sentence without making an error (two errors, if you’re a hard grader). In Part Three, I noted that the fact set Gerth draws on is not the Mueller investigation itself or even the underlying Russian hack-and-leak campaign, but the investigations into that investigation.

That’s how Gerth came to rely on a Russian intelligence report of uncertain reliability to make claims about Hillary Clinton’s motives without actually disclosing he was doing it.

Gerth’s reliance on people like Lindsey Graham and Sidney Powell and John Durham and a host of angry men who post highlighted screen caps on Twitter is a problem, because they’re not reliable. They’re the obvious source of many of his outright errors.

Gerth falsely claimed the DOJ IG Report vindicated Devin Nunes’ memo – but he didn’t check that (I did). He applauded retractions based off John Durham claims that couldn’t withstand the scrutiny of a jury. At least twice, he falsely claimed that investigations – the SSCI investigation’s findings about Konstantin Kilimnik, Mueller’s investigations about Prigozhin’s ties to the Russian government – showed no evidence rather than that much of it remains classified.

These are just a few of a host of smaller errors that would have been caught in any robust fact check.

Gerth invents exculpatory evidence Bill Barr says doesn’t exist

Some of his bigger errors, though, are especially revealing.

Of particular interest, given how Gerth ignores much of NYT and (especially) WaPo reporting about Mike Flynn, he misrepresents what happened with Trump’s former National Security Adviser. In Part Four of his piece, Gerth accurately describes DOJ’s claimed reason for reversing the prosecution of Flynn.

In May 2020, the Justice Department dropped the case against Flynn for lying to the FBI after a review by Jensen, the US Attorney in St. Louis. The department cited the FBI’s “frail and shifting justifications for its ongoing probe of Mr. Flynn” and said that the FBI interview of Flynn was “conducted without any legitimate investigative basis.”

In making fact claims about the Flynn investigation, Gerth doesn’t describe how obviously false this claim was. He doesn’t meet his own standard of referring to competing sides of an issue – particularly egregious given how radically DOJ’s own position changed between January and May. 

But at least he accurately reported what DOJ claimed.

In Part Three, however, Gerth falsely claims that DOJ found “exculpatory” evidence, which Gerth surely knows has a legal meaning.

Flynn later tried to withdraw his plea after a Justice Department review found exculpatory evidence, including the fact that the lead agent on his case wanted to shut it down in early January but was overruled by higher-ups. The Justice Department then moved to have the charges dismissed, but a federal judge wanted to know more, so Flynn was pardoned by Trump.

[snip]

Other FBI documents, released in 2020, reflect the same assessment: the inquiry into possible ties between the campaign and Russia, according to one of the agents involved in the case, “seemed to be winding down” then. [my emphasis]

DOJ found no exculpatory evidence; if they had, it would have amounted to a Brady violation. Long before DOJ reversed course on the Flynn prosecution, it had argued that Flynn was not entitled to much of the evidence Bill Barr subsequently made available. In any case, Judge Emmet Sullivan, the judge who, since presiding over the Ted Stevens case, has adopted a particularly expansive view of Brady material, wrote a meticulous, 92-page opinion, ruling that none of that was Brady material. Jocelyn Ballantine, the AUSA stuck trying to reverse course on claims she had previously made to the court, described that DOJ’s reversal on Flynn was discretionary.

While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. 

Barr repeated that assessment in testimony to the House Judiciary Committee – there was no Brady violation. 

Mr. Collins: (01:17:42)

Well, there’s another part of this as well that concerns what has been given to the courts and in the interviews, and that is that the facts were not disclosed to Flynn prior to the interview. That seems like a Brady violation, to me. Do you believe that there’s a Brady violation there in this case? [crosstalk 01:17:56]

Wiliam Barr: (01:17:56)

No, there wasn’t a Brady violation there, but I think what the council concluded was that the only purpose of the interview, the only purpose was to try to catch him in saying something that they could then say was a lie.

The only one who said there was exculpatory information was Sidney Powell, the same person who would go on to claim that “no reasonable person” would believe her election fraud claims were statements of fact. That’s the standard CJR adopted in this series, the Sidney Powell standard.

And when Sullivan issued a final ruling in the case – stating that Flynn’s pardon did not render him innocent – Sullivan noted that “the government had been aware of much of this evidence since early on in the case,” meaning it would be covered by his earlier Brady opinion (indeed, almost all of the “new” documents were specifically addressed in his earlier Brady opinion).

Along with his false claim about exculpatory information, Gerth’s relies on an unusual interview of case agent Bill Barnett (the bolded language above; Gerth neither names nor links the interview), which is particularly problematic. That’s true, first of all, because in the interview, Barnett suggests (improbably) he did not understand the counterintelligence side of the investigation (a point Jim Comey made in congressional testimony). His claims about the evidence conflict with known details. Even so, his interview shows that he believed that Flynn lied in his interview with the FBI, contradicting a key false claim made by “Russiagate” purveyors talking about Flynn’s case. Worse, from a legal perspective, when DOJ submitted his memo to the docket, they redacted AUSA Brandon Van Grack’s name in the interview report, which had the effect of hiding from Judge Sullivan material information – that Barnett had no complaints with Van Grack’s performance and that Van Grack made sure Barnett’s favorable views about Trump and KT McFarland were aired in prosecutorial decisions. That is, the memo actually proves that DOJ was trying to hide that there was no exculpatory information, not that there was any.

To sustain his false claims about Flynn, then, Gerth does the same thing he did with his purported review of NYT and WaPo reporting: rely on a “Russiagate” narrative, rather than the actual facts.

Gerth plays “gotcha” with thin evidence before the evidence is collected

Gerth’s errors about the investigation get far weirder in a series of instances where Gerth scolds the press for not covering statements – either released after some delay or spoken retrospectively – to claim there was no substance to the investigation.

WaPo only included James Clapper’s statement that, by the end of his tenure, the intelligence community had found no evidence of “collusion” at the end of a story otherwise focused on his denial that Trump himself had been targeted under FISA, Gerth complains, “while the Times ignored it” in their story. But, as Clapper noted himself in the interview in question, that reflected the investigation as it existed on January 20, 2017, over forty days earlier. “This could have unfolded or become available in the time since I left the government.” Clapper was right: In the interim period, Flynn had lied to the FBI about his calls with Sergey Kislyak during the transition (which, again, was covered in stories that Gerth omitted from his review of NYT and WaPo reporting) and Papadopoulos had confirmed he got advance notice of the Russian interference, while lying about the timing of it. This is a favorite “Russiagate” move, but it’s just stupid, demanding anyone measure the facts of an investigation by what it used to look like several months in the past.

Gerth also complains that the NYT “omitted” any mention of a text Pete Strzok sent Lisa Page on May 19, 2017 after it was publicly released on January 23, 2018. In the text, Strzok explains that he might not join the Mueller team because “my gut sense and concern there’s no there there.” Gerth suggests reporting it, eight months after the fact, “might have helped readers better understand why Mueller failed to bring any criminal charges involving collusion [sic] or conspiracy with Russia.”

Yet the disclosure in no way substantiates what Gerth fancies it does – because (as other documents he relies on show, as well as a great deal of public documentation about the investigation he does not mention) – with the very notable exception of the FISA warrants targeting Carter Page, the investigation had barely begun to obtain warrants to collect evidence yet in May 2017. Indeed, Strzok’s is one of several comments that Gerth seizes on that reveal the former FBI agent didn’t have it in for Trump and instead repeatedly took steps to protect Trump and Flynn’s interests. But Gerth never complains that the press didn’t cover that aspect of the leaked texts and declassified investigative records. As noted, Gerth opines that, “One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.” The implications of the investigative steps Strzok actually took in the Russian investigation are clearly an example, but not one Gerth has any interest in.

A particularly bizarre example of this is when Gerth relies on a comment that Rod Rosenstein made, in 2020, about the state of the investigation when he approved a memo scoping the investigation on August 2, 2017. “By August, the collusion [sic] investigation had not panned out, according to 2020 testimony by Rod Rosenstein, the deputy attorney general who oversaw Mueller,” Gerth claims.

He appears to base that claim on this exchange with Lindsey Graham on June 3, 2020:

Lindsey Graham: (34:20) I’m not arguing with you about assigning it to Mueller. I’m saying, was there a legitimate reason to believe that any of the people named in this letter were actively working with the Russians in August, 2017?

Rod Rosenstein: (34:34) In August, 2017?

Lindsey Graham: (34:36) That’s when you signed the memo.

Rod Rosenstein: (34:38) My understanding, Senator, was that there was reasonable suspicion.

Lindsey Graham: (34:42) What is it? What was it?

Rod Rosenstein: (34:44) Now, again, Senator, the investigation has concluded and these people were not conspiring with the Russians, the information available at the time included-

Lindsey Graham: (34:55) Well, why do we have the Mueller investigation at all, if we had concluded they working with the Russians?

Rod Rosenstein: (35:00) I don’t believe we had concluded it at that time.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement. [my emphasis]

Gerth’s apparent citation of this exchange is telling. The hearing itself was part of a concerted effort by a Trump ally — relying on people like Bill Barnett — to muddle the actual results of the Mueller investigation. Gerth makes much of Mueller’s “painful” delivery during the Special Counsel’s May 2019 congressional testimony, but in this Senate hearing, Rosenstein – who was struggling to answer why he authorized the most problematic FISA application targeting Carter Page – proved easily bullied. Sure, he did “agree with [Lindsey Graham’s] general statement” that “there was no there there in August, 2017” when Rosenstein had written a new scope statement for the investigation. But Rosenstein said that just 61 seconds after he noted that he understood Mueller to have “reasonable suspicion” that Trump’s associates were working with Russia.

And as Gerth and Graham are both supposed to understand, the [Acting] Attorney General supervising a Special Counsel investigation is not involved in the day-to-day steps of it. Rosenstein’s answers make it clear he either didn’t remember, didn’t know, or didn’t want to talk about those details.

In fact, the public record shows, Mueller had more than reasonable suspicion that Trump’s aides had inappropriate contacts with Russians or others involved in the interference operation. 

Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On September 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.

The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving Manafort, Gates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).

Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.

Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later

On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”

Gerth’s reliance on Rosenstein, at best, ignores the context of the former Deputy Attorney General’s quivering in the face of his own exposure in the errors in the Carter Page applications. It ignores Rosenstein’s statement, 61 seconds earlier, about reasonable suspicion. More importantly, it relies on a witness who wouldn’t know what investigators had discovered and by when, all the while remaining blissfully ignorant of (or, worse, suppressing) publicly available details that reveal the actual state of the investigation in August 2017.

Based on such a shoddy reporting approach, Gerth calls all these investigative discoveries – details about plans for a meeting with Putin’s office in September 2016, foldered emails about carving up Ukraine, coordination with Mar-a-Lago on Flynn’s calls about sanctions with Sergey Kislyak, $400K in suspicious payments from a Russian oligarch, and proof that Stone was lying about contact with WikiLeaks – “no there, there.” 

Gerth insists that journalists should disclose the known details about the investigation – such as that Strzok didn’t think there would be anything before Mueller started obtaining warrants to check — but rather than holding himself to that standard, he instead makes provably false statements about what investigators knew, and could have known, when. 

When asked about both the Flynn and the Rosenstein claims, twice, CJR did not respond. “[T]he vast majority of items” I raised “are editorial notes from you, as in ways you would have written the piece differently,” Pope said in response to my list of questions, “rather than issues of fact that need to be addressed by CJR.”

Sweeping misstatements about trolls

Gerth’s legal misrepresentations are perhaps most telling in his discussion of the case against Russian oligarch Yevgeniy Prigozhin, twelve human trolls who worked for Internet Research Agency, the IRA itself, and two shell companies Prigozhin allegedly used to fund the IRA. 

This is going to get weedy, but it’s important because it’s an instance where Gerth simply adopts the false claims of another “Russiagate” propagandist as his own.

Gerth makes two claims: That the judge handling the case “rebuked” “the Mueller [R]eport” for claiming the “IRA” was part of a “sweeping” Russian government effort when (Gerth claimed) prosecutors weren’t prepared to prove that tie. And, he claims, “one criminal case” was dropped by DOJ.

The Mueller report’s implication that the IRA was part of a “sweeping” Russian government meddling campaign in 2016 was later rebuked by a federal Judge handling an IRA-related case. The indictment of the IRA, the judge found, alleged “only private conduct by private actors” and “does not link the [IRA] to the Russian government.” The prosecutors made clear they were not prepared to show that the IRA efforts were a government operation. Mueller’s report does refer to “ties” between Putin and the owner of the IRA—he is sometimes referred to as “Putin’s Cook”—and the fact that “the two have appeared together in public photographs.” Mueller’s source for that was an article in the Times.

[snip]

(One criminal case involving Russian trolling that was prosecuted was dropped by the Justice Department in March 2020. The Times, in its story about the decision, only quoted the prosecutor, while the Wall Street Journal and Washington Post also included quotes from the Russian company’s American lawyer.)

Before I lay out the many errors here, let me address Gerth’s complaint that the NYT quoted only prosecutors in their stories about DOJ’s decision to drop charges against Concord, whereas the WSJ and WaPo “include[] quotes from the Russian company’s American lawyer.” He doesn’t mention that NYT quoted a Twitter account boasting of leaking Mueller’s materials, one proximate reason DOJ dropped the case. But the entire complaint underscores Gerth’s fundamental misrepresentation of this issue: The dispute in question was a dispute about prejudicial pretrial statements, not about what prosecutors planned to prove in court. After Judge Dabney Friedrich issued her rebuke, neither side was supposed to be giving quotes to journalists. 

And because DOJ didn’t dismiss an entire criminal case, DOJ remained gagged under Judge Friedrich’s order. DOJ dismissed only the charges against the defendants in question, which Gerth describes as the “IRA” (Internet Research Agency) five times in one paragraph.

But Gerth got the defendant wrong. Here’s the passage of the judge’s order Gerth claims to be citing.

But the indictment, which alleges that private Russian entities and individuals conducted an “information warfare” campaign designed to sow discord among U.S. voters, Indictment ¶ 10, does not link the defendants to the Russian government. Save for a single allegation that Concord and Concord Catering had several “government contracts” (with no further elaboration), id. ¶ 11, the indictment alleges only private conduct by private actors. [my emphasis]

“The defendants” here were Concord Management and Consulting, the shell companies Prigozhin allegedly used to fund the IRA, the same defendants against which DOJ dropped charges. (Friedrich refers to IRA as Concord’s “co-defendant” when she discusses them.) The difference matters because – as even that passage makes clear – there was no question about the contracts that Concord had with the Russian government.

DOJ dismissed the charges against Concord because it was acting as a true shell company, using its flexibility as a corporate person to show up to contest the charges and obtain sensitive discovery, while dodging parts of the protective order and any possibility it would ever be arrested. I laid out DOJ’s decision to drop the charges, rebutting false claims from both right and left, in this post. Gerth must know that the decision only pertained to two corporate shell defendants. The WSJ story he cites, for example, makes that clear in the headline: “Judge Dismisses Part of Robert Mueller’s Case Against Russian Firm.” The NYT version clarified the dismissal involved just “two Russian shell companies.” 

And as for Friedrich’s rebuke, as I noted, it was about pretrial prejudice, Concord’s ability to get a fair trial, not about what prosecutors planned to prove at trial. Gerth appears to have made up the claim that prosecutors “made clear they were not prepared to show that the IRA [sic] efforts were a government operation.” On the contrary, prosecutor Jonathan Kravis explained in a hearing on Concord’s motion that they had not yet decided whether they would present it at trial.

THE COURT: And is that something that the government plans to introduce at trial in this case?

KRAVIS: I’m not certain of the answer to that question at this point.

Given the charges, they didn’t need to prove that Concord was working with the Russian government. The single conspiracy count against Concord didn’t require proving Prigozhin’s substantial ties to the Russian government. It required showing only that members of the conspiracy deliberately thwarted FEC and DOJ’s ability to enforce campaign finance and FARA laws, both of which only require a tie to a foreign principal, not a foreign government.

Similarly, Gerth falsely insinuates that Mueller didn’t have evidence of such ties by suggesting the only evidence in the report was a reference to a NYT article. As he did with the SSCI case laying out reasons it judged Kilimnik to be a spy, Gerth is here referring to a two page, almost entirely redacted section, and insinuating that a bunch of redacted evidence is the same as no evidence, just a reference to the NYT. A sentence unsealed after this dispute shows that this passage relied, in part, on details of Prigozhin’s ties to the Russian military.

Finally, Gerth misrepresents both the substance of the rebuke and its primary target. Concord’s complaint about prejudicial language (both the alleged tie to Russia and outright claims it was illegal) focused first and foremost on Bill Barr’s language, and only secondarily on the Mueller Report. While Friedrich’s order rebuking the government did cite language in the Mueller Report, she deemed that language a violation in conjunction with Barr’s far more definitive tie between Russia and the corporate defendants, particularly made in Senate testimony. 

Similarly, the Attorney General drew a link between the Russian government and this case during a press conference in which he stated that “[t]he Special Counsel’s report outlines two main efforts by the Russian government to influence the 2016 election.” Press Conference Tr. (emphasis added). The “[f]irst” involved “efforts by the Internet Research Agency, a Russian company with close ties to the Russian government, to sow social discord among American voters through disinformation and social media operations.” Id. The “[s]econd” involved “efforts by Russian military officials associated with the GRU,” a Russian intelligence agency, to hack and leak private documents and emails from the Democratic Party and the Clinton Campaign. Id. The Attorney General further stated the Report’s “bottom line”: “After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the Special Counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.” Id. (emphases added). In context, it is clear that one of these “efforts” or “schemes” attributed to the Russian government was the information warfare campaign alleged in the indictment. Id. Thus, the Attorney General “confirmed” what the indictment does not allege—that Concord’s and its co-defendants’ activities were “sponsored” by the “Russian government” and part of a two-pronged attack on our nation’s democratic institutions. Id. This bottom-line conclusion was highlighted in multiple press articles following the Report’s release.

In fact, Friedrich pointed to Mueller’s closing press conference on May 29 as proof of the care with which DOJ was trying to avoid such prejudice.

In delivering his remarks, the Special Counsel carefully distinguished between the efforts by “Russian intelligence officers who were part of the Russian military” and the efforts detailed “in a separate indictment” by “a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to interfere in the election.” Special Counsel Statement Tr. (emphases added). He also repeatedly referred to the activities described in the Report as “allegations” and made clear that his Office was “not commenting on the guilt or innocence of any specific defendant.” Id. The Special Counsel added that the defendants were “presumed innocent unless and until proven guilty in court.”

As to Gerth’s insinuation that Friedrich was rebuking Mueller for including “IRA” in his observation that, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion,” she did not include the “sweeping” comment quoted by Gerth. While Concord cited the “sweeping” language in its initial motion, it dropped it in its reply. The reference didn’t come up in the hearing on the matter. And Friedrich’s order did not mention the “sweeping and systematic” claim either, which in the report was tied to the hack-and-leak campaign. So not only wasn’t that claim rebuked, but by yoking that claim to IRA, Gerth is doing precisely what Concord complained about, applying language that pertained to other parts of Russia’s operation to Prigozhin’s corporations. Gerth is himself engaged in the kind of sloppy journalism that Concord complained about.

Virtually everything Gerth said in his comments about “IRA” was wrong in one way or another.

The sloppiness of this section is important for another reason.

As far as I’m aware, the claims were first made by Aaron Maté in a piece listing questions he wanted asked in Mueller’s congressional testimony.

Why did you suggest that juvenile clickbait from a Russian troll farm was part of a “sweeping and systematic” Russian government interference effort?

The Mueller report begins by declaring that “[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” A few paragraphs later, Mueller tells us that Russian interference occurred “principally through two operations.” The first of these operations was “a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” carried out by a Russian troll farm known as the Internet Research Agency (IRA).

The inference here is that the IRA was a part of the Russian government’s “sweeping and systematic” interference campaign. Yet Mueller’s team has been forced to admit in court that this was a false insinuation. Earlier this month, a federal judge rebuked Mueller and the Justice Department for suggesting that the troll farm’s social media activities “were undertaken on behalf of, if not at the direction of, the Russian government.” US District Judge Dabney Friedrich noted that Mueller’s February 2018 indictment of the IRA “does not link the [IRA] to the Russian government” and alleges “only private conduct by private actors.” Jonathan Kravis, a senior prosecutor on the Mueller team, acknowledged that this is the case. “[T]he report itself does not state anywhere that the Russian government was behind the Internet Research Agency activity,” Kravis told the court.

Maté made the claim that “sweeping” was included in there, he made the claim (and the substitution in brackets) that this was about the IRA, Maté made up the claim that this was about evidence rather than pretrial prejudice (indeed, his first version of this, since corrected, falsely attributed Concord’s complaint that DOJ had “improperly suggested a link” between “IRA and the Kremlin” to Friedrich). Most of Gerth’s errors first appeared in Maté’s piece, and Gerth doesn’t include Maté’s one quote – Friedrich’s judgment that the Mueller Report had suggested the trolling done by Concord’s co-defendant IRA was “undertaken on behalf of … the Russian government” – where Friedrich most directly condemned the Report.

From Maté’s piece, the claims were magnified through “Russiagate” channels and invoked days later in some erroneous questioning by Tom McClintock in the Mueller appearance that Gerth invoked in word 18 of his 23,000 word series.

MCCLINTOCK: But — but you — you have left the clear impression throughout the country, through your report, that it — it was the Russian government behind the troll farms. And yet, when you’re called upon to provide actual evidence in court, you fail to do so.

MUELLER: Well, I would again dispute your characterization of what occurred in that — in that proceeding.

Gerth, who starts his 23,000-word series citing Mueller’s testimony and scolds journalists repeatedly for not presenting contrary views, doesn’t include Mueller directly disputing the claim – made by McClintock, made by Gerth, and made by Maté – that the government failed to present such evidence. Gerth has been told his claims here are false, in the Mueller testimony he made the opening gambit of his series. And yet, he repeated Maté’s errors anyway.

Maté is one of the many “Russiagate” proponents – along with Matt Taibbi, Glenn Greenwald, Paul Sperry, John Solomon, Barry Maier – of whom Gerth speaks favorably at length (curiously, he doesn’t mention Chuck Ross, who unlike the others did important, substantive reporting on the dossier). I asked Pope whether Gerth had assessed some of the erroneous reports of these “Russiagate” figures, and mentioned this misrepresentation of Friedrich’s order specifically.

Do you believe Aaron Maté’s treatment of the Concord prosecution is accurate (including his misrepresentation of an order Dabney Friedrich issued, which this piece appears to rely on)? [my emphasis]

Pope refused to address the erroneous reporting of “Russiagate” proponents that Gerth was citing approvingly. “[Y]ou ask us to comment on or defend the actions of other people and institutions, including Trump, the FBI, Erik Wemple, the Department of Justice, Glenn Greenwald, and others. Those questions should be addressed to them, not us.”

No. Since CJR adopted Maté’s errors as their own, the question was rightly addressed to Pope. 

Pope’s silence about questions specifically raised about Maté, his refusal to own up to the errors Gerth borrowed from him, are particularly telling: In Duncan Campbell’s recent description of how CJR spiked a story on the Nation magazine’s credulous Russian reporting, Campbell revealed that the last edits Pope made before sending it to an interminable fact check pertained to Maté.

Pope then wanted the 6,000-word and fully edited report cut by 1,000 words, mainly to remove material about the errors in The Nation article. Among sections cut down were passages showing how, from 2014 onwards, vanden Heuvel had hired a series of pro-Russian correspondents after they had praised her husband. Among the new intake was a Russian and Syrian Government supporting broadcaster, Aaron Maté, taken on in 2017 after he had platformed Cohen on his show The Real News.

Maté became the magazine’s prolific ‘Russiagate’ correspondent. Vanden Heuvel was later to tell Maté in a broadcast in October 2020 that “Steve always valued your work… your writing for The Nation was always important to him as it is to me… I think what you do at RealClearInvestigations is factual, is bullet–, and I was reading them to Steve in the last weeks, trying to rile him up.” Maté responded: “I’m forever indebted to you and Steve.”

That is, CJR has covered for Maté in the past, and here they refuse to hold themselves accountable for adopting his errors.

The Columbia Journalism Review blew off one or another clear error – errors that came from people like Sidney Powell! – by claiming the actual facts were mere “editorial notes.”

And along the way, Gerth declared that details about plans for a meeting with Putin’s office in September 2016, foldered emails about carving up Ukraine, coordination with Mar-a-Lago on Flynn’s calls about sanctions with Sergey Kislyak, $400K in suspicious payments from a Russian oligarch, and proof that Stone was lying about contact with WikiLeaks amounted to “no there there.” 

CJR claimed that it “has been examining the American media’s coverage of Trump and Russia in granular detail.” This review has shown how ridiculous that claim is. What it did, in the name of scolding other journalists while misrepresenting their work, was create the “Russiagate” narrative they defined the entire project by. They did so by skipping key events of 2016, ignoring the vast majority of the NYT and WaPo reporting they claimed to review, substituting the dossier for actual media coverage, and passing off a Russian intelligence product with no notice. To prove they found the “Russiagate” narrative they had dishonestly created, they simply parroted  the work of people from their same “Russiagate” bubble, all the while ignoring vast swaths of contradictory evidence in the documentary record. 

CJR invented a Russiagate narrative via omission and factual error. Then they boasted that they had found what their own journalistic failures created.

Update: A stats prof from Columbia caught Gerth making errors — or more likely, adopting others’ errors — in his key statistical claim about declining trust for media.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

Update: Date of Papadopoulos’ claimed inability to read his own notes corrected.

The J6C Transcripts: Patrick Byrne’s Conduit, Garrett Ziegler

The other day, I noted that while I agree with Rayne that the January 6 Committee could use referrals to make important symbolic statements, the Committee’s referral, in practice, was weaker than it should have been to make that symbolic impact. That made bmaz’ earlier gripes about such a referral look more justified.

Similarly, the release of the first set of January 6 Committee transcripts last night show how right he has been that the Committee was remiss in not turning these over to DOJ sooner. Most of these transcripts are people who pled the Fifth and most you’re hearing about are the big name people like Mike Flynn and Roger Stone. But the first I read, from a Peter Navarro aide, Garrett Ziegler, hinted at just how valuable the J6C interviews will be, even of those who (like Ziegler) refused to cooperate.

Ziegler is most famous as the guy who let Sidney Powell, Mike Flynn, and Patrick Byrne into the White House for a famously confrontational meeting on December 18, 2020, which preceded Trump’s announcement of the January 6 riot. But Ziegler’s non-answers to J6C staffers serve as roadmap of the larger operation. He refused to answer questions about the following:

Ziegler was — is — a kid, totally unqualified for the role he had at the White House, which it sounds like he didn’t do anyway, instead at least partly working for Trump’s reelection on the taxpayer dime. But he was also totally wired into most aspects of the coup attempt.

His role in all this is interesting for several more reasons. First, it appears that Ziegler did not turn over the “path to victory” email in response to his January 6 subpoena, which means for all the times he invoked the Fifth, he might still have exposure to obstruction charges.

He is represented by John Kiyonaga — a lawyer who has represented key assault defendants in January 6, including former Special Forces guy Jeffrey McKellop. In fact, prosecutors are considering charging McKellop in January for violating the protective order covering evidence on January 6 by sending evidence from jail to others.

And Ziegler published a copy of both the “Hunter Biden” “laptop” and the diary stolen from Ashley Biden.

What DOJ Was Doing While You Were Wasting Time Whinging on Twitter

Because people are so desperate for information on investigations into Trump, they’re over-reading articles to see only the most panic-inducing details.

So I wanted to collect all the known details of investigative steps against Trump and his associates. This will be a running thread.

Note that while I’ve focused on named subjects, these investigations absolutely intersect. That’s readily apparent with the fake electors investigation, but less so with the “Stop the Steal” nexus (best seen in the Ali Alexander entry below; which is where I’m putting some movement activists who played key roles). Those who were speakers on January 5, VIPs who were removed from the speaker’s list on January 6, or who were on Stone’s Friends of Stone or Alexander’s Stop the Steal lists often had roles both in ginning up mobs in states or advance planning for events at the Capitol on January 6 and played some role as things rolled out that day. These people would likely be the “influencers” identified in the investigative plan put together before Michael Sherwin left.

Rudy Giuliani

April 13, 2021: SDNY obtains historic and prospective cell site warrant for Rudy.

April 21, 2021: Warrants for Ukraine-related investigation approved. This was Lisa Monaco’s first day as Deputy Attorney General. The temporal scope on the Ukraine warrants extends from August 1, 2018 through May 31, 2019.

April 28, 2021: Warrants executed. Around 18 devices seized, of which 16 can be cracked.

September 3, 2021: SDNY argues that the privilege review for Rudy’s devices must be conducted pre-scope (meaning, before just the information on Ukraine is identified) and generously offers to limit temporal range of review to items post-dating January 1, 2018, significantly expanding the temporal scope of the privilege review vis a vis the known warrants.

September 16, 2021: Judge Paul Oetken approves SDNY’s desired treatment of Rudy’s phones, meaning anything that post-dates January 1, 2018, regardless of topic, will be reviewed for privilege.

November 2, 2021: Special Master releases contents of 7 devices, for which privilege review extended through seizure. 2,223 items were provided to the government.

January 15, 2022: WaPo quotes Rob Jenkins, who represents a number of Proud Boy defendants, explaining that DOJ is asking about Roger Stone and Rudy Giuliani’s ties to militia members.

January 19, 2022: Special Master releases contents through April 2021 of one phone amounting to over 25,000 items, as well as eight other devices for which the privilege review extended from December 1, 2018 through May 31, 2019.

April 12, 2022: In guise of coming to a final decision on the Ukraine influence-peddling that hasn’t happened yet, DOJ asks Rudy to unlock last several devices.

May 26, 2022: Subpoenas (CNN, NYT) relating to the fake elector plot ask for information on:

  • Rudy Giuliani,
  • Boris Epshteyn
  • Justin Clark
  • John Eastman
  • Bernard Kerik
  • Joe diGenova
  • Victoria Toensing
  • Jenna Ellis
  • Kenneth Chesebro

July 22, 2022: In grand jury testimony, Marc Short and (earlier) Greg Jacob are asked about Rudy and Eastman.

Roger Stone

March 17, 2021: In response to motion for bail for Connie Meggs, DOJ includes picture showing both she and Graydon Young worked a Roger Stone event on December 14, 2020.

June 23, 2021: Oath Keeper Graydon Young, who interacted with Stone in Florida in December 2020, enters into a cooperation agreement.

June 30, 2021: Oath Keeper Mark Grods, who worked the Willard the morning of the insurrection, enters into a cooperation agreement.

September 15, 2021: Oath Keeper Jason Dolan, who guarded Stone in both Florida and DC and would have witnessed discussions between Kelly Meggs and Roger Stone in December, enters into a cooperation agreement.

January 15, 2022: WaPo quotes Rob Jenkins, who represents a number of Proud Boy defendants, explaining that DOJ is asking about Roger Stone and Rudy Giuliani’s ties to militia members.

March 2, 2022: Oath Keeper Joshua James, who oversaw security of Stone on the morning of January 6 and reported back frequently, enters into a cooperation agreement. James also provides statement to NYPD inquiry of Stone associate Sal Greco.

March 4, 2022: WaPo describes hours of documentary video tracking Stone’s events leading up to the attack, including details from a Friends of Stone list on which Stone started planning Stop the Steal immediately after the election. Both DOJ and January 6 sought the outtakes, with Oath Keeper prosecutor Jeffrey Nestler offering to fly to Denmark to make the request. [Note this entry has been corrected to reflect ongoing efforts to get the footage.]

May 2022: NYT describes more about the FOS list, confirming that Owen Shroyer, Enrique Tarrio, Stewart Rhodes, and Ivan Raiklin took part. By June 23, 2022, DOJ had extracted the contents of Shroyer, Tarrio, and Rhodes’ phones.

Sidney Powell

June 2021: Nikki Fried announces Sidney Powell’s Defending the Republic had been raising funds in Florida without registering as a charity.

August 24, 2021: Powell’s fund settles with Florida.

September 2021: AUSA Molly Gaston issues subpoena for records relating to Sidney Powell’s grift going back to November 2, 2020.

November 30, 2021: Several outlets report on subpoenas relating to Powell. (WaPo, Daily Beast)

January 22, 2022: Powell’s attorney claims to be “cooperating” with DOJ investigation.

June 22, 2022: Months after BuzzFeed and Mother Jones report on the scheme, DOJ asks Judge Amit Mehta to conduct conflict inquiry regarding Powell’s funding of Oath Keeper defendants’ defense.

Alex Jones

April 13, 2021: Jones videographer Sam Montoya arrested on trespassing charges related to January 6.

August 19, 2021: Jones sidekick and January 5 speaker Owen Shroyer arrested for violating a non-prosecution agreement by trespassing; Shroyer did not enter the Capitol.

January 20, 2022: Judge Tim Kelly denies Shroyer’s motion to dismiss, effectively agreeing with DOJ that Shroyer (and so Alexander and Jones) weren’t invited by cops to the East steps and didn’t de-escalate the crowd. According to his pre-released testimony, Alexander had claimed they were de-escalating in his sworn testimony to the January 6 Committee.

May 5, 2022: Montoya asks for 60 day extension to discuss plea deal.

May 9, 2022: At status hearing, Shroyer attorney Norm Pattis describes talks of a plea deal.

June 14, 2022: Long-time Jones attorney Norm Pattis, who is representing Owen Shroyer, joins Joe Biggs’ defense team.

June 23, 2022: DOJ provides Shroyer unscoped contents of his phone, to provide scoped contents later.

Ali Alexander

January 25, 2021: Brandon Straka arrested for trespassing and civil disorder. Straka was a key player in the Stop the Steal movement, playing a key role at the riot at the TCF vote counting center in Michigan after the election, spoke at the January 5 rally, sat next to Mike Flynn at Trump’s speech, and stopped at the Willard before heading to the riot. Straka was also on Alexander’s Stop the Steal LISTSERV.

February 17, 2021: First FBI interview with Straka.

March 25, 2021: Second interview with Straka.

December 8, 2021: In released testimony for an appearance before J6C, Alexander told a story that DOJ had already debunked in the Owen Shroyer case. For this and other appearances, Alexander was represented by Paul Kamenar, the same attorney that guided Andrew Miller through stalling the Mueller investigation for a year.

January 5, 2022: Third interview with Straka.

January 13, 2022: DOJ includes sealed cooperation memo in Straka’s sentencing memo.

April 19, 2022: After 15 months of continuations, Anthime “Baked Alaska” Gionet charged with a single trespassing charge, a charge understood to have required some cooperation in advance.

May 11, 2022: Anthime “Baked Alaska” Gionet balks at a plea hearing for a cooperative misdemeanor plea. It is understood that Gionet shared certain materials to avoid a felony indictment. Gionet was given two months (until July 22) to plead to the misdemeanor or face the prospect of felony charges relying on his cooperation.

June 24, 2022: Ali Alexander testifies before grand jury.

June 28, 2022: Alexander returns to DC.

Jeffrey Clark

Note there are two Trump lawyers named Clark: Jeffrey is the DOJ official who would have replaced Jeffrey Rosen . Justin worked on campaign issues. [Really bad error corrected.]

January 25, 2021: DOJ IG Michael Horowitz opens probe into whether current or former DOJ officials attempted to overturn the election.

July 26, 2021: Associate Deputy Attorney General Bradley Weinsheimer writes former top Trump DOJ officials permitting them to testify on efforts, led by but not limited to Clark, to involve DOJ in an attempt to overturn the election. This was the first of a series of Executive Privilege review waivers DOJ asked Biden to make and roughly coincided with the delayed institution of a Contact Policy preventing Biden from learning about investigations.

June 22, 2022: Agents search Clark’s home and seize his devices. Per CNN, DOJ IG coordinated with the wider investigation into January 6.

John Eastman

March 28, 2022: Judge David Carter rules it is more likely than not that Eastman and Trump conspired to obstruct the vote certification. DOJ would be able to obtain any emails Judge Carter released directly from Chapman University covertly.

May 26, 2022: Subpoenas (CNN, NYT) relating to the fake elector plot ask for information on:

  • Rudy Giuliani,
  • Boris Epshteyn
  • Justin Clark
  • John Eastman
  • Bernard Kerik
  • Joe diGenova
  • Victoria Toensing
  • Jenna Ellis
  • Kenneth Chesebro

June 28, 2022: FBI seizes Eastman’s phone, gets him to unlock it.

July 22, 2022: In grand jury testimony, Marc Short and (earlier) Greg Jacob are asked about Rudy and Eastman.

Fake Electors

Fall 2021: According to NYT, Thomas Windom assigned, “to pull together some of the disparate strands of the elector scheme.”

January 25, 2022: Lisa Monaco confirms on the record that DOJ is investigating the fake elector scheme.

May 26, 2022: Subpoenas (CNN, NYT) relating to the fake elector plot ask for information on:

  • Rudy Giuliani,
  • Boris Epshteyn
  • Justin Clark
  • John Eastman
  • Bernard Kerik
  • Joe diGenova
  • Victoria Toensing
  • Jenna Ellis
  • Kenneth Chesebro

June 21, 2022: On July 25, 2022, WaPo published subpoenas to AZ fake electors Karen Fann and Kelly Townsend. In addition to AZ-specific list and the already published list of names of interest, those add:

  • James Troupis
  • Joshua Findlay
  • Mike Roman

June 22, 2022: DOJ takes a slew of overt steps in their investigation into the fake electors:

  • WaPo: Law enforcement activity targeting GA lawyer Brad Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
  • NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
  • CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
  • CNN: Subpoena for Shafer, a warrant for David Carver’s phone, information on a GA Signal chat

July 8, 2022: Due date for June 21 subpoenas.

July 13, 2022: Talks between J6C and DOJ about sharing transcripts prioritizes fake electors scheme.

The Mark Meadows Gap

As I was writing this timeline, I realized that, aside from efforts on behalf of the Archives to force Meadows to reconstruct the insurrection he carried out on his personal phone and email, we really do have little information about an active investigation into Meadows’ role in the plot. That may explain why DOJ had not considered interviewing Cassidy Hutchinson before they saw her testimony.

Meadows should be included in the fake electors investigation, but thus far, he’s not. He would be included in any DOJ investigation of pressure in Georgia, but thus far, it seems DOJ has let Fani Willis take the lead on that investigation.

With the exception of Scott Perry, Meadows would be an absolutely necessary pivot to members of Congress who conspired in an attack on their own institution.

Additionally, there are credible allegations of obstruction against Meadows — for replacing his phone, likely deleting Signal and other encrypted app texts, after the FBI investigation started; for burning documents; for pressuring Hutchinson not to testify.

All that said, while Meadows is undeniably the most important gap in this timeline, Trumpsters are predicting that Meadows will go to jail, citing not just his own schemes, but his finances.

Steve Bannon

September 23, 2021: January 6 Committee subpoenas Bannon.

November 3 and 8, 2021: At interviews Bannon attorney Robert Costello did with DC US Attorney’s Office, at which FBI Agents were present, he gives materially inconsistent answers.

November 11, 2021: DOJ obtains Internet and telephony toll records for Robert Costello spanning from March 5 through November 12, which cannot pertain exclusively to the subpoena from a Committee the founding of which came months after the start date of toll request.

November 2021: DOJ subpoenas the toll records for two people — one is a financial advisor — under whose accounts he was believed to communicate in the past; DOJ provided these in discovery on July 8, 2022. The scope for at least one of the subpoenas is for September 22, 2021 through October 21, 2021.

November 12, 2021: DOJ indicts Bannon for contempt.

December 2, 2021: After DOJ raises concerns about Costello serving as a witness, he joins Bannon’s legal team until just before trial.

June 29, 2022: Pursuant to a trial subpoena, DOJ interviews Trump attorney Justin Clark about circumstances of Bannon’s non-compliance.

July 22, 2022: Jury finds Bannon guilty of both counts of contempt.

Peter Navarro

June 2, 2022: DOJ indicts Navarro on two counts of contempt.

Stolen classified documents

February 18, 2022: NARA informs Oversight Chair Carolyn Maloney that there were classified documents among the 15 boxes taken to Mar-a-Lago.

February 22, 2022: Merrick Garland implies DOJ will investigate the mishandled documents.

April 7, 2022: Because DOJ opened investigation into documents, NARA refuses request for more information from Maloney.

May 12, 2022: DOJ issues subpoena to NARA regarding documents and requests interviews with those involved in packing boxes before leaving the White House.

Other key dates

January 4, 2021: DC authorities seize Enrique Tarrio’s phone.

January 8, 2021: Grand jury that carries out bulk of investigation on Capitol and ultimately charges Oath Keepers with sedition convened.

May 25, 2021: Grand jury that indicted Bannon, handful of Jan6ers convened.

August 11, 2021: Grand jury that indicted Michael Riley (Capitol Policeman), several serious defendants (including a superseding) convened.

Summer 2021: FBI interviewed Doug Mastriano about January 6.

October 21, 2021: In Congressional hearing, Merrick Garland makes clear that the OLC memo prohibiting the prosecution of a sitting President is not pertinent to whether Trump can be charged.

November 10, 2021: Still-active grand jury indicting more serious ongoing assault cases, among others, convened.

November 22, 2021: In hearing in Garret Miller case, Judge Carl Nichols asks AUSA James Pearce whether DOJ’s application of 18 USC 1512(c)(2) to the vote certification could apply to someone like Trump. Nichols would go on to be the lone DC judge to reject this application.

December 2021: FBI first gets access to Tarrio’s phone.

December 10, 2021: Judge Dabney Friedrich is the first DC Judge to uphold DOJ’s application of 18 USC 1512(c)(2) to the certification of the vote, the same crime discussed for use with Trump.

January 5, 2022: Garland promises DOJ, “remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead” and describes, “follow[ing] the money.”

January 12, 2022: DOJ charges Oath Keepers with sedition (and adds Stewart Rhodes to conspiracy).

Mid-January 2022: After filter review, DOJ first obtains materials from Tarrio’s phone that was seized over a year earlier.

January 19, 2022: SCOTUS rejects Trump’s bid to shield January 6 records under Executive Privilege. Not only will J6C get subpoenaed materials directly, but DOJ will be able to obtain the same materials directly, using privilege waiver Biden made for the Committee without violating contact rules.

February 14, 2022: Grand jury that charges Proud Boys with sedition convened.

February 15, 2022: Grand jury that charges Peter Navarro convened.

February 18, 2022: Judge Mehta denies Trump’s motion to dismiss various lawsuits, finding it plausible that Trump conspired with rioters at the Capitol, that he conspired with the militias who attacked the Capitol, and that he has aid and abet liability for assaults at the Capitol, including on cops.

March 3, 2022: Judge Carl Nichols holds that 18 USC 1512(c)(2) must have a documentary component and applies the rule of lenity to dismiss obstruction charge against Garret Miller. In briefing in this case, Nichols had hypothetically asked whether the law could apply to the then-President.

March 7, 2022: DOJ adds Enrique Tarrio to Proud Boy Leaders conspiracy.

March 28, 2022: Judge David Carter rules it is more likely than not that Eastman and Trump conspired to obstruct the vote certification.

May 25, 2022: Garland issues memo affirming that the same rules that always apply to DOJ investigations still apply to DOJ investigations.

June 6, 2022: DOJ charges Proud Boy leaders with sedition.

June 28, 2022: Testimony of Cassidy Hutchinson said to “jolt” DOJ to discuss Trump crimes other than those tied to inspiring rioters, though that report also says that, “change that was underway even before Ms. Hutchinson’s testimony.”

June 29, 2022: In a public appearance, Lisa Monaco says, Congress “is doing their job and we’re doing ours” and describes that DOJ is “deep” into its January 6 probe.

July 15, 2022: After declining to prosecute Mark Meadows for contempt in June, DOJ weighs in on Meadows lawsuit against J6C to opine that Hutchinson’s testimony demonstrated that the Committee is unable to obtain necessary information from other sources.

July 20, 2022: In response to a question about whether DOJ guidance on opening sensitive investigations would be affected if Trump announced he was running, Lisa Monaco reiterates that DOJ would follow the facts, “no matter where they lead, no matter to what level.”

July 21, 2022: Merrick Garland suggests that those who claim DOJ should, but is not, doing a hub-and-spoke investigation are speculating, and calls the investigation “the most wide-ranging” investigation that the Justice Department has ever entered into.

July 22, 2022: Marc Short appears before a grand jury (Greg Jacob did by July 22 as well).