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Where the Trump Investigations Stand: The January 6 Conspiracies

April 30, 2023/67 Comments/in 2020 Presidential Election, Financial Fraud, January 6 Insurrection /by emptywheel

As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially. I wrote about the Georgia investigation here and the stolen documents investigation here.

On Thursday, Mike Pence testified to the January 6 grand jury for over five hours. Many commentators have suggested — and I agree — that was one of the last major testimonial steps Jack Smith would need to take before deciding whether and if so how to charge Trump for inciting a mob to threaten to assassinate his Vice President.

But — in addition to Smith’s efforts to obtain recordings from Rudy Giuliani and others that former Fox producer Abby Grossberg has in her possession (which are going to make great evidence at trial) — there are still a few pieces that Smith’s prosecutors seem to be working on.

The most important of those may be continued appellate uncertainty regarding the law that Smith is likely to use to charge Trump and others in conjunction with January 6, obstruction of the vote certification, 18 USC 1512(c)(2), a charge successfully used against dozens of other January 6 defendants already. The DC Circuit will have a hearing on that, in an appeal former Virginia cop Thomas Robertson made of his obstruction conviction, on May 11.

To understand its import, let me explain how I think the various things Smith is investigating fit together. I think it likely that, in addition to some charges relating to the obstruction of this or the January 6 Committee’s investigation, Smith’s team is pursuing:

Conspiracy to defraud the United States for submitting fake elector certificates to the Archives (18 USC 371)
Obstruction of the vote certification and conspiracy to obstruct (18 USC 1512(c)(2) and (k))
Conspiracy to commit wire fraud (18 USC 1343; 1349)
Aiding and abetting assault (18 USC 111(b) and 2)

This differs from the January 6 Committee’s referrals in that I’ve included wire fraud, for which they provided abundant evidence, in an appendix, but did not include in their referrals. Also, I believe Smith would charge conspiracy tied to January 6 under 1512(k) rather than 371, as DOJ has been doing for over a year, not least because it provides stiffer sentences and more flexibility at sentencing. And I’ve suggested DOJ might use aiding and abetting of Michael Fanone’s assault based off Amit Mehta’s ruling addressing it and the evidence DOJ used in the Ed Badalian trial. I think that’s more likely than a charge for incitement of insurrection (18 USC 2383) unless DOJ built upwards off of still-hypothetical guilty verdicts in the Proud Boys case, but it might take time. I frankly think adding seditious conspiracy charges would be more likely than incitement of insurrection, if one spent the time to build up the intervening case, but that’s highly unlikely for constitutional reasons.

The way these three main charges — conspiracy to defraud tied to the fake elector certificates, conspiracy to obstruct the vote certification, and wire fraud — intersect likely provide some prosecutorial tools for the same reason that some Georgia Republicans are now turning on other ones.

While the fake electors case may seem like a slam dunk, the criminal exposure it presents is quite uneven.

Part of that stems from the fact that the extent to which a fake certificate was fraudulent is tied to state law about the requirements for elector ascertainment. On December 9, 2020, campaign lawyer Kenneth Cheesebro wrote down (!!) where such efforts would be less and more problematic.

Many of the States contested by the Trump team had laws that specified requirements for electors to validly cast and transmit their votes—and the December 9, 2020, memo recognized that some of these criteria would be difficult, if not impossible, for the fake electors to fulfill. (As described later, most were not fulfilled.) For example, Nevada State law required that the secretary of state preside when Presidential electors meet,16 and Nevada Secretary of State Barbara Cegavske, a Republican, had already signed a certificate ascertaining the Biden/Harris electors as the authorized, winning slate.17 Several States also had rules requiring electors to cast their votes in the State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot were unavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognized that these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

That memo marks the moment when Trump’s official campaign lawyers like Justin Clark and Matt Morgan started to distance themselves from the campaign efforts, to be replaced by Rudy Giuliani and his band of merry warriors.

Something similar happened at the states, as smarter people insulated themselves from this stupid legal move. The fake electors in New Mexico and Pennsylvania included caveats that likely protects them from legal exposure; in other states (notably, Wisconsin) the fake electors credibly believed that the certificates would only be used if a court ruled that there was some remaining legal dispute. Fourteen fake electors refused to participate, several of whom had very useful things to say about its dubious legality even to the January 6 Committee.

While there’s lots of documentary record reflecting that Trump approved the plan, proving his knowledge of the legal problems with the fake certificates themselves would likely require witnesses who saw him do so after having been advised of the legal sketchiness of it all (that may have been among the things the two Pats, Philbin and Cipollone, were asked about in their grand jury testimony in December). To include Trump in these charges, you need witnesses. His call to Brad Raffensberger and his assent to a lawsuit using numbers known to be dodgy are related; his pressure on electors to participate is part of the same conspiracy; but to charge him with the conspiracy itself you need those direct witnesses (in addition to the two Pats, Jason Miller, Rudy, Mark Meadows, Epshteyn, and John Eastman are likely those witnesses).

By last June, the subpoenas DOJ sent out asking for communications with those deeply implicated reflected this differential exposure. So do the phone seizures of Mike Roman and Epshteyn in September, both of whom were key gatekeepers of this process. This post shows how the investigation proceeded from there. In other words, the parts of the fake elector investigation we can see reflect awareness from before the first J6C hearing that the scam implicated differential legal exposure.

That kind of differential exposure is the same thing that Fani Willis is using to secure cooperating witnesses in Georgia.

While I’ll come back to it, the same kind of differential exposure exists with the wire fraud case. Just as one example, while Justin Clark claims to have distanced himself from the obviously illegal fake elector scam, he remained in Trump’s employ as he spent the money earned from making false claims about voter fraud between November and January. He already would have had an incentive to provide evidence to prosecutors that he had no part of the fake electors scheme. His incentive to do so increases to the extent that he benefitted from fraudulent fundraising and spending.

But first I want to explain one thing Smith may be waiting on: A clear sense of how the DC Circuit will define “corrupt purpose” under 18 USC 1512(c)(2).

If he charges it, Smith will likely prove that Trump obstructed the vote certification by:

Asking Mike Pence to take action to delay the certification that Trump had been told was illegal (Greg Jacob, Mark Short, the two Pats, and Pence are witnesses to this, all of whom have now made Executive Privilege-waived grand jury appearances)
Falsely leading the mob to believe that Pence could take that action (changes Trump made to his speech, about which Stephen Miller was likely asked by the grand jury this month, and his tweets are evidence of this)
After Pence refused to take that action, using the mob to try to pressure him to take it anyway or to otherwise disrupt the certification (DOJ has spent two years obtaining evidence that this was, in fact, why many people rioted, with specific evidence tied to Danny Rodriguez)

Contrary to what a million TV lawyers have told you, to prove obstruction, Smith won’t have to prove Trump knew he lost. DOJ has repeatedly won convictions of other January 6 defendants who tried to use that as a defense.

DOJ will need to prove he had corrupt purpose in attempting to obstruct the vote certification. And what that means in the DC Circuit won’t be decided until after May 11.

This post provides both a summary of the debate as it existed in January. This post describes how a DC Circuit panel of Florence Pan, Justin Walker, and Greg Katsas ruled that 1512(c)(2) does apply to the vote certification and that obstruction can extend beyond documentary obstruction. It also explains how none of the three of them could agree on what “corrupt purpose” means, from which some January 6 defendants have tried to argue (unsuccessfully in at least two cases) that Walker’s preferred meaning should apply.

Wildly simplified, the three main definitions of what corrupt purpose might mean are:

Corrupt benefit
Using otherwise illegal means, which in the case of other January 6 defendants has meant trespass or assault
Aiming to obtain an unlawful benefit

On May 11, a DC Circuit panel including Pan, Poppy Bush appointee Karen Henderson, and Obama appointee Cornelia Pillard will consider whether former Virginia cop Thomas Robertson had the corrupt purpose required to be convicted of obstruction. As part of that, they’ll decide whether the earlier ruling decided the issue of what corrupt purpose is, and if not, what it is.

As I wrote, to the extent that Smith has proof Trump knew the fake elector certificates were fraudulent, 1512 should apply to Trump in every imaginable case, far more easily than it does with rioters. The attempted delivery of the fake elector certificates to Pence constitutes a documentary attempt to obstruct the vote certification. Trump’s illegal request to Pence, as well as the knowingly fraudulent lawsuit in Georgia and the effort to pressure Raffensperger, to say nothing of any incitement or aid-and-abet liability in the assaults, are illegal means he used to stop the vote certification. And Trump, more than anyone else involved in efforts to obstruct the vote certification on January 6 was seeking an unlawful personal benefit, the ability to remain in power for another term. Mitch McConnell protégé Walker clearly laid out that basis for that case in his concurring opinion in Fischer.

But former Trump White House counsel Katsas didn’t necessarily view the continued election of Donald Trump to be such an advantage, at least not for those accused of assault before him. He sought a stricter definition of “financial, exculpatory, or professional” gain.

Which brings me (back) to the wire fraud investigation, something that DOJ has been investigating since at least September and in which CNN reported DOJ got cooperators after January 6.

[T]he 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.

Wire fraud charges would closely resemble the successful Build the Wall prosecution for which Steve Bannon’s co-conspirators just got four year sentences (he was pardoned in for it in one of Trump’s last pardons but faces trial for the same scam in New York State in November). It would follow a similar wire fraud investigation of Sidney Powell that dates back to before September 2021.

If you think of these three prongs of the investigation, the wire fraud prong serves two purposes. First, many of the people who were witnesses but not subjects of the events leading up to January 6 might be subjects of the wire fraud investigation. As I noted, it may provide a tool to get cooperators.

Just as importantly, even under the most constrained definition of corrupt purpose for obstruction, grifting off false claims of election fraud would qualify.

That is, for Trump, a prosecutor should be able to prove corrupt purpose regardless of any conceivable standard that the DC Circuit or even a conservative SCOTUS would adopt, because he attempted to obstruct the vote certification so that he could remain President after losing the election.

But even if you don’t believe getting Trump elected provides an unlawful benefit to his supporters (or, to put it another way, disqualifying the votes of 81 million other Americans so yours counts more), disseminating false claims about voter fraud to get rich and then cashing in on that Big Lie for years afterwards is a different kind of corrupt purpose, the kind of financial corrupt purpose that Katsas is looking for.

If you riled up tens of thousands of Trump supporters who went on to attack the Capitol just so you could benefit financially, you’ve realized the kind of corrupt financial benefit from the riot that would seem to meet Katsas’ most constrained definition of corrupt purpose.

So it’s not just that the wire fraud part of the investigation is a crime that should, like all the other ways Trump and his flunkies have exploited his credulous followers, be prosecuted. It’s a important complement to the two other conspiracies, both because it’s likely to motivate more cooperators, but also because it helps to prove corrupt purpose for all the people who profited off the fraud.

And that may have an impact on the timing.

As I’ve noted, Trump should qualify under the definition of corrupt purpose no matter what the DC Circuit decides, though some of his flunkies might not. And so on top of whatever continued investigation Smith has to do on the wire fraud prong, he may want to wait until at least after that hearing before he makes final charging decisions.

Lots of people are impatient that neither Trump nor his flunkies have been charged thirty months after their crimes. But the likely charge hasn’t even been defined yet.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

December 6, 2022/26 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.

Trump Is a Mob Boss Whose Omertà Has Started to Fail

December 5, 2022/101 Comments/in 2020 Presidential Election, 2022 Mid-Term Election, January 6 Insurrection, Leak Investigations /by emptywheel

In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.

On Trump, the Anti-Semites, and the Coup Attempt: The Import of Nick Fuentes’ Reference to January 6

November 28, 2022/61 Comments/in emptywheel /by emptywheel

The first thing you should ask when you hear about Trump and the white nationalist is … which one?

After all, it wasn’t that long ago that Stephen Miller waltzed into Kevin McCarthy’s office on the day McCarthy became the presumptive nominee for Speaker of the House. Even if Trump gets the Republican nomination in summer 2024, that’s still twenty months off. But if Miller is driving the Republican House majority’s policy choices in the interim, it will have immediate effect. It will continue an institutional commitment from the Republican Party to policies built to respond to and feed more hate.

Plus, part of the loudest outrage surrounding Trump’s paling around with neo-Nazi Nick Fuentes — from people like Mike Pompeo and Chris Christie — is significantly a desire to undercut Trump in advance of a primary. If you’re opposed to white nationalists in the Republican Party, take on Miller’s central role in the party as a whole and also Trump’s continued ties with fascists.

If you’re a journalist who thinks the Fuentes dinner is newsworthy (it is!), then ask whether Miller’s continued central role in GOP policy is too.

Hell, if you’re a horserace politics reporter, consider writing a story about how damaging Miller’s policies have been for the GOP two midterm elections in a row.

And there’s a bit of the story that’s missing from most tellings of the story.

As Jonathan Swan tells it (with Zachary Basu), in addition to scolding Trump about his increased reliance on teleprompters, Fuentes also delivered the message that parts of the far right are disappointed with Trump, in part, because he has not supported January 6 attackers sufficiently.

Fuentes told Trump that he represented a side of Trump’s base that was disappointed with his newly cautious approach, especially with what some far-right activists view as a lack of support for those charged in the Jan. 6 Capitol attack.

Trump didn’t disagree with Fuentes, but said he has advisers who want him to read off teleprompters and be more “presidential.” Notably, Trump referred to himself as a politician, which he has been loathe to do in the past.

Fuentes also told Trump that he would crush potential 2024 Republican rivals in a primary, including Florida Gov. Ron DeSantis. Trump asked for Fuentes’ opinion on other candidates as well. [italics mine, bold Axios’]

Not only doesn’t this sound like an unplanned encounter — at least from Fuentes’ side — but it affirmatively sounds like the kind of constituent ask that politicians of all stripes make when they discuss whether to endorse a candidate or not. Fuentes hated Trump’s announcement speech — too canned! — but he also warned that Trump needs to do more to support those being prosecuted for their role in Trump’s coup attempt. In his own livestream about the meeting, after reeling off all the Stop the Steal events Fuentes had been part of organizing, Fuentes said he would back Ron DeSantis over a “moderate Trump.”

Politico’s Meredith McGraw, who was the first to report that Ye and Fuentes were traveling together, also included that comment, and described how Ye’s video about the meeting included both Alex Jones and Roger Stone, as well as Karen Giorno, who attended the meeting and who had a role in a 2016 story just after Stone presented Trump with his notebook of all the calls he had with Trump during the 2016 election.

West went on to say he told Trump, “Why when you had the chance, did you not free the January sixers? And I came to him as someone who loves Trump. And I said, ‘Go and get Corey [Lewandowski] back, go and get these people that the media tried to cancel and told you to step away from.’” The video includes photos of former advisers including Giorno and Roger Stone, and also conspiracy theorist Alex Jones.

Given how much of the rest of the discussion (and the private chat Ye posted afterwards) focuses on Jason Miller, who testified truthfully to the January 6 Committee, this also probably amounted to a request to get rid of Jason Miller, to get rid of Jason Miller in part because he won’t let Trump coddle Nazis and in part because he makes Trump use a teleprompter. This is how those close to Trump have always lobbied Trump on staffing decisions, after all.

The thing is, while virtually all reports of this meeting include the teleprompter comment, most don’t include the January 6 one.

While the NYT (Maggie bylined with Alan Feuer, one of the best journalists on January 6) described Fuentes’ role in pro-Trump mobs leading up to and on January 6, it doesn’t describe that Fuentes claimed about Trump’s insufficient support for those already charged. It also focuses exclusively on the America First arrests, not those with whom Fuentes organized mobs, like Alex Jones and associates.

During the dinner, according to a person briefed on what took place, Mr. Fuentes described himself as part of Mr. Trump’s base of supporters. Mr. Trump remarked that his advisers urge him to read speeches using a teleprompter and don’t like when he ad-libs remarks.

[snip]

Mr. Fuentes, who attended the bloody far-right rally in Charlottesville, Va., in 2017, is best known for running a white nationalist youth organization known as America First, whose adherents call themselves groypers or the Groyper Army. In the wake of Mr. Trump’s defeat in 2020, Mr. Fuentes and the groypers were involved in a series of public events supporting the former president.

At a so-called “Stop the Steal” rally in Washington in November 2020, Mr. Fuentes urged his followers to “storm every state capitol until Jan. 20, 2021, until President Trump is inaugurated for four more years.” The following month, at a similar event, Mr. Fuentes led a crowd in chanting “Destroy the G.O.P.,” and urged people not to vote in the January 2021 Georgia Senate runoff elections.

On Jan. 6, 2021, Mr. Fuentes led a large group of groypers to the Capitol where they rallied outside in support of Mr. Trump. The next day, Mr. Fuentes wrote on Twitter that the assault on the Capitol was “awesome and I’m not going to pretend it wasn’t.”

At least seven people with connections to his America First organization have been charged with federal crimes in connection with the Capitol attack. In January, Mr. Fuentes was issued a subpoena by the House select committee investigating the Jan. 6 attack on the Capitol seeking information about his role in it.

Other outlets, too, focused on the teleprompter comment but not the complaint about January 6 defendants: WaPo (which offers the most detailed account, from attendee Giorno), CNN, WSJ.

CBS described that Ye made a comment about January 6 in his video, just before he flashed images of Stone and Alex Jones.

The complaint that Trump has not done enough for already charged January 6 defendants (or, as Ye complained himself, not pardoned everyone) comes at a rather sensitive time. Of the January 6 defendants likely included in the seven Feuer cites, Christan Secor (holding the America First flag below) was sentenced in October by Trevor McFadden, who normally goes easy on January 6 defendants, to 42 months in prison.

More recently, the FBI arrested a group of 5 American Firsters in September, including former Fuentes deputy Joseph Brody (in the American flag mask and the suit in the picture above). One, Thomas Carey, is set to plead guilty on December 22, which will come with — at least — an interview on the others. And while DOJ portrayed groyper Riley Williams as having been radicalized by watching Nick Fuentes videos rather than in person, she was just jailed pending her February 22 sentencing, and any retrial on the hung charges (obstruction and abetting the theft of Nancy Pelosi’s laptop) might be easier if there was cooperation from others who were present in Pelosi’s office, as Carey may have been. Which is to say that the January 6 investigation into America First is getting closer to Fuentes himself.

But, particularly given Ye’s invocations of Stone and Jones in this context and Stone’s repeated complaints that Trump didn’t pardon him after January 6, those probably aren’t the only January 6 defendants Fuentes meant to invoke. Both Stone and Jones were named repeatedly during the Oath Keeper trial. Both are likely to be named in the upcoming Proud Boy Leaders trial. One Jones employee, Sam Montoya, pled guilty to parading on November 7. His plea agreement lacks the standard cooperation paragraph, which sometimes means that someone had to cooperate in advance to get the plea deal. And Jones’ sidekick, Owen Shroyer, is due to let Judge Tim Kelly know whether he plans on pleading at a status hearing tomorrow.

So the January 6 investigation is getting closer to Stone and Jones too.

Even some in Ye’s entourage have come under investigation, at least in Fani Willis’ investigation, for their role in Trump’s false voter fraud claims.

Trump’s meeting with Fuentes is a big deal. But it likely goes beyond, just, the fact that Trump was sharing Thanksgiving with noted anti-Semites. Both Ye and Fuentes used the meeting to raise Trump’s failures to protect those who helped his last attempt to seize power illegally.

And as Trump’s purported election campaign goes forward, those who participated in Trump’s coup attempt will likely continue to use their own exposure to leverage Trump’s.

Update: The Guardian just reported how Trump refused to criticize Fuentes.

Update: There are two other key America First defendants that have been sentenced, and got off easy. Most notably, Leo Ridge was permitted to plead down from obstruction to 1752, the more serious trespassing charge, after which Trevor McFadden sentenced him to two weeks in jail and a year of probation (meaning his punishment will be done around February).

And Matthew Baggott also pled to 1752, and was sentenced to three months. He’ll have a year of probation after he is released on Christmas eve.

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

August 14, 2022/165 Comments/in emptywheel, Leak Investigations /by emptywheel

Yesterday, I observed that the FBI gave the former President two different receipts for the search on his golf resort.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

I suggested that one explanation for providing Trump two separate receipts might be if the SSA receipt covered evidence showing Trump violated 18 USC 1519, destruction, alteration, or falsification of records in Federal investigations, and the CLASS receipt covered evidence showing Trump violated 18 USC 793, retaining national defense information under the Espionage Act. I argued the two receipts would cover evidence responsive to crimes that might be charged in different venues, DC for the obstruction charge and SDFL for the Espionage charge.

The third statute on Trump’s warrant, 18 USC 2071, removal of official records would cover everything covered by the Presidential Records Act and would generally backstop everything seized under the other two statutes. It covers both. Consider it an umbrella charge.

Today Trump, in the form of a post on Truth Social and related stories shared to Trump-friendly media, has confirmed I’m right that there’s significance to the two separate receipts.

Trump-friendly outlets have explained that “the former president’s team was informed” that the materials seized via what I’ve called the SSA receipt “contain information covered by attorney-client privilege” but that DOJ “opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.”

The FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.

Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.

[snip]

Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.

I believe there must be some truth to this because if Trump were making completely unsubstantiated claims, he would have made it more generally, claiming that all the boxes must include attorney-client privileged material. Furthermore, Trump’s claims to have watched the search via CCTV notwithstanding, it is highly unlikely Trump has CCTV coverage of his own office, bedroom, and a random storage closet such that he would know what’s in box A-14 (and so on the SSA receipt) versus what’s in box A-15 (which was on the CLASS receipt). Someone who knows the outcome of the search told Trump that one set, but not the other, has materials that are attorney-client privileged. That has to come from the government.

That doesn’t mean my larger hypothesis — that one receipt covered violations of the Espionage Act and the other covered obstruction — has been vindicated. On the contrary, DOJ may simply have chosen to put all records that include an attorney-client claim on a separate receipt so that, if Trump obtains a competent lawyer and demands the Special Master review he’s making a half-hearted request for now, DOJ can move forward with all the other evidence without a 9-month delay like the Special Master review of Rudy Giuliani’s phones necessitated. It would be a clever way of dealing with a very sensitive legal issue.

But I don’t think it’s as simple as that either. Bizarrely, Trump knows something about those boxes such that he’s trying to claim Executive Privilege, in addition to attorney-client privilege.

It’s a nonsense claim, legally. Probably every single box seized last Monday has materials covered by Executive Privilege in them, because every single box would include communications directly with Trump. But there is absolutely no basis for any EP claim for a single thing seized from Mar-a-Lago because the Presidential Records Act underlying the seizure is designed, specifically and especially, to make sure all the EP materials are preserved for history. It’s one of the reasons his refusal to turn over the materials that the Archives were asking for specifically is so insanely stupid, because it gave FBI no choice but to come seize this stuff. Trump’s not making an EP claim to try to delay DOJ’s access to the 27 items, which are mostly boxes, on the CLASS receipt. So he must have learned something about the materials itemized in the SSA receipt to which, in a frantic and transparently silly effort, he’s trying to delay DOJ’s access.

Trump’s announcement that the material on the SSA receipt seems to rule out another possible explanation for the SSA receipt I had been pondering, that it covered the materials that were particularly sensitive from a national security perspective, such as the information on nuclear weapons.

And it doesn’t rule out my hypothesis that that material was seized in the obstruction investigation. Indeed, in two ways, it might corroborate my hypothesis.

There are two theories of the 1519 charge. One, which NYU’s Ryan Goodman is championing, suspects it is about the investigation into Mar-a-Lago, criminalizing the effort in June to withhold materials. If that were the significance of the 1519 charge, separating out the communications between lawyers and NARA and DOJ might make sense, since those would be communications into this investigation. That said, there’d be no basis for an EP claim for any of that, since it all post-dated Trump’s ouster. And as soon as DOJ confirmed that some classified material had been knowingly withheld in June when his lawyers told DOJ that it was all turned over, there’d be a crime-fraud exception for those materials.

My theory of the 1519 charge — that it arose out of NARA’s discovery that Trump had attempted to destroy materials subpoenaed in past and present investigations — would similarly be likely to have attorney-client privileged documents. Take a few examples:

One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
Another set of things we know were withheld from several investigations were documents showing sustained communications with Russia that should have been turned over by the Trump Organization. The most provable of those were the communications between Michael Cohen and Dmitri Peskov’s office in January 2016 (Mueller got his own copy via Microsoft). There’s probably correspondence regarding an invite Russian Deputy Prime Minister Sergei Prikhodko extended to Trump to attend Putin’s St. Petersburg Economic Forum in June 2016. The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff. The subpoena response on all these issues was handled by Trump’s corporate lawyers, Alan Futerfas and Alan Garten, and so would be privileged — but also crime-fraud excepted — evidence that Trump obstructed various Russian investigations.
While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.

In other words, aside from the documents Trump tried to rip up or eat or flush, many of Trump’s known violations of 18 USC 1519 would involve lawyers directly. Virtually every investigation into Trump was stymied by improper decisions by lawyers. And those withheld documents would once have been privileged, but they’d also be solid proof of obstruction.

And if Trump had reason to believe that DOJ, after predicating an investigation on all the evidence Trump had tried to rip up or eat or flush evidence, had sought and seized all the attorney-client protected materials that had insulated Trump from consequences for his past actions, it might explain one of the biggest puzzles from the last week. For some reason, Trump has worked far harder to obscure that this obstruction investigation exists than that he’s under investigation for a crime with the word “Espionage” in the title. For some reason, Trump is more afraid of the obstruction investigation than the Espionage Act investigation.

One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

Perhaps the most interesting thing about this latest complaint — first voiced on the 7th day after the search — is it shows that DOJ is in contact with someone presenting themself as Trump’s lawyer.

That’s not surprising. DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

In this case, however, the crimes under investigation include, at a minimum, violations of the Espionage Act. DOJ always tries to find a way to resolve those from the get-go, because prosecutions about stolen classified information are always damaging to the equities you’re trying to protect. That’s all the more true in the unprecedented case where the suspect is the former President. At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

Still, the legal quiet has been making me nervous. I have been waiting all week for a docket to spring up with a Trump motion for a Temporary Restraining Order stalling any access to these files.

For comparison, the docket on a similar challenge from Michael Cohen in 2018 was created just 4 days after the search of his residences, and the discussions about the search began that same day.

On the same day as the seizures (April 9, 2018), the undersigned counsel requested in writing that the U.S. Attorney’s Office for the SDNY return all of the seized property and allow Mr. Cohen and his attorneys the opportunity to screen the materials for privilege, produce any relevant, non-privileged documents to the government, and provide a log of any documents withheld on privilege grounds. Id., ¶ 32, Ex. A. On Wednesday, April 11, 2018, the government responded by letter, rejecting defense counsel’s proposal and informing defense counsel that the government would begin to review the materials at noon on Friday, April 13, 2018. Id. ¶ 33, Ex. B. Accordingly, Mr. Cohen hereby moves for immediate injunctive and equitable relief seeking the opportunity to have his counsel review the seized documents in the first instance, before any review by any law enforcement personnel, for privilege and responsiveness, and, if the Court believes it necessary, for the appointment of a Special Master to supervise that review process.

Trump moved to intervene that same day, April 13, just four days after the seizures.

In the case of the search on Rudy’s phones, SDNY itself asked for a Special Master the next day (though Trump never intervened).

There have to be similar discussions going on now. There just have to be. Trump’s paucity of lawyers — and the conflict posed by the possibility that Evan Corcoran, his most competent current defense attorney, may be conflicted out by dint of having signed an affirmation that Trump turned over all his classified documents in June — cannot explain a full week delay.

But thus far, in spite of every media outlet and their mother filing motions to unseal the search affidavit itself, no one has started pushing to unseal an inevitable fight over access to the seized material. (Again, by comparison, the NYT filed to intervene the day the Cohen warrant docket was made public.)

So for whatever reasons, a full week has elapsed since a lawful search executed on the golf resort of the former President and the first we’re learning about legal discussions — aside from NYT’s revelation that Trump made a veiled threat against Merrick Garland on Thursday — is Trump’s complaint covering just the documents that don’t seem to implicate the Espionage Act.

Something has caused that discussion to remain sealed. And that, by itself, is remarkable.

Update: As klynn reminds in comments, another document that the Trump White House altered was the MemCon of the meeting between Trump and Sergey Lavrov in which he gave the Russians highly sensitive intelligence. I laid out what we know of that alteration, the fall-out, and Mueller’s investigation into it here. If my theory about the SSA receipt is right, that any remaining unaltered record of the meeting found at MAL would be on the SSA receipt. Except the alterations, in this case, are not yet known to involve an attorney, so would not be attorney-client privileged.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

January 18, 2021/51 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.

Four Data Points on the January 6 Insurrection

January 11, 2021/209 Comments/in emptywheel, January 6 Insurrection /by emptywheel

The NYT and WaPo both have stories beginning to explain the failures to protect the Capitol (ProPublica had a really good one days ago). The core issue, thus far, concerns DOD’s delays before sending in the National Guard — something that they happened to incorporate into a timeline not long after the attack, before the Capitol Police or City of DC had put their own together (the timeline has some gaps).

I can think of two charitable explanations for the lapses. First, in the wake of criticism over the deployment of military resources and tear gas against peaceful protestors to protect Donald Trump in June, those who had been criticized were reluctant to repeat such a display of force to protect Congress (and Mike Pence). In addition, in both DOJ and FBI under the Trump Administration, job security and career advancement depended on reinforcing the President’s false claims that his political supporters had been unfairly spied on, which undoubtedly created a predictable reluctance to treat those political supporters as the urgent national security threat they are and have always been.

Those are just the most charitable explanations I can think of, though. Both are barely distinguishable from a deliberate attempt to punish the President’s opponents — including Muriel Bowser and Nancy Pelosi — for their past criticism of Trump’s militarization of the police and an overt politicization of law enforcement. Or, even worse, a plan to exploit these past events to create the opportunity for a coup to succeed.

We won’t know which of these possible explanations it is (likely, there are a range of explanations), and won’t know for many months.

That said, I want to look at a few data points that may provide useful background.

Trump plans to pardon those in the bunker

First, as I noted here, according to Bloomberg, Trump has talked about pardoning the four men who’ve been in the bunker with Trump plotting recent events, along with Rudy Giuliani, who is also likely to be pardoned.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

I like to think I’ve got a pretty good sense of potential legal exposure Trump’s flunkies have, yet I know of nothing (aside, perhaps, from McEntee’s gambling problems) that these men have clear criminal liability in. And yet Trump seems to believe these men — including the guy with close ties to far right Congressmen, the white nationalist, the guy who remade several agencies to ensure that only loyalists remained in key positions, and the guy who tweets out Trump’s barely-coded dogwhistles — need a pardon.

That may suggest that they engaged in sufficient affirmative plotting even before Wednesday’s events.

Mind you, if these men had a role in coordinating all this, a pardon might backfire, as it would free them up to testify about any role Trump had in planning what happened on Wednesday.

Trump rewards Devin Nunes for helping him to avoid accountability

Several key questions going forward will focus on whether incompetence or worse led top officials at DOD to limit the mandate for the National Guard on January 6 and, as both DC and the Capitol Police desperately called for reinforcements, stalled before sending them.

A key player in that question is Kash Patel, who served as a gatekeeper at HPSCI to ensure that Republicans got a distorted view of the Russian intelligence implicating Trump, then moved to the White House to ensure that Trump got his Ukraine intelligence via Patel rather than people who knew anything about the topic, and then got moved to DOD to oversee a takeover of the Pentagon by people fiercely loyal to Trump.

And a key player in coordinating Kash’s activities was his original boss, Devin Nunes. On Monday, Trump gave Nunes the Medal of Freedom, basically the equivalent of a pardon to someone who likely believes his actions have all been protected by speech and debate. The entire citation for the award is an expression of the steps by which Trump, with Nunes’ help, undermined legitimate investigations into himself. In particular, Trump cited how Nunes’ efforts had hollowed out the FBI of people who might investigate anyone loyal to Trump.

Devin Nunes’ courageous actions helped thwart a plot to take down a sitting United States president. Devin’s efforts led to the firing, demotion, or resignation of over a dozen FBI and DOJ employees. He also forced the disclosure of documents that proved that a corrupt senior FBI official pursued a vindictive persecution of General Michael Flynn — even after rank and file FBI agents found no evidence of wrongdoing.

Congressman Nunes pursued the Russia Hoax at great personal risk and never stopped standing up for the truth. He had the fortitude to take on the media, the FBI, the Intelligence Community, the Democrat Party, foreign spies, and the full power of the Deep State. Devin paid a price for his courage. The media smeared him and liberal activists opened a frivolous and unjustified ethics investigation, dragging his name through the mud for eight long months. Two dozen members of his family received threatening phone calls – including his 98 year old grandmother.

Whatever else this debasement of the nation’s highest award for civilians might have done, it signaled to Nunes’ team — including but not limited to Patel — Trump’s appreciation for their work, and rewarded the guy he credits with politicizing the FBI.

That politicization is, as I noted above, one of the more charitable explanations for the FBI’s lack of preparation on Wednesday.

~~Interestingly, Nunes is not one of the members of Congress who challenged Biden’s votes after law enforcement restored order.~~

Corrected: Nunes did object to both AZ and PA.

Trump takes steps to designate Antifa as a Foreign Terrorist Organization

The day before the insurrection, Trump signed an Executive Order excluding immigrants if they have any tie to Antifa. Effectively, it put Antifa on the same kind of exclusionary footing as Communists or ISIS terrorists. Had Trump signed the EO before he was on his way out the door, it would have initiated a process likely to end with Antifa listed as a Foreign Terrorist Organization, giving the Intelligence Community additional intelligence tools to track members of the organization, even in the United States (the kind of tools, not coincidentally, that some experts say the FBI needs against white supremacist terrorists).

The EO will have next to no effect. Joe Biden will rescind it among the other trash he needs to clean up in the early days of his Administration.

But I find it curious that Trump effectively named a domestic movement a terrorist organization just days before multiple Trump associates attempted to blame Antifa for the riot at the Capitol.

That effort actually started before the order was signed. Back in December, Enrique Tarrio suggested that the Proud Boys (a group Trump had called to “Stand by” in September) might wear all black — a costume for Antifa — as they protested.

“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist…,” Henry “Enrique” Tarrio, the group’s president, wrote in a late-December post on Parler, a social media platform that has become popular with right-wing activists and conservatives. “We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.”

The day after the riot, Matt Gaetz relied on a since-deleted Washington Times post to claim that the riot was a false flag launched by Antifa.

In a speech during the process of certifying President-elect Joe Biden, Gaetz claimed there was “some pretty compelling evidence from a facial recognition company” that some Capitol rioters were actually “members of the violent terrorist group antifa.” (Antifa is not a single defined group, does not have an official membership, and has not been designated a terrorist organization, although President Donald Trump has described it as one.)

Gaetz attributed this claim to a short Washington Times article published yesterday. That article, in turn, cited a “retired military officer.” The officer asserted that a company called XRVision “used its software to do facial recognition of protesters and matched two Philadelphia antifa members to two men inside the Senate.” The Times said it had been given a copy of the photo match, but it didn’t publish the picture.

There is no evidence to support the Times’ article, however. An XRVision spokesperson linked The Verge to a blog post by CTO Yaacov Apelbaum, denying its claims and calling the story “outright false, misleading, and defamatory.” (Speech delivered during congressional debate, such as Gaetz’s, is protected from defamation claims.) The Times article was apparently deleted a few hours after Apelbaum’s post.

Rudy Giuliani also attempted to blame Antifa.

And Captain Emily Rainey, who resigned today as DOD investigates the PsyOp officer for her role in the insurgency, also blamed Antifa for the violence.

Her group — as well as most at Wednesday’s rally — were “peace-loving, law-abiding people who were doing nothing but demonstrating our First Amendment rights,” she said.

She even shared a video on Facebook insisting that the rioters were all Antifa, saying, “I don’t know any violent Patriots. I don’t know any Patriots who would smash the windows of a National jewel like the [Capitol].”

It is entirely predictable that Trump loyalists would blame Antifa for anything bad they do — Bill Barr did so as the formal policy of DOJ going back at least a year. But Trump seems to have prepared the ground for such predictable scapegoating by taking steps to declare Antifa a terrorist “organization” hours before a riot led by his supporters would storm the Capitol.

The White House makes DHS Secretary Chad Wolf’s appointment especially illegal

I’m most intrigued by a flip-flop that had the effect of making DHS Acting Secretary’s appointment even more illegal than it has already been at times in the last two years.

On January 3, the White House submitted Chad Wolf’s nomination, along with those of 29 other people, to be DHS Secretary. Then, on January 6, it withdrew the nomination.

Wolf himself was out of the country in Bahrain when the riot happened. But he did tweet out — before DOD mobilized the Guard — that DHS officials were supporting the counter-insurgency. And he issued both a tweet and then — the next day — a more formal statement condemning the violence.

It’s not entirely clear what happened between his renomination and the withdrawal, but Steve Vladeck (who tracks this stuff more closely than anyone), had a lot to say about the juggling, not least that the withdrawal of his resubmitted nomination made it very clear that Wolf is not now legally serving.

This could have had — and could have, going forward — a chilling effect on any orders Wolf issues to deploy law enforcement.

Thus far, we haven’t seen much about what DHS did and did not do in advance of the riot — though its maligned intelligence unit did not issue a bulletin warning of the danger.

The Federal Bureau of Investigation and an intelligence unit inside the Department of Homeland Security didn’t issue a threat assessment of the Jan. 6 pro-Trump protests that devolved into violence inside the Capitol, people briefed on the matter said.

In the weeks leading up to the protests, extremists posted about their plans to “storm” the Capitol on social media.

The joint department bulletin is a routine report before notable events that the agencies usually send to federal, state and local law-enforcement and homeland security advisers. The reports help plan for events that could pose significant risks.

At the DHS unit, called Intelligence and Analysis, management didn’t view the demonstrations as posing a significant threat, some of the people said.

Last year, Ken Cuccinelli forced whistleblower Brian Murphy to change language in a threat analysis to downplay white supremacist violence and instead blame Antifa and related groups.

In May 2020, Mr. Glawe retired, and Mr. Murphy assumed the role of Acting Under Secretary. In May 2020 and June 2020, Mr. Murphy had several meetings with Mr. Cuccinelli regarding the status of the HTA. Mr. Cuccinelli stated that Mr. Murphy needed to specifically modify the section on White Supremacy in a manner that made the threat appear less severe, as well as include information on the prominence of violent “left-wing” groups. Mr. Murphy declined to make the requested modifications, and informed Mr. Cuccinelli that it would constitute censorship of analysis and the improper administration of an intelligence program.

Wolf had been complicit in that past politicization. But something happened this week to lead the Trump White House to ensure that his orders can be legally challenged.

Update: Jake Gibson just reported that Wolf is stepping down.

These are just data points. We’ll learn far more about Trump’s involvement as the FBI obtains warrants for the communications who have ties to both groups like the Proud Boys and Trump associates like Roger Stone and Steve Bannon. But these are a few data points worth keeping an eye on.

The Unaddressed Counterintelligence Threat of Rudy Giuliani

January 10, 2021/73 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The name “Giuliani” shows up, unredacted, just five times in the SSCI Russia Report:

A reference to a meeting that Rudy had with Paul Manafort and Trump at 5:30 PM on August 2, 2016, the last thing on Manafort’s calendar before he met with Konstantin Kilimnik to discuss how to win the Midwest, share campaign polling data, and carve up Ukraine.
A citation to a Rick Gates 302 that describes that Manafort was relying on Rudy, along with Jared Kushner, in his efforts to try to place people in the new Administration.
A footnote citing this story describing Rudy’s meetings with Andrii Telizhenko as part of his search for dirt in support of Trump’s 2020 re-election. The footnote is one of the few unredacted passages in an 8-page section that is part of a larger section describing Manafort’s follow-up on that August 2, 2016 meeting on Ukraine.
A footnote describing an email — involving Rudy, Hope Hicks, Dan Scavino, and Stephen Miller — used as an example of Trump’s team incorporating stolen information released by WikiLeaks into Trump’s tweets.
A footnote sourcing a rather incredible claim from Psy Group’s Joel Zamel that he first met Jared Kushner via an introduction, months after inauguration, from Rudy.

I raise this not because I think there’s any direct tie between Russia and the coup this week (though I find it interesting that of those scripting WikiLeaks information into Trump tweets, all but Hicks may be seeking a pardon). This coup was an all-American affair, with roots in racist extremism that goes back before the Civil War. Someday, six months from today, we can talk about how this attack was consistent with events started over four years ago, with all the same players in starring roles. But these are American fascists running the show, not Russians.

I raise it, instead, to point out that the single most sustained review of the danger that some of Trump’s closest advisors pose to his presidency almost entirely excluded one who played the key role in the post-election period, the purported lawyer who — at every step of the way — encouraged the President to take more and more extreme measures to hold on his power.

This coup attempt happened, in significant part, because Rudy had almost unfettered access to the President, Rudy was one of few people who never lost his trust, and Rudy always encouraged the worst decisions from Trump.

Bunker: Trump’s Exposure in the Insurrection Makes PardonPalooza More Complicated

January 8, 2021/171 Comments/in 2020 Presidential Election, emptywheel /by emptywheel

There have been numerous accounts of Trump’s desperate days since he incited a coup attempt. Most, including this CNN version, describe how — on the advice of (among others) White House Counsel Pat Cipollone — Trump recorded and released a very heavily edited video from a script written for him in an attempt to stave off removal proceedings.

His daughter Ivanka Trump, White House counsel Pat Cipollone, chief of staff Mark Meadows and others told Trump there was a real chance he would be removed from office — whether by his own Cabinet or lawmakers — if he did not more forcefully denounce the actions of his supporters who attacked the US Capitol the day before.

Trump did not initially want to issue a video decrying the loyalists whose actions he largely supported — and whom he said he “loved” a day earlier — but he told aides to prepare a speech and then he would decide.

Once he read over the brief script they had prepared, Trump agreed to record it Thursday evening — a relief to the senior staff, though concerns lingered he could backtrack during his final days in office given his actual position has remained unchanged: that he lost the election unfairly.

This WaPo version describes him holing up with really unsavory characters, including white supremacist Stephen Miller and John McEntee, who previously had been forcibly removed from his position at the White House because of gambling problems.

Trump spent Wednesday afternoon and evening cocooned at the White House and listening only to a small coterie of loyal aides — including Meadows, Deputy Chief of Staff Dan Scavino, personnel director Johnny McEntee and policy adviser Stephen Miller. McEnany also spent time with the president. Jared Kushner, the president’s son-in-law and senior adviser, was described as disengaged.

CNN also reports that’s he’s still planning on pardonpalooza covering at least his kids

And a raft of pardons, including potentially for himself and his family, are expected in the coming days.

According to this Bloomberg piece, he’s considering pardoning his bunker mates, Meadows, Miller, and McEntee, along with Kimberly Guilfoyle, none of whom had any obvious legal exposure before the last several weeks.

The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations. Trump has previously claimed the power, though it’s a matter of legal dispute and has never before been attempted by a president.

A self-pardon could also prove a major political liability and hamstring another presidential bid, with opponents sure to suggest the self-pardon amounted to an admission that he thought he might be prosecuted for breaking the law.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said. Trump’s personal lawyer Rudy Giuliani has also discussed the issue of a pardon with the president.

Preemptive pardons are also under consideration for other members of the president’s family, as well as friends and allies. For instance, Trump has floated a preemptive pardon for Kimberly Guilfoyle, the former Fox News host who is dating his eldest son, Donald Trump Jr.

The president wants the preemptive pardons to shield recipients from prosecutions for any federal crimes committed before the pardons were issued.

It notes that White House Counsel Pat Cipollone is “vetting” the pardons, with some concern that they create more exposure for obstruction of justice.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone.

Except, CNN also reports that Pat Cipollone is considering resigning.

Trump’s role in (at a minimum) inciting an insurrection the other day may make his effort to pardon himself and his associates out of legal trouble more difficult.

Start with a self-pardon. Before the insurrection, Cipollone might have advised Trump he might as well try it. He literally has nothing to lose, since he’s unlikely to trust Pence with a pardon at this point, so even if the self-pardon doesn’t work, he would be no worse off. Except, as a number of people have suggested, a self-pardon makes it far more likely DOJ will test the concept and prosecute him (though I think he’s done enough to be charged anyway). And because Trump’s exposure now includes insurrection, the conservative majority on SCOTUS might find the self-pardon particularly offensive. In addition, because Clarence Thomas’ wife Ginni was cheering on the terrorists, DOJ might — fairly — ask Thomas to recuse.

Then there’s Rudy. He was always going to be pardoned, because he knows where the bodies are buried and Trump believes (mistakenly) that Rudy has served his interests loyally. Except, to a far greater extent than before November, a Rudy pardon frees him to testify about crimes that Trump committed for which Rudy does not have attorney-client privilege, such as coordinating with coup plotters. This is exacerbated by the byzantine legal structure behind the fraudulent Trump lawsuits, where there was never any clarity about who was representing Trump and who was not. Once upon a time, Trump might have been able to pardon Rudy without increasing his own legal exposure. That’s probably not true anymore.

Then there’s Cipollone himself, a formidable lawyer who wants to get the fuck out of dodge. Cipollone, briefly, got Trump to see reason in making that video. Then as soon as Trump got his Twitter account he sent more messages riling up his terrorists. That suggests Cipollone recognized that Trump had real exposure in the insurgency, and took measures to limit them. Then Trump ignored his advice. All while asking Cipollone to help him pardon his co-conspirators.

While Cipollone has limited Executive Privilege with Trump (one breached in case of crime), under Clinton precedent he doesn’t have attorney-client privilege with Trump. That makes it likely that no matter what happens, he’ll be sitting for lengthy sessions with prosecutors in months ahead, just as Don McGahn also did.

When this whole Transition process started, Trump had Cipollone and Bill Barr — the latter the best cover-up artist in recent US history — around to help him out of his legal troubles. Now, his post-election antics have drove both of them away.

Once upon a time, Trump might well have been able to pardon himself out of a good deal of the criminal exposure he already faced. That’s far less likely now.

Update: Just in the last hour, Ginni Thomas made her Facebook account unavailable.

Organized Crime

December 16, 2020/97 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Know what you call a crowd that requires 25 pardons to cover their illegal activities of the last 5 years?

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.

He has largely frozen out those advisers and associates who do not seem on the same page. One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn’t heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted — or could be targeted in the future — for political ends. That’s in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

Organized crime.

Posts

Where the Trump Investigations Stand: The January 6 Conspiracies

Links

Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

Trump Is a Mob Boss Whose Omertà Has Started to Fail

On Trump, the Anti-Semites, and the Coup Attempt: The Import of Nick Fuentes’ Reference to January 6

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

emptywheel Trump Espionage coverage

But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

Four Data Points on the January 6 Insurrection

Trump plans to pardon those in the bunker

Trump rewards Devin Nunes for helping him to avoid accountability

Trump takes steps to designate Antifa as a Foreign Terrorist Organization

The White House makes DHS Secretary Chad Wolf’s appointment especially illegal

The Unaddressed Counterintelligence Threat of Rudy Giuliani

Bunker: Trump’s Exposure in the Insurrection Makes PardonPalooza More Complicated

Organized Crime

Interesting links

Pages