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Steve Bannon’s Phantom Executive Privilege

In a reply motion demanding to know why DOJ subpoenaed the toll records for him, the lawyer Steve Bannon shares with Rudy Giuliani, Robert Costello, claims DOJ obtained the email information, including hundreds of pages from Google, for different Robert Costellos, not him.

The hundreds of pages of email information they obtained from Google, including email addresses (and IP addresses) of the sender and recipient, date and time of the emails, metadata, social media and meeting (Google Hangouts) data, information as to whether each email was read, remained unread, was deleted, or what filing box the recipient put it in, and more [See e.g., 0011510001249; 001339-1732] were all for another completely uninvolved citizen apparently named Robert Costello or Robert M. Costello. In fact, not one of the email accounts the Government sought access to in this case, intending to get defense counsel’s emails, actually was defense counsel’s email account.

He even issued a declaration stating, among other things, that,

I have no association whatsoever with email accounts with the addresses “[email protected],” or “[email protected],” or “[email protected],” or “[email protected].”

We shall see how the government explains this claimed mix-up, assuming Judge Carl Nichols permits them to file a surreply (Costello claims he only just discovered these weren’t his emails after reviewing them for months).

That said, Costello did not deny association with email accounts with the addresses of, [email protected], [email protected], or [email protected], which appear to be included in the friends and family accounts of the main Gmail account in question. And though Costello claims to provide the exhibits to back his claims, he doesn’t provide the Comcast return and doesn’t provide back-up for the bulk of the returns he is complaining about (US 001339-001732 below).

What Costello has also shown is that, in a memo to DOJ, he claimed to quote from a letter from Justin Clark, who would have been acting as Trump’s lawyer, invoking privilege on Trump’s behalf.

“President Trump vigorously objects to the overbreadth and scope of these requests and believes they are a threat to the institution of the Presidency and the independence of the Executive Branch.” Mr. Clark added that:

“Through the Subpoenas, the Select Committee seeks records and testimony purportedly related to the events of January 6th, 2021, including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others, the presidential communications, deliberative process, and attorney-client privileges. President Trump is prepared to defend these fundamental privileges in court.

As I’ve previously noted, at a meeting on November 3 at which Costello was supposed to be presenting that memo, Costello alternately claimed:

  • He had had no communications with Trump lawyers prior to October 18
  • Clark refused to reach out to the January 6 Committee on behalf of Costello or Bannon
  • Costello could not recall who brought up Executive Privilege first, him or Clark
  • Costello did not ask Clark to attend the hearing because he wouldn’t contact the committee on his behalf (even though his later complaint was that the Committee refused to have a Trump lawyer present)

In that November 3 meeting, Costello said he’d provide all the backup to support his claims.

But when JP Cooney asked for all the documents Costello claimed to be relying on in the memo and an interview with DOJ and the FBI on November 3, 2021, Costello said, “as soon as I locate the letter I received from Justin Clark, acting as counsel for President Trump, I will forward that under separate cover.” Cooney responded, making sure, “please review and let us know if this constitutes your entire production.”

There’s no evidence in this filing that Costello ever provided it.

Which may be why, in a follow-up interview on November 8 — after searching and (at least as this record shows) not finding any letter from Clark — Costello told DOJ:

There are additional discrepancies disclosed by the materials Costello has included.

In his declaration, Costello (who, remember, was investigated as part of the Mueller investigation for helping to dangle pardons) complained that this meeting to stave off an indictment didn’t work like all the previous times he had had such meetings.

[I]t is clear to me that the representatives of the United States Attorney’s Office for the District of Columbia never had any intention of engaging in a lawyer like discussion of the legal merits of a prosecution of Mr. Bannon for criminal contempt of Congress. This position was and is shocking to me because of the many prior instances when this same Office declined to prosecute others, including sitting United States Attorney Generals based upon a referral from Congress.

There’s more: For example, Costello misrepresents when he joined Bannon’s defense team for this.

But the key detail is that Costello claimed to have a letter from Trump invoking Executive Privilege. And when DC USAO asked to see it, Costello changed his story.

Update, April 19: I’ve updated the timeline below with two documents DOJ submitted on April 15. They raise further inconsistencies in Costello’s statements to the FBI and DOJ in his interviews.


BATES STAMP RANGE: US 001093-001883

US 001093: Grand jury subpoena

US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021.  Returns include:

US 001769-001789: Costello’s 302s

US 001808: Yahoo return

US 001833-001878: Subpoenas for home, direct office, and cell phone from September 1 to October 20, 2021

US 001834: Case number

US 001842: Case number

US 001863: Subscriber record showing payment method for Costello’s cell phone

US 001866: Costello’s data usage

US 001872; Grand jury subpoena

US 001874-001875:  SMS (text messaging) information, including the numbers to which texts were sent and from which they were received

TIMELINE

March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)

September 22: First contact between J6 and Bannon

September 23: Bannon subpoena

September 24: Costello accepts service

October 5: Media reports on subpoenas to Mark Meadows and others; call from Justin Clark

October 6: Clark instructs Costello to invoke whatever privileges he can, including executive, deliberative, and attorney-client

October 6: Costello claims Clark invoked privilege; Costello’s memo quotes Clark invoking privilege; undated call with Tonolli (actually on October 12)

October 7, 10AM: Original deadline for document production

October 7, 5:05PM: Costello letter claiming Trump invoked privilege

October 8: Thompson letter to Bannon rejecting non-compliance

October 12: Call with Tonolli re representation from Trump

October 13: Costello and Clark speak

October 13: Second Costello letter, demanding accommodation with Trump

October 14: Clark corrects Costello that he had simply reiterated his October 6 letter

October 14, 10AM: Original date for Bannon testimony

October 15: Thompson letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM

October 16: Clark emails Costello stating clearly that he had not told him he had immunity from testifying

October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues; Costello claims he sent a note to Thompson;

October 18, 6:50 PM: White House says no privilege after 2017

October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt; Thompson letter to “change course”?

October 20: Rules committee meeting to hold Bannon in contempt

October 21 Bannon held in contempt

October 25: Costello email exchange with Cooney (and Phillips); Costello asks for meeting after October 27

October 28: Matthew Graves confirmed as US Attorney

October 29: Cooney suggests November 3

November 1: Costello emails memo arguing against prosecution, dated October 29

November 2: Kristin Amerling interview

November 3: Costello informs he’ll be joined by Katz; First interview with Robert Costello; Cooney follows up asking for documents

November 4: Cooney asks Costello to confirm full production

November 5: Matthew Graves sworn in as US Attorney

November 8: Second interview with Robert Costello

November 11: Subpoena to Internet provider

November 12: End date for Costello records request

November 12: Indictment

November 15: Bannon arrest; David Schoen and Evan Corcoran file notices of appearance

November 18: At status conference, government says there are just 200 documents of discovery

December 2: Costello moves to appear PHV; Government asks if Bannon intends to rely on advice of counsel defense

December 7: Returns on Internet provider (623 pages)

December 7 to 16: Bannon refuses to submit joint status report

January 4: DOJ turns over 790 pages of records from Costello

January 6: Bannon request for more information on Costello

January 7: Government response to Bannon request

January 14: Bannon discovery request letter; Bannon motion to compel regarding Costello

January 28: Government response to discovery demand

February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello

Judge Carl Nichols Upends DOJ’s January 6 Prosecution Strategy

On Friday, I argued that both the January 6 Committee and TV lawyers wailing about DOJ’s slow pace of prosecution needed to look more closely at the litigation surrounding DOJ’s use of 18 USC 1512(c)(2) to prosecute January 6 defendants.

[U]ltimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

Judge Carl Nichols — the Trump-appointed judge presiding over the Steve Bannon case and as such one of the most likely judges to preside over any Trump prosecution — will undoubtedly finally generate needed attention to what judges are doing.

That’s because he just rejected DOJ’s application in the case of Garret Miller. In places, the decision is reasonable; in others, it is far too clever. Nichols acknowledges only the Randolph Moss opinion in on this topic, thereby ignoring some language addressing issues he raises in his opinion.

Nichols disagrees with Miller’s contention that the vote certification was not an official proceeding.

[I]t makes little if any sense, in the context here, to read “a proceeding before Congress” as invoking only the judicial sense of the word “proceeding.” After all, the only proceedings of even a quasijudicial nature before Congress are impeachment proceedings, and Miller has offered no reason to think Congress intended such a narrow definition here.

But he argued that the word “otherwise” in the statute necessarily connects the charged clause to the one prior to it, and should be read as a limitation of it. From that, he reads the statute to pertain only to evidence tampering, not witness tampering.

He then cites Justice Kavanaugh to argue that under the rule of lenity, such ambiguity here must be judged in favor of the defendant.

“Under the rule of lenity, courts construe penal laws strictly and resolve ambiguities in favor of the defendant,” id., so long as doing so would not “conflict with the implied or expressed intent of Congress,” Liparota v. United States, 471 U.S. 419, 427 (1985). Under current doctrine, the rule of lenity applies to instances of “grievous” ambiguity, see Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (collecting citations), a construction that is arguably in tension with the rule’s historical origins, see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). See also Wooden v. United States, ___ U.S. ___, ___ (2022) (Gorsuch, J., concurring in judgment) (slip op. at 9–12); but see id. (Kavanaugh, J., concurring) (slip op. at 1–4).

Via a variety of means, Nichols judges that 1512(c)(2) must relate to the destruction of evidence, which Miller is not accused of doing.

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

This argument has holes in it–holes that were addressed by some of the opinions he ignores.

Nichols simply dismisses the argument that Congress could have provided the kind of limiting language he thinks should be inferred.

Another court has sought to allay this overlap concern by pointing to the language Congress could have used:

[I]t would have been easy for Congress to craft language to achieve the goal that Defendants now hypothesize. Congress, for example, could have substituted Section 1512(c)(2) with the following: “engages in conduct that otherwise impairs the integrity or availability of evidence or testimony for use in an official proceeding.” The fact that Congress, instead, enacted language that more generally—and without the limitations that Defendants now ask the Court to adopt—criminalized efforts corruptly to obstruct official proceedings speaks volume.

Montgomery, 2021 WL 6134591, at *12. That is certainly true, and in fact is why the Court does not believe that there is a single obvious interpretation of the statute. But it is also the case that reading § 1512(c)(1) as limiting the scope of § 1512(c)(2) avoids many of these structural or contextual issues altogether

He also ignores some differences between clause c and other clauses of 1512, arguments made and dismissed by some of the opinions he ignores.

At a minimum, conduct made unlawful by at least eleven subsections— §§ 1512(a)(1)(A), 1512(a)(1)(B), 1512(a)(2)(A), 1512(a)(2)(B)(i), 1512(a)(2)(B)(iii),1512(a)(2)(B)(iv), 1512(b)(1), 1512(b)(2)(A), 1512(b)(2)(C), 1512(b)(2)(D), and 1512(d)(1)— would also run afoul of § 1512(c)(2).

He also makes a comparison between clause b and c, ignoring that c(2) — and the behavior Miller is accused of — is equivalent to b(2)(D).

DOJ will have a ready response to this on appeal. They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

But this will cause a number of prosecutions, including of some defendants who were about to provide key cooperation, to grind to a halt until this is appealed.

Update: In other news, Guy Reffitt was just found guilty on all five charges against him. That includes the obstruction charge. So the DC Circuit will soon be getting two appeals of the obstruction application.

Update, 4/1/22: DOJ asked Nichols to reconsider, making two legal and one common sense arguments:

  • You can’t really argue there’s some grievous uncertainty implicating the rule of lenity if 13 of your colleagues don’t see it.
  • Your ruling that 1512(c)(2) requires document destruction is an evidentiary question, not a motion to dismiss one, and if we have to we’ll argue that Miller’s actions posed a risk to the actual ballots.
  • Your logic would suggest that, per the Reffitt scenario, attempting to drag lawmakers out of Congress to prevent them from certifying the vote would not be obstruction.

Other opinions upholding obstruction application:

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli

The Eight Trump Associates Whom DOJ Is Investigating

Exactly a month ago, I did a post noting that the TV lawyers claiming there was no proof that DOJ was investigating anyone close to Trump were either ignorant of or ignoring six Trump associates who were being investigated. I wanted to update that post with developments from the last month, because (in addition to the contempt prosecution for Steve Bannon), we’ve learned of investigations into at least two more Trump associates.

Note that four of these — Sidney Powell, Alex Jones, Roger Stone, and Mark Meadows — definitely relate to January 6 and a fifth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Tom Barrack

Last week, Trump’s top donor, Tom Barrack, filed a motion to dismiss his indictment for serving as an unregistered agent of the Emirates.

As he did in a prior status hearing, that motion complained that Billy Barr’s efforts to undermine this investigation failed.

[T]he government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack and DOJ are also fighting over whether Barrack can unseal discovery in an attempt to discredit this investigation.

Barrack filed the specified materials in connection with pretextual arguments in his motion to dismiss, and he all but acknowledges that he seeks their unsealing in a bid to improperly influence public opinion.

As noted before, according to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance. But it will also be an early test about a Trumpster’s ability to discredit the notion that any of them can be held accountable.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Rudy Giuliani

Since my last post on this topic, Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

The known warrants for Rudy’s phones pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

But because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Robert Costello

Last Friday, Steve Bannon revealed that DOJ had seized the toll records of his lawyer, Robert Costello, the same guy that would be at the center of any predication for any investigation into Rudy’s attempts to obstruct the Mueller investigation. Some outlets are claiming that this was just part of the investigation into Bannon, but that cannot be right, for several reasons. First, DOJ didn’t ask for the most intrusive set of those records — email metadata from between March 5 and November 12, 2021 — until the day they indicted Bannon. The returns on those requests could not have been presented to the grand jury, because DOJ didn’t receive them until December 7. Plus, scope of that request not only dates back to before the September 23 subpoena that is the basis for the Bannon contempt prosecution, it dates back before the January 6 Committee that issued the subpoena in the first place. DOJ obtained those Internet toll records for a reason that extends beyond the subpoena fight; they cannot pertain (just) to the known prosecution of Bannon.

It may well be they relate to obstruction related to Rudy though. Here’s DOJ’s letter responding to Bannon’s complaints about this seizure, which given some confusion bears further discussion.

We write in response to your January 6, 2022, letter requesting information about internal deliberations and investigative steps relating to Mr. Costello and any other attorneys who have represented Mr. Bannon. As you are aware, and as we discussed in a phone call with Mr. Corcoran and Mr. Schoen on December 2, 2021, Mr. Costello represented Mr. Bannon before the January 6th Select Committee (“the Committee”) in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment. We understand that attorney Adam Katz also represented Mr. Bannon with respect to the Committee and, therefore, also is a potential witness. We are not aware of any other attorneys who represented Mr. Bannon with respect to the Committee.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment.

The first paragraph explains a warning DOJ gave when Costello first raised noticing an appearance in the contempt prosecution for Bannon (it’s likely Costello had been tipped off by his firm that DOJ had obtained his toll records by that point). DOJ makes clear that, by voluntarily sitting for two meetings at which FBI agents were present, Costello made himself a witness about the basis for which Bannon gave for blowing off the Committee subpoena. As I have noted, Costello gave materially inconsistent answers at that meeting, likely giving the FBI probable cause to investigate whether he had made false statements; the easiest and least intrusive way to test whether his claims were true was to test whether his claims about the existence and timing of communications with Trump’s lawyers were true or not — thus the toll record seizure.

The remaining two paragraphs disclaim any impact on Bannon. Call records are not work product and, while sensitive, are not treated as privileged (and in any case, date to a period in which Costello was not representing Bannon criminally). The interviews were work-product, claims about the advice Costello gave Bannon (including the email Costello described in which he told Bannon to be BEWARE because he was likely to be referred to DOJ for prosecution). But Costello shared that work-product voluntarily. DOJ has not otherwise obtained the work-product or confidential content of Costello pertaining to Bannon.

That paragraph says nothing about Costello’s representation of Rudy, though.

And the following paragraph makes it more likely this statement intentionally stops short of covering all of Costello’s work product. It limits the statement about materials in its possession to the prosecution team (excluding, for example, SDNY prosecution teams). It doesn’t address confidential communications between Rudy and Costello. And for good measure, it limits its statements to Costello’s involvement in the January 6 subpoena, not other matters.

Costello may not count as a Trump associate directly. But this is all about Trump’s extended effort to obstruct investigations into his conduct. And because of the way Costello has, on at least two occasions, been the weak link that pierced privilege covering such cover-ups, may be a key investigative target.

Sidney Powell

Sidney Powell may be another key lawyer who pierced privilege.

Several different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud.

Since my last post on investigations into Trump’s associates, Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

But Powell can’t claim privilege for the bulk of the period during which she was helping Trump steal the election. After Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of a December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. Certainly, Powell’s claim to be criminally representing Flynn ended no later than December 8, when Emmet Sullivan dismissed the case. So she may want to claim privilege, but well before the critical meeting between Rudy, Powell, Flynn, and Patrick Byrne on December 18, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

Mark Meadows

In a number of posts, I have argued that DOJ would be better off treating the January 6 contempt referral as, instead, a referral into obstruction of justice for the way Mark Meadows withheld or deleted evidence pertaining to the coup attempt.

I can’t prove that has happened.

What is certain, however, is that Deputy Attorney General Lisa Monaco confirmed that DOJ is investigating the fake electors.

“We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations,” Monaco said in an exclusive interview.

And the January 6 contempt referral made clear that communications in Meadows possession show that he was at the center of that effort.

Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34

34Documents on file with the Select Committee (Meadows production).

Meadows has been frantically trying to ensure whichever of these communications occurred on his personal accounts get shared with the Archives. Which means DOJ now knows they can learn details of the fake elector conspiracy by obtaining those records from the Archives.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

In my last post, I described a grand jury investigation into a powerful Trump associate that had subpoenaed witnesses in the investigation in the second half of last year. NYT just disclosed that investigation, which is into Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

In any case, I keep laying all this out, and TV lawyers keep angrily insisting that this public evidence does not exist.

I can’t guarantee that any of these investigations will lead to charges (or, in the case of Bannon and Barrack, convictions). Investigations alone will not save democracy.

But there is abundant evidence that DOJ is not shying away from aggressively investigating the suspect criminal conduct of Trump flunkies.

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

In this post, I described that DOJ would be smarter to charge Mark Meadows with obstruction for his destruction of records relevant to an ongoing investigation than to charge him for misdemeanor criminal contempt of Congress. That’s because obstruction, a felony, would pose the risk of real jail time, which would be more likely to convince Meadows to cooperate with investigators and explain what he did as part of an attempt to steal the election.

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

When I’ve pointed this explanation out to those wondering why DOJ has yet to (visibly) act on the Meadows contempt referral the January 6 Select Committee the House sent over on December 14, they ask why DOJ can’t just charge Meadows with contempt now and then follow up with obstruction charges later.

The answer is clear. Doing so will make any ongoing investigation far more difficult.

We can see why that’s true from the Bannon case. Bannon has already used his contempt prosecution as a means to obtain evidence about an ongoing obstruction investigation implicating Trump.

In these two posts, I described what we know about DOJ seizing the call records for Robert Costello, the lawyer for both Steve Bannon and Rudy Giuliani, who is someone who has been at the center of Trump’s pardon dangling for years. There’s a full timeline here, but for the purposes of this post, the key details are:

  • On September 23, the House subpoenaed Bannon.
  • Around October 5, the lawyer for Bannon and Rudy started speaking with a lawyer for Trump, Justin Clark, about how to avoid responding on Bannon’s behalf.
  • Between then and Bannon’s deadlines, Costello twice invoked Trump to avoid complying (in an interview with DOJ, Costello admitted that, “CLARK would not identify for COSTELLO what would be covered under Executive Privilege” and “refused to reach out to the Committee on behalf of COSTELLO or BANNON,” though, “CLARK informed COSTELLO not to respond to item 17” (involving communications Bannon had with Rudy, Sidney Powell, and Mike Flynn).
  • Costello claimed he did not know the lawsuit Trump filed on October 18 was coming and also claims he had a draft in process to blow off another October 19 contempt deadline, but on the evening of October 18, he told a J6 staffer that Bannon would not show up.
  • Over the next three days, the J6 Committee went through the process of holding Bannon in contempt, completing the process on October 21.
  • On November 3, Costello met with the investigative team, ostensibly to persuade them not to indict Bannon; in the process, Costello made claims about his communications with Trump’s lawyers (as well as those for Meadows, Dan Scavino, and Kash Patel) that materially conflicted. In response, DOJ sought Costello’s call records, ultimately obtaining records dating back to the last act Costello did on Bannon’s behalf in the Build the Wall prosecution, March 5, 2021, thereby reflecting an interest in Costello’s actions that significantly precede the J6 Committee actions.
  • On November 12, DOJ indicted Bannon. At first, just Evan Corcoran and David Schoen (the latter of whom represented the former President in his January 6 related impeachment) filed notice as Bannon’s lawyers.
  • On December 2, Costello informed DOJ he would file a notice to join the Bannon defense team (he may have been tipped off by his firm that DOJ had asked for his call records for his business phone). DOJ noted that if Costello represented Bannon, it might impact Bannon’s ability to claim an Advice of Counsel defense. On December 8, Costello filed his notice of appearance on Bannon’s team.
  • On January 4, DOJ provided Bannon 790 pages of call records data pertaining to Costello (including from his law firm).

In the early appearances after Bannon’s indictment, DOJ said it wanted to go to trial immediately and believed the trial could take a matter of hours. Bannon, by contrast, wanted a fall trial, and believed the trial could take weeks. Carl Nichols, the Trump appointee who had a key role in the Harriet Miers contempt conflict who is presiding over the case, split the difference on time, and has otherwise seemed unconvinced by Bannon’s maximalist challenges to the indictment.

Nevertheless, because the trial did not happen immediately, until Bannon does go to trial (currently scheduled in July), then DOJ will be obliged to provide him a range of information that would be (as the Costello records clearly are) relevant to an ongoing obstruction investigation implicating Trump personally. And until DOJ has reason to claim a conflict has arisen between Costello’s representation of Rudy and Bannon (which would effectively tip Rudy off that he’s being investigated for January 6), anything shared with Bannon’s defense team will be shared with Rudy’s defense team (and probably, through Schoen, Trump’s).

Those wailing for immediate action got an indictment of Steve Bannon … which will, at most, lead to his jailing for a few months.

And in exchange, Bannon got records that suggest that DOJ treated his attorney as a suspect in a conspiracy to obstruct this (and the J6) investigation. Bannon got records that suggest that DOJ is investigating his lawyer’s activities going back at least to March 5. He was able to see some of the evidence DOJ has obtained in that ongoing investigation.

Until something resets the current status, the contempt prosecution of Bannon is far more useful to Bannon as a means to monitor the ongoing investigation into him and his co-conspirators than it is for DOJ. And DOJ is likely now limiting investigative steps into Bannon and Costello, accordingly, to avoid triggering a discovery obligation to share information with Bannon.

There are a whole lot of really good reasons why DOJ probably hasn’t acted on the Meadows referral yet — most notably that Judge Nichols, who would likely preside over a Meadows case as a related prosecution, has made it clear he believes criminal contempt is used only for those whom DOJ has no hope of coercing cooperation. If they charge Meadows with contempt, per Nichols, they have foresworn any hope of getting his cooperation.

Given what Meadows has already done, DOJ surely views the potential of Meadows’ cooperation as more useful than a time-consuming and restrictive contempt prosecution.

And that’s true, first and foremost, because charging Meadows with contempt now would further limit their ability to shield parts of their investigation from the suspected co-conspirators.

Update: Corrected the Build the Wall reference to mention Bannon, not Meadows.

When Lawyers’ Lawyers Need Lawyers: The Import of Robert Costello’s Toll Records — for Bannon, for Rudy, and for Donald Trump

As I explained in this piece, the lawyer who represents both Rudy Giuliani and Steve Bannon — and who has been at the center of Trump’s pardon-dangling for almost three years — had two meetings with the Bannon prosecution team, where he made a number of claims that could not all be true. The first meeting Robert Costello had with DOJ was on November 3, with a follow-up on November 8, 2021.

Just two of the sets of mutually contradictory claims Costello made in his first interview are:

COSTELLO had not had communication with attorneys for TRUMP prior to that date. [October 18, 2021, when Trump filed a lawsuit challenging Executive Privilege waivers for the January 6 Committee]

And,

COSTELLO first had contact with [Attorney for Donald Trump Justin] CLARK on approximately October 4 or October 5, 2021.

Or:

COSTELLO did not discuss disposing of any documents requested in the Select Committee subpoena with any attorneys who represented former President TRUMP.

And,

Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

I would imagine there’s no better way to get the FBI to start investigating you for false statements then by making a bunch of mutually contradictory claims in one interview.

There were certainly other claims Costello made which he should have known to be false. For example, given that his other client, Rudy Giuliani, put out a statement asserting that Sidney Powell did not work for Trump, Costello likely knows that Powell’s presence at a meeting, along with non-lawyer Mike Flynn, would not implicate Trump’s privilege, even if a meeting between Costello client Bannon and Costello client Rudy could itself be considered privileged, which is a fantastic stretch in any case. But that’s a claim, he told the FBI, that he advised Bannon to make in refusing to respond to the January 6 subpoena by invoking Executive Privilege.

Nevertheless, the FBI did not have to obtain the content of Costello’s communications to test whether he lied at that meeting on November 3, given that so many of his fact claims could be tested simply by obtaining his call and email records to see whether he was speaking with Trump lawyers (and those for Mark Meadows, Dan Scavino, and Kash Patel) and if so, when, about which Costello made affirmative denials in his meeting with DOJ. If he was discussing with other lawyers how to deal with the Select Committee investigation at a time he claimed he was not, the FBI would have deemed that a suspected lie worthy of more investigation.

And that’s what the FBI did, making eight requests for records (four for phone records, four for Internet records, apparently covering his work and personal emails and phones) resulting in 790 pages, total.

Given the abundant detail included in the Motion to Compel (undoubtedly included to provide hypothetical co-conspirators some idea of the extent of the record seizure, including that no content was obtained), Bannon’s claims seem to be predictably overblown. There appear to be three grand jury subpoenas and just one 2703(d) order (to an Internet provider, likely someone like Google). That is, some of the eight requests appear to be an effort to figure out which phones and email were of interest, in advance of obtaining toll record themselves. Indeed, Bannon makes much out of the fact that DOJ obtained payment method associated with Costello’s phone, available with a basic subscriber request. And unless Costello is a remarkably stingy user of SMS texting, the request for those toll records appears to be narrowly tailored either by time or interlocutor; there are just two pages of SMS text toll records.

Here’s a summary of what the government appears to have obtained:

Bates stamp range: US 001093-001883

US 001093: Grand jury subpoena

US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021.  Returns include:

  • US 001151-001249: 98 pages showing IP activity for the email account sought from March 5, 2021 through November 12, 2021, as well as a report on what other services from the provider Costello uses
  • US 001733, 001735, 001740, and 001742: Several references to a 2703(d) order or equivalent
  • US 001765: Grand jury subpoena

US 001769-001789: Costello’s 302s

US 001834: Case number

US 001842: Case number

US 001863: Subscriber record showing payment method for Costello’s cell phone

US 001866: Costello’s data usage

US 001872; Grand jury subpoena

US 001874-001875:  SMS (text messaging) information, including the numbers to which texts were sent and from which they were received

The government doesn’t appear to be treating these records as evidence in their contempt case against Bannon. As the  Bannon filing notes, the government only turned them over on January 4, after stating (before they had obtained the bulk of these records) that the evidence in their case-in-chief against Bannon only consisted of 200 documents.

It is curious that Government counsel delayed producing these documents until January 4, 2022. On November 18, 2021, the parties appeared before this Court. At that proceeding, Government counsel insisted that the Government was ready for trial, that this is a simple and straightforward case, and that it was ready immediately to provide Mr. Bannon with the discovery in the case, which it described as “less than 200 documents,” with “most of” it purportedly comprised of “materials the defendant already has ….” [11/18/2021 Hearing Tr. at 3].

Costello first joined Bannon’s criminal defense team over two weeks after Bannon was indicted, and after DOJ pointed out that Costello’s representation would pose a problem for any Advice of Counsel defense. Given that DOJ obtained toll records from Costello’s firm, it’s possible they tipped him off and he joined the Bannon team to create this problem after that.

Bannon’s filing also notes that the government hasn’t provided the subpoenas obtaining this material, as they would have if the subpoenas targeted him, personally.

Nowhere in the Government’s production was a copy of a court order authorizing the Government’s actions, nor was there a copy of any subpoena for the records, nor was there even any application for a court order or for authorization from the Department of Justice for subpoenas intended to obtain defense counsel’s personal and professional telephone and email records.

That makes sense: Bannon can’t be held responsible for the things his (and Rudy’s) lawyer says while sitting with the FBI. Costello is the one who made mutually contradictory claims, not Bannon.

But, at least as Bannon tells it, the team that seized these records appears to have taken little care to protect Costello’s other clients.

Furthermore, there was nothing in the production that indicated any effort to limit the access of the prosecutors assigned to this case to defense counsel’s personal and professional records, nor was there any indication of any filter in place to distinguish between attorney-client privileged or work-product privileged information that could be garnered from the records the Government obtained and non-privileged materials, nor was there any indication of any filter intended to protect confidential and privileged related to other clients of Mr. Costello and his law firm or intended to keep the prosecutors handling this case from access to any such privileged material.

Indeed, after wailing a bit about DOJ’s oblique response when asked about this seizure, the Bannon filing returned to Costello’s other clients and “witnesses” consulted in those representations.

Beyond all of the above, the Government’s response ignores the damage its actions risked causing for other clients of Mr. Costello and his law firm, for telephone calls and emails to and from other clients and witnesses consulted in relation to their cases would now be exposed by the Government’s efforts to obtain records for all of the attorney’s emails and telephone records.

And in fact, in a letter responding to Bannon’s questions about these records, DOJ made no representations about work product related to Costello’s other clients, even while emphasizing what the prosecution team (which is different from DOJ as a whole) has in its possession.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment. The Government understands its discovery obligations under Federal Rule of Criminal Procedure 16; the Jencks Act; and Brady, Giglio, and their progeny, and will continue to comply with them should additional discoverable material come into the prosecution team’s possession, custody, or control.

That’s significant because of the temporal scope of the email metadata obtained: from March 5 through November 12, 2021, basically the last event for which Costello was representing Bannon in the Build the Wall criminal prosecution and his indictment on these new charges (though, again, Costello didn’t join his defense team for over two weeks). These records don’t include any period when Costello was criminally representing Bannon.

But they do cover a far broader period than would be necessary to understand what communications Costello had with lawyers for Donald Trump after Bannon was subpoenaed by the January 6 committee on September 23. Indeed, they cover a broader period than the entire January 6 Committee, which was created by House Resolution 503 on June 30, 2021.

Presumably, DOJ saw something in the initial records they were seeking — or in records obtained by others, or in another unseen ongoing investigation — to scope the Internet request for the entirety of the period between Costello’s past and current criminal representation of Bannon. Or they were already interested in Costello (for whom there was a possible referral in the Mueller investigation), and his interview with the FBI extended that interest.

That suggests this really isn’t about Bannon.

But the seized records do include the entirety of the period when Costello was helping Rudy review the contents of 16 devices seized by SDNY. Of note, Trump could have, but chose not to participate in that Special Master process. Because he moved to intervene, Dmitry Firtash is permitted to review the records seized from Victoria Toensing to protect his own interests, but Trump’s lawyers should not be getting notice of what was seized from Rudy.

Indeed, the conversations of interest regarding the Bannon representation happen to have taken place during a period during which Costello had gotten an extension to review the contents of the first seven devices seized from Rudy.

On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Costello told the FBI he had no conversations with any Trump lawyers for this period. Even if he had conversations with other Trump lawyers during this review problem, it would conflict with what he told the FBI in his Bannon-related meeting.

It’s certainly possible that the only warrants at issue in the Special Master review are the Ukraine-related ones overtly used to seize Rudy’s devices, and that the SDNY team is completely excluded from accessing these records; if that’s the case, it would suggest there’s no investigation into Rudy out of DC, particularly not one in which JP Cooney or Molly Gaston are participating, both senior prosecutors at DC USAO.

Or there’s something far more interesting going on.

Update: I realized after I posted this that Costello’s 302s were included in the 790 pages Bannon complained about, meaning he claimed things were call records when instead they were the obvious justification for the call records. I’ve added and bolded those pages above.

Steve Bannon’s Lawyer Made Himself a Witness and Now Wants To Be Just a Lawyer

Last night, along with a previously scheduled Motion for Discovery, Steve Bannon filed a Motion to Compel disclosure regarding some records requests DOJ made targeting Bannon’s attorney, Robert Costello. In it, he revealed that the government had obtained phone and Internet toll records (that is, metadata, not content) of his attorney spanning the period between the last event in Bannon’s prosecution in the Build the Wall fraud case, March 5, 2021, through the day he was indicted, November 11, 2021.

Predictably, the filing wails a lot about his lawyer being spied on and misrepresents what happened.

While Bannon included two exhibits with his Motion to Compel (a letter asking for information about the Costello material and the government response), Bannon included the most important information pertaining to the Costello records with his Motion for Discovery, not his Motion to Compel: reports of two interviews (302s) he did with DOJ and FBI, one on November 3 and the other on November 8, 2021.

At the time Costello gave the interviews, his representation of Bannon before the January 6 Select Committee was ended and Bannon had not yet been indicted. And as the first 302 notes, “there were no agreements or conditions governing the conversation between COSTELLO and representatives of USAO-DC or FBI.” Effectively, those interviews made Costello a voluntary fact-witness in the criminal case against Bannon, one exacerbated when Bannon belatedly added Costello to his criminal defense team and grew squishy about whether Bannon would invoke Costello’s advice in his own defense.

And Costello made so many contradictory claims in his 302s (to say nothing of providing evidence that Bannon knew well he had no privilege claim with which to refuse to testify entirely), that it is unsurprising that the FBI made records requests to test whether Costello lied in those interviews to the FBI. Among the claims Costello made about communications he had or did not have are:

  • J6 sent the subpoena to Costello (on September 23) before he had been able to consult with Bannon
  • Costello did not know who was representing the other people subpoenaed — Dan Scavino, Kash Patel, Mark Meadows, or Donald Trump — at the time of the subpoena
  • Through the entire subpoena response, Bannon and Costello have “operated independently of the others subpoenaed”
  • Costello was not told who was representing Trump, Meadows, or the others subpoenaed, but he found out on his own who represented Trump and Meadows
  • Costello sent the subpoena to Bannon to review
  • Costello’s advice to Bannon that he didn’t have to respond was verbal
  • Costello was sure he sent the J6 letters to Bannon; he wasn’t sure whether Bannon read the letters but Costello did quote lines from the letters to him
  • Costello sent Bannon an email that he ended with the word BEWARE because defying the subpoena could result in a referral to DOJ
  • Costello’s only contact with J6 Chief Counsel Kristin Amerling came the day before and the day of the subpoena service [the record shows she sent him at least one letter after that]
  • Costello tried to contact the attorney he believed was representing Trump (whom he didn’t name) but that attorney referred Costello to Justin Clark
  • Costello reached out to Clark a few days before October 6, though their first substantive conversation came when Clark responded
  • Costello did not provide any documents to attorneys for Trump for an Executive Privilege review
  • Justin Clark was vague but Costello was sure Trump asserted Executive Privilege with regards to Bannon
  • Clark would not ID for Costello what would be covered under Executive Privilege
  • In spite of Costello’s claims not to have consulted with any Trump lawyer, he also claimed that Clark told him not to respond to item 17 on the subpoena (covering Mike Flynn), because lawyers like Rudy Giuliani might have been present when Bannon communicated with Flynn
  • In spite of his admitted conversations with Justin Clark, Costello claimed he had not had communications with attorneys for Trump prior to October 18, 2021 (when Trump filed a lawsuit challenging the privilege waivers on materials from the Archives)
  • Costello had “an email or two” with Clark, who he believed filed the lawsuit, but he did not learn until later that Jesse Binnall filed the lawsuit
  • Costello sent copies of Bennie Thompson’s letters to the VA lawyer representing Trump (probably Binnall)
  • Costello had no advance knowledge of Trump’s lawsuit and would have handled things differently if he had
  • Attorneys representing Trump (Costello doesn’t name him or describe when this was) told him everyone who got a subpoena would get Executive Privilege
  • Costello did not talk about “disposing of any documents requested in the … subpoena with any attorneys who represented former President TRUMP”
  • Costello said he’d sent to USAO all memorializations of communications he had with the Committee, Clark, and Trump’s attorneys

Effectively, these claims only make any sense if he had extended discussions with an attorney who did not represent Donald Trump, on whose representation he advised Bannon that Trump wanted Bannon to invoke Executive Privilege. But even there, there are still all sorts of temporal problems with Costello’s claims (and probable inconsistencies regarding the timing of events on October 18, though I need to unpack what those are further).

Costello’s interviews were all over the map on other topics as well, topics that affect both Rudy Giuliani (whom Costello also represents) and Bannon: that he could and could not claim Executive or Attorney Client privilege over certain topics, that he advised or did not advise Bannon to do so, that he admits that Bannon provided no response about issues — most damningly, his public podcasts — that could in no way be covered by Executive Privilege.

But the key detail is that Costello’s claims about communications he had and did not have defy belief and (particularly with regards to Justin Clark) may be physically impossible.

So, in response to these interviews (and probably in possession of contradictory evidence from J6), DOJ obtained all the records they would need to test Costello’s claims.

As I’ve noted, Costello has played a key role in past obstruction efforts, going back to 2018. It’s certainly conceivable DOJ has an open investigation into Costello (and Rudy) for those activities.

Whether or not they already did, Costello gave them far more reason to question his role in obstructing investigations into Donald Trump in his two interviews.

Update: Here’s Bannon’s subpoena (h/t Kyle Cheney). It confirms that Item 17, which Clark told Costello to tell Bannon not to respond to, included Mike Flynn.

Timeline

March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)

September 22: First contact between J6 and Bannon

September 23: Bannon subpoena

September 24: Costello accepts service

October 6: Costello claims Clark invoked privilege

October 7, 10AM: Original deadline for document production

October 7, 5:05PM: Costello letter claiming Trump invoked privilege

October 8: Thompson letter to Bannon rejecting non-compliance

October 13: Second Costello letter, demanding accommodation with Trump

October 14, 10AM: Original date for Bannon testimony

October 15: Letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM

October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues

October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt

October 20: Rules committee meeting to hold Bannon in contempt

October 21 Bannon held in contempt

October 28: Matthew Graves confirmed as US Attorney

November 2: Kristin Amerling interview

November 3: First interview with Robert Costello

November 5: Matthew Graves sworn in as US Attorney

November 8: Second interview with Robert Costello

November 11: Subpoena to Internet provider

November 12: End date for Costello records request

November 12: Indictment

November 15: Bannon arrest; David Schoen and Evan Corcoran file notices of appearance

November 18: At status conference, government says there are just 200 documents of discovery

December 2: Costello moves to appear PHV; Government asks if Bannon intends to rely on advice of counsel defense

December 7: Returns on Internet provider (623 pages)

December 7 to 16: Bannon refuses to submit joint status report

January 4: DOJ turns over 790 pages of records from Costello

January 6: Bannon request for more information on Costello

January 7: Government response to Bannon request

January 14: Bannon discovery request letter; Bannon motion to compel regarding Costello

January 28: Government response to discovery demand

February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello

Trump’s Coup Attempts: A Tale of Five Pardon Dangles

In an analysis piece earlier this week, the NYT reported as newsworthy that,

Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.

Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.

“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”

Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.

Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?

A Yes.

Q How many conversations did you have with him about pre-pardoning

A One or two.

Q And what did he say to you?

A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.

Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?

A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.

Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?

A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –

Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?

A No.

Q Okay. What do you mean by a global pardon?

A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.

Q So when you say everyone, who do you mean?

A I guess whoever it is that you started to request to come in, testify, subpoenaed.

And in Trump’s last days in office, he considered pre-emptive pardons, but — in part because of Pat Cipollone’s opposition — he did not do so.

It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.

This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.

It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.

It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:

  • December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
  • January 12: The indictment on sedition charges of the Oath Keepers whose testimony could most directly damage Trump
  • January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
  • January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
  • January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
  • January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee

What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.

So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.

Michael Cohen pardon dangle

This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.

But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.

Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.

Roger Stone commutation

Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.

While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.

But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.

Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.

Mike Flynn pardon

As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.

Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.

That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.

More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.

THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?

MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.

THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.

MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.

THE COURT: What’s the reason why you can’t discuss that?

MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.

THE COURT: Well, you don’t work for the government.

MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.

THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?

MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.

THE COURT: How did you provide that update? Was it in writing?

MS. POWELL: No, sir.

THE COURT: How did you provide that update? Who did you speak with?

MS. POWELL: I provided it in person to counsel for the President.

THE COURT: I mean the White House counsel or a deputy or who did you speak to?

MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.

THE COURT: And did you make any request of the President?

MS. POWELL: No, sir. Other than he not issue a pardon.

THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?

MS. POWELL: That’s the only one I recall.

THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?

MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.

THE COURT: Are the New York Times’ representations erroneous?

MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.

THE COURT: All right. About this case. But there’s been more than one though.

MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.

THE COURT: And was that within the last two weeks?

MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.

THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?

MS. POWELL: Oh, heavens, no.

THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?

MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]

On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.

And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.

At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.

Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.

Roger Stone pardon

During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.

Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.

On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.

On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.

On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”

Roger Stone, who received a Christmas week pardon from President Donald Trump, delivered a personal thank you to the president on Sunday at the Trump International Golf Club in West Palm Beach.

Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”

[snip]

Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.

A photo posted and then removed from Roger Stone's Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.

One picture showed four people talking: Trump; Kimberly Guilfoyle, a senior adviser to the Trump campaign and Donald Trump Jr.’s girlfriend; Christopher Ruddy, the CEO of the website and cable channel Newsmax, which is based in Boca Raton; and Stone.

“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”

The next day, Stone deleted the pictures of his face-to-face meeting with Trump.

On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.

Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)

Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.

Steve Bannon

Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.

It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.

December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.

In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.

“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.

Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”

So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.

But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.

Rudy Giuliani left dangling

Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.

While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.

It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.

But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.

Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.

But he didn’t.

That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.

Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion

Key pardons of January 6 participants

February 18. 2020: Bernie Kerik

November 25, 2020: Mike Flynn

December 22, 2020: George Papadopoulos

December 23, 2020: Roger Stone and Paul Manafort

January 19, 2021: Steve Bannon

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

I continue to get people asserting as fact that the investigation into Trump’s role in January 6 would be going better if Merrick Garland had appointed a Special Counsel.

I have yet to see calls for a Special Counsel that are not, themselves, just an extended admission that the people calling for one don’t understand the investigation. For example, in a widely shared Asha Rangappa thread in October, she claimed to present Pros and Cons like this:

Pro:

  1. It’s warranted” (she didn’t say what “it” was)
  2. It would signal that getting to the bottom of this is a priority for the Justice Department” (she didn’t say what “this” was)
  3. It could provide for a more efficient investigation … An SC would be able to have FBI agents and prosecutors detailed to focus on this one matter”
  4. It would insulate Garland from political blowback; “Garland would be right to be concerned with the *appearance* of a politically motivated investigation under his direct watch”
  5. “The Special Counsel regulations have important formal mechanisms for reporting prosecutorial decisions (including declinations to prosecute)”

Cons:

  1. It gives people who may be subjects of an investigation a ‘heads up'”
  2. It creates a new space for politicization, as we saw with Mueller:”

More recently, a non-public non-expert suggested that because Merrick Garland hadn’t appointed a Special Counsel when he came in, Congress was doing the investigation that a Special Counsel was not.

I want to start from that claim — that Congress is investigating stuff that DOJ is not. It reflects a belief that even DOJ reporters have, such as in this shitty WaPo piece revealing in ¶30 that DOJ is investigating Roger Stone and Rudy Giuliani for their militia ties but then reporting as fact that DOJ “has yet to turn its attention directly to Trump and his close allies.” The things WaPo turns to before examining how — and ignoring that — DOJ is investigating Trump’s one-degree ties to the militias who managed the attack on the Capitol are:

  • Whether DOJ is investigating the war room at the Willard Hotel (never mind that WaPo missed one overt way DOJ is investigating the war room)
  • Whether DOJ is investigating Trump’s call to Brad Raffensperger
  • Whether DOJ is investigating Trump’s threats to install Jeffrey Clark to get an Acting Attorney General more amenable to claiming voter fraud occurred

Of those, only the call to Raffensperger (which is being investigated by Fulton County’s DA) is clearly illegal.

Special Counsels can only investigate crimes, not potential crimes not pursued

It is not clearly illegal, for example, for John Eastman to write a letter calling on Trump to pressure Mike Pence to reject the vote totals or for Peter Navarro to set up a propaganda campaign that members of Congress will point to to justify corrupt action (indeed, the latter is how lobbyists made DC run). It may not be illegal for a President to install someone who has been Senate confirmed as Acting Attorney General who will pursue his policy goals, no matter how corrupt they are; it’s not even illegal for a President to ask a Cabinet Member to lie to the public (and Cabinet Members lie a lot, sometimes for good reasons). It’s even less illegal to consider doing so but deciding not to because of the political cost of doing so, as happened with Clark. It is not even illegal to receive a plan to have the military seize voting machines, especially if you don’t pursue that plan (which Trump did not).

These things only become illegal when they are shown to be part of plan to commit a crime.

There’s the first problem with calls to appoint a Special Counsel. Much of what people want to investigate (again, Raffensperger and the fraudulent certificates are an exception) is not clearly a crime.

I have talked about how the Select Committee is investigating from the top down and DOJ is investigating from the crime scene up (in addition to investigating Sidney Powell’s potential Big Lie fraud). I’ve talked about how, as a separate co-equal branch of government, the Select Committee can more easily do things like get Executive Privilege waivers or waive Speech and Debate protections, the former of which was a challenge for Mueller’s investigation. I’ve laid out how the two investigations have already converged, first with the focus on the targeting of Mike Pence and more recently on the role of Trump’s directions serving as the motivating instruction for three different armed conspiracies, including the sedition one.

But it’s equally important to recognize that the Select Committee is also conducting the important work of investigating things that weren’t crimes, like considering but not acting on a suggestion to seize the voting machines and considering but not acting on a plan to make Jeffrey Clark Acting Attorney General (both issues Bennie Thompson addressed on the Sunday shows this morning).

A Special Counsel can’t be appointed to investigate something that is not a crime.

I realize that people have argued, starting on January 6, that Trump incited the insurrection and that’s the crime that could have predicated the Special Counsel. Bracket that idea. I’ll come back to it.

No Republican Senator is on the record opposing DC US Attorney Matthew Graves leading this investigation

As it happens, Rangappa wrote her thread on October 25, three days before US Attorney for DC Matthew Graves was confirmed on a voice vote. While Ron Johnson held up the vote for other reasons, no Republican Senator thought it important enough to register opposition to Graves to call for a recorded vote.

That means, going forward, the US Attorney overseeing the January 6 investigation can claim the support of the entire Senate. No Republican recorded their opposition to Matthew Graves overseeing the investigation into January 6.

Those asking for a Special Counsel are, in effect, saying that there would be less political blowback if Merrick Garland chose, on his own, to appoint someone to lead an investigation than if a US Attorney against whom not a single Republican recorded opposition led the investigation.

The January 6 investigation is far too large for a Special Counsel

Now consider the claim that a Special Counsel investigation would be more efficient because the Special Counsel would have a dedicated team of prosecutors and FBI agents and a dedicated grand jury. Such claims are astounding for how little awareness of the actual investigation they show.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through. Given COVID, keeping these grand juries up and running has been a real bottleneck on the investigation (something else Garland alluded to). For one conspiracy indictment I followed, it took five months — from April until September — from the time DOJ stated it would charge it as a conspiracy and the time the FBI Agent could sit with the grand jury safely to get that indictment. So you’re better off having several to juggle than relying on one. “When will Garland get a grand jury for this investigation,” people keep asking, and the answer is that was done already, in January 2021 before Garland was confirmed, in May, in August, and in November. Over a hundred Americans have already been serving, in secret, during a pandemic, on these grand juries that people are wailing must be appointed some time in the future.

Then there are other things about the investigation that have required massive and immediate resource allocations. Most notably, DOJ had to appoint a team (led by a prosecutor named Emily Miller) to create an entirely new discovery system, which has involved throwing large amounts of money at both Deloitte and the Federal Public Defenders office. Special Counsels need to budget ahead, and because this investigation is so large, it would not be possible given the budgetary requirements of the Special Counsel regulation.

We know similar resource allocations are going on at a whole-DOJ level with respect to the FBI (including a reliance on Joint Task Forces for more localized investigations); those decisions are just less visible.

The point being that this investigation is so large it requires the DOJ, as a whole, to manage the resources for it. It’s far too large for a Special Counsel. And nothing about putting someone without those resources who has to budget in advance would make this investigation more nimble.

Calls for a Special Counsel internalize a belief that Trump was further from the mob than he was

So let’s go back. The crime invoked by those calling now or in the past for a Special Counsel as the predicating crime for the investigation is incitement. There are problems with that. Trump’s defense attorneys rightly pointed out during his second impeachment trial that the riot had already started — by the militia that Trump had called out on September 29 — before he incited the mob at his rally. Trump’s relationship with the mob is far more complex — and frankly, damning, than that.

But the other problem with that is if you want to prove that Trump incited the crowd, you need to get proof that those who went on to riot were responding to Trump’s speech.

That’s actually one thing DOJ has been doing for the last year; I would guesstimate that about a third of the 200 or so people who’ve pled guilty have said things in their statements of offense to support an incitement charge against the former President. But they’ve also provided DOJ more specific details about their expectations for what would happen at the Capitol (most notably that Trump would speak again) and how those expectations were manipulated to get them to do things like climb to the top of the East steps just before it was breached. The way in which Trump (and close associates like Alex Jones) manipulated attendees was actually more malicious than simple incitement.

So even (perhaps especially) for the crime that everyone is sure Trump committed, incitement, you need to do some of the work everyone points to in claiming that DOJ is investigating the wrong people, just the pawns and not the generals. One thing DOJ has done in the last year is collect evidence that large numbers of those who, without planning to do so in advance, nevertheless played a key role in occupying the Capitol, did so not just because of Trump’s violent imagery, but also because of the expectations he set among rally goers.

More importantly, what DOJ has spent the last year doing is understanding what those who kicked off the riot while Trump was speaking did, and how those who brought mobs to the Capitol manipulated them to make them more effective. And what they’ve discovered — what WaPo thought worth burying in ¶30 — is they were working with Trump’s closest associates, if not responding to orders from Trump himself.

DOJ already is investigating what happened at the Willard Hotel (and has been since last summer). But they’re investigating it not because a bunch of the people there considered ideas — like seizing the voting machines — that weren’t adopted. They’re investigating it because there are tangible ties between what happened at the Willard and what happened on Capitol Hill.

Consider the centrality of efforts to pressure Mike Pence to reject the legal results of the election. After efforts to overturn the election with legal challenges based on the Big Lie (for which Sidney Powell is already being investigated by prosecutors also investigating other aspects of January 6) failed, Mike Pence became a necessary player in the plots to steal the election. And the effort to pressure Pence is continuous from Donald Trump to his allies to people at the mob.

Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

There are things that Trump did that are independently illegal, including giving Mike Pence an illegal order. But their illegality becomes much more salient in the context of the organized effort to pressure Mike Pence, threaten his life, and prevent the vote certification from taking place.

And DOJ has already acquired evidence that the people at the Capitol who were most deliberately implementing that plan have direct ties to Trump’s closest associates.

Bizarrely, the foundational assumption of those demanding a Special Counsel is that Trump didn’t have any tie to the riot — it has to be!! The foundational assumption of those demanding a Special Counsel is that the investigation of the insurrection won’t get to the former President unless it convenes a separate investigation into him, even though the investigation working up from the mob has already found at least three one-degree links between those mobilizing the bodies at the Capitol and Trump’s close associates (and the grand jury investigation that already charged sedition has at least three cooperating witnesses with ties to Roger Stone).

No one has to ask Merrick Garland to open an investigation that might prosecute Trump. It has been open since long before Garland was confirmed. No one has to ask Merrick Garland to get a prosecutor to convene a grand jury that will investigate Trump’s actions; grand juries have already indicted at least four violent conspiracies that were mobilized by Trump’s calls to violence, including one that has been working since two days after the attack.

If you believe that Trump’s actions played a central role in the insurrection — if you believe that the violent mob mobilized on January 6 was an important part of plans hatched at the Willard Hotel — then creating a separate investigation to investigate Trump does nothing but remove him from his liability in crimes already charged as sedition. That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized. There’s no reason, at this point, to do that (if Democrats were to lose in 2024, there might be).

People have been wailing for a year that DOJ needs to open an investigation into Donald Trump and all the while an investigation has been open and has been working towards Trump.

Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations

The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.

He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.

And because these are consecutive pages, we can’t glean information from them in the same way we can pages (such as those pertaining to Steve Bannon’s January 2019 Grand Jury appearance) turned over as part of other releases.

But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.

That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.

To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).

Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).

That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.

Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.

The Green Bay Sweep Is Inextricably Tied to the Violent Mob

Between yesterday’s hearing in the January 6 lawsuits — where Judge Amit Mehta noted that,”The conspiracy to sow distrust in the election is not illegal, no[] matter what we think about conduct,” — and something I’m working on, I’ve been thinking about all the stuff that happened between November and January, which the Select Committee is working aggressively on.

I’ve said that I believe the phone call to Brad Raffensperger is illegal on its own right. The Fulton County DA says she’s getting closer to a charging decision on it, and whatever she decides she can likely share her findings with DOJ. Politico reported on some of the other damning information that the Select Committee has received, including other calls to pressure Georgia officials.

I’ve laid out how Trump’s pressure on Mike Pence is already a key focus of both investigations (which the NYT wrote about yesterday).

But as to the rest of it, thus far, the vast majority of what has been made public is — as Judge Mehta qualified it — a legal conspiracy to undermine trust in elections. As I noted, the reason why Peter Navarro’s confessions aren’t enough to charge him with sedition is because as confessed, the coordinated effort to get Republicans to raise bad faith challenges to the vote certification is not illegal.

But there are two ways to think about these events leading up to the mob. The first, which I’ll lay out in more depth later, is as proof of mens rea. When Trump called up Raffensperger and asked for the precise number of votes he needed to win, it was a (recorded) admission that he knew he had lost the state.

To the extent DOJ and the Select Committee can substantiate that Trump knew the request was illegal, Trump’s sustained demands that Pence reject the legal vote count is also proof of kind of corrupt purpose that would be necessary to charge him with obstruction (as DOJ’s expert on this approach himself said fairly explicitly).

I’d like to go back to what I believe to be the third most compelling proof of corrupt mens rea. As I noted, when — in the wake of state certifications — Trump told Richard Donoghue to just say the election was corrupt and “leave the rest to me and the Republican Congressmen,” he effectively admitted he was asking DOJ to claim there were problems with the election when they were telling him there weren’t.

On December 27, Acting Deputy Attorney General Richard Donoghue took notes from a call where Trump laid out the alleged fraud that merited DOJ involvement. Donoghue noted Trump saying, “You guys may not be following the Internet the way I do.” Donoghue recorded multiple times that DOJ officials told Trump his election claims were wrong, detailing the investigations that DOJ had already done into the allegations. He recorded Trump’s intimation that he might start replacing people with Jeffrey Bossert Clark if they didn’t back his claims of fraud.

At one point, Trump demanded, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”

At the time I wrote that post in August, I believed it proved the mens rea that DOJ would need to show Trump was acting with corrupt intent.

But I look at it differently given Peter Navarro’s cover story about the subsequent effort. Navarro claims that he and Steve Bannon rolled out an (entirely legal) effort to provide members of Congress with enough election disinformation to sustain 24 hours of debate.

“The Green Bay Sweep was very well thought out. It was designed to get us 24 hours of televised hearings,” he said. “But we thought that we could bypass the corporate media by getting this stuff televised.”

Navarro’s part in this ploy was to provide the raw materials, he said in an interview on Thursday. That came in the form of a three-part White House report he put together during his final weeks in the Trump administration with volume titles like, “The Immaculate Deception” and “The Art of the Steal.”

“My role was to provide the receipts for the 100 congressmen or so who would make their cases… who could rely in part on the body of evidence I’d collected,” he told The Daily Beast. “To lay the legal predicate for the actions to be taken.” (Ultimately, states have not found any evidence of electoral fraud above the norm, which is exceedingly small.)

The next phase of the plan was up to Bannon, Navarro describes in his memoir, In Trump Time.

“Steve Bannon’s role was to figure out how to use this information—what he called ‘receipts’—to overturn the election result. That’s how Steve had come up with the Green Bay Sweep idea,” he wrote.

“The political and legal beauty of the strategy was this: by law, both the House of Representatives and the Senate must spend up to two hours of debate per state on each requested challenge. For the six battleground states, that would add up to as much as twenty-four hours of nationally televised hearings across the two chambers of Congress.”

The plan, as laid out in Navarro’s cover story, is entirely legal so long as you believe two key claims he makes: that he doesn’t know when this effort started and doesn’t remember Trump being personally involved.

Although Navarro told The Daily Beast he doesn’t remember when “Brother Bannon” came up with the plan, he said it started taking shape as Trump’s “Stop the Steal” legal challenges to election results in Arizona, Georgia, Pennsylvania, and Wisconsin fizzled out. Courts wouldn’t side with Trump, thanks to what Navarro describes in his book as “the highly counterproductive antics” of Sydney Powell and her Kraken lawsuits. So instead, they came up with a never-before-seen scheme through the legislative branch.

Navarro starts off his book’s chapter about the strategy by mentioning how “Stephen K. Bannon, myself, and President Donald John Trump” were “the last three people on God’s good Earth who want to see violence erupt on Capitol Hill,” as it would disrupt their plans.

When asked if Trump himself was involved in the strategy, Navarro said, “I never spoke directly to him about it. But he was certainly on board with the strategy. Just listen to his speech that day. He’d been briefed on the law, and how Mike [Pence] had the authority to it.”

“Leave the rest to me and the R[epublican] Congressmen.” Navarro (claims he) doesn’t remember when this plan started.

But Trump already told DOJ (the people conducting this investigation, the ones that got a privilege waiver for this material back in the summer) when it started, all the way back in 2020. By December 27, he had a plan that required DOJ to claim fraud, so that Trump and Republican Congressmen could implement what would ultimately be called the Green Bay Sweep.

But even before he had done that, on December 19, he sent out the Tweet that insurrectionists great and small took as their cue to start planning to attend a riot.

Trump tweets: “Statistically impossible to have lost the 2020 Election” and “Big protest in DC on January 6th. Be there, will be wild!”

DOJ has had, since before January 6, the proof that these two efforts worked in conjunction.

And that’s what changes the (as Judge Mehta described it) legal conspiracy to sow distrust in the election into an illegal conspiracy, with demonstrated mens rea of corrupt intent, to obstruct the vote count.

This is why DOJ has been pursuing a conspiracy to obstruct the vote count and not incitement. Because only the former can reach to those who helped Trump commit his crime.