Gary Shapley’s Handlers Revisit Past Leak Investigations into Chuck Grassley’s Staff

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According to a press release on the website for Empower Oversight–the group handling Gary Shapley’s now-debunked media tour–Empower’s founder, Jason Foster, was the subject of an FBI subpoena to Google in 2017.

Google first alerted Foster to the September 12, 2017 subpoena on October 19, 2023. That’s one of the reasons I find this FOIA so interesting. The notice came more than six years after the subpoena, suggesting FBI likely continued to investigate someone tied to the investigation for at least a year longer than statutes of limitation would normally extend.

Empower seems to suggest there’s a tie between the subpoena and one served on Google pertaining to Kash Patel’s personal email two months later, on November 20, 2017, as does Margot “Federalist Faceplant” Cleveland in this propaganda piece reporting on the subpoenas. While Empower says that this subpoena asked for information on other staffers, it only cites Kash to substantiate its claim that other staffers had also gotten notice of a past subpoena (Cleveland does report that a HPSCI staffer was also included).

Empower Oversight has information indicating that the other accounts listed in the subpoena belonged to other staffers, both Republicans and Democrats, for U.S. House and Senate committees also engaged in oversight investigations of the Justice Department at the time pursuant to their authorities under the U.S. Constitution.

[snip]

Other former staffers have publicly referenced receiving similar notices, including former U.S. House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) staffer Kashyap Patel.

They’re from the same grand jury (16-3). But they not only have different file numbers, but the one on Kash’s subpoena — that is, the later subpoena, by two months — has a lower file number, 2017R01887, as compared to 2017R01896.

Kash is suing roughly the same people over his subpoena as Empower is FOIAing: Empower is asking about former DC US Attorney Jessie Liu, Rod Rosenstein, his one-time Principal Associate Robert Hur (currently the Special Counsel investigating Joe Biden’s classified documents), and Ed O’Callaghan, who replaced Hur, along with then DOJ Spox Sarah Isgur. Kash is suing Liu, Rosenstein, Hur, and O’Callahan, plus FBI Director Chris Wray and the two AUSAs behind the subpoena.

There are problems with both of their target sets. For example, Liu wasn’t even sworn in as US Attorney until September 25, 2017 — after the Foster subpoena (though before the Kash one). So Empower’s suggestion that Liu had some influence on the subpoena on him is nonsense. Rosenstein wasn’t sworn in until April 26, 2017, almost five months after the request for conversations with the press starts.

Similarly, Ed O’Callaghan, whom Kash describes as, “the Principal Associate Deputy Attorney General for Mr. Rosenstein at the time in question,” didn’t move from the National Security Division to Rosenstein’s office until April 2018, after Hur was confirmed as US Attorney for Maryland and long after both the subpoena implicating Kash and his blow-up with Rosenstein. Though if these were really sensitive leak investigations, NSD may have had a role in them. (Empower includes NSD within its FOIA.)

Those details don’t seem to matter for their projects: both men appear to be using the subpoenas as an excuse to settle scores.

Kash, ever the conspiracy theorist, brought a Bivens claim insinuating that Rosenstein and others violated Kash’s Fourth Amendment rights because DOJ served a subpoena — something not requiring probable cause under the Fourth Amendment — to obtain the subscriber information for a list of around 14 identifiers, of which his personal email was just one. There’s nothing on the face of the subpoena to suggest that DOJ knew his email was tied to someone who was a Congressional staffer at the time of the subpoena (though again, Federalist Faceplant seems to know at least one other person listed was a staffer). In fact, the subpoena asked for contact information going back to April 2016, a year before Kash moved from DOJ to HPSCI, so it could have pertained to a leak internal to DOJ.

Nevertheless, Kash spins a tale where the November 2017 subpoena is in some way connected with what he claims is Rosenstein’s threat, over a month later, to subpoena HPSCI staffers.

5. The illegitimate grounds for the subpoena were made clear when, shortly after the FBI and DOJ previewed what would become the “Nunes Memo,” which outlined significant issues with FBI’s and the DOJ’s manner of opening and conducting the Crossfire Hurricane investigation, then-Deputy Attorney General Rod Rosenstein (“DAG Rosenstein”) threatened to subpoena the records of the House Permanent Select Intelligence Committee staff, including Mr. Patel, during a closed-door meeting about producing documents requested by the Committee for their investigation into DOJ’s and the FBI’s, its subagency, conduct in the Crossfire Hurricane investigation.

6. The Department of Justice attempted to defend against the allegation of this threat to Legislative Branch employees, but admitted, at a minimum, that DAG Rosenstein did threaten to subpoena records of Congressional staff in contempt proceedings over the DOJ’s noncompliance with multiple subpoenas. Regardless, this characterization was disputed by multiple Committee staffers, and the matter was referred to the House General Counsel and Speaker of the House as a threat to subpoena records of staffers to halt their investigation.

7. DAG Rosenstein made this threat in January of 2018, approximately one month after his Department of Justice had already subpoenaed Mr. Patel’s email records from Google. This confrontation establishes that DAG Rosenstein and other Defendants were searching for a reason to subpoena Mr. Patel’s official accounts as well as the personal ones that DOJ was already improperly pursuing.

Contrary to Kash’s claim, DOJ didn’t concede Rosenstein threatened to subpoena the HPSCI records. According to a Fox News article Kash himself cites in his suit, DOJ said that Rosenstein was advising staffers to retain their emails so he could use them to defend against any accusation of contempt. Though Rosenstein did threaten to ask the House General Counsel to investigate Kash and whoever else was involved.

A DOJ official told Fox News that Rosenstein “never threatened anyone in the room with a criminal investigation.” The official said the department and bureau officials in the room “are all quite clear that the characterization of events laid out here is false,” adding that Rosenstein was responding to a threat of contempt.

“The Deputy Attorney General was making the point—after being threatened with contempt — that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false,” the official said. “That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so. (We have no process to obtain such records without congressional approval.)”

Further, the official said that when Rosenstein returns to the United States from a work trip, “he will request that the House General counsel conduct an internal investigation of these Congressional staffers’ conduct.”

This all seems like a retroactive attempt to politicize the investigation into some contact Kash had, potentially even before he joined HPSCI with a lawsuit claiming a violation of the Fourth Amendment under Bivens for a subpoena for toll records that a former DOJ prosecutor, especially, should know are not entitled to any expectation of privacy.

Foster’s claim, which is only a FOIA, not a lawsuit, is a bit less ridiculous (so long as you ignore his demand for communications involving Liu before she started as US Attorney and Rosenstein before he was DAG).

He seems certain that the subpoena for his phone (which he says was used by his spouse) pertained to a leak investigation. He’s filing it to find out if Rosenstein’s office ever got the same scrutiny in leak investigations that (he seems sure) some Congressional staffers got in 2017.

It begs the question of whether DOJ was equally zealous in seeking the communication records of its own employees with access to any leaked information.

[snip]

(5) All communications exchanged between members of the press and DAG Rosenstein, Robert Hur, Edward O’Callaghan, Sarah Isgur, aka Sarah Isgur Flores, and/or Jessie Liu for the period from December 1, 2016 to September 26, 2017, regarding (a) communications between Michael Flynn and Sergey Kislyak, (b) Carter Page, (c) Joe Pientka, (d) Bill Priestap, (e) congressional oversight requests, (f) Senator Charles Grassley, (g) Jason Foster, and/or (h) the Crossfire Hurricane investigation.

(6)All grand jury subpoenas issued for personal communications of DAG Rosenstein, Robert Hur, Edward O’Callaghan, and/or Jessie Liu between May 1, 2017 and May 1, 2018.

(7) All communications exchanged between the U.S. Attorney’s Office for the District of Columbia, the National Security Division, the Deputy Attorney General’s Office and/or the FBI and Verizon between March 15, 2016, and the present regarding obtaining communications data associated with devices that Verizon serviced for U.S. House Representatives or U.S. Senate. [my emphasis]

The time range of the Foster subpoena, December 1, 2016 to May 1, 2017, covers the period of the known leaks about Mike Flynn and Carter Page — the former, especially, one of the leaks Republicans have never stopped bitching because it wasn’t charged. Yet here, a key Republican is complaining there was “no legitimate predicate” in investigating people who were briefed on information that subsequently got leaked.

There appears to have been an extensive and far-reaching effort to use grand jury subpoenas and perhaps other means to gather the personal communications records of innocent congressional staffers and their families with little or no legitimate predicate.

Empower’s mention of Carter Page also situates the subpoena temporally. The subpoena that included a number associated with Foster was served in precisely the same time period that — the Statement of the Offense and sentencing memo for James Wolfe case show — FBI was investigating the leak of the Carter Page FISA. DOJ opened that investigation in April 2017. They had shown enough probable cause against Wolfe to obtain a warrant to covertly image his cell phone by October 2017. No one complained that Wolfe was prosecuted for his presumed role in leaking some of these stories, and his prosecution alone shows that the subpoena had predicate.

Foster may have other specific stories in mind too: In addition to the leaked stories about Flynn undermining US foreign policy with the Russian Ambassador, the FOIA asks about other Russian investigation stories, including Joe Pientka, whose role in briefing Mike Flynn Grassley made into a personal crusade.

Curiously, the Steele dossier is not on here, even though that was another personal crusade of Chuck Grassley.

All that said, the timeline included in the FOIA is broader than that. Here’s how the various timelines overlap, or don’t:

  • Scope of Foster subpoena: December 1, 2016 through May 1, 2017
  • Rosenstein sworn in as DAG: April 26, 2017
  • Date of Foster subpoena: September 12, 2017
  • Jessie Liu sworn in as US Attorney: September 25, 2017
  • Scope of Foster’s FOIA for DAG communications with the press: December 1, 2016 through September 26, 2017
  • Date of Kash subpoena: November 20, 2017
  • Scope of Kash subpoena: May 1, 2016 through November 20, 2017
  • Scope of Foster’s FOIA for grand jury subpoenas targeting DAG: May 1, 2017 through May 1, 2018
  • Scope of Foster’s FOIA for Verizon records of Congressional staffers March 15, 2016 through October 24, 2023

Foster is FOIAing Rosenstein’s office, first, for conversations with the press — including about him — starting on December 1, 2016, before Trump was inaugurated and months before Rosenstein was sworn in on April 26, 2017. He is FOIAing conversations with the press that continue through the day after Liu was sworn in September 2017, still months before O’Callaghan was part of DAG.

Then he’s asking for any grand jury subpoenas (which he knows would be protected under grand jury secrecy rules and so won’t get) from the end date of the subpoena targeting him, after which point both the Flynn and Page investigations were underway, until May 1, 2018 — still four months before Legistorm shows Foster leaving his SJC job on September 4, 2018, but perhaps not coincidentally ending before the time when the Mueller investigation started to more closely probe fellow SJC staffer Barbara Ledeen’s role in Mike Flynn’s 2016 rat-fucking and two weeks shy of an interview when Mueller asked Flynn about Ledeen’s investigation of the investigation. A September 17, 2018 interview asked very specific questions about people leaking claimed details of the investigation to Flynn, as well as Flynn’s contacts with unidentified Congressional staffers.

Again, this request is a test about whether Rosenstein’s office was targeted for leaks, but the leaks that Foster suggest this subpoena pertains to — Mike Flynn’s contacts with Sergey Kislyak and Carter Page’s FISA — happened before any of these people were in DAG. Foster seems interested in leaks about leak investigations, not the leaks themselves.

It’s the final bullet I find the most interesting though. None of the subpoenas he raises in his FOIA — not the subpoena of Kash’s personal email, not the subpoena of his own Google voice phone, and not the subpoena to Apple targeting HPSCI members — target official phone records. But Foster FOIAs for official records as well: All communications between DC USAO, NSD, DAG, and FBI with Verizon — communications that might be something other than a grand jury subpoena — about obtaining phone records for the Congressional devices serviced by Verizon. He’s asking for a much broader period of time, too: March 15, 2016 — early enough to include the start date of Kash’s subpoena, but also to include some of Barbara Ledeen’s rat-fucking with Mike Flynn — through the present, late enough to include any contacts in which Chuck Grassley staffers used their official devices to share information about the Hunter Biden investigation with the press.

This last request is not about Rosenstein; Rosenstein was only DAG for two of the seven and a half years covered by this part of the FOIA.

This FOIA is, on its face, totally uncontroversial (though it attempts to do with a FOIA what DOJ IG is already doing, which it notes). It purports to test whether Rod Rosenstein exempted his own top deputies from the kind of investigative scrutiny to which Rosenstein — always a leak hawk — subjected Congressional staffers. Hell, I’m fairly certain Rosenstein and his top deputies were key undisclosed sources for a bunch of bullshit comments (though most of them were false, and therefore not criminal leaks). Some of those anonymous comments were to the same stable of journalists who also happen to serve as mouthpieces for Chuck Grassley propaganda (and as such, Foster may have specific reason to believe that Rosenstein teed up journalists’ questions to or about him).

And the FOIA for contacts with Verizon gets at important separation of powers issues: under what terms the Executive Branch can investigate the official business of the Legislative Branch, including times when the Legislative Branch is screaming for investigations into leaks that probably (and provably, in the case of Carter Page) include Legislative Branch staffers.

But it also serves as a fishing expedition, by the entity that championed the now debunked claims of Gary Shapley, into potential investigations into transparent ongoing efforts by Chuck Grassley to release details of criminal investigations in the guise of oversight.

In a meeting agenda sent September 3, 2020, Joseph Ziegler included the Senate investigation led by Chuck Grassley and Ron Johnson among topics for discussion.

No later than December 2020, a document shared by Empower Oversight client Gary Shapley reveals, the IRS agents running this investigation cared more about catering to demands from Congress, including from Chuck Grassley, than preserving the investigation.

The USAO and FBI received congressional inquiries concerning this investigation and have repeatedly ignored their requests, openly mocking the members of congress who made the request.

Another document shared by Empower Oversight client Gary Shapley shows that, in May 2021, the IRS agents running the investigation continued to be aware of — and interested in catering to — requests from Congress.

The USAO and FBI received congressional inquiries concerning this investigation and it’s believed they have ignored their requests.

A document released by Empower Oversight client Gary Shapley reflecting a January 6, 2023 call with IRS’ Deputy Field Officer Michael Batdorf alerting him — among other things — that he expected the Delaware US Attorney to make “nefarious” allegations against him, also recorded that by the time, two days after he notified IRS and DOJ IG Inspectors General he was seeking formal whistleblower status which happens to have happened on the day the GOP took the House, his attorney had already, “participated in calls and/or meetings” with “the Congressional Judiciary committees.”

DFO asked about the process and Shapley responded that the Congressional Judiciary committees, OSC, IRS OGC and TIGTA have been notified and have participated in calls and/or meetings with my counsel.

Yet when one of Shapley’s attorneys, Mark Lytle, formally contacted the Chairs and Ranking Members of those same “Congressional Judiciary committees,” the Chairs and Ranking Members of the relevant finance committees, along with Chuck Grassley on April 19, 2023, he did not treat those contacts with the judiciary committees as protected disclosures. The letter mentions that Grassley is a member of the Finance Committee, but doesn’t mention that Grassley is a member and former Chair of the Judiciary Committee.

That was the first moment, publicly at least, that Empower Oversight client Gary Shapley sought protection to share IRS protected information with Congress. That is, even according to Lytle, if Shapley shared any IRS protected information — to say nothing of grand jury protected information — prior to that, by the plain terms of his letter it was not under a grant of protection.

A month after Gary Shapley’s claims — facilitated by Empower Oversight — were soundly debunked by his own documentation and his colleagues, Empower Oversight filed a FOIA that would, among other things, attempt to learn whether the FBI was conducting any investigation of leaks to the press from Chuck Grassley’s staffers, covering the period in 2016 when a Chuck Grassley staffer attempted to reach out to hostile intelligence services to find dirt on Hillary Clinton, the period when a Grassley staffer was seeding press stories — some that were fabrications — about the Russian investigation, and the period of time when those investigating Hunter Biden were more solicitous of requests from members of Congress like Chuck Grassley than they were in protecting the ongoing investigation.

Buried in DOJ’s Absolute Immunity Response, a Comment on Trump’s Suspected Zenith Crimes

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Earlier this month, Trump’s DC team filed a motion to dismiss his January 6 indictment based on a claim of absolute immunity, an argument that Presidents cannot be prosecuted for things they did while President.

To get a sense of how shoddy Trump’s argument was, you need only compare the number of citations to these cases:

  • Nixon v. Fitzgerald, which found Presidents had absolute immunity against civil lawsuits for things that fall within their official duties
  • US v. Nixon, which found that the same President who had absolute immunity from civil suit could not use Executive Privilege to withhold evidence from a criminal prosecution
  • Trump v. Vance, which held that Trump, while still President, was not immune from a criminal subpoena
  • Thompson v. Trump, in which SCOTUS upheld a DC Circuit Opinion that upheld a Tanya Chutkan opinion that the events of January 6 overcame any Executive Privilege claim Trump might make to withhold documents from Congress, a far higher bar than withholding them from the FBI

Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp, even considering its cert denial in Thompson v. Trump and questions about whether Clarence Thomas (who did not recuse in that case, but did in John Eastman’s appeal of a crime-fraud ruling against him) would be shamed into recusing in this one.

Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

In general, DOJ’s response is much more adequate than Trump’s motion to the task of laying out one side of an argument that will ultimately be decided by a very partisan Supreme Court. But it is written as the first response in what will be, whatever the outcome, a historic ruling.

Before it spends ten pages addressing Trump’s application of Nixon v. Fitzgerald, it spends ten pages laying out the constitutional framework in question. In a section addressing Trump’s claim that his impeachment acquittal on January 6 charges meant he could not be charged for related crimes, DOJ notes that Trump argued at the time, that as a former President, the Senate no longer had jurisdiction to hold an impeachment trial. Then it cites the many Republican Senators who used that stance to justify their own acquittal votes. It notes that the Nixon pardon and the Clinton settlement both presumed potential exposure to prosecution once they became former Presidents.

Out of necessity, the Fitzgerald section adopts an analogy from that precedent to this one: In the same way that Fitzgerald likened the President to prosecutors and judges who enjoy immunity for their official acts, Fitzgerald did not immunize those same prosecutors and judges from other crimes. At a time of increased focus on undeclared gifts that Clarence Thomas has accepted from people with matters before the court and after a Sam Alito interview — with someone who has matters before the court — in which he claimed separation of powers prohibited Congress from weighing in on SCOTUS ethics, DOJ cited the 11th Circuit opinion holding that then-Judge Alcee Hastings could be prosecuted. That is, whatever the outcome of this dispute, it may have implications for judges just as it will for Presidents.

Only after those lengthy sections does DOJ get into the specifics of this case, arguing:

  • By misrepresenting the indictment in a bid to repackage it as acts that fit within the President’s official duties, Trump has not treated the allegations as true, as Motions To Dismiss must do
  • Trump’s use of the Take Care Clause to claim the President’s official duties extend to Congress and the states is not backed by statute
  • Because Trump is accused of conspiring with people outside of the government — unsurprisingly, DOJ ignores the Jeffrey Clark allegations in this passage (CC4), but while it invokes Rudy Giuliani (CC1), John Eastman (CC2), Kenneth Chesebro (CC5), and Boris Epshteyn (CC6), it is curiously silent about the allegations pertaining to Sidney Powell (CC3) — the case as a whole should not be dismissed

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

And its commentary on Trump’s attempt to use the Take Care Clause to extend the President’s authority into areas reserved to the states and Congress is, in my opinion, too cursory.

The principal case on which the defendant relies (Mot. 35-36, 38, 43-44) for his expansive conception of the Take Care Clause, In re Neagle, 135 U.S. 1 (1890), cannot bear the weight of his arguments. In Neagle, the Supreme Court held that the Take Care Clause authorized the appointment of a deputy marshal to protect a Supreme Court Justice while traveling on circuit even in the absence of congressional authorization. Id. at 67-68; see Logan v. United States, 144 U.S. 263, 294 (1892) (describing Neagle’s holding); Youngstown Sheet & Tube, 343 U.S. at 661 n.3 (Clark, J., concurring) (same). Before reaching that conclusion, the Court in Neagle posed as a rhetorical question—which the defendant cites several times (Mot. 35, 38, 43, 44)—whether the president’s duty under the Take Care Clause is “limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?” 135 U.S. at 64. From the undisputed proposition that the president’s powers under Article II are not limited only to laws and treaties, it does not follow, as the defendant seems to imply, that every “right, duty, or obligation[]” under the Constitution is necessarily coterminous with the president’s powers under the Take Care Clause. Under that theory, for example, the president could superintend Congress’s constitutional obligation to keep a journal of its proceedings, U.S. Const. art. I, § 5, cl. 3, or the judiciary’s duty to adjudicate cases and controversies, U.S. Const. art. III, § 2, cl. 1.

The 11th Circuit and then SCOTUS will be facing a similar, albeit better argued, Take Care Clause argument when they review Mark Meadows’ bid to remove his Georgia prosecution. You’d think DOJ could do better — or at the very least note that Trump abdicated all premise of upholding the Take Care Clause during a crucial 187 minutes when his mob was attacking the Capitol.

All that said, I’m as interested in this response for the associated arguments — the seemingly hypothetical ones — such as the one (already noted) that in weighing this argument, the Supreme Court may also have to consider, again, whether they themselves are immune from prosecution for bribery.

It’s not just Clarence Thomas whose actions this fight could implicate.

In two places, DOJ uses hypotheticals to talk about other Presidential actions that might be crimes, rather than focus on the specifics of the case before Judge Chutkan.

For example, DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

For example, where a statute prohibits engaging in certain conduct for a corrupt purpose, the statute’s mens rea requirement tends to align, rather than conflict, with the president’s Article II duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, which would weigh heavily against the need for immunity. To illustrate, although the president’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872), criminal immunity should not shield the corrupt use of a presidential pardon—which plainly constitutes “anything of value” for purposes of the federal bribery statute, see 18 U.S.C. § 201(b)(3)—to induce another person to testify falsely or not to testify at all in a judicial, congressional, or agency proceeding.

Less than five years ago, of course, Roger Stone was telegraphing that prosecutors had offered him leniency if he would testify about dozens of conversations that he had with Trump during the 2016 election. Less than five years ago, the newly cooperative Sidney Powell first asked Trump to hold off on pardoning Mike Flynn, only to welcome a Trump pardon of Flynn while Powell and Flynn plotted ways to steal the election. Less than five years ago, Trump gave a last minute pardon to Steve Bannon, who currently faces four months of prison time because he refused to testify to Congress.

I’m not saying DOJ will revisit these pardons, all of which fit squarely within such a quid pro quo description. I’m noting that if the argument as a whole survives, this part of it may also survive.

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

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.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record.

This response is a response about a very specific indictment, an indictment that describes actions Trump took as a candidate, often with those outside government, in ways that usurped the authorities reserved to states and Congress.

But in several points in the filing, DOJ invites review of other potential crimes, crimes conducted at the zenith of Presidential power, but crimes that may — must — otherwise be illegal, if no man is above the law.

Mike Flynn Invites DOJ to Review Judge Emmet Sullivan’s Non-Exoneration

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I’ve been missing out on some fun.

When Mike Flynn sued DOJ in Florida for malicious prosecution (docket, complaint, amended complaint, response to MTD), I set an alert but figured it would be too stupid to follow along closely and so haven’t been following closely until something led me to peek this morning.

It is stupid.

But it has, nevertheless, elicited some interesting arguments on the part of DOJ (motion to dismiss, motion to dismiss amended complaint). That’s because it has forced DOJ to engage with Bill Barr’s corrupt attempt to dismiss Flynn’s prosecution in 2020 (the second of these MTDs, which I treat here, was filed in mid-September).

DOJ argues the DC standard for malicious prosecution applies here. If it does, it means that Flynn has to prove that:

  1. The criminal prosecution was procured by investigative or law enforcement officers (as opposed to prosecutors)
  2. There was no probable cause to support the charges even though Flynn pled guilty to them, twice
  3. The criminal prosecution terminated in Plaintiff’s favor

Flynn unsurprisingly bases his claims substantially on texts Peter Strzok sent Lisa Page and even DOJ’s improperly released letter from David Bowdich dismissing Strzok (currently the subject of a lawsuit in which Trump was deposed four days ago).

It also relies heavily on — but does not submit as evidence — the testimony of Bill Barnett. Barnett is pro-Trump FBI agent who, unlike Strzok, remained on the case when Flynn was actually charged. As part of an election stunt, Barr released an interview with Barnett that wildly contradicted his own past actions and redacted all mention of Brandon Van Grack, about whom Barnett had favorable things to say.

You can see the problem here.

Flynn tried, but cannot argue, that Jeannie Rhee and Robert Mueller procured a malicious prosecution of him (for some reason — possibly because the Barnett report describes what a nice guy Van Grack was — Flynn removed Van Grack from his amended complaint).

To win this case, Flynn has to show that an FBI agent did mean things to him. But the FBI agent on the case when he was charged was Barnett, not Strzok. To argue that earlier investigative steps amount to mean things, Flynn has to argue that an agent who reportedly sent pro-Trump texts on his FBI phone filed malicious National Security Letters targeting him.

Since that argument is such a loser, Flynn has substantially attempted to argue that because the FBI did mean things to Carter Page, it equates to mean things against him too.

As DOJ notes, even Carter Page’s lawsuit failed.

Flynn also has to explain away why he twice pled guilty to the charges against him if there was no probable cause to justify the investigation in the first place.

Here, there can be no dispute that there was probable cause for the United States to file the criminal information because Plaintiff had already agreed to plead guilty to the charge at the time it was filed. See Criminal Case, ECF No. 3 (plea agreement with Plaintiff’s signature dated November 30, 2017), Criminal Case, ECF No. 154 (describing exchange of plea documents in days prior to the filing of the criminal information). Plaintiff’s plea agreement expressly states that Plaintiff is entering the plea “voluntarily and of [his] own free will,” after having discussed the plea with his attorneys, because he is “in fact guilty of the offense.” Criminal Case, ECF No. 3 at 10. In connection with the plea, Plaintiff also signed, under penalty of perjury, a “Statement of the Offense,” which set forth the factual predicate for his guilty plea. Criminal Case, ECF No. 4. In the Statement of the Offense, Plaintiff expressly stipulated and agreed that “[Plaintiff’s] false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” Id. at ¶ 1-2. Subsequently, Plaintiff twice affirmed, under oath, in open court that he was pleading guilty—not based upon any threats or promises but—because he was, in fact, guilty of the offense charged. See Criminal Case, ECF Nos. 16, 103.

Plaintiff’s own agreement to plead guilty to the criminal information conclusively establishes that there were “reasonable grounds”—i.e., probable cause—for the United States to institute the criminal charges. Indeed, numerous courts have held that a guilty plea “conclusively establishes that probable cause existed.” Cuellar v. Love, No. 11-CV-3632 NSR, 2014 WL 1486458, at *5 (S.D.N.Y. Apr. 11, 2014) (collecting cases); see also Walker v. Clearfield Cnty. Dist. Att’y, 413 F. App’x 481, 483 (3d Cir. 2011) (concluding “that a guilty plea—even one for a lesser offense—does not permit a later assertion of no probable cause”); Morrison v. Vine, No. 17-CV-996-LJV-HBS, 2021 WL 1229558, at *3 (W.D.N.Y. Feb. 25, 2021) (collecting cases for proposition that “guilty plea established probable cause for his criminal prosecution”), report and recommendation adopted, 2021 WL 1226446 (W.D.N.Y. Mar. 31, 2021). Plaintiff’s guilty plea thus “establishes probable cause for commencing the proceeding against him and therefore serves as an absolute defense to the malicious prosecution claim.”

Flynn claims he pled guilty (at least the first time) because DOJ threatened to prosecute his son.

The Amended Complaint alleges that Plaintiff “entered into a plea agreement, not because he thought he had done something wrong—he hadn’t—but because SCO had threatened his son with prosecution.” ECF No. 34 ¶ 128; see also id. at ¶ 136 (alleging that “SCO was aware that it had coerced the guilty plea”). Plaintiff’s allegation is totally devoid of supporting factual allegations regarding the alleged threat—such as what specific threat was made, who allegedly made the threat, or when the threat was made. Plaintiff’s threadbare allegation of coercion is insufficient to overcome the presumption established by Plaintiff’s guilty plea.

As DOJ notes, Flynn doesn’t even try to substantiate this claim. That’s probably because if he did, it’d lead right back to Van Grack and Barnett, not Strzok.

Since Flynn can’t prove either that an FBI agent caused charges to be filed against him or that there was no probable cause justifying it, this suit should not succeed.

But things get interesting on the third prong.

That’s because DOJ points to Judge Emmet Sullivan’s refusal to dismiss Flynn’s prosecution in the face of Barr’s attempts to do so to show that the case did not affirm Flynn’s innocence.

In or around February 2020, then-Attorney General William Barr appointed several prosecutors to review the Criminal Case, and, at the conclusion of their review, they recommended dismissal of the Criminal Case against Plaintiff. ECF No. 34. ¶¶ 147-48. On May 7, 2020, then-United States Attorney for the District of Columbia, Timothy Shea, who had not previously appeared in the case, moved to dismiss the criminal information. Id. ¶¶ 148, 151; ECF No. 34-4; Criminal Case, ECF No. 198. U.S. Attorney Shea argued that dismissal was warranted because the Government believed it could not prove “to a jury beyond a reasonable doubt” that: (1) Plaintiff’s false statements to FBI agents were “material” to any FBI investigation; and (2) Plaintiff knowingly and willfully made false statements during the interview. ECF 34-4 at 17-18. U.S. District Court Judge Emmet Sullivan did not immediately grant the motion and, instead, on May 13, 2020, appointed an amicus curiae “to present arguments in opposition to the government’s Motion to Dismiss.” Criminal Case, ECF No. 205 at 1; see also ECF No. 34 ¶ 162.

On November 25, 2020, prior to Judge Sullivan ruling on the motion to withdraw and motion to dismiss, President Trump granted Plaintiff a pardon. The presidential pardon provided Plaintiff “a full and unconditional pardon” for the charge of making false statements to federal investigators, as charged in the criminal information, and all possible offenses within the investigatory authority or jurisdiction of Special Counsel Mueller. Criminal Case, ECF No. 308-1. On the same day the pardon was issued, the White House Press Secretary released a statement addressing the pardon, stating that Plaintiff “should not require a pardon [because h]e is an innocent man.” ECF No. 34 ¶ 163.7 However, the text of the executive pardon did not indicate that the pardon was based on innocence. See Criminal Case, ECF No. 308-1.

On November 30, 2020, the United States Attorney’s Office filed a notice of the executive pardon and consent motion to dismiss, arguing that the Criminal Case was moot due to Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 308. On December 8, 2020, Judge Sullivan issued an opinion dismissing the Criminal Case as moot. Criminal Case, ECF No. 311.8 In doing so, Judge Sullivan addressed the arguments for dismissal raised in the still pending motion to dismiss filed by U.S. Attorney Shea. Id. at 28-40. Judge Sullivan first stated that the motion to dismiss appeared pretextual given the surrounding circumstances, including Plaintiff’s prior position as an advisor to President Trump and President Trump’s continued interest in the criminal case. Id. at 28-29. Judge Sullivan then commented that the motion to dismiss relied upon a new, “more circumscribed” definition of “materiality,” without offering any comprehensible reasoning for shifting to the “highly-constrained interpretation of materiality.” Id. at 30, 32. Judge Sullivan then reviewed the record evidence and found the motion to dismiss did not undertake “a considered judgment” when determining that “falsity” could not be proven beyond a reasonable doubt. Id. at 38. Judge Sullivan thus suggested that the motion to dismiss “present[ed] a close question,” but refrained from ruling on the merits and denied the motion as moot “in view of the President’s decision to pardon” Plaintiff and Plaintiff’s acceptance of the pardon. Id. at 38

7 See Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), available at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretaryregarding-executive-grant-clemency-general-michael-t-flynn/.

8 Because Judge Sullivan’s opinion is referenced in—and central to—Plaintiff’s Amended Complaint, ECF No. 34 ¶¶ 165-67, it may be considered by the Court in resolving this motion to dismiss. See Hodge v. Orlando Utilities Comm’n, No. 609-CV-1059- ORL-19DAB, 2009 WL 5067758, at *3 (M.D. Fla. Dec. 15, 2009); infra Argument, § I.

Much later, the motion to dismiss gets into a legalistic argument about whether accepting a pardon is recognition of guilt. Ultimately, though, DOJ notes that those legalistic arguments aren’t at issue here, because Sullivan so clearly laid out that he was dismissing the case only because the pardon — a pardon that Trump did not claim arose from innocence — mooted his authority to decide on Flynn’s innocence or guilt.

22 Although Plaintiff alleges that several independent prosecutors recommended dismissal of the Criminal Case and that, in response, U.S. Attorney Shea, on behalf of the government, moved to dismiss the criminal information, ECF No. 34 ¶ 148, Plaintiff acknowledges that Judge Sullivan “refused to approve the DOJ’s dismissal of its prosecution” and ultimately dismissed the case only “after [Plaintiff] received a full presidential pardon,” id. at ¶¶ 162, 167. In his Opinion addressing dismissal, Judge Sullivan expressed concerns about the merits of U.S. Attorney Shea’s motion and noted that the facts presented “a close question” regarding whether the court should defer to the prosecutor’s discretion to dismiss the charges but refrained from resolving that question in light of Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 311 at 38.

23 Although “[s]ome courts . . . have considered whether a plaintiff has identified facts surrounding the dismissal . . . that, if proven, would demonstrate that the termination of the criminal case tended to show the plaintiff’s innocence,” Clark v. D.C., 241 F. Supp. 3d 24, 34 (D.D.C. 2017), those cases are inapposite. Here, there is no ambiguity with regard to whether the court’s dismissal order tended to show Plaintiff’s innocence, because the order explained that the termination of the case was not based upon Plaintiff’s potential innocence but instead the case was dismissed as moot in light of Plaintiff’s acceptance of a pardon. Criminal Case, ECF No. 311; Cf. Clark, 241 F. Supp. 3d at 34 (finding allegations of favorable termination sufficient where court granted government’s motion to dismiss without prejudice where neither the motion nor the order offered any information on the basis for dismissal).

In 2020, Judge Sullivan went to a great deal of effort to thread a very fine needle, using Trump’s corrupt pardon as a way to avoid any reversible error even while stopping well short of declaring Flynn innocent. I wrote then that,

it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

That’s what I find so interesting about this motion to dismiss: DOJ has (quietly) used the reality of Sullivan’s carefully crafted opinion to dismiss Barr’s corrupt attempt to reverse the prosecution and Flynn’s fantasies of innocence.

It’s a rare DOJ rebuke of DOJ. And it’s one entirely enabled by that Sullivan opinion.

Douglass Mackey Sentenced to 7 Months for Conspiring to Violate 18 USC 241

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Douglass Mackey, the right wing troll prosecuted early this year for conspiring to trick Hillary voters into throwing away their votes, was just sentenced to 7 months in prison (the government had asked for 6-12 months).

Minute Entry for proceedings held before Judge Ann M. Donnelly: Sentencing held on 10/18/2023 for Douglass Mackey (1). Appearances by AUSA Erik Paulsen, AUSA Frank Turner Buford, and AUSA William Gullotta. Andrew Frisch counsel for defendant Mackey (present on bond). Probation Officer Erica Vest, present. Case called. Statement from defense counsel, and the government heard. The defendant is sentence on the sole count of the indictment to seven months imprisonment, two years supervised release, $100 special assessment, and a $15,000 fine. Defendant informed of right to appeal. For the reasons stated on the record the defendants request to stay sentencing pending appeal is denied. (Court Reporter Sophie Nolan.) (DG) (Entered: 10/18/2023)

Yesterday, Judge Ann Donnelly denied Mackey’s bid for acquittal or a new trial and today, she denied his request for a stay pending appeal. This post describes how Mackey and his co-conspirator Microchip set out to “infect everything” during the 2016 election.

This is charge, 18 USC 241, is the third charge with which Trump was charged in his January 6 indictment, so Donnelly’s ruling and any appeal Mackey makes may serve as important precedent in that case too.

The Utility of the Tim Thibault Smear for Insurrectionists

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Back on September 12, when Matt Gaetz’ plan to depose Kevin McCarthy was a seeming fantasy, he appeared on CNN to complain that McCarthy’s concession to open an impeachment inquiry wasn’t enough.

Even as Abby Phillip repeatedly (and laudably) noted that there was no evidence to support an impeachment, Gaetz claimed he had been “deposing” retired FBI Agent Timothy Thibault that day and further claimed that, as part of a cover-up, the Foreign Influence Task Force had “designate[d] any derogatory information about the Bidens as foreign disinformation.”

GAETZ: I mean, come on, he was — wait, hold on. Can you just acknowledge it calls into the business deals, he’s involved? When he calls dinners, you don’t think that’s involvement?

PHILLIP: First of all, this is not about innuendo. It’s not about what I believe. It’s a question, do you have evidence? If you had evidence that Joe Biden was linked to Hunter Biden’s business deals in a way that is illegal, we wouldn’t be having this conversation. You would probably have the votes for an impeachment inquiry, but you don’t, because of people like [K]en [B]uck, and people like Don Bacon, and many others in your conference.

GAETZ: Yes. But on the substance, look, you want to talk about how long we’ve had the evidence, the FBI had Hunter Biden’s laptops in 2019. So, this inquiry isn’t just going to be into the Bidens and the bad things they’ve done, it’s also going to be into the cover-up, and we do have that evidence.

I was deposing Tim Thibault today. Today, I was asking questions about the roles of foreign interference task force to go and designate any derogatory information about the Bidens as foreign disinformation when that was part of a cover up.

PHILLIP: Congressman, let me just move on here because I’m going to reiterate to the audience, because we need to be clear, there is not evidence linking President Biden to anything illegal having to do with Hunter Biden.

It’s true that Gaetz was in the deposition of Thibault that day. But unlike Jim Jordan, who was the only other member of Congress recorded as having attended the deposition, Gaetz doesn’t appear to have asked a single question.

Jordan asked over 70 questions. The aspiring Speaker asked about:

  • Thibault’s efforts to predicate an investigation against the Clinton Foundation based on Peter Schweizer’s Clinton Cash in 2016
  • Two separate warnings the Washington Field Office got against using Schweizer — and the copy of “the laptop” he offered them — as a source in the Hunter Biden investigation in 2020
  • Thibault’s role, also in 2020, in fielding an effort by Tony Bobulinski to share his phones but not any personal content from his phones
  • Questions from Baltimore to DC about a new prong of the Hunter Biden investigation in 2022 (possibly a campaign finance investigation into Kevin Morris’ donations to Hunter Biden)

The deposition arose out of the same stream of right wing complaints to Chuck Grassley (one, two) that lie at the core of the Republican campaign against Hunter Biden. The only thing that rationalizes the campaign is that in 2020 Thibault liked a number of Randall Eliason columns critical of Bill Barr’s corruption and even criticized Dick Cheney:

Of course, Grassley’s known and likely sources say far more partisan things online all the time.

Nevertheless Chris Wray has, per his norm, let Thibault weather the attack campaign alone, treating him as the legitimate subject of scrutiny as they have Peter Strzok and Lisa Page and Brian Auten and Jim Baker — every FBI agent except those (like John Durham’s cherished Cyber agents) who help sustain conspiracy theories favored by Trump and his allies.

What I wanted was someone from the FBI — because they know the truth — was someone to defend me after 26 years. I understand they can’t defend every allegation that’s made, so — I wish they would have. Right? I didn’t have that. And so that’s how I felt was I just wanted a defense. And I’m not blaming the FBI, because if they would respond to accusations against FBI agents from the media, they would be doing that a lot. So I’m not special.

But, when those accusations were made against me in July, I was, like, outraged. Why — no FBI agent that I know would put their reputation and honor on the line just to square up. They wouldn’t do that.

From there, Grassley and Jim Jordan have built entire pyramids of conspiracy theories, claiming that the guy who opened the investigations against William Jefferson and Jesse Jackson Jr and who rushed to open an investigation based solely off Schweizer’s Clinton Cash in 2016 abusively intervened to shut down — all of it! — the Hunter Biden investigation in 2020. All because, after several warnings about Schweizer, Thibault didn’t ignore warnings that Steve Bannon’s close associate, Schweizer, could discredit the Hutner Biden investigation (at a time when Bannon himself was coordinating with Guo Wengui).

Over the course of most of a day, Thibault addressed one after another of these conspiracy theories. One reason why Thibault ordered two agents to shut down an informant — Schweizer has since confirmed it was him — was because Schweizer was a less defensible source for allegations against Hunter Biden at trial than whatever means by which — including, undoubtedly, the laptop passed on by John Paul Mac Isaac — Delaware had already gotten materials on Hunter Biden. Using Schweizer rather than the sources Delaware already had, “could harm a case. It could cause problems when you get to prosecution,” Thibault explained that the Supervisory Special Agent, Joe Gordon had informed him in early October 2020, “and to open doors for defense attorneys.”

Within days of Gordon’s warning that Schweizer was an unwelcome source, the head of the Public Corruption Unit contacted Thibault to raise other concerns about Schweizer. In an October 21, 2020 classified briefing, members of the Foreign Intelligence Task Force provided more context, not just on Schweizer. The two warnings, together, led Thibault to instruct two agents to shut down Schweizer, someone less credible than Christopher Steele.

That’s probably what led to the complaints to Grassley.

One of the agents, Thomas Olohan, wrote a long memo claiming that Thibault was biased against Trump, before he left the FBI to join the Heritage Foundation. The other, whom Thibault had earlier mentored and considered a friend, would do more than that, as we’ll see.

It would have been three and four days after that when Thibault exchanged calls with Stefan Passantino regarding whether they could selectively image Tony Bobulinksi’s phones, which Jordan found suspect because, in an attempt to shield the investigation, the FBI had Bobulinski speak to the Washington Field Office rather than Baltimore. Jordan repeatedly invented conspiracy theories about of efforts to protect the investigation into Joe Biden’s son.

Jordan’s staffers also focused on Thibault’s role, like that of everyone else in the DC area, in investigating January 6. Except for his minor role in drafting the memo opening the investigation into the fake electors in 2022, Thibault’s role in investigating the attack on the Capitol was limited to freeing up his agents to help deal with the initial surge. Again, Jordan recycled Grassley’s conspiracy theories to treat any FBI agent who didn’t focus primarily on Trump’s enemies as suspect.

Tellingly, however, Jordan and his staffers asked no question about how the same agent who tried to open Schweizer as a source bypassed Thibault, who considered her a friend, to try to chase down the Italygate conspiracy theory months after Richard Donoghue’s judgement that it was “pure insanity” was published.

[I]t first came to my attention when I got a call from — a call from this supervisor, Special Agent from CR-15, and he said: Look, my agents are trying to do an interview of a subject with regard to election fraud, and the subject is in Italy. And he told me that they had tried to get the Legal Attache Office in Rome to do the interview and that they had declined.

Then they had tried to get funding through FBI Headquarters, Public Corruption Unit, to travel over to Italy to do the interview of this person, a potential witness who was in jail. And so I just got briefed on that.

[snip]

So I got off the phone with them, and my next call was to the Public Corruption Unit chief at headquarters, and I said: Hey, what’s the problem with funding?

And he goes: Are you kidding me, basically.

And I go: No.

And he goes: Do you know that this is to support an opening of a case that’s been sent to the Public Corruption Unit as a draft?

I said: I don’t know about that.

[snip]

He’s assuming at the time that I would have seen this because … Because of the gravity of the allegation and what it meant, he couldn’t believe that I hadn’t been briefed on it. He actually thought, I think, that I was approving it —

[snip]

So the head of the Public Corruption Unit tells me that he has received an email forwarded to him from Public Integrity, and it contains a draft opening language, and he was shocked that I didn’t know about this. Because of the type of case it was, you would expect that the ASAC would be in the loop.

[snip]

[S]o I’m trying to do due diligence. And, look, this isn’t the ASAC’s job. But, at this point, I was sort of losing some confidence.

[snip]

Because I wasn’t told about this, and even in my — I wasn’t told about it, number one. But, number two, when I was having conversations with people about this, no one told me — they didn’t raise Italygate. I wasn’t told about what — the allegation that this had previously been reviewed by, like, the Deputy Attorney General had made that comment. I wasn’t provided situational awareness. Right?

[snip]

6 months later, people want to travel halfway around the world to talk to someone who’s in prison. Any FBI agents knows, number one, first of all, an argument can be raised — and it was raised by people when we were discussing this at the squad level: Well, Tim, we talk to people all the time that appear to have kind of whacky theories.

And I was, like: Yeah, we might. We might go down the road to Manassas and talk to someone about some whacky theory. On a low-level case, we do do that.

But I think, you know, the situational awareness that I was gaining as an ASAC and working consistently with headquarters and learning, that Public Corruption Unit chief was unbelievable in terms of his knowledge of foreign influence. I had the benefit of that information. The case agents here did not.

[snip]

[T]here’s a term in the Bureau I learned a long time ago. You’re either working a source, or they’re working you. I was concerned that there wasn’t an element of 267 savviness here on the agent’s behalf, that maybe this source was working her. Q In what way? A It just seemed to me that, you know, you’re going and you’re trying to open a case, but you haven’t asked the very basic questions, like who — I couldn’t understand how they were trying to work a case without — we’ve got all the resources in the Federal Government to find out if a breach of information or a breach of data had occurred. We’ve got CISA. We’ve got the NSA.

[snip]

I was concerned that there was a lack of investigative rigor and the judgment issue, yes, because I wasn’t allowed to intervene, you know, where an ASAC is there for to help guide. This isn’t how CR-15 works cases. I was on that squad. We’re the flagship public corruption squad in the country. This isn’t how it’s done.

Jordan and his staffers expressed no interest or concern that the Public Corruption team at FBI was chasing already discredited conspiracy theories halfway around the world.

In the aftermath of this incident, Thibault asked the supervisor of the squad what was going on. The response was that supervisors were raising concerns about uncharacteristic partisan discussions.

And he said that senior members of CR-15, he didn’t tell me who, but had raised concerns to him that there was uncharacteristically partisan discussions happening on the squad floor.

This is the DC public corruption group — as Thibault described it, “the flagship public corruption squad in the country.” And Thibault discovered the hard way that even agents he believed to be friends were going behind his back to chase the conspiracy theories Trump wanted to chase.

For Jordan, who could be second in line to the Presidency within days, this was all an exercise of finding something within attempts at revenge that would substantiate his belief that the guy who took down two Democratic members of Congress was biased against Republicans.

But for Gaetz — the guy whose coup creates the opportunity for Jordan to become Speaker — it was something else: an opportunity to sit silently so that he could spin a refusal to accept foreign dirt on Hunter Biden as cause to impeach his father.

With the exception of a detailed NYT report in May, the attack against Thibault has passed largely unnoticed in the mainstream press, even as frothy right wingers have continued to impugn yet another stuff lifetime Feeb as a partisan simply because he treated Trump just like he treated the Democratic members of Congress he pursued.

But this Grassley-to-Jordan conveyor belt of bullshit continues to churn away, turning disgruntled hacks with allegations but no evidence into the enforcement wing of their effort to weaponize government.

Elon Musk’s Machine for Fascism: A Tale of Three Elections

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Since the spring (when I first started writing this post), I’ve been trying to express what I think Elon Musk intended to do with his $44 billion purchase of Twitter, to turn it into a Machine for Fascism.

Ben Collins wrote a piece — which he has been working on even longer than I have on this post — that led me to return to it.

Collins returns to some texts sent to Elmo in April 2022, just before he bought Twitter, which referenced an unsigned post published at Revolver News laying out a plan for Twitter.

On the day that public records revealed that Elon Musk had become Twitter’s biggest shareholder, an unknown sender texted the billionaire and recommended an article imploring him to acquire the social network outright.

Musk’s purchase of Twitter, the 3,000-word anonymous article said, would amount to a “declaration of war against the Globalist American Empire.” The sender of the texts was offering Musk, the Tesla and SpaceX CEO, a playbook for the takeover and transformation of Twitter. As the anniversary of Musk’s purchase approaches, the identity of the sender remains unknown.

The text messages described a series of actions Musk should take after he gained full control of the social media platform: “Step 1: Blame the platform for its users; Step 2: Coordinated pressure campaign; Step 3: Exodus of the Bluechecks; Step 4: Deplatforming.”

The messages from the unknown sender were revealed in a court filing last year as evidence in a lawsuit Twitter brought against Musk after he tried to back out of buying it. The redacted documents were unearthed by The Chancery Daily, an independent legal publication covering proceedings before the Delaware Court of Chancery.

The wording of the texts matches the subtitles of the article, “The Battle of the Century: Here’s What Happens if Elon Musk Buys Twitter,” which had been published three days earlier on the right-wing website revolver.news.

Collins lays out that the post significantly predicted what has happened since, including an attack on the Anti-Defamation League.

The article on Beattie’s site begins with a baseless claim that censorship on Twitter cost President Donald Trump the 2020 election. “Free speech online is what enabled the Trump revolution in 2016,” the anonymous author wrote. “If the Internet had been as free in 2020 as it was four years before, Trump would have cruised to reelection.”

The author said that “Step 1” after a Musk takeover would be: “Blame the platform for its users.” He or she predicted that “Twitter would be blamed for every so-called act of ‘racism’ ‘sexism’ and ‘transphobia’ occurring on its platform.”

After Musk’s purchase of Twitter was finalized in October 2022, he allowed previously suspended accounts to return. Among them, he restored the account of Trump, whom Twitter had banned after the Jan. 6 Capitol insurrection, as well as the personal accounts of far-right Rep. Marjorie Taylor Greene, R-Ga., and the founder of a neo-Nazi website, Andrew Anglin.

The article predicted that “Step 2” would involve a “Coordinated pressure campaign” by the ADL and other nonprofit groups to get Musk to reinstate the banned accounts. “A vast constellation of activists and non-profits” will lurch into action to “put more and more pressure on the company to change its ways,” the article reads.

The next step, the revolver.news article predicted, would be the “Exodus of the bluechecks.” The term “bluechecks” refers to a former identity verification system on Twitter that confirmed the authenticity of the accounts of celebrities, public figures and journalists.

Musk experimented with and ultimately eliminated Twitter’s verification system of “bluechecks.” As the article predicted, the removal resulted in a public backlash and an exponential drop in advertisers and revenue. Other developments, including Musk’s drastically reducing the number of staffers who monitor tweets and a rise in hate speech, also contributed to the dynamic.

The article predicted that a final step, “Step 4,” would be the “deplatforming” of Twitter itself. He said a Musk-owned Twitter would face the same fate as Parler, a platform that presented itself as a “free speech” home for the right. After numerous calls for violence on Jan. 6 were posted on Parler, Google and Apple removed it from their app stores on the grounds that it had allowed too many posts that promoted violence, crime and misinformation.

Collins notes that the identity of the person who wrote the post on Revolver and sent the texts to Elmo has never been revealed. He seems to think it is Darren Beattie, the publisher of Revolver, whose white supremacist sympathies got him fired from Trump’s White House.

I’m not convinced the post was from Beattie. Others made a case that the person who texted Elmo was Stephen Miller (not least because there’s a redaction where his name might appear elsewhere in the court filing).

But I think Collins’ argument — that Elmo adopted a plan to use Twitter as a Machine for Fascism from the start, guided in part by that post, a post that has some tie to Russophile propagandist Beattie — persuasive.

Then again, I’ve already been thinking about the way that Elmo was trying to perfect a Machine for Fascism.

2016: Professionalizing Trolling

One thing that got me thinking about Elmo’s goals for Twitter came from reading the chatlogs from several Twitter listservs that far right trolls used to coordinate during the 2016 election, introduced as exhibits in Douglass Mackey’s trial for attempting to convince Hillary voters to text their votes rather than casting them at polling places.

The trolls believed, in real time, that their efforts were historic.

On the day Trump sealed his primary win in 2016, for example, Daily Stormer webmaster Andrew “Weev” Auernheimer boasted on a Fed Free Hate Chat that, “it’s fucking astonishing how much reach our little group here has between us, and it’ll solidify and grow after the general.” “This is where it all started,” Douglass Mackey replied, according to exhibits introduced at his trial. “We did it.”

After Trump’s November win became clear, Microchip — a key part of professionalizing this effort — declared, “We are making history,” before he immediately started pitching the idea of flipping a European election (as far right trolls attempted with Emmanuel Macron’s race in 2017) and winning the 2020 election.

By that point, the trolls had been working on–and fine tuning–this effort for at least a year.

Most chilling in the back-story presented in exhibits submitted at trial is the description of how Weev almost groomed Mackey, starting in 2015. “Thanks to weev I am inproving my rhetoric. People love it,” Mackey said in the Fed Free Hate Chat in November 2015. He boasted that his “exploding” twitter account was averaging 300,000 impressions every day, before he mused, “I just hope all this shitlording goes real life.” Two days later Weev admired that, “ricky’s audience expands rapidly, he’s now a leading polemicist” [Mackey did all this under the pseudonym Ricky Vaughn].

Weev and Mackey explained their ideological goals. “The goal is to give people simple lines they can share with family or around the water cooler,” Mackey described to Bidenshairplugs in September 2015. When Weev proposed in January 2016 that he and Mackey write a guide to trolling, he described the project as “ideological disruption” and “psychological loldongs terrorism.” The Daily Stormer webmaster boasted, “i am absolutely sure we can get anyone to do or believe anything as long as we come up with the right rhetorical formula and have people actually try to apply it consistently.” And so they explained the objectives to others. “[R]eally good memes go viral,” Mackey explained to AmericanMex067 on May 10, 2016. “really really good memes become embedded in our consciousness.”

One method they used was “highjacking hashtags,” either infecting the pro-Hillary hashtags pushed by Hillary or filling anti-Trump hashtags with positive content.

Another was repetition. “repitition is key. \’Crooked Hillary created ISIS with Obama\’ repeat it again and again.” Trump hasn’t been repeating the same stupid attacks for 8 years because he’s uncreative or stupid. He’s doing it to intentionally troll America’s psyche.

A third was playing to the irrationality of people. HalleyBorderCol as she pitched the text to vote meme: people aren’t rational. a significant proportion of people who hear the rumour will NOT hear that the rumour has been debunked.”

One explicit goal was to use virality to get the mainstream press to pick up far right lines. Anthime “Baked Alaska” Gionet described that they needed some tabloid to pick up their false claims about celebrities supporting Trump. “We gotta orchestrate it so good that some shitty tabloid even picks it up.” As they were trying to get the Podesta emails to trend in October 2016, P0TUSTrump argued, “we need CNN wnd [sic] liberal news forced to cover it.”

Microchip testified to the methodology at trial.

Q What does it mean to hijack a hashtag?

A So I guess I can give you an example, is the easiest way. It’s like if you have a hashtag — back then like a Hillary Clinton hashtag called “I’m with her,” then what that would be is I would say, okay, let’s take “I’m with her” hashtag, because that’s what Hillary Clinton voters are going to be looking at, because that’s their hashtag, and then I would tweet out thousands of — of tweets of — well, for example, old videos of Hillary Clinton or Bill Clinton talking about, you know, immigration policy for back in the ’90s where they said: You know, we should shut down borders, kick out people from the USA. Anything that was disparaging of Hillary Clinton would be injected into that — into those tweets with that hashtag, so that would overflow to her voters and they’d see it and be shocked by it.

Q Is it safe to say that most of your followers were Trump supporters?

A Oh, yeah.

Q And so by hijacking, in the example you just gave a Hillary Clinton hashtag, “I am with her,” you’re getting your message out of your silo and in front of other people who might not ordinarily see it if you just posted the tweet?

A Yeah, I wanted to infect everything.

Q Was there a certain time of day that you believed tweeting would have a maximum impact?

A Yeah, so I had figured out that early morning eastern time that — well, it first started out with New York Times. I would see that they would — they would publish stories in the morning, so the people could catch that when they woke up. And some of the stories were absolutely ridiculous — sorry. Some of the stories were absolutely ridiculous that they would post that, you know, had really no relevance to what was going on in the world, but they would still end up on trending hashtags, right? And so, I thought about that and thought, you know, is there a way that I could do the same thing.

And so what I would do is before the New York Times would publish their — their information, I would spend the very early morning or evening seeding information into random hashtags, or a hashtag we created, so that by the time the morning came around, we had already had thousands of tweets in that tag that people would see because there wasn’t much activity on Twitter, so you could easily create a hashtag that would end up on the trending list by the time morning came around.

In the 2016 election, this methodology served to take memes directly from the Daily Stormer, launder them through 4Chan, then use Twitter to inject them into mainstream discourse. That’s the methodology the far right still uses, including Trump when he baits people to make his Truth Social tweets go viral on Twitter. Use Twitter to break out of far right silos and into those of Hillary supporters to recodify meaning, and ensure it all goes viral so lazy reporters at traditional outlets republish it for free, using such tweets to supplant rational discussion of other news.

And as Microchip testified, in trolling meaning and rational arguments don’t matter. Controversy does.

Q What was it about Podesta’s emails that you were sharing?

A That’s a good question.

So Podesta ‘s emails didn’t, in my opinion, have anything in particularly weird or strange about them, but my talent is to make things weird and strange so that there is a controversy. So I would take those emails and spin off other stories about the emails for the sole purpose of disparaging Hillary Clinton.

T[y]ing John Podesta to those emails, coming up with stories that had nothing to do with the emails but, you know, maybe had something to do with conspiracies of the day, and then his reputation would bleed over to Hillary Clinton, and then, because he was working for a campaign, Hillary Clinton would be disparaged.

Q So you’re essentially creating the appearance of some controversy or conspiracy associated with his emails and sharing that far and wide.

A That’s right.

Q Did you believe that what you were tweeting was true?

A No, and I didn’t care.

Q Did you fact-check any of it?

A No.

Q And so what was the ultimate purpose of that? What was your goal?

A To cause as much chaos as possible so that that would bleed over to Hillary Clinton and diminish her chance of winning.

The far right is still using this methodology to make the corrupt but not exceptional behavior of Hunter Biden into a topic that convinces half the electorate that Joe Biden is as corrupt as Donald Trump. They’ve used this methodology to get the vast majority of media outlets to chase Hunter Biden’s dick pics like six year old chasing soccer balls.

Back in 2016, the trolls had a good sense of how their efforts helped to support Trump’s electoral goals. In April 2016, for example, Baked Alaska pitched peeling off about a quarter of Bernie Sanders’ votes. “Imagine if we got even 25% of bernie supporters to ragevote for trump.” On November 2, 2016, the same day he posted the meme that got him prosecuted, Mackey explained that the key to winning PA was “to drive up turnout with non-college whites, and limit black turnout.” One user, 1080p, seemed to have special skills — if not sources — to adopt the look and feel of both campaigns.

And this effort worked in close parallel to Trump’s efforts. As early as April, Baked Alaska invited Mackey to join a campaign slack “for more coordinated efforts.”

And there are several participants in the troll chatrooms whose actions or efforts to shield their true identities suggest they may be closely coordinating efforts as well.

Even in the unfettered world of 2016, Twitter’s anemic efforts to limit the trolls’ manipulation of Twitter was a common point of discussion.

For example, as the trolls were trying to get Podesta’s emails trending, HalleyBorderCol complained, “we haven’t been able to get anything to trend for aaaages … unless they changed their algorithms, they must be watching what we’re doing.” Later in October as they were launching two of their last meme campaigns, ImmigrationX complained,”I see Jack in full force today suppressing hashtags.”

Both Mackey and Microchip were banned multiple times. “Microchip get banned again??” was a common refrain. “glad to be back,” Microchip claimed on September 24. “they just banned me two times in 3 mins.” He warned others to follow-back slowly to evade an auto-detect for newly created accounts. “some folks are being banned right now, apparently, so if I’m banned for some reason, I’ll be right back,” Microchip warned on October 30. “Be good till nov 9th brother! We need your ass!” another troll said on the day Mackey was banned; at the time Microchip was trending better than Trump himself. Mackey’s third ban in this period, in response to the tweets a jury has now deemed to be criminal, came with involvement from Jack Dorsey personally.

Both testified at trial about the techniques they used to thwart the bans (including using a gifted account to return quickly, in Mackey’s case). Microchip built banning, and bot-based restoration and magnification, into his automation process.

2020: Insurrection

The far right trolls succeeded in helping Donald Trump hijack American consciousness in 2016 to get elected.

By the time the trolls — some of whom moved into far more powerful positions with Trump’s election — tried again in 2020, the social media companies had put far more controls on the kinds of viral disinformation that trolls had used with such success in 2016.

As Yoel Roth explained during this year’s Twitter hearing, the social media companies expanded their moderation efforts with the support of a bipartisan consensus formulated in response to Russia’s (far less successful than the far right troll efforts) 2016 interference efforts.

Rep. Shontel Brown

So Mr. Roth, in a recent interview you stated, and I quote, beginning in 2017, every platform Twitter included, started to invest really heavily in building out an election integrity function. So I ask, were those investments driven in part by bipartisan concerns raised by Congress and the US government after the Russian influence operation in the 2016 presidential election?

Yoel Roth:

Thank you for the question. Yes. Those concerns were fundamentally bipartisan. The Senate’s investigation of Russian active measures was a bipartisan effort. The report was bipartisan, and I think we all share concerns with what Russia is doing to meddle in our elections.

But in advance of the election, Trump ratcheted up his attacks on moderation, personalizing that with a bullying attack on Roth himself.

In the spring of 2020, after years of internal debate, my team decided that Twitter should apply a label to a tweet of then-President Trump’s that asserted that voting by mail is fraud-prone, and that the coming election would be “rigged.” “Get the facts about mail-in ballots,” the label read.

On May 27, the morning after the label went up, the White House senior adviser Kellyanne Conway publicly identified me as the head of Twitter’s site integrity team. The next day, The New York Post put several of my tweets making fun of Mr. Trump and other Republicans on its cover. I had posted them years earlier, when I was a student and had a tiny social media following of mostly my friends and family. Now, they were front-page news. Later that day, Mr. Trump tweeted that I was a “hater.”

Legions of Twitter users, most of whom days prior had no idea who I was or what my job entailed, began a campaign of online harassment that lasted months, calling for me to be fired, jailed or killed. The volume of Twitter notifications crashed my phone. Friends I hadn’t heard from in years expressed their concern. On Instagram, old vacation photos and pictures of my dog were flooded with threatening comments and insults.

In reality, though, efforts to moderate disinformation did little to diminish the import of social media to right wing political efforts. During the election, the most effective trolls were mostly overt top associates of Donald Trump, or Trump himself, as this table I keep posting shows.

The table, which appears in a Stanford University’s Election Integrity Project report on the election, does not reflect use of disinformation (as the far right complains when they see it). Rather, it measures efficacy. Of a set of false narratives — some good faith mistakes, some intentional propaganda — that circulated on Twitter in advance of the election, this table shows who disseminated the false narratives that achieved the most reach. The false narratives disseminated most broadly were disseminated by Donald Trump, his two adult sons, Tom Fitton, Jack Posobiec, Gateway Pundit, Charlie Kirk, and Catturd. The least recognized name on this list, Mike Roman, was among the 19 people indicted by Fani Willis for efforts to steal the election in Georgia. Trump’s Acting Director of National Intelligence, Ric Grenell, even got into the game (which is unsurprising, given that before he was made Ambassador to Germany, he was mostly just a far right troll).

This is a measure of how central social media was to Trump’s efforts to discredit, both before and after the election, the well-run election that he lost.

The far right also likes to claim (nonsensically, on its face, because these numbers reflect measurements taken after the election) that these narratives were censored. At most, and in significant part because Twitter refused to apply its own rules about disinformation to high profile accounts including but not limited to Trump, this disinformation was labeled.

As the Draft January 6 Social Media Report described, they had some success at labeling disinformation, albeit with millions of impressions before Twitter could slap on a label.

Twitter’s response to violent rhetoric is the most relevant affect it had on January 6th, but the company’s larger civic integrity efforts relied heavily on labeling and downranking. In June of 2019, Twitter announced that it would label tweets from world leaders that violate its policies “but are in the public interest” with an “interstitial,” or a click-through warning users must bypass before viewing the content.71 In October of 2020, the company introduced an emergency form of this interstitial for high-profile tweets in violation of its civic integrity policy.” According to information provided by Twitter, the company applied this interstitial to 456 tweets between October 27″ and November 7″, when the election was called for then-President-Elect Joe Biden. After the election was called, Twitter stopped applying this interstitial.”* From the information provided by Twitter, it appears these interstitials had a measurable effect on exposure to harmful content—but that effect ceased in the crucial weeks before January 6th.

The speed with which Twitter labels a tweet obviously impacts how many users see the unlabeled (mis)information and how many see the label. For PIIs applied to high-profile violations of the civic integrity policy, about 45% of the 456 labeled tweets were treated within an hour of publication, and half the impressions on those tweets occurred after Twitter applied the interstitial. This number rose to more than eighty percent during election week, when staffing resources for civic issues were at their highest; after the election, staff were reassigned to broader enforcement work.” In answers to Select Committee questions during a briefing on the company’s civic integrity policy, Twitter staff estimates that PIIs prevented more than 304 million impressions on violative content. But at an 80% success rate, this still leaves millions of impressions.

But this labeling effort stopped after the election.

According to unreliable testimony from Brandon Straka the Stop the Steal effort started on Twitter. According to equally unreliable testimony from Ali Alexander, he primarily used Twitter to publicize and fundraise for the effort.

It was, per the Election Integrity Project, the second most successful disinformation after the Dominion propaganda.

And the January 6 Social Media Report describes that STS grew organically on Facebook after being launched on Twitter, with Facebook playing a losing game of whack-a-mole against new STS groups.

But as Alexander described, after Trump started promoting the effort on December 19, the role he would place became much easier.

Twitter wasn’t the only thing that brought a mob of people to DC and inspired many to attack the Capitol. There were right wing social media sites that may have been more important for organizing. But Twitter was an irreplaceable part of what happened.

The lesson of the 2020 election and January 6, if you care about democracy, is that Twitter and other social media companies never did enough moderation of violent speech and disinformation, and halted much of what they were doing after the election, laying the ground work for January 6.

The lesson of the 2020 election for trolls is that inadequate efforts to moderate disinformation during the election — including the Hunter Biden “laptop” operation — prevented Trump from pulling off a repeat of 2016. The lesson of January 6, for far right trolls, is that unfettered exploitation of social media might allow them to pull off a violent coup.

That’s the critical background leading up to Elmo’s purchase of Twitter.

2024: Boosting Nazis

The first thing Elmo did after purchasing Twitter was to let the far right back on.

More recently, he has started paying them money that ads don’t cover to subsidize their propaganda.

The second thing he did, with the Twitter Files, was to sow false claims about the effect and value of the moderation put into place in the wake of 2016 — an effort Republicans in Congress subsequently joined. The third thing Elmo did was to ratchet up the cost for the API, thereby making visibility into how Twitter works asymmetric, available to rich corporations and (reportedly) his Saudi investors, but newly unavailable to academic researchers working transparently. He has also reversed throttling for state-owned media, resulting in an immediate increase in propaganda.

He has done that while making it easier for authoritarian countries to take down content.

Elmo attempted, unsuccessfully, to monetize the site in ways that would insulate it from concerns about far right views or violence.

For months, Elmo, his favored trolls, and Republicans in Congress have demonized the work of NGOs that make the exploitation of Twitter by the far right visible. More recently, Elmo has started suing them, raising the cost of tracking fascism on Twitter yet more.

Roth recently wrote a NYT column that, in addition to describing the serial, dangerous bullying — first from Trump, then from Elmo — that this pressure campaign includes, laid out the stakes.

Bit by bit, hearing by hearing, these campaigns are systematically eroding hard-won improvements in the safety and integrity of online platforms — with the individuals doing this work bearing the most direct costs.

Tech platforms are retreating from their efforts to protect election security and slow the spread of online disinformation. Amid a broader climate of belt-tightening, companies have pulled back especially hard on their trust and safety efforts. As they face mounting pressure from a hostile Congress, these choices are as rational as they are dangerous.

In 2016, far right trolls helped to give Donald Trump the presidency. In 2020, their efforts to do again were thwarted — barely — by attempts to limit the impact of disinformation and violence.

But in advance of 2024, Elmo has reversed all that. Xitter has preferentially valued far right speech, starting with Elmo’s increasingly radicalized rants. More importantly, Xitter has preferentially valued speech that totally undercuts rational thought.

Elmo has made Xitter a Machine for irrational far right hate speech.

The one thing that may save us is that this Machine for Fascism has destroyed Xitter’s core value to aspiring fascists: it has destroyed Xitter’s role as a public square, from which normal people might find valuable news. In the process, Elmo has destroyed Twitter’s key role in bridging from the far right to mainstream readers.

But it’s not for lack of trying to make Xitter a Machine for Fascism.

Nora Dannehy Confirms that Bill Barr Attempted to Sway 2020 Election with Dubious Interim Report

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As AP first reported, in response to several questions in a hearing on her nomination to the Connecticut Supreme Court, Nora Dannehy provided details about why she resigned from the Durham investigation. In response to the first, she described that Bill Barr seemed intent on issuing an interim report before the 2020 election, the conclusion with which she “strongly” disagreed.

In the spring and summer of 2020, I had growing concerns that this Russia investigation was not being conducted in that way [independent of political influence]. Attorney General Barr began to speak more publicly, and specifically, about the ongoing criminal investigation. I thought these public comments violated DOJ guidelines. In late summer 2020, just months before the 2020 Presidential election, he wanted a report written about our ongoing investigation. Publicly, he would not rule out releasing that report before the Presidential election. I had never been asked to write a report about an investigation that was not yet complete. I then saw a version of a draft report, the conclusions of which I strongly disagreed with. Writing a report — and particularly the draft I saw — violated long-standing principles of the Department of Justice. Furthermore, the Department of Justice has a long-standing policy of not taking any public actions in the time leading up to an election that might influence that election. I simply couldn’t be part of it, so I resigned.

It was the most difficult personal and professional decision I’ve had to make.

This tracks reporting from the NYT that describes Dannehy erupting on September 10, the day before she resigned, when she read the draft report that had been written (Charlie Savage linked this video testimony).

So does something Dannehy said later in the hearing.

What I was involved in involved classified — highly classified — information and I really can’t get into what happened when I was there because I likely would, or potentially could, get into an area that I can’t speak about.

NYT reported that the report came after Durham bypassed Beryl Howell to obtained records he used to attempt to corroborate potential disinformation associated with Guccifer 2.0.

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

The reference to the Clinton campaign appears to reference Durham’s conspiracy theories about a plan that Clinton planned to frame Donald Trump. But that Durham theory was based on his own fabrication about what the intelligence said, even assuming the intelligence was true and not itself disinformation.

This confirms that Durham twice doubled down on this conspiracy theory about Hillary Clinton, first when he contested Michael Horowitz’s conclusion on the Carter Page investigation, and then when he endorsed this draft report. In the end, his report never substantiated his own conspiracy theory.

Dannehy assiduously avoids blaming her old friend John Durham for this corruption. But long after Barr left office, Durham pursued this conspiracy theory relentlessly, going so far as misrepresenting his own investigation to avoid admitting he proved himself wrong.

What Is The Sound of a Dead Bird Xitting?

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[NB: check the byline, thanks. /~Rayne]

This post contains observed and speculative material following the reported loss of content circa 2011-2014 at the former bird app.

~ ~ ~

Observed:

August 9, 2023 – D.C. Circuit Court of Appeals affirmed the D.C. district court’s earlier finding holding Twitter in contempt and assessing a $350,000 fine for failure to fully comply by the district court’s subpoena deadline.

August 16, 2023 6:41 a.m. ET – Marcy posted about Xitter’s sketchy behaviors in its response to a DOJ subpoena approved on January 17, 2023. Xitter has been held in contempt and assessed a $350,000 fine for failure to comply with the subpoena.

August 16, 2023 1:59 p.m. ET – Marcy posted about the importance of attribution related to January 6 tweets which could have gotten former VP Mike Pence killed. Twitter data could reveal the account login information and device used for the purposes of threatening Pence.

August 17, 2023 6:23 a.m. ET – Marcy posted about Elon Musk’s meetings with with Jim Jordan and Kevin McCarthy while Xitter’s internal and external legal team tap danced about the subpoena it had failed to comply with fully and on a timely basis. This dancing may have been an effort to protect Musk and his political network including certain members of Congress.

August 17, 2023 3:26 p.m. ET – Brazilian Xitter user Danilo Takagi posted,

Acabei de confirmar aqui. O Twitter/X removeu todas as mídias e imagens postadas de 2014 pra trás. Eles não tem dinheiro nem pra armazenamento mais. Artistas e criadores de conteúdo, vocês realmente ainda querem continuar usando esta rede?

[Translation from Portuguese: I just confirmed here. Twitter/X has removed all media and images posted from 2014 onwards. They don’t even have money for storage anymore. Artists and content creators, do you really want to continue using this network?]

August 19, 2023 11:31 a.m. ET – Xitter user Tom Coates confirms Danilo Takagi’s earlier observation:

More vandalism from @elonmusk. Twitter has now removed all media posted before 2014. Thats – so far – almost a decade of pictures and videos from the early 2000s removed from the service. For example, here’s a search of my media tweets from before 2014. https://twitter.com/search?q=From%3Atomcoates%20until%3A2014-01-01&src=typed_query&f=media

Xitter Birdwatch contributors added context:

Images before/around 2014 are still saved on Twitter/X’s servers, however, the t.co links appear to be broken at the moment.

The famous Ellen DeGeneres selfie from the 2014 Oscars is currently missing from her tweet. https://twitter.com/EllenDeGeneres/status/440322224407314432
But the original file is still available on their servers.
https://pbs.twimg.com/media/BhxWutnCEAAtEQ6?format=jpg&name=large
thttps://twitter.com/Accountabilabud/status/1693026133191819518?s=20

Each of the links above in the Birdwatch context field have not been available consistently; they have been converted by Xitter’s t.co link shortener when the tweet is shared but the shortened links may not work properly.

The erasure appears to be related in part to a “failure” of the t.co link shortener which eliminates accessibility to content, but this doesn’t explain why graphic media circa 2011-2014 is no longer available.

What the actual fuck is going on at Xitter?

~ ~ ~

Here are several prominent theories about the loss of media on Xitter:

• Musk is cutting costs, some say, by refusing to host media content.

It’s possible, but why 2011-2014 and not ALL of the former Twitter’s media content? Is this explanation consistent with the “failure” of the t.co shortener and loss of graphics in that date range?

• Musk is trying to damage social networks within Xitter for his personal political agenda, others say.

Again, why that specific range and not from the former Twitter’s inception?

• Musk is erasing cultural history, engaging in ethnocide or cultural genocide, noted by minority groups.

True. Erasing key parts of the Black Lives Matter movement’s inception and the social response to deaths which preceded it is one example targeted by this date range.

Also the erasure of Arab Spring-related content may be ethnocide.

You’re going to see folks making these points across social media, but there’s at least one more possible factor driving Musk’s erasure.

~ ~ ~

Speculative:

What if Musk is eliminating access to evidence?

How do we know for sure whether Xitter the former dead bird platform is simply running into the operations problems expected since Musk canned 75-80% of staff, or whether he’s actively obstructing investigations which rely on former Twitter content by screwing with data accessibility?

How do we know Musk isn’t doing the bidding of his fossil fuel financiers from Qatar and KSA by suppressing access to content critical of leadership in those countries? Perhaps even hiding what it was spies for KSA employed by Twitter had been doing, or hiding possible foreign interference in democracy here and abroad?

Ponder this bit of dead bird xit for a while.

Beryl Howell Held Elon Musk’s Xitter in Contempt

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One of my favorite lines in the Trump January 6 indictment described how, when everyone left Donald Trump alone in the dining room on January 6, he tweeted out a tweet that might have gotten Mike Pence killed.

At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

It’s just one of 19 Tweets included in the indictment:

  1. On November 25, anticipating Sidney Powell’s lawsuit invoking Dominion voting machines
  2. On December 3, magnifying Rudy’s false claims about Georgia
  3. A Tweet from Gabriel Sterling on December 4 debunking Rudy’s attack on Ruby Freeman
  4. A December 4 attack on PA’s GOP legislative leaders after they refused to reject the popular vote
  5. The December 19 Tweet announcing the January 6 protest that launched the insurrection
  6. A December 21 Tweet falsely claiming vote fraud in WI
  7. A December 23 Tweet attacking Cobb County officials verifying signatures
  8. Trump’s December 23 retweet of Ivan Raiklin Operation Pence Card Tweet
  9. Trump’s January 1 reminder about the January 6 event
  10. A January 5, 11:06 AM Tweet claiming Pence could reject the vote certifications
  11. A January 5, 5:05PM Tweet announcing “we hear you (and love you) from the Oval Office
  12. A January 5, 5:43PM Tweet reminding that the rally opened at 11AM the next day
  13. A January 6, 1AM Tweet claiming that Pence could “send it back”
  14. A January 6, 8:17AM Tweet repeating that all Pence had to do was “send them back to the States, AND WE WIN.”
  15. The famous 2:24PM Tweet targeting Pence
  16. The January 6, 2:38PM Tweet calling on rioters to “Stay peaceful!”
  17. The January 6, 3:13PM Tweet calling for “No violence!”
  18. The January 6, 4:17PM Tweet releasing the video asking people to leave the Capitol
  19. Trump’s January 6, 6:01PM Tweet about a victory “viciously stripped away”

Before DOJ could unroll the indictment in its current form, it had to have proof about who actually Tweeted out each of these.

Aside from the dining room Tweet, it’s not entirely clear he did: Several times the indictment describes Trump “issuing” a Tweet, which might involve others.

That’s probably just one of the reasons why, on January 17, Jack Smith’s team obtained a warrant to provide, “data and records related to the ‘@realDonaldTrump’ Twitter account,” with a nondisclosure order.

Elon Musk’s Twitter not only didn’t have any lawyers home to accept the request, but they balked at providing the data, which was originally due on January 27, because they wanted to tell Trump about it first.

Ultimately, then Chief Judge Beryl Howell had to hold Twitter in contempt for 3 days before it turned over all the requested data on February 9. The DC Circuit just upheld Howell on all counts — the imposition of the gag, the contempt and the fine.

We shall see, going forward, whether DOJ asked for more than that — including any DMs that Trump might have sent to the Stop the Steal crowd, whose efforts were exploding on Twitter at the time.

Update: The warrant may also have asked for information that would be useful to measure Trump’s fundraising; that’s one thing DOJ was focused on in that period (and remains focused on). The warrant also came close to the beginning of the Proud Boys trial, which DOJ kicked off with Trump’s “Stand Back and Stand By” comment.

Trump’s People: The Prettyman Pardons

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As we wait for Trump to be arraigned in Prettyman Courthouse, I thought it worthwhile to list the 16 men who were prosecuted in Prettyman Courthouse that Trump pardoned, and their crimes:

  1. Scooter Libby: Obstruction of justice and perjury
  2. David Safavian: Obstruction of justice and false statements
  3. Mike Flynn: False statements
  4. Alex Van Der Zwaan: False statements
  5. George Papadopoulos: False statements
  6. Paul Slough, Manslaughter (Blackwater Nisour Square)
  7. Nicholas Slatten: Murder (Blackwater Nisour Square)
  8. Evan Liberty: Manslaughter (Blackwater Nisour Square)
  9. Dustin Laurent Heard: Manslaughter (Blackwater Nisour Square)
  10. Roger Stone: Obstruction of a proceeding, false statements, witness tampering
  11. Paul Manafort: Conspiracy to defraud the US (money laundering and FARA), conspiracy to obstruct (witness tampering)
  12. Robert Coughlin: Conflict of interest
  13. Todd Boulanger: Wire fraud
  14. Elliot Broidy: Conspiracy to violate FARA
  15. Douglas Jemal, Wire fraud
  16. Aviem Sella, Espionage

Four of these men lied to cover up Trump’s own Russian ties; a fifth, the son-in-law of Alfa Bank oligarch German Khan, Alex Van Der Zwaan, lied to cover up Manafort’s past Ukraine graft. A sixth, Elliot Broidy, did fundraising for Trump.

These are Trump’s people.

A lot of Republicans are wailing that Trump shouldn’t be prosecuted in DC. Marsha Blackburn is arguing that Trump should be treated differently than her constituents Lisa Eisenhart and Eric Munchel, who were prosecuted for conspiracy to obstruct the vote count, just like Trump is facing. Tim Scott is arguing that Trump should be treated differently than his constituent George Tenney, who was prosecuted for obstructing the vote count, just like Trump is facing.

But if anything, it is more appropriate to prosecute Trump in DC than Munchel (Zip Tie Guy) and Tenney (who opened the East Door of the Capitol). After all, he was a resident of DC when his alleged crimes were committed.

More importantly, even just the list of those he pardoned make it clear that Prettyman felons are his kind of people. Donald Trump is precisely where he belongs today.