“Lock Him Up!” Trump Calls on Congress to Halt the Criminal Investigation into Joe Biden

Yesterday, four Trump lawyers sent House Intelligence Chair Mike Turner a really risky letter. CNN first reported on the letter.

Boris Epshteyn, who had allegedly been leading Trump’s defense in that investigation, did not sign the letter.

The letter responds to the news that Turner and other Gang of 8 members have recently been given access to the documents found at Donald Trump, Joe Biden, and Mike Pence’s properties.

We understand that DOJ is making the documents marked classified available for your review, and this letter provides the Committee with information that we suspect DOJ has not disclosed to it.

It doesn’t cite its source of information about those reviews, which is one way to obscure that the Gang of 8 actually began to get such access by April 11, two weeks ago.

Since Mike Turner and other Gang of 8 members started reviewing the documents, two things have happened.

First, Joe Biden announced his reelection campaign, without waiting on Special Counsel Robert Hur to report the results of his investigation into Biden for mishandling classified information.

And, about a month after Evan Corcoran testified in a crime-fraud excepted appearance before the grand jury, Boris Epshteyn spent two days last week chatting with Jack Smith’s prosecutors. (Like Epshteyn, Corcoran did not sign this letter, but that’s because his partners forced him to recuse from the investigation after he testified.) Even though Epshteyn has been a likely source for a lot of the press reports on the various investigations into which he has or had visibility, I’m not aware of any report describing his testimony, much less why he testified without any report of a subpoena.

Contemplate the significance of the first item — Biden’s reelection announcement — as you consider the purported point of the letter. Donald Trump — the guy who won the presidency with non-stop chants of “Lock her up!” in 2016 — claims to think that an investigation analogous to the one that targeted Hillary Clinton in 2015 to 2016 is improper.

A legislative solution by Congress is required to prevent the DOJ from continuing to conduct ham-handed criminal investigations of matters that are inherently not criminal.

[snip]

What is consistent in all three of these cases is that the document handling procedures in the White House are flawed and DOJ is not the appropriate agency to conduct investigations pertaining to the mishandling or spillage of classified material.

Conclusion

The solution to these issues is not a misguided, politically infected, and severely botched criminal investigation, but rather a legislative solution. DOJ should be ordered to stand down, and the intelligence community should instead conduct an appropriate investigation and provide a full report to this Committee, as well as your counterparts in the Senate. Armed with the appropriate knowledge, we respectfully suggest that your Committee hold hearings and make legislative changes to:

1. Correct classified document handling procedures in the White House;

2. Standardize document handling and storage procedures for Presidents and Vice Presidents when they leave office; and

3. Formalize procedures for investigations into the mishandling or spillage of classified material, to prevent future situations where DOJ is inappropriately assigned to conduct an investigation.

President Trump’s legal team would be happy to meet with you or your staff to assist in any way necessary to address these issues. Please know that despite the differences in the cases, we do not believe that any of these three matters should be handled by DOJ as a criminal case. Rather, the stakeholders to these matters should set aside political differences and work together to remediate this issue and help to enhance our national security in the process. [my emphasis]

Donald Trump is asking Congress to intervene to halt not just into the investigation into him — and make no mistake, that is what he’s doing. But he’s also asking Congress to halt the investigation into his opponent!

Having won the presidency in 2016 by demanding the investigation into Hillary be more punitive, he’s now asking Congress to halt the investigation into Joe Biden.

Having won the presidency in 2016 by succeeding in highlighting Hillary’s negligence for mishandling classified information, Trump now wants to forego the opportunity to pursue the same approach in 2024.

At the very least, that’s a pretty good sign that he and his lawyers don’t believe their own claims that the known facts about Biden’s mishandling of classified information are worse than the known facts about Trump’s.

4 Of course, we also recently learned from media reports that President Biden possessed
marked documents in a “personal” folder at the Penn-Biden Center – strong evidence
that he intentionally possessed then after he or someone else secretly removed them,
from the Senate SCIF at least 14 years earlier when he was the Senator from Delaware.
We also now know that after DOJ learned about President Biden’s possession of
classified documents at the Penn-Biden Center, it allowed his personal attorneys to
search for and collect documents from his residence in Delaware making the specific
locations of the documents in the residence difficult, and perhaps impossible, to
determine. And, it has since been publicly reported that there could be even more
classified documents in the 1,850 boxes that Mr. Biden shipped to the University of
Delaware in 2012. https://www.cnn.com/2-23/02/15/politics/biden-delawaresearch/index.html. DOJ’s reaction to all of this is stunningly different from how it
responded to President Trump’s offer of cooperation regarding the boxes stored at Mara-Largo. [sic: Trump’s lawyers misspell Mar-a-Lago in several different ways in the letter]

[snip]

When documents were found in President Joseph Biden’s Penn-Biden Center office, despite clear indicators that his violations were more likely the result of willful misconduct, DOJ treated him very differently by forgoing any attempts at manufacturing conflict, while implicitly approving the spoliation of evidence.

The applicable criminal statute prohibits “willful retention” of national defense information, not mere possession. See 18 U.S. § 793 (e). To prove willful retention, a prosecutor must first establish that the possession was knowing. Despite media spin to the contrary, this is the key element that distinguishes President Trump’s retention of documents from that by President Biden. Evidence of knowing possession can be readily inferred from the length of time that President Biden possessed the marked documents since leaving office and the fact that they were moved and stored at multiple locations. In comparison, the materials found at Mar-a-Lago were still stored in the same GSA boxes in which they left the White House, untouched in the relatively short time since the end of President Trump’s term. Perhaps the most damning fact for President Biden is that he possessed marked documents from his time in the Senate—a body that maintains all marked documents in a SCIF, unlike the White House. Further, as you are no doubt aware and as mentioned earlier in this letter, media reports have indicated that classified documents were contained in a folder labeled “personal,”8 which is much more powerful evidence of knowing retention than documents being randomly dispersed into boxes by moving teams.

8 See, e.g., Jamie Gangel et al., “Exclusive: U.S. intelligence materials related to Ukraine, Iran and UK found in Biden’s private office, source tells CNN,” CNN (Jan. 10, 2023), https://www.cnn.com/2023/01/10/politics/biden-classified-documents-iran-ukraineunited-kingdom-beau-funeral/index.html.

There is not a chance in hell that Trump would forgo an opportunity to make this race about Biden’s mishandling of classified information if he really believed that Biden’s “violations were more likely the result of willful misconduct.”

Not a chance in hell!

But then, there’s abundant reason to believe that the four lawyers know they’re blowing smoke (to Congress). Heck, I’m so sure of it I think Mark Warner should invite all four of them to give sworn testimony to the Senate Intelligence Committee.

There are the claims this letter makes that conflict with known testimony, such as that Trump didn’t review any of the documents in the boxes ultimately returned to the Archives.

However, due to other demands on his time, President Trump subsequently directed his staff to ship the boxes to NARA without any review by him or his staff.

There are the claims this letter makes that conflict with known details about the case, such as that, because Trump was too busy starting an insurrection, he didn’t have the ability to send his documents to a GSA-leased facility.

When President Trump left office, there was little time to prepare for the outgoing transition from the presidency. Unlike his three predecessors, each of whom had over four years to prepare for their departure upon completion of their second term, President Trump had a much shorter time to wind up his administration. White House staffers and General Service Administration (“GSA”) employees quickly packed everything into boxes and shipped them to Florida. This was a stark change from the standard preparations made by GSA and National Archives and Records Administration (“NARA”) for prior administrations. As NARA acknowledged in a Press Statement it issued on October 11, 2022:

The National Archives and Records Administration (NARA), in accordance with the Presidential Records Act, assumed physical and legal custody of the Presidential records from the administrations of Barack Obama, George W. Bush, Bill Clinton, George H.W. Bush, and Ronald Reagan, when those Presidents left office. NARA securely moved these records to temporary facilities that NARA leased from the General Services Administration (GSA), near the locations of the future Presidential Libraries that former Presidents built for NARA. All such temporary facilities met strict archival and security standards, and have been managed and staffed exclusively by NARA employees.2

Investigators paid by the lead writer of this letter, Tim Parlatore, found two additional documents with classification marks in what is reportedly a GSA-leased facility in Florida.

Lawyers for Donald Trump found at least two items marked classified after an outside team hired by Trump searched a storage unit in West Palm Beach, Fla., used by the former president, according to people familiar with the matter.

[snip]

Emails released by the General Services Administration, which assists former presidents during their transition to private life, show that the government agency helped rent the storage unit at a private facility in West Palm Beach on July 21, 2021. The unit was needed to store items that had been held at an office in Northern Virginia used by Trump staffers in the months just after he left office.

There’s the claim that DOJ dictated the timing of the June 3 document pick-up, when the record shows Evan Corcoran called FBI and told them to come down the next day.

Ultimately, President Trump’s legal team complied with DOJ’s demands, performing as diligent a search as they could by Mr. Bratt’s arbitrary deadline, and submitted a certification that affirmed the same.

And this letter repeats a bullshit claim that Trump’s lawyers have chanted from the start of his attempts to sucker the press: that the only thing Jay Bratt requested after he had seen the storage room at Mar-a-Lago was to put a lock on the facility.

Although Mr. Corcoran told the DOJ representatives that they were not going to go through boxes together that day, he fully expected DOJ to ask to return to Mar-a-Largo and examine all the boxes. Mr. Bratt reinforced this belief when, five days later, he wrote to Mr. Corcoran requesting that an additional lock be placed on the door. The lock was soon installed, and the boxes kept under lock and key in a facility guarded by armed Secret Service agents.

It’s like Tim Parlatore thinks Mike Turner’s staffers are too stupid to review the unsealed affidavit, which reveals that Bratt’s letter says something else entirely: that the storage facility is not a secure facility authorized to store classified documents.

As I previously indicated to you, Mar-a-Lago does not include a secure location authorized for the storage of classified information. As such, it appears that since the time classified documents (the ones recently provided and any and all others) were removed from the secure facilities at the White House and moved to Mar-a-Lago on or around January 20, 202 1, they have not been handled in an appropriate manner or stored in an approptiate location. Accordingly, we ask that the room at Mar-a-Lago where the documents had been stored be secured and that all of the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice.

Because the staffers that deal with this document have security clearance they surely want to keep, they’ll undoubtedly know that this is a reference to CFR standards for storage, not a request to add an almost certainly non-compliant lock.

And that’s why I think this letter was ill-advised.

These are just the obvious, affirmatively false things in the letter. There’s a whole bunch more that Trump’s lawyers simply ignore, such as the surveillance video showing Trump’s staffers moving boxes out of the storage facility in advance of the search they’re claiming here was a diligent search or the fact that FBI found 70-some classified documents in the storage facility of which Corcoran had claimed to have done a diligent search.

The only way this document could have the desired effect is if Mike Turner likes being lied to, or is so in the tank that — like Richard Burr before him — he’s willing to risk his own legal exposure to obstruct a criminal investigation.

And that’s assuming Warner didn’t subpoena any or all of these lawyers to repeat these farcical claims to Congress under oath.

All that’s before you consider the asymmetry. Trump’s lawyers — just one of whom (they admit) actually has clearance — acknowledge they have no fucking clue what FBI caught Trump hoarding.

Despite our requests to DOJ, it has refused to tell us whether in its judgment any of the documents remain classified. Similarly, DOJ has refused to allow for inspection of the documents at any time during the last eight months despite the fact that one of our attorneys has sufficient clearance to view the majority of the documents marked as classified.

Mike Turner does know.

Trump’s lawyers claim — or rather confess — that among the files he originally had in his beach resort were call briefings with foreign officials, just like the ones hidden from Congress in the first impeachment.

The vast majority of the placeholder inserts refer to briefings for phone calls with foreign leaders that were located near the schedule for those calls.

Again, I can only imagine how stupid Parlatore thinks Turner’s staffers are to confess this.

But even I know that many of the things Trump kept after DOJ subpoenaed them are not similar. Even I know that Trump compiled two classified documents with messages from a pollster, a book author, and a faith leader. And Mike Turner has reviewed these documents and he knows it too. And I know that he knows it.

So unless Mike Turner is totally in the tank for Trump — worse even than Burr was! — this letter risks pissing Turner off.

Last month, before Evan Corcoran was forced to give crime-fraud excepted testimony against Trump and before Boris Epshteyn spent two days chatting with Jack Smith’s prosecutors, Tim Parlatore — lead author of this insulting letter — said the following about Epshteyn’s role in the stolen documents case.

Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

Neither Corcoran nor Epshteyn signed this letter. It’s not yet clear why Epshteyn didn’t.

And that’s as telling as the embarrassing false claims that it makes.

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Prosecutorial Discretion in the Age of Shitlords and “Psychological loldongs Terrorism”

I’m working on one more post integrating materials from the Douglass Mackey trial.

But first I want to comment about some investigative and prosecutorial details about the case.

I’ve made a timeline showing what got introduced in the troll chatrooms as evidence, other known activities of Mackey and the cooperating witness Microchip, and investigative details here. The timeline includes the following DM threads that were treated as part of the conspiracy for which Mackey was convicted:

In addition, this exhibit, which was introduced under a different evidentiary rule (largely, but not entirely, Mackey’s comments, rather than those of the conspiracy), consists in part of conversations elsewhere sourced to FedFreeHateChat from earlier in 2015-2016, along with a number of two-person DMs involving Mackey or unindicted co-conspirators 1080p or Microchip.

As you read the threads, remember a few things about them. First, they’ve been extensively sanitized of the racist and misogynist language used in the threads. Anything that wasn’t directly relevant to proving either the means and goals of Mackey’s trolling, a conspiracy between the thread participants, or their intent in sending out false tweets to depress the turnout of Black and Latino Hillary supporters was excluded as prejudicial.

You can read some of what was excluded — and the very important debate about where Mackey’s free speech ended and where an attempt to impair the votes of Black and Latino Hillary supporters began — in these court filings:

  • January 30, 2023: Mackey’s effort to exclude pre-September 2016 language and commentary from when he was banned by Twitter and inflammatory speech
  • January 30, 2023: The government’s effort to get the contents of the four chatrooms, above, admitted
  • February 24, 2023: Mackey’s response to the government’s motion
  • February 24, 2023: The government’s response to Mackey
  • February 28, 2023: The government’s reply to Mackey
  • February 28, 2023: Mackey’s reply
  • March 7, 2023: Mackey letter after meet-and-confer that details objections, revealing content of some excluded files
  • March 7, 2023: Government memo after meet-and-confer
  • March 10, 2023: Judge Nicholas Garaufis order laying out admissible exhibits
  • March 11, 2023: Mackey letter seeking to exclude bigoted speech and FBI agent testimony
  • March 13, 2023: Mackey letter seeking to exclude comment about women voting
  • March 13, 2023: Government letter responding regarding bigoted speech
  • March 19, 2023: Mackey letter objecting to specific inflammatory language and memes showing Trump in violent conquest

The outlines of this dispute will be critical to the inevitable appeal of Mackey’s guilty verdict.

These Twitter DM groups weren’t the only places these trolls organized, as portrayed by trial evidence. After one of Mackey’s bannings, he authenticated his new Twitter ID on Facebook and continued to work with others on Discord. The government did not introduce any of the related threads from TheDonald or 4chan with which — as a tweet from Microchip made clear — their efforts on Twitter were sometimes coordinated.

The exclusion of related 4chan activity is significant. At trial, Mackey took the stand and claimed he had gotten the text-to-vote meme for which he was charged from widely available 4chan threads, not from these DM groups, one of which he did not rejoin after being banned by Twitter on October 5. Mackey similarly claimed not to know the key players in workshopping this meme in the War Room twitter group beyond their user name.

The claim was pretty unconvincing; it may have been an attempt to deny forming a conspiracy with the others, or an effort to protect his online friends.

I’m interested in the picture of the conspiracy provided by these threads for several related reasons.

For starters, I’m interested in the troll — prosecutors referred to the account using a female pronoun — who first created a text-to-vote meme like the one that Mackey was convicted of. On October 27, 2016 on the War Room thread (which Mackey had rejoined after being banned), HalleyBorderCol (HBC) suggested, “let’s depress illegal voter turnout with a nice hoax ;).” Someone using the moniker P0TUSTrump argued they should hold off so the hoax would not get debunked before actually suppressing the vote. HBC responded by addressing him as “Donald” and explaining — using a British spelling for rumor — how rumors work, especially on social media:

people aren’t rational. a significant proportion of people who hear the rumour will NOT hear that the rumour has been debunked.

Then, two days later, HBC posted the first of the vote-by-text (as opposed to vote-by-hashtag) memes using the text number that allowed DOJ to track the reach of those that Mackey would send on November 2.

As far as is public, prosecutors never charged HBC, in spite of her key role in planning a “hoax” to suppress turnout, but perhaps that’s because she lives in a place where they spell “rumor” with a “u.”

In fact, DOJ didn’t even identify HBC as an unindicted co-conspirator in the complaint against Mackey, though it does describe her actions. The complaint names Anthime “Baked Alaska” Gionet as CC#1 (compare ¶17 of the complaint with this DM), Microchip as CC#2 (compare ¶25 of the complaint with this DM), a troll named NIA4_Trump who got temporarily suspended along with Mackey in November 2016 as CC#3, and a thus far unidentified troll named 1080p who was instrumental in tweaking the memes to more closely mimic Hillary’s graphics as CC#4 (compare ¶22a in the complaint with this DM).

By the time DOJ described the co-conspirators in a footnote to their February 24 filing, however, HBC was first on their list.

As was noted in the government’s initial motion in limine, the government alleges that individuals who posted, shared, or strategized over how to optimize the deceptive images or the messages therein are co-conspirators, and that the statements of those individuals are admissible as co-conspirator statements. These co-conspirators include the Twitter users identified in the Government’s Motion in Limine: @Halleybordercol, @WDFx2EU7, @UnityActivist, @Nia4_Trump, @1080p, @bakedalaska, @jakekass, @jeffytee, @curveme, 794213340545433604 and @Urpochan, the latter of which was described but not specifically identified as a co-conspirator in that submission. The materials provided to defense counsel on September 23, 2023 [sic] include statements from the following additional users which are of a similar character and admissible as co-conspirator statements: @WDFx2EU8, @MrCharlieCoker, @Donnyjbismarck, @unspectateur and 2506288844.

Note this footnote treats a second Microchip account as separate rather than identifying that it knew Microchip was behind both accounts using the same naming convention, “@WDFx2EU#.” This was the period after DOJ had informed Mackey, on February 13, which Twitter handles its cooperating witness had used but before DOJ had publicly revealed that it had a cooperating witness.

When it came to cross-examining Mackey on his claims to know nothing about these people, however, AUSA Erik Paulson prioritized HBC.

Q I’d like to ask you about some of people in that room.

A Okay.

Q Who is HalleyBorderCol?

A That’s someone I just know as HalleyBorderCol. I don’t know anything more about that person.

Q Nothing more?

A Yes.

[snip]

Mr. Mackey, do you remember this page?

A Yes.

Q HalleyBorderCol says: Let’s did depress illegal voter turnout with a nice hoax.

A Yes.

Q POTUSTrump says: I like that idea Haley, but I think we should wait for the day before or the day of, that way they don’t have time to debunk the rumor. Needs to be earlier than that.

The government’s identification of HBC in the complaint, or not, doesn’t matter legally. What mattered legally for the purpose of the trial was that Judge Ann Donnelly ruled the government had presented sufficient evidence of a conspiracy to treat HBC as one for the purposes of hearsay exception rules; Donnelly ruled that all the accounts listed above were.

But DOJ’s decision to charge Mackey alone, and to make Microchip plead guilty after a series of proffers as part of a cooperation agreement, suggests DOJ exercized discretion to treat HBC and a few other key players differently, even while both at trial and in the development of the offending meme she had a larger role.

She certainly had a larger role in the text-to-vote meme itself than Baked Alaska, for example.

Baked Alaska is all over the trolling effort. He congratulates Mackey for being named the 107th most influential political tweeter of 2016, as everyone else did too, in March 2016. He warns against “roast[ing]” Bernie supporters, “cuz the more hatred they have for hillary the more likely they will join us in national or not vote at all,” in the same April 20, 2016 chat where he discusses the “new smart team” Trump has hired. On April 23, 2016, Baked Alaska asked Mackey via DM if he wanted to join the “Trump HQ Slack for more coordinated efforts?”

In May, Mackey asks for his help making #InTrumpsAmerica go viral. Baked Alaska boasts on July 24 that “we are controlling the narrative this is amazing.” In October, Gionet reminds other trolls to “make [minorities] hate hillary.”

At least as exhibited in the trial evidence, Baked Alaska’s sole overt act in the deceptive tweet involves instructing 1080p to “make a text message version of” the Tweet calling to vote remotely (it’s unclear whether Gionet calls 1080p or jeffytee “Gabe”). The tweets for which Mackey was convicted may have been his idea, but others executed the idea.

But it was enough for others to credit him with some responsibility for Trump’s win on November 9, 2016. “Tonight we meme’d reality,” Baked Alaska said after the win.

One more person’s role is of interest. Andrew Auernheimer — better known as Weev — was all over the earlier FedFreeHateChat, which came in for Mackey’s direct comments rather than as statements of co-conspirators. Weev seems to have spent the end of 2015 helping Mackey fine-tune his trolling skills. “Thanks to weev I am i[m]proving my rhetoric,” Mackey said in FFHC on November 19, 2015. “I just hope all this shitlording goes real life.”

Weev’s involvement is of particular interest because he was helping to run the Daily Stormer in pro-Russian territories. He was always one of the most obvious potential ties between Trump’s trolls and Russia. That’s one reason this paragraph, from the government’s motion in limine, reads very differently if you know “the Twitter user” in question is Weev.

On or about December 22, 2015, the defendant communicated with others in a Twitter direct-message group about sharing memes that would suggest certain voters were hiding their desire to vote for the defendant’s preferred Presidential candidate. The defendant stated, “it’s actually a great meme to spread, make all these shitlibs think they’re [sic] friends are secretly voting for Trump.” Several weeks later, on or about January 9, 2016, the defendant and another Twitter user discussed their Twitter methodologies. After the defendant stated that “Images work better than words,” the user stated “we should collaboratively work on a guide / like, step by step, each major aspect of the ideological disruption toolkit . . . ricky you could outline your methods of commentary / we could churn out a book like this, divide profits / and hand people a fucking manual for psychological loldongs terrorism.” The defendant responded “Yes… I think that would be good / I could do another chapter on methodologies from the ads industry– shit like my twitter ads stuff was very much the result of careful targeting, nobody’s managed to replicate it properly since.” Shortly thereafter, the Twitter user stated, “honestly at this point i’ve hand [sic] converted so many shitlibs that like, 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.” The defendant responded, “I think you’re right.”2 These statements, and those like them, are admissible and relevant to show, among other things, that the defendant’s intent in spreading memes was to influence people.

But Weev doesn’t appear, at least under the handle Rabite, after he celebrated the efficacy of the trolling on the day Trump sealed the nomination.

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,” Mackey responded. But for Weev, that’s where his appearance in the trial evidence, under the moniker Rabite, at least, ended.

Weev’s absence — under his Rabite moniker, anyway — is all the more striking given that per a bench conference at trial, the search warrant specified that the specific meme Mackey ultimately sent out came from The Daily Stormer.

The search warrant also noted that the one that the defendant sent out was available on the Daily Stormer website, the American Nazi newspaper, as early as October 29, which is a couple days before the defendant did.

That is, Weev may have played a direct role in creating the meme in question. But unless he was posting under the moniker 1080p (who may have been referred to as “Gabe” by others), he was not credited with doing so in evidence presented at trial.

That differential treatment — and the changed focus on HBC in the trial as compared to the complaint — is one reason, but in no way the only reason, I’m interested in some other investigative details:

  • Details about Microchip’s discussions with the government
  • The timing of interviews with Hillary Clinton staffers and its disclosure to Mackey
  • The decision not to call an investigative agent to the stand

According to a motion in limine dispute, an FBI agent named Jamie Dvorsky attempted to interview Mackey in Florida after his identity was disclosed in April 2018, which is when the FBI opened the case. Mackey first raised this issue on March 11 after he received materials on potential witnesses.

According to reports of FBI Special Agent Jamie Dvorsky, marked by the government as 3500-JAD-2 and 3500-JAD-17 (submitted under seal herewith), she and another agent traveled to Florida in 2018 and met Mr. Mackey at a Panera Bread in Boynton Beach. Mr. Mackey told her that he would be happy to speak to the agents if they would first contact his attorney, Richard Lubin. Mr. Lubin thereafter contacted Agent Dvorsky and said that Mr. Mackey would “100% cooperate and talk to the FBI.” Thereafter, Mr. Lubin did not contact the FBI nor return multiple calls.

When the government responded two days later, they described planning to call Dvorsky to explain how and when the FBI first opened the investigation.

As discussed with defense counsel, the government is calling Special Agent Dvorsky to testify as to when the government learned that the defendant was the user of the accounts that distributed the deceptive images and the initial investigative steps that were taken in the wake of that revelation. The chronology matters. As noted above, to the extent the defendant claims or suggests that the prosecution was somehow politically motivated, the fact that the government first identified the defendant in 2018 and began its investigation at that point is relevant in that regard. The government does not intend to elicit from Special Agent Dvorsky testimony that the defendant offered to cooperate with the FBI, but never followed through on the offer. Rather, to the extent that Agent Dvorsky will communicate the defendant’s statements at all, her testimony will be limited to the defendant’s telling her that he worked with Paul Nehlen.4 Accordingly, the limited testimony the government does intend to elicit is simply not prejudicial and does not warrant preclusion

They never did call her, though.

The FBI contacted Microchip, now their cooperating witness, around December 17, 2018 about a perceived threat he had made online in July 2018, but that may have been about a different case. Microchip then contacted Baked Alaska to inform him about the FBI visit, suggesting he has or had resilient ties to Baked Alaska.

Megan Rees, the FBI agent who ultimately obtained the arrest affidavit, was one of two FBI agents who visited Microchip’s home in December 2020, this time in conjunction with the Mackey case. When she wrote up that affidavit, she named Microchip, like Baked Alaska and 1080p, only as an unindicted co-conspirator.

But after Microchip saw that complaint, he reached out to the FBI via his lawyer.

Q Sir, my question to you is this: On February 4, 2021, did you reach out to Agent Rees and tell her that you had become aware that the person you knew as Ricky Vaughn had been arrested, and you believed you had information that would be useful to the FBI. Did you say that to Agent Rees?

[snip]

Q My first question is: When you reached out to Agent Rees on February 4, 2021, did you tell her that you had learned the person you knew as Ricky Vaughn had been arrested recently? Did you say that?

A Yes.

Q And in addition, did you tell her that you believed you had information that would be useful to the FBI?

A Correct.

Per his testimony on cross-examination, Microchip made a formal proffer around April 22, 2021.

At it, he claimed that the intent wasn’t so much to dissuade people from voting but just to push out as many messages as possible. He also claimed the chatrooms weren’t all that organized.

Q Sir, I’m going to ask you a question. Forgive the profanity in advance, but have you ever heard the term “shit posting”?

A Yes.

Q Do you recall telling the Government at this meeting that the focus was not on one message, it was on pushing out as many — as much content as possible?

[snip]

Q Do you recall telling the Government at that meeting that the participants in the chats were not as organized as many people believed?

A Yes, I remember saying that.

Q Do you recall telling the Government that there was no grand plan around stopping people from voting?

After several continuances and a revised memory of how organized things were, Microchip pled guilty on April 14, 2022. He had a meeting in advance of the disclosure of a cooperating witness on February 23, 2023. This post describes how Microchip testified to wanting to “infect” everything.

The timing of Microchip’s proffer is important, though, because it might explain any change in focus between the complaint and the evidence as presented at trial. That is, it might explain why prosecutors focused much more closely on HBC than Baked Alaska at trial.

But it also might explain any new investigative direction that DOJ took after first speaking with Microchip.

Mackey’s lawyer, Andrew Frisch (who has also represented VDARE), several times expressed curiosity about why the government used a summary FBI agent largely uninvolved in the case to introduce all the Twitter evidence, rather than putting the FBI agent who led the investigation, Megan Rees, on the stand.

MR. FRISCH: Can I put something on the record, unrelated to our prior conference. I intended at the close of the Government’s place to put a placeholder. But because of the way it worked, the jury was here, I couldn’t do it. I have been concerned as the trial has gone on that no case agent has testified. Maegan Rees didn’t testify, my friend Agent Granberg didn’t testify, and ultimately Agent Dvorsky did not testify. At one time or another. The key agent I’m concerned with is Agent Rees.

[snip]

MR. FRISCH: I’m mostly concerned about why no case agent testified and specifically whether there’s a reason, a bad reason, why Agent Rees’s 3500 has not been provided, obviously apart from when she attended Microchip interviews and things like that. I just wanted to put a placeholder, I’ll discuss it with the Government, I don’t want to hold things up. I wanted to register an objection at my earliest opportunity so if I can come back to it, if necessary.

[snip]

MR. FRISCH: I don’t know what she has, I don’t know what she said, I don’t know what’s in the reports. It’s just in my experience, it’s highly unusual that a trial happens without the case agent testifying, without any case agent testifying.

He’s not wrong, really, to question why the government didn’t use a case agent. Often, the government does so to keep someone who knows information inconvenient to the prosecution off the stand. For example, Durham may have used a paralegal in the Michael Sussmann case because the case agents had discovered some of Durham’s claims about the Alfa Bank anomaly were bullshit by the time of trial. Mueller used an agent focused on the obstruction part of the investigation in the Stone trial, who thereby could honestly say she didn’t know some of what DOJ subsequently discovered about Roger Stone’s actual ties to Russia when asked.

But it’s often (as it was in the Mueller investigation), done to hide parts of an ongoing investigation — something that a movement lawyer would surely have some interest in.

In this case, there are two obvious reasons to keep case agents off the stand.

The first is — as was revealed to Frisch after his opening argument — EDNY had a series of 18 interviews with Hillary’s campaign, between March 2021 and January 2023.

As Frisch laid out in a letter to the judge, after he opened, the government revealed those interviews, which, he claimed, he should have obtained.

The government’s second witness was Jess Morales Rocketto. On March 10, 2023, the Friday before the start of jury selection, the government first identified Ms. Rocketto as a witness. Thereafter, during jury selection, the government disclosed a report of the government’s then-recent interview of Ms. Rocketto, without disclosing any of eighteen reports of the government’s interviews of seventeen other representatives of the Clinton Campaign, conducted between March 2021 and January 2023. Ms. Rocketto testified that she was the Clinton Campaign’s digital organizing director; learned of vote-by-text memes using fake graphics during the final days of the campaign; found the memes’ misappropriation of the Clinton Campaign’s graphics and hashtag “#imwithher” to be such a “big deal” and so “jarring” that “you have to make a decision about what to do about something like this.” T 76, 78, 84-85, 90-92. See T 86 (The Court: “If you can avoid asking like terribly open-ended questions to this witness . . . . she has a lot to say, which is fine, but we’re never going to finish.”). On defense counsel’s subsequent cross-examination of Lloyd Cotler (a representative of the Clinton Campaign called principally to testify to steps to remediate the memes’ reference to a short code), defense counsel confirmed an unelaborated statement in the government’s report of Mr. Cotler’s interview that a Clinton Campaign worker named Amy Karr monitored social media, including 4chan [T 103], on which Mr. Mackey had seen the memes that he then shared.

The following morning, the government provided defense counsel with two reports of its interviews of Ms. Karr. At the lunch break, defense counsel requested that the government provide reports of all the government’s interviews of representatives of the Clinton Campaign. Highlights of the reports, summarized in the draft stipulation, contradicted the testimony and inferences elicited by the government from Ms. Rocketto and Mr. McNees. For example, Alexandria Witt, Senior Social Media Strategist, told the government that she referred vote-by-text memes to executive staff, but the general response was lackluster as though – – directly contradicting the very words used by Ms. Rocketto – – “this was no big deal.” Diana Al Ayoubi-Monett, another Senior Social Medical Strategist, said that she was mocked for taking “text-to-vote” memes seriously. Timothy Lu Hu Ball, a senior security expert, said that senior officials of the Clinton Campaign did not take the vote-by-texts seriously. Ms. Witt and Ms. Karr both were aware of and monitored “shit-posters” on social media supporting Clinton’s opponent. Memes containing misinformation about voting began to appear about three months before Election Day; there was no single influencer behind them; and senor staff, including campaign chair John Podesta, did not take concerns about the memes seriously. According to Matthew Compton, Deputy Digital Director (possibly Ms. Rocketto’s principal underling), the “#imwithher” hashtag had been somewhat commandeered with “unbelievable” amounts of irrelevant information, rendering it not “particularly useful.” Multiple witnesses told the government about records created by the campaign to track misinformation on social media (about which Mr. Mackey had been unaware and never attempted to subpoena or investigate). [my emphasis]

There’s no reason to believe these interviews were primarily pre-trial preparation. As the government explained in a bench conference, the government only handed them over after hearing what Mackey’s defense was in Frisch’s opening.

MR. PAULSEN: Your Honor, part of the reason we provided the 302s we did, is that we heard his opening argument, at the same time everyone did, and he made something like that argument. We turned them over at that point because it seemed like he was interested in that.

But even assuming Frisch’s description is accurate, what the Clinton campaign thought about Mackey’s trolling doesn’t change Mackey’s intent.

Which is what Judge Ann Donnelly ruled in the bench conference: this wasn’t Brady material, and besides, Frisch at that point still had several remedies available to him, such as calling the Hillary intern who identified some of the disinformation targeting Hillary on the dark web much earlier than anyone else.

THE COURT: Let me stop you there. I think I understand what you’re saying.

With respect to the issue — the e-mail telling people they could text to vote was not a big deal to the Clinton campaign. Why is that Brady material what their opinion of it is?

MR. FRISCH: Because they called Ms. Rocketto to essentially testify how horrible this was. How something had to be done right away. How she recognized this as a problem. That it specifically, in her view, was either targeted to or designed to affect or had the affect of effecting Latin American and African American voters. She was a terrific — she’s very charismatic and had a lot to say, that’s fine —

THE COURT: Why is someone —

MR. FRISCH: But I couldn’t cross-examine her with this information.

THE COURT: But you opened on it.

MR. FRISCH: But I didn’t know that the Clinton campaign agreed with my defense.

THE COURT: But who cares what their opinion is. The Clinton campaign can’t testify in court about what they think about something, any more than they can come — you didn’t object to it, she did say something was sneaky, I think I stopped her at some point. A particular person’s opinion of what the case is, I don’t understand how that is Brady material.

[snip]

[I]t’s the Court’s view that it’s not Brady material because it amounts to really, the essence is what the Clinton campaign thought about it, and that’s just not relevant. In fact, their opinion of it is no more valid than their opinion would be about whether Mr. Mackey is guilty or not. That’s not relevant, to the extent that’s the claim.

In his letter demanding an acquittal because of all this, Frisch explained that rather than calling any of these people as witnesses, he drafted a stipulation that the government rejected, which he then just emailed to Chambers.

Defense counsel emailed it to the Court (rather than electronically file it with a letter) when an issue unexpectedly arose early on the morning of the last day of trial about the government’s timely receipt of the draft stipulation; exigencies of the imminent trial day made preparation and filing of a letter impractical. But it would otherwise have been electronically filed to show that Mr. Mackey’s attempt at a mid-trial remedy for the government’s violation of Rule 5(f) and Brady had been rejected (though the government agreed to stipulate to a narrow portion thereof), thereby filling in the record and helping to show the consequent irreparable prejudice.

The letter mostly seems like a bid by a movement lawyer to turn the Mackey prosecution into the second coming of the Durham trial, an opportunity to investigate the victim of a bunch of malicious crimes in the 2016 election, in part to distract from the heinous things that Trump and his allies were doing.

All these interviews took place after the indictment and most presumably took place after Microchip first met with the government in April 2021.

Frisch seems uninterested in the obvious question presented by the revelation of 18 interviews with the Clinton campaign about disinformation targeting her 2016 campaign that went viral after being drafted on the dark web: Why EDNY was conducting these interviews, continuing well after any 5 year statute of limitations would have expired.

I don’t know the answer to that, but I bet the case agents do, which might be a good reason to keep them off the stand.

The other obvious reason to keep case agents off the stand has to do with knowledge of Microchip’s ongoing cooperation, which as the original motion revealing his cooperation describes, is something “beyond the scope” of this case.

In addition, since entering into the cooperation agreement, the CW has provided assistance to the FBI in other criminal investigations beyond the scope of this case. The CW is presently involved in multiple, ongoing investigations and other activities in which he or she is using assumed internet names and “handles” that do not reveal his or her true identity. The CW has not interacted with any witness, subject, or target in these investigations and activities on a face-to-face basis, and the government has no reason to think that the CW’s true identity has been compromised as a result of this work.

There’s no evidence that the ongoing interviews with the Clinton campaign about disinformation the dark web has to do with Microchip’s ongoing cooperation. There’s not even any evidence that the case agents in Mackey’s case are the ones he worked with subsequently; on the stand, he suggested he had not met with Agent Rees since his guilty plea.

Frisch’s job is to claim all this is about Douglass Mackey and it also likely serves his interests to drum up a false scandal about Hillary by publicly releasing these 302s.

But there’s a whole bunch of tangentially related issues that didn’t show up in this trial. There’s a bunch of this that isn’t about Douglass Mackey.

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Glenn Greenwald Keeps Bitching about a Law Requiring Notice If You’re Funded by Russian Spies

The other day, DOJ announced charges in two cases related to FSB efforts to recruit in the US and overseas. Neither set of allegations was entirely new. But what got added to the allegations is of some interest.

Certainly, the fact that American citizens got charged in a Florida case for not disclosing that their political activism was funded, in part, by the FSB, seems to be of interest to Glenn Greenwald. The charges, along with a few overt acts, and the names of two FSB colleagues are what got added to an earlier indictment against the FSB handler, Aleksandr Ionov, filed last July.

Glenn won’t shut up about those charges, making appearances on Glenn Beck and Tucker Carlson’s show so all of them could lie about why members of the African People’s Socialist Party were charged.

The members of the APSP weren’t charged because they disagree with Joe Biden. They weren’t charged because they oppose the war in Ukraine.

They were charged because after one, Omali Yeshiteli, went on an all-expenses paid trip to Russia in 2015, the group started getting funding and completing requests for their FSB handler, Aleksandr Ionov, who ran a front called the Anti-Globalization Movement of Russia. For example, shortly after the trip, Ionov wrote the group and asked them to start a petition against the genocide of the African people in the US so that AGMR could start using it as propaganda. And when Russia needed someone to legitimize the “Donetsk People’s Republic,” in 2020, Ionov contacted the Floridians to publicly do so. And when Russia wanted to protest Twitter’s restrictions on Russian disinformation after the Ukraine invasion, Ionov flew one of the Americans to San Francisco to make it happen.

Russia wanted to be able to point to a certain kind of dissidence in the US, so they paid money to help sustain it. And the Americans didn’t disclose that they knew they were working with agents of Russia.

Glenn thinks only rich people like Tony Podesta should be held to foreign agent laws (Podesta wasn’t charged under a different law, FARA, for hiding his ties to a Ukrainian front group that Paul Manafort set up because he was paid by Manafort, and in any case, Glenn didn’t think much of Manafort’s charges for hiding the ties in real time). Glenn doesn’t think other people should have to disclose if they’re taking money — after they go on trips to Russia and start spouting Russian talking points non-stop from that point forward — from Russian spies.

It’s an interesting cause for Glenn and Tucker — who has his own curious tale about Russian ties — to champion.

Which brings us to the other case.

It charges Natalia Burlinova with attempting to do what Ionov succeeded in doing: getting Americans and others to unwittingly act as agents of Russia by recruiting them through her Russian government backed NGO, Creative Diplomacy, or PICREADI.

Burlinova was sanctioned — along with Ionov — last year, which suggests they may have a tie, perhaps the FSB officer they both report to.

Since she was already sanctioned, which would likely prevent her from traveling in any case, this complaint serves largely as a speaking document, which allows everyone she has had prior association with to understand her ties to the FSB.

For example, the complaint provides a detailed description of a trip she made to the US in 2018 and the emails the American participants sent to Burlinova after meeting with her. It doesn’t provide the content of the emails — but it makes those who sent them aware that the FBI knows what got sent.

Of even more interest is an article a former participant of Burlinova’s event wrote in 2020. Without explaining how he received it, Burlinova’s FSB handler sent it to her and said it’d be a really huge deal if it were published.

On October 30, 2020, the FSB Officer forwarded to Burlinova an article written by a participant in the 2019 Meeting Russia program, which argued that Russian malign influence efforts were actually legitimate uses of state soft power. The FSB Officer commented to Burlinova that the article was a huge result for them and would be revolutionary if printed by a named English-language newspaper in the United States and a named English-language newspaper in Europe.

The complaint doesn’t tell us whether it was published (update: it was this one, which was also posted on Burlinova’s site; h/t Alex Finley). But the description would be plenty for its author to understand that it had been the focus of internal discussion at the FSB.

Both these indictments necessarily focus on the US, but both conspiracies are international. Laying out the charges in the US and arresting anyone that would one day be arrested might something the FBI would want to do before sharing the underlying intelligence with allies.

And some of the details describe the greater international success of this effort. One of Burlinova’s biggest successes, for example, came in seeing two former participants in her yearly event elected to parliament.

On October 5, 2018, Burlinova informed the FSB Officer about two prior participants in another Russian public diplomacy program in which Burlinova had been involved. Burlinova reported that the two prior participants, both of whom resided in a European country, were running for public office. Burlinova stated that these were the results that take years to come into fruition. The FSB Officer responded that this was truly the result for which they were striving and requested that Burlinova provide more information about these prior participants and the election for public office so that the FSB Officer could prepare a report. The two candidates ran for parliamentary positions; one won in that election, and the other was elected subsequently to parliament.

Again, we don’t know which members of parliament these are and in which country, but others in their country likely recognize it.

A report in the WaPo — the timing of which may be coincidental or may explain why DOJ rolled out the charges earlier this week — describes the stakes. It describes the Kremlin’s involvement in the red-brown coalition opposing the Ukraine war in Germany.

The coming together of political opposites in Berlin under the banner of peace had been percolating for months, though the union remains ad hoc and unofficial. But marrying Germany’s extremes is an explicit Kremlin goal and was first proposed by senior officials in Moscow in early September, according to a trove of sensitive Russian documents largely dated from July to November that were obtained by a European intelligence service and reviewed by The Washington Post.

The documents record meetings between Kremlin officials and Russian political strategists, and the Kremlin’s orders for the strategists to focus on Germany to build antiwar sentiment in Europe and dampen support for Ukraine. The files also chronicle the strategists’ efforts to implement these plans and their reports back to the Kremlin. The documents do not contain any material that records communications between the Russian strategists and any allies in Germany. But interviews show at least one person close to Wagenknecht and several AfD members were in contact with Russian officials at the time the plans were being drawn up.

Like the Florida effort, the German one features manifestos written by the Kremlin.

The aim of a new political formation, according to a document dated Sept. 9, would be to win “a majority in elections at any level” in Germany and reset the AfD to boost its standing beyond the 13 percent the party was polling at then. The reset, laid out among the documents in a proposed manifesto for the AfD that was written by Kremlin political strategists, includes forging the AfD into the party of “German unity” and declaring sanctions on Russia as counter to German interests.

[snip]

It is not clear from the documents how the political strategists working with the Kremlin attempted to communicate with members of the AfD or other potential German allies about Moscow’s plans. But soon after the Kremlin gave the order for a union to be forged between Wagenknecht and the far right, AfD deputies began speaking in support of her in parliament and party members chanted her name at rallies. Björn Höcke, chairman of the AfD in Thüringen in eastern Germany, publicly invited her to join the party.

This is the same kind of effort — but much more impactful — as the Ionov one was fostering in the US (though the right wing secessionist described in it as an unindicted co-conspirator, understood to be Louis Marinelli, was not arrested).

And it’s the kind of horseshoe leftist that Greenwald once posed as before he joined up with Tucker full time … most recently to claim these socialists were arrested for their dissidence and not because they were hiding ties with Russian spies.

Update: RFERL did a bunch of interviews with people who attended Burlinova’s program, some who were shocked about the FSB tie, some who were quite blasé about it.

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Ben Smith Still Doesn’t Understand He Peddled Likely Russian Disinformation

I’m not sure whether it was just chance or whether Ben Smith knew in advance that BuzzFeed would announce the closure of its news division on the same day that he posted an account of publishing the Steele dossier. His account doesn’t explain whether the cost of defending against serial Russian lawfare for publishing the dossier made it harder, in the aftermath, to pay journalists’ salaries, but it’s a question that deserves an answer.

But Ben’s account — which focuses, as most of Ben’s writing does, on insider news media stuff — makes two grave errors.

The first is that — even though he quotes Pete Strzok describing how the dossier framed the Russian investigation, thereby inoculating Trump against accountability for the very real scandalous behavior he had with Russia — Ben falsely suggests that the dossier was the genesis of the public concern about Trump’s ties to Russia.

We had embedded it as a PDF, which meant that it could travel context-free, without our article’s careful disclaimers, and that’s exactly what happened. I watched uneasily as educated Democrats who abhorred Trump supporters’ crude rants about child sex rings in Washington pizza joints were led by the dossier into similar patterns of thought. They read screenshots of Steele’s report; they connected the dots. They retweeted threads about how the plane of a Russian oligarch—previously unknown to them, now sinister—had made a mysterious stop in North Carolina.

[snip]

It had blown wide open a Russia investigation and forced voters to ask just why Trump seemed so friendly with Vladimir Putin.

[snip]

An FBI agent who investigated Trump, Peter Strzok, later said the dossier “framed the debate” in a way that ultimately helped Trump: “Here’s what’s alleged to have happened, and if it happened, boy, it’s horrible—we’ve got a traitor in the White House. But if it isn’t true, well, then everything is fine.”

The notion that Democrats and national security hawks weren’t concerned about Trump’s Russian ties until January 10, 2017 is ludicrous. The effort to understand Trump’s Russian ties went into high gear on July 27, 2016, when he encouraged Russia to attack his opponent and floated recognizing the annexation of Crimea. It never stopped thereafter.

And, as I had to explain patiently to Columbia Journalism Review, even the intense press reporting on Trump’s real ties to Russia started before January 10, because the WaPo was already onto Mike Flynn’s lies about his outreach to Sergey Kislyak by then. Strzok’s point, I think, is that publishing the dossier made it easier for Trump to get away with attempting to undermine sanctions on Russia and all the rest because at least undermining sanctions wasn’t a pee tape.

No one needed the dossier to heighten concerns about Trump’s fondness for Russia. That’s a myth created by Russiagate [sic] peddlers trying to distract from the very real scandal of Trump’s ties to Russia.

Ben’s other silence, though, is irresponsible.

As I have noted, as the Carter Page IG Report makes clear, and as Republicans in Congress have come to agree, there’s abundant reason to believe that Russians started feeding Igor Danchenko with disinformation from the start. Lawyers for Oleg Deripaska were likely the client for a Steele collection effort targeting Paul Manafort in March 2016. According to declassified footnotes in the IG Report, Deripaska likely learned of the dossier project before the second report. And he demonstrably played a double game throughout 2016, getting Steele to feed Bruce Ohr damaging claims about Manafort at the same time as his aide, Konstantin Kilimnik, was exploiting Manafort’s legal and financial vulnerability to get information on the Trump campaign and a commitment to help carve up Ukraine.

This dynamic is utterly central to understanding the dossier. Someone who played a central role in the 2016 Russian operation knew about the dossier project, and had means to know of Danchenko’s collection network, almost from the start. And that makes it likely that at least some of the content of the dossier was tailored to be wrong in ways that benefitted the Russian operation.

Ben’s silence about the likelihood that he unwittingly peddled Russian disinformation is all the more embarrassing given how his post transitions directly from suggesting that John Durham had “poked holes in Steele’s sourcing” to noting that there was something that Trump actually was lying to cover up: the impossibly lucrative Trump Tower deal in Moscow.

Simpson then told Ken something he didn’t know: Steele had been working the case of the president-elect, Donald Trump, and he’d assembled evidence that Trump had close ties to the Kremlin—including claims that Michael Cohen, one of his lawyers, had held secret meetings with Russian officials in Prague, and that the Kremlin had a lurid video of Trump cavorting with prostitutes in the Ritz-Carlton Moscow that would come to be known as the “pee tape.”

[snip]

But although the biggest-picture claim—that the Russian government had worked to help Trump—was clearly true, the release of Special Counsel Robert Mueller’s investigation in April 2019 did not support Steele’s report. Indeed, it knocked down crucial elements of the dossier, including Cohen’s supposed visit to Prague. Internet sleuths—followed by a federal prosecutor—had poked holes in Steele’s sourcing, suggesting that he’d overstated the quality of his information.

And there had always been a more mundane version of the Trump-Russia story. Trump was the sort of destabilizing right-wing figure that Putin had covertly supported across Europe. Trump’s value to Putin was related not to a secret deal, but to the overt damage he could do to America. And Trump, BuzzFeed News’s Anthony Cormier and Jason Leopold discovered, had a more mundane interest in Russia as well: He had drawn up plans to build the biggest apartment building in Europe on the banks of the Moskva River. The Trump Organization planned to offer the $50 million penthouse to Putin as a sweetener.

That real-estate project wasn’t mentioned anywhere in the dossier. Yet it seemed to explain the same pattern of behavior, without the lurid sexual allegations or hints of devious espionage.

The man responsible for publishing both the Steele dossier and the best reporting on the Trump Tower Moscow deal seems not to understand that false claims about Michael Cohen in the dossier were likely there because of the Trump Tower deal.

Ben invokes what Durham’s failed prosecution revealed about (what Ben mistakenly claims to be) Danchenko’s sourcing, without laying out the import of Danchenko’s ties to Charles Dolan: Dolan gave the source of the Cohen claims in the dossier, Olga Galkina, direct access to Dmitri Peskov, the one man in Russia with proof that when Trump falsely claimed in July 2016 that he wasn’t pursuing real estate deals in Russia, he was lying. Even Durham implied this was the import of Dolan’s relationship with Galkina! Dolan was important because he put Galkina, who was sending dirt on Trump to her childhood buddy, Igor Danchenko, in close touch with Peskov.

The source of the claims that Cohen had secret communications with the Kremlin in the dossier had direct ties to the one guy in Russia, Peskov, who provably knew that Cohen really did have secret communications directly with the Kremlin that he and Trump were lying to hide.

Once Trump publicly lied about chasing real estate deals in Russia in July 2016, it made the notes Peskov’s aide took, showing that Cohen had agreed to work with sanctioned banks and a retired GRU officer as fixer in order to chase one such deal, far more valuable to Russia, particularly after it became clear in the US that the GRU was behind the hack of Hillary. So it is likely not random at all that someone with direct access to Peskov told Danchenko that Cohen — who was lying to hide his real direct contact with the Kremlin during the election — had other, more damning direct contact with the Kremlin. It raised the stakes of Trump’s and Cohen’s lies. It raised the value of Russia’s silence about the earlier conversation with Peskov. To the extent that everyone kept their shared secret — and they did for the entire first year of the Trump Administration — it provided cover for the lies that Cohen would tell to Congress.

From the start, the FBI had warnings that the Cohen in Prague story was disinformation. And it just so happens that the story, which came from someone with ties to Peskov, repeated a true fact that Peskov knew: that Cohen really did have secret communications with the Kremlin, communications that had already compromised Trump and Cohen with Russia before the hacking even started. If the Cohen in Prague story was disinformation (and, again, FBI got warnings it was the day after Ben published the dossier), it was disinformation that made that earlier compromise more powerful.

And Ben Smith, who played a key role in disseminating that likely disinformation, appears to not even understand that, much less want to reflect on his role in being an unwitting mule for Russian disinformation.

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“I wanted to infect everything:” The Curiously Expert Pathologies of FBI Informant, Microchip

I’ve now read the substantive transcripts in the trial of Douglass Mackey, the far right troll who was convicted last month of conspiring to violate the voting rights of Hillary voters in the 2016 election.

As I noted in my first write-up of the verdict, the case has lessons that remain quite pressing, as loud boys on, who own, and claim to be interested in regulating Twitter attempt to make the site more welcoming to far right election disinformation. I plan to write that up.

Before I do, though, I want to talk about Microchip, the cooperating witness who pled guilty to the same conspiracy as part of a cooperation agreement in 2022.

We first learned the FBI had a cooperating witness on March 8 of this year, when Judge Nicholas Garaufis ordered the government to unseal its request to keep its informant’s identity secret. The filings in that discussion did not describe much about the timing or scope of his cooperation, other than that those he is targeting have the technical skills that might lead to him being hacked if he were discovered.

The fact of the CW’s cooperation is sure to be seen by many in that community as a profound betrayal, with the result that, at a minimum, online harassment is bound to follow the CW should his or her identity become a matter of public record. That harassment can have negative consequences in and of itself. In addition, to claim that intense online attacks do not endanger a person’s physical safety is to ignore the reality of our current world, as evinced in common newspaper headlines. See, e.g., Sheera Frenkel, The Storming of Capitol Hill Was Organized on Social Media, N.Y. TIMES, Jan. 6, 2021, available at https://www.nytimes.com/2021/01/06/us/politics/protesters-storm-capitol-hillbuilding.html; Eric Lipton, Man Motivated by “Pizzagate” Conspiracy Theory Arrested in Washington Gunfire, N.Y. TIMES, Dec. 5, 2016, available at https://www.nytimes.com/2016/12/05/us/pizzagate-comet-ping-pong-edgar-maddisonwelch.html. It is simply (and regrettably) a fact of the times that many acts of politically motivated violence in current society arise from campaigns of online harassment.

Beyond the risk to the CW, the potential consequences include the disruption of the CW’s ongoing work with the FBI. It is certainly true that the nature of this work is online and anonymous, but, if the CW’s name and location were to become known, the CW would become a target for all who believe that they might be under investigation (whether they are or not). Given the technical proficiency of those with whom the CW associates, it is not difficult to envision multiple scenarios in which the CW’s online work could be jeopardized by way of a cyberattack (at a minimum).

Microchip’s identity can’t be that well protected. As soon as this pre-trial discussion was posted, Mackey’s lawyer, Andrew Frisch, contacted the government to tell them he had learned of the informant’s real identity independently (possibly via Anthime “Baked Alaska” Gionet) and at least one researcher I’ve spoken with since seems to have a plausible theory as to his real identity.

But I assumed, based on those filings, that Microchip had flipped in advance of Mackey’s arrest.

The actual details are more complicated — and a bit unpersuasive, as AUSA William Gullotta got Microchip to explain in his testimony on March 23.

The thing I find most unbelievable is Microchip’s claim that he only joined Twitter — in any capacity — in July 2015, just months before he started playing a central and expert role in expanding the reach of anti-Hillary trolling.

Q When did you start using Twitter?

A Back in around July of 2015.

Q When did you start using the alias Microchip on Twitter?

A Anywhere from November 2015 through March 2016, somewhere around there.

I find this claim so surprising because, in his description of his trolling, Microchip described the kind of Twitter expertise that normally takes years to build. And two 2017 articles celebrating Microchip’s expertise (Buzzfeed, Politico) describe that he exhibited expertise from the start of his identity in November 2015.

For example, Microchip described how — the implication is all of his engagement was Microchip — he used various levels of operational security to succeed in creating new accounts anonymously, from the start.

Q When you would set up your accounts, did you set them up anonymously?

A I did.

Q How do you go about doing that?

A Using virtual private networks or proxy IP address services.

Q What’s a virtual private network?

A It’s, basically, somebody who sets up servers across the world in different locations and then you can tie into that service so you appear as if you are at that location and then they feed the internet through that.

Q So it would mask your true location from Twitter?

A That’s right.

Q What other information did you need to provide to Twitter to set up a new account?

A Yes, you need an email address or a phone number or both.

Q So would you just set up anonymous email addresses —

A Oh, yeah, through Google, Gmail, you set up a account and then you set up a Google Voice account and then if you need to change a phone number on that, you pay ten bucks and you get a new phone Number.

His description of various means to exploit Twitter to inject extremist views into the mainstream come off as pathological … but extremely savvy.

Q And why would you want it to be on a trending list?

A Because I wanted our message to move from Twitter into regular society and part of that would be — well it’s based on the idea that, you know, back then maybe — I don’t know, 10 to 30 percent of the US population was on Twitter, but I wanted everybody to see it, so I had figured out that back then, news agencies, other journalists would look at that trending list and then develop stories based on it.

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.

Perhaps most chilling is his description of how participants in this anti-Hillary trolling knew there was nothing to the John Podesta emails they made the focus of their October 2016 trolling.

It didn’t matter. They didn’t care.

They were aiming to cause chaos to hurt Hillary’s chances of winning.

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.

Microchip was actually one of the people who, on October 30, 2016, brought the idea of getting Hillary voters to vote from home from 4Chan to the War Room where anti-Hillary trolls workshopped ways to make it more realistic and ensure that Trump voters wouldn’t also fall for the meme.

Text telling Hillary voters to tweet Hillary on November 8.

And, as he described it, during 2016, Microchip was paying up to $500 a month, between two services, to use bots to expand the reach of right wing trolling.

A Yeah, so one of the first services to kind of seed the followers was a service called Add Me Fast, A-D-D, M-E, F-A-S-T, and that service is kind of like a peer networking service where I would insert the tweet into that service, somebody else would insert a tweet and then, we would retweet each other’s information, right? And you could gain points doing that and, if you accumulate points, you can then expend those on likes, followers, retweets. So that service, I would spend sometimes $300 a month on it. That would give you around a thousand to three thousand retweets, likes, or follows.

[snip]

Another step is using Fast Followerz and that’s F-A-S-T and then F-O-L-L – – Q O-W-E-R-S? A Yeah, but it’s with a “Z,” it’s with a Z at the end. .com, yeah. And that service you spends like, a monthly fee of, you know, a hundred to two hundred, sometimes three hundred bucks a month. And they have control of all the bots, so you don’t actually retweet anything, but you put in your Twitter handle or you put in a tweet that you want to get retweeted, and the service that I would use would be 50 to a hundred followers, something like that, a day, and then those followers would also retweet or “like” my tweets anywhere from three to five times.

No one explained where Microchip came up with $500 a month to make anti-Hillary trolling go viral.

On cross-examination, however, Mackey’s lawyer, Frisch, did get Microchip to admit that when he started cooperating with the FBI on this case in 2021, he had both IRS and bankruptcy debts.

Also on cross, Microchip described that he’s not paid for any of the assistance he provides to the FBI — though as he prepared for the trial in February, he described liking the “structure” working with the FBI provided his life.

Q Without telling us what you’re doing, how often do you do this work for the FBI?

A As often as needed, essentially.

Q You’re not getting paid for it; right?

A That’s right.

Q In fact — in fact, you met with the FBI on or about February 23, 2023, earlier, about a month ago; do you remember that? Mr. Paulson was there, Mr. Gullotta was there. All three prosecutors were there.

A Yeah, I think that was here in Brooklyn.

Q And you asked — you said — you said — do you recall saying that you wanted to keep working with the FBI because the FBI provided a structure that was valuable to you?

[Frisch refreshes his memory with his 302]

Q And that’s what you said; right?

A Yes.

While the trial showed that Mackey was important to the effort to suppress the votes of Black and Latino Hillary voters because he had so much reach, particularly among the more general public in 2016, Microchip — who claims to have been a newB Twitter user in July 2015 — seems to have played a more important role in professionalizing all aspects of the anti-Hillary campaign.

Mackey made these memes popular; Microchip made them work.

Which makes the timeline more curious. By all appearances, the FBI knew of Microchip long before they charged Mackey, starting in 2018 (about eight months after Mackey was first IDed). That’s when he first offered to cooperate with the FBI.

A No. I talked to the FBI about being useful to them when they came and actually talked to me the first time. I discussed with the FBI in the car at my residence at the time. We actually sat in the car outside of my home, and I talked to them about my use of technology and how it could possibly be useful to whatever they might be working on.

They seem to have paid him a visit, as well, as they prepared to charge Mackey in December 2020. But even in spite of the fact that his key role in preparing anti-Hillary memes would have been readily obvious in warrants served on Twitter in advance of charging Mackey, the FBI didn’t charge Microchip along with Mackey in January 2021.

And only as they looked closer after he reached out did they decide they needed him to plead guilty.

Timeline

July 2015: Microchip joins Twitter

November 2015: Microchip starts to create his persona

April 5, 2017: Buzzfeed article quoting Microchip claiming, “it’s all us, not Russians” describing he turned to Twitter in response to November 2015 terror attacks in Paris

August 9, 2017: Politico article describing Microchip as an “early player” in hard-right Twitter chatrooms starting in November 2015

December 17, 2018: FBI questions Microchip about July 2018 online threat

December 15, 2020: Second contacts with FBI, including Megan Rees (about which Microchip tells Baked Alaska), Microchip lawyers up

January 27, 2021: Mackey arrest

February 4, 2021: Microchip’s lawyer reaches out to FBI, broaches cooperation

April 22, 2021: Formal proffer with government

June 2021: First of several agreements to toll statutes of limitation

April 14, 2022: Guilty plea

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The Long List of Reasons Why Potential Intimidation of Proud Boy Jurors Must Be Taken Seriously

Enrique Tarrio has already been investigated by a grand jury in Prettyman Courthouse for any role he had in threats to undermine a criminal prosecution.

That’s important background to Brandi’s report, at the end of her update on the Proud Boys trial, of how much of last week the trial was halted for a series of sealed hearings.

Apart from routine objections launched by the defense to even the most mundane of issues and separate from the unending series of motions for mistrial, last week featured a new and unwelcome variable: the sealed hearing.

A sealed hearing, or a hearing closed to the public and press, is typically held when sensitive or classified matters are being discussed by the parties. Trial days were stopped and started three times last week for sealed hearings that stretched for more than an hour. A press coalition moved to unseal proceedings on at least one of those days but was promptly denied by Judge Kelly for reasons he failed to describe on the record.

Though the exact reason was not disclosed by the court (nor would one expect it to be at this point), CNN reported that multiple sources said the sealed hearing was prompted after a juror raised concerns that she was being followed. Another juror has said they were “accosted” but no further details were available.

As CNN reported, a juror had become worried that someone was following her.

A juror told the court an individual came up to her outside of a Washington, DC, metro station and asked if she was a juror, multiple sources told CNN. The juror told court staff she had seen the same individual on several occasions and thought they might be following her.

Some jurors appear to be split on their views of the incidents, people familiar said. One juror told the judge he thought it was possible the interactions were random and it might have been someone experiencing homelessness in the area.

[snip]

When other jurors found out about the incident, they also began to look out for the individual and had taken at least one picture of the person, according to someone familiar with the matter.

Other jurors also told the court in sealed hearings this week that they had been “accosted,” one source told CNN, though it’s unclear to what extent.

But that report and some of the discussions I’ve seen elsewhere didn’t describe the list of reasons why such threats should be taken seriously.

First, there’s the fact that defendant Enrique Tarrio has already been investigated in this courthouse for his potential role in a threat against a judge. In 2019, Amy Berman Jackson put Roger Stone under oath and asked how he came to post an Instagram post of her with crosshairs on it. He blamed the “volunteers” who had made the meme — one of whom, he named, was Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

[AUSA] Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

As CNN itself later reported, those whom Stone named were subpoenaed to testify about whether Stone had paid them to make threatening memes targeting his judge.

Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

So four years ago, in this very courthouse, Tarrio or his associates were questioned about the circumstances of any participation they had in threatening a judge.

That wasn’t the only role the Proud Boys had in Stone’s witness tampering in that case. The first contact that Randy Credico had with FBI agents investigating 2016 was not the highly publicized grand jury testimony to which he brought his comfort dog Bianca. It was a Duty to Warn contact earlier that summer after the FBI had identified credible threats against him. Those credible threats came from the gangs, including the Proud Boys, that Stone hung out with.

In entirely unrelated news, Credico posted pictures showing him in Moscow last week.

It didn’t end with Stone’s guilty verdict, either. After the verdict, Stone associates got leaked copies of the jury questionnaires. Mike Cernovich started hunting down details on the jurors to retroactively cast doubt on the judgment, and Trump joined in the effort to create a mob. In the wake of those efforts, the jurors expressed fear and some regret at having served.

ALL 12 OF the jurors in the Roger Stone case have expressed fear in court filings on Wednesday. They worry they will continue to be harassed and they fear for the safety of themselves and their families if their identities are revealed.

According to The National Law Journal, jurors cited tweets from President Trump and remarks from conspiracy theorist Alex Jones as the reason “the threats to the jurors’ safety and privacy persist” after the trial ended in November.

One juror wrote, “I try to stay away from danger, but now it seems like the danger is coming to me.”

The jurors are looking to thwart the legal efforts of right-wing conspiracy theorist Mike Cernovich, who is attempting to make public the pretrial questionnaires the jurors filled out. Those questionnaires include jurors’ private information and employment history. The supposed aim of the petition to release the questionnaires is to vet them for bias in hopes of getting a new trial for Stone.

Another juror wrote, “Given the current climate of polarization and harassment, I do not want to draw any attention to myself, my family, or my employer in any way, shape, or form. It is intimidating when the president of the United States attacks the foreperson of a jury by name.”

“I am frightened that someone could harm my family simply because I was summoned and then chosen to serve on the jury,” another juror wrote.

The efforts to intimidate have continued to this case. During a period when Zach Rehl was reportedly considering a plea, Tarrio sent messages to other Proud Boys about remaining loyal.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

Asked about the audio message, Tarrio told Reuters he was simply trying to stop members from speculating that anyone had decided to help prosecutors who are examining the deadly insurrection. “What I was trying to avoid is them turning against each other because of media stories,” he said.

Trial testimony showed that witnesses for the defense — in this case Fernando Alonzo — made threatening comments about Eddie Block for posting the video of the Proud Boys he shot on January 6. [Warning: he used an ableist slur against Block, who relies on a mobility scooter.]

Witnesses for other January 6 defendant have been harassed, as when one January 6 participant confronted Sergeant Aquilino Gonell during the trial of Kyle Fitzsimons on assault charges.

[January 6 participant Tommy] Tatum also tried to confront another officer, this one with the Capitol Police, in a courthouse elevator on Wednesday. He recorded and posted clips of both exchanges with the officers and identified himself outside the courthouse.

U.S. Capitol Police Sgt. Aquilino Gonell, who is also testifying in the trial, said that Tatum told him that he should be ashamed of himself in an exchange near the bathroom inside the courthouse on Wednesday. Shortly after, Tatum got into an expletive-laden confrontation with David Laufman, an attorney for Gonell, after he tried to get into an elevator with Gonell, Laufman and an NBC News reporter.

NBC News separately heard Tatum make negative comments inside the courthouse about how he believed Gonell was acting. Outside the courthouse, Tatum recorded himself accusing Gonell of committing perjury.

The confrontations with Gonell came before the conclusion of his testimony in the case against Fitzsimons, who is accused of assaulting Gonell inside the tunnel. Gonell’s cross-examination by Fitzsimons’ federal public defender will continue on Thursday morning.

“For Sgt. Gonell to be accosted like that, within the courthouse and while he remains a live witness at trial, was outrageous and amounts to witness intimidation that promptly should be addressed by the court as well as the FBI and the Department of Justice,” Laufman, who is representing Gonell pro bono, told NBC News on Wednesday night.

Finally, there are other key players in January 6 — most notably former Green Beret, Ivan Raiklin, who played a key role in Operation Pence Card, the effort to pressure Pence to overturn the election — who lurk around all events associated with January 6. Fellow Proud Boy Gabriel Garcia, in a recent bid to avoid pre-trial release sanctions for going to CPAC after he told Judge Amy Berman Jackson he was coming to DC to observe — among other things — the Proud Boys trial, claimed that he hung out with Raiklin at CPAC to formulate his defense.

While at CPAC, Mr. Garcia was working on his defense to these charges. Indeed, he asked Congressman M. Gaetz, who is from Mr. Garcia’s home state, how and when could his defense team access the 40,000 hours of unreleased video Capitol Police have. Also, he and his counsel met, and conferred extensively with, attorney Ivan Raiklin, whom they may retain for assistance and trial preparation. Mr. Raiklin had spoken to Mr. Garcia on March 2 at CPAC, and he told Mr. Garcia to return the next day with his counsel to discuss at length defense strategies, which they did.

Former Army Captain Garcia is one of the Proud Boys who, in exhibits submitted at trial (here, Gabriel PB), was issuing the most chilling threats in advance of January 6.

None of this makes things easier for Tim Kelly, as he tries to sustain this jury long enough to get through deliberations. It’s not yet clear whether the jurors, watching testimony about the extent to which Proud Boys using intimidation to protect their organization, are seeing shadows, or whether there’s a real attempt to intimidate jurors before they start deliberating.

But given the history of individuals directly associated with the defendants, the threat is not an idle one.

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Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

I really hope that after this and one more post on CJR’s series performing “Russiagate,” I’ll be done for good. CJR is not going to correct, much less retract, a piece that makes clear errors and relies on an undisclosed Russian intelligence product. So all that’s left is to describe what CJR might have done — as editor Kyle Pope has said was his goal — to say something new about the journalism on the Russian investigation, which I’ll do in a follow-up.

But Jeff Gerth said something in last week’s Zoom conference that revealed a(nother) serious cognitive problem with his project. [Since CJR did not record the event, Dan Froomkin downloaded the closed captions to provide an approximation, which I’ve posted here.] When invited to address any question that the moderator, Berkeley School of Journalism Dean, Geeta Anand, had not asked, Gerth addressed why he (claimed to) focus so closely on the NYT.

[Jeff Gerth] 14:03:21
Well, I wanted to address a question that I’ve been asked quite a bit that didn’t come up here, which is why I focused so much on the New York Times.

[Jeff Gerth] 14:03:34
And so my answer to that question is threefold.

[Jeff Gerth] 14:03:39
One. It’s the most influential. No widely read news outlet.

[Jeff Gerth] 14:03:46
Certainly in America, perhaps in the World number 2. It’s the only news organization whose coverage of the Trump Russia matter was repeatedly criticized by the FBI in internal documents that later became public.

[Jeff Gerth] 14:04:11
And obviously, if other news organizations have been criticized by the FBI in documents, I would have reported on that as well.

[Jeff Gerth] 14:04:20
But the New York Times stood out. That regard. So that’s a second reason.

[Jeff Gerth] 14:04:26
And the third reason is, that the times provided a valuable window into their editorial and repertory decision making by allowing a filmmaker into the newsroom for a year and a half, and then you know the fruits of it became a 4 part series that aired in 2

[Jeff Gerth] 14:04:50
1,018, and so that offered invaluable.

[Jeff Gerth] 14:04:57
Raw material for any journalist. Looking at at this story, and a lot of the documentarians work feature.

[Jeff Gerth] 14:05:09
The stories that I was interested in, as well as the stories that the FBI was internally being quite critical of, as well.

[Jeff Gerth] 14:05:19
So those those are the the main reasons why there’s so much in the piece about the New York Times. [my emphasis]

Now, as I have shown, Gerth actually didn’t focus on the NYT. His main villains — those who chased the Steele dossier — published elsewhere. And he ignored almost all of NYT’s Pulitzer winning coverage of Russia. He ignored a September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political interests. He ignored a December 2016 epic that described the Russian hack-and-leak from the DNC perspective, one that completely debunks Gerth’s claims that the hack-and-leak had limited impact on Hillary’s campaign. He ignored other 2016 Pulitzer-winning stories — on Russia hunting down its enemies in other countriesRussia’s use of disinformationthe elite hackers Russia was recruiting, and Russia’s cultivation of the far right — that show the framework with which NYT’s editors came to their 2017 coverage. He ignored a 2017 report on the Russian contacts that Jared Kushner omitted from his application for clearance. He ignored a 2017 report that Trump knew Mike Flynn had been an unregistered agent for Turkey before Trump appointed him to be National Security Adviser. He may or may not have ignored a 2017 story on how Trump bragged to Sergey Lavrov that he fired Jim Comey to end the Russian investigation, but if he mentioned it, he ignored the Comey part, which undermined Gerth’s own wildly generous interpretation of Trump’s related comments to Lester Holt. Gerth included two (one, two) of three stories on the June 9 meeting, but not the one revealing that Trump had drafted Don Jr’s false statement about the meeting. That’s particularly problematic given that Gerth’s treatment of an interview NYT did with Trump (the only story linked in this paragraph that wasn’t part of NYT’s two Pulitzer winning packages) focused on the dossier and not the discussion Trump had with Putin about the topic he used for his cover story about the June 9 meeting.

This would have been a very different series had Gerth really focused on the NYT, as he claims to think he did.

But something Gerth said really surprised me. A key to his purported reason to (claim to) focus on the NYT is that, he describes, the FBI “criticized” NYT’s coverage. NYT was, “the only news organization whose coverage of the Trump Russia matter was repeatedly criticized by the FBI in internal documents that later became public,” Gerth said. The documentary The Fourth Estate focused on, “the stories that the FBI was internally being quite critical of,” Gerth claimed.

He even asserted that the NYT was the only outlet on whose coverage the FBI was closely focused. “If other news organizations have been criticized by the FBI in documents, I would have reported on that as well.” That claim would be quite a shock to Andy McCabe, whose focus on the WSJ coverage of the Clinton Foundation showed up in two DOJ IG Reports and provided the bogus excuse for his firing. And if Gerth had covered the Mike Flynn case with any level of attention, he would also know that the FBI launched an investigation into some of Sara Carter’s inaccurate reporting, which had been fed to her by Senate Judiciary Committee staffer Barbara Ledeen. Bizarrely, in his coverage of the dossier, Gerth made no mention of the sustained FBI discussions of the September 2016 Michael Isikoff story based on Christopher Steele’s reporting, even though they appear in the DOJ IG Report on the Carter Page FISAs; he discussed the Isikoff story at length, but not the FBI effort to confirm whether Steele or Glenn Simpson was Isikoff’s source.

Gerth doesn’t even account for all the discussions of news coverage in Peter Strzok’s texts, though one such text appears to be one of the two instances of “criticism” of the NYT he speaks of.

My own coverage of Strzok’s sustained attention to such stories — as well as Mueller’s attempts to track how investigative subjects worked the press, including Konstantin Kilimnik — is what made Gerth’s claims so confusing to me.

It led me to suspect Gerth totally misunderstood the purpose of Strzok’s annotation, and thereby saw it as something different than the attempts to stave off clear errors in Devlin Barrett or Sara Carter’s reporting, the woefully belated effort to attribute the Yahoo reporting, to say nothing of efforts to learn how Roger Stone and Kilimnik were planting false stories as part of their attempts to cover their tracks.

The FBI has no business in doing press criticism (though it does attempt to correct dangerously incorrect reporting). It does, however, have reason to track classified or investigative leaks and public claims made by subjects of their investigation. Which is what the reams full of records on Strzok’s work show him doing.

In my own coverage of the Strzok annotation on which Gerth hangs most of his claim of FBI criticism of the NYT, I surmised that it arose out of his focus on leaks. Some of it clearly seems to reflect concern that the NSA might be not be turning over everything it had found. And Strzok’s observation that the NYT falsely believed an investigation into Stone had already been opened may have come in handy nine months later, when they learned from Ann Donaldson that Richard Burr had provided Don McGahn that same false information just weeks later. Indeed, the identification of a common false belief shared by the NYT and SSCI’s Chair might explain why DOJ refused to share the most sensitive details of the Russian investigation with the committee.

I asked Strzok why he had done the annotation. He explained: “Critique played no role — nobody’s got time for that. My purpose was to figure out who’s talking and whether they had info they weren’t sharing with us and/or whether they were leaking to shape the public political narrative.”

In other words, it was perfectly consistent with all the other known efforts by the FBI to track public reports on ongoing investigations. It was an effort to understand what partners and subjects of the investigation were sharing with reliable journalists. And while the annotation shows two clearly incorrect beliefs on the part of the NYT — that an investigation into Stone had already been opened and that the FBI specifically already had call record returns on Trump’s associates — many of the other observations could have multiple explanations, including that the NYT learned of ties, later confirmed, between Trump’s people and Russian spooks before the FBI did. If that’s the explanation, NYT should be lauded, not criticized.

Those stories in which NYT was so far ahead of the FBI are absolutely ripe for review. I don’t fault Gerth’s focus on them; I fault his silence and at times misrepresentation about the rest of NYT’s coverage. But if you’re going to look at those four stories (one, two. threefour) alleging many ties between Trump and Russia — if you’re going to imagine you’re anchoring an entire 23,000 word piece on the NYT based on the FBI attention to several of those stories — you need, first, to understand what you’re looking at.

Gerth imagined he was looking at the FBI doing media criticism. In a sense, he may have been right. What distinguishes Strzok’s apparent effort to understand an outlier NYT story from Gerth’s attempt to understand the Russia coverage is that Strzok had a better handle on the known facts and he tried to understand why reports deviated from those known facts.

Gerth, over and over, simply imposed his own conclusions onto the things that he saw.

LINKS

CJR’s Error at Word 18

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

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

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

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

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Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

On Tuesday, Columbia Journalism Review quietly staged the Zoom conference intended to address the many problems with Jeff Gerth’s series on “Russiagate” [sic], which I wrote about in a long series. After they rescheduled the original date because of an illness, they did not alert those who had previously signed up, meaning a number of people missed it. Nor did they record the event. It had the feel of a formality designed to claim they had listened, without actually doing so.

Nothing demonstrates the inadequacy of the event so well as the fact that no one — not moderator and Berkeley School of Journalism Dean Geeta Anand, not Columbia Journalism School Dean Jelani Cobb, and not CJR Editor Kyle Pope — addressed the fact that Jeff Gerth had cited an unreliable Russian intelligence product as part of his attack on Hillary Clinton without informing readers he had done so.

I described that he had done so in this post, but I’m going to try to simplify this still further in hopes Columbia will understand how inexcusable this is — how badly this violates every tenet of ethical journalism.

As part of his description of Hillary’s response to being victimized in a hack-and-leak campaign, Gerth described that Clinton approved a plan to vilify Trump by making Russian interference itself a scandal.

The disclosures, while not helpful to Clinton, energized the promotion of the Russia narrative to the media by her aides and Fusion investigators. On July 24, Robby Mook, Hillary’s campaign manager, told CNN and ABC that Trump himself had “changed the platform” to become “more pro-Russian” and that the hack and dump “was done by the Russians for the purpose of helping Donald Trump,” according to unnamed “experts.”

Still, the campaign’s effort “did not succeed,” campaign spokeswoman Jennifer Palmieri would write in the Washington Post the next year. So, on July 26, the campaign allegedly upped the ante. Behind the scenes, Clinton was said to have approved a “proposal from one of her foreign-policy advisers to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” according to notes, declassified in 2020, of a briefing CIA director John Brennan gave President Obama a few days later. [my emphasis]

The claim is a central part of Gerth’s narrative, which adopts many of the theories John Durham floated in his two failed prosecutions, suggesting that the press’ concerns about Trump and Russia stemmed exclusively from efforts — the dossier and the Alfa Bank anomaly — generated by Hillary, and not by Carter Page’s weird behavior in Moscow, Paul Manafort’s ties to oligarchs with ties to Russia, or all the lies Trump’s people told in 2017 about their own ties to Russia.

The claim is a central part of Jeff Gerth’s narrative, and it is based on a Russian intelligence product of uncertain reliability.

These are the notes of Brennan’s briefing to Obama. Here, though not in an earlier part of this section, Gerth quotes directly from the notes (though Gerth cuts the words “alleged approval”).

This is the letter John Ratcliffe wrote to Lindsey Graham about the briefing before he declassified the notes themselves. The letter quotes the notes and unlike Gerth, he does not cut the words, “alleged approval,” so there can be no doubt that that’s what Ratcliffe was addressing. Ratcliffe’s letter explicitly says that the Intelligence Community “does not know the accuracy of the allegation” or whether it was “exaggeration or fabrication.”

  • In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.
  • According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

It’s bad enough that Gerth takes out the use of “alleged” included in the notes itself and in Ratcliffe’s description of the report.

But it is inexcusable that Gerth does not tell readers this claim comes from a Russian intelligence report, one that even John Ratcliffe warned might not be reliable, might even be a fabrication! Gerth describes that “Clinton was said” to have formulated this plan, without telling readers that Russian spooks were the ones who said it. He simply adopts the accusation made by Russian spies without notice he had done so.

Before writing this up, I asked Kyle Pope about this twice, first in my general list of questions, then in a specific follow-up.

Finally, you did not answer this question.

Do you believe your treatment of the John Brennan briefing should have revealed the briefing was based on a Russian intelligence document? Do you believe you should have noted the John Ratcliffe warning that, “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication”? Is there a reason you’re certain the date was July 26 when it’s not clear whether it says 26 or 28?

Is it your view that CJR owes its readers neither notice that it is relying on a Russian intelligence report for its interpretations about Hillary Clinton’s motives nor reveal that the IC would not vouch for the accuracy of that report?

I got no answer. Since Tuesday’s event, I’ve since asked for comment from Dean Cobb, who provided no response, as well as Dean Anand (whose assistant said she may get back to me later).

Jeff Gerth, and through him, CJR, and through CJR, the Columbia Journalism School apparently believe it is sound journalism, in a piece that demands greater transparency from others commenting on sloppy reporting about Russia’s campaign to interfere in the 2016 election, to quote from a description of a Russian intelligence report that may have been part of that campaign to interfere in the 2016 election, without disclosing that he was doing so.

There are unretracted clear errors throughout Gerth’s piece that also went unremarked in Tuesday’s event; rather than explaining why those errors remain uncorrected in a piece complaining about the errors of others, Gerth twice claimed his was a, “very factual chronological story” with no pushback. When I asked about them before doing my piece, Pope dismissed those errors as merely a matter of opinion.

But about this undisclosed use of a Russian intelligence product that could be a fabrication, there is no dispute. It’s right there in the warning Ratcliffe gave before he released the notes. “The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” But that didn’t stop Gerth from using it. He used it anyway, with no disclosure about who made this allegation or the IC warning about its uncertain reliability.

And Columbia University’s journalism establishment stubbornly stands by that non-disclosure.

Links

CJR’s Error at Word 18

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

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

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

Columbia Journalism Review–and Now Columbia School of Journalism–Have a Russian Intelligence Problem

Dear Jeff Gerth: Peter Strzok Is Not a Media Critic

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

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Trump Organization’s Other New York State Case

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

Because we’re running in excess of 500 comments across the last three threads about Donald Trump’s indictment and arraignment in Manhattan, I want to post another thread for more discussion.

I’ll remind you now I’m not a lawyer and I don’t have either Marcy’s holographic memory or her skills at fine reading, nor bmaz’s experience representing criminal defendants.

But I want to bring up a couple subjects we haven’t discussed which are related to D.A. Alvin Bragg’s criminal suit against Trump.

First, only one member of the emptywheel community made a passing reference to Trump’s post-arraignment speech. They didn’t mention Trumps’ threats.

Yes, that’s plural Trumps, because Donnie Jr. and Eric posted in social media a photo of New York Supreme Court Justice Juan Merchan and his daughter on the day of his father’s arraignment. They targeted Merchan’s daughter for having worked for Kamala Harris’ campaign.

You’ll recall in July 2020 that U.S. District Court for the District of New Jersey Judge Esther Salas’ family members were attacked at their home – her husband was shot three times and her son shot and killed. The attacker was an aggressive anti-feminist who killed himself shortly after the attack on Salas’ family. He had been able to locate Salas’ home using her personal information publicly available online.

Last November, Congress passed the Daniel Anderl Judicial Security and Privacy Act of 2021, named after Salas’ son, to protect the personal information about judges on the internet.

Trump himself attacked Judge Merchan verbally in his speech from Mar-a-Lago after returning from his arraignment. He’d been strongly cautioned against threatening speech during his arraignment, but he fulminated anyhow about Merchan being a “Trump-hating judge with a Trump-hating wife and family,” repeating the same disparaging remarks he’d made earlier the same day over social media. He also targeted Merchan’s daughter.

Apart from the obvious potential incitement to violence the Trumps attempted against Judge Merchan and his family, was this a move to manipulate the Manhattan case?

Being a state jurist, Merchan and his family are not protected by the federal Judicial Security and Privacy Act. But I wonder if these threats made online and on an interstate basis were intended not just to influence the judge or D.A. Alvin Bragg.

Are there potential federal repercussions?

~ ~ ~

Secondly, the emptywheel community and the legal commentariat at large have sifted through Trump’s indictment and the statement of facts. The amount of related discussion across social media has been exhausting.

However community member c-i-v-i-l shared a link to a thread by University of Texas Professor of Law Lee Kovarsky which checked me short and made me rethink the 34 count indictment.

You can catch the thread on the Wayback Machine at this Internet Archive link (I won’t make you go to Elmo’s House of Doge Nazi Bar for this).

What gave me pause was Kovarsky’s analysis of preemption and the matrix of possible underlying crime(s) which Bragg did not disclose but underpin the charges Bragg filed against Trump.

Here’s what the matrix looked like, with Not-Trump = Pecker, Cohen, etc. according to Kovarsky:

(1) federal tax law violation by Trump (2) federal tax law violation by Not-Trump
(3) state tax law violation by Trump (4) state tax law violation by Not-Trump
(5) federal election law violation by Trump (6) federal election law violation by Not-Trump
(7) state election law violation by Trump (8) state election law violation by Not-Trump

Kovarsky made a lot of sense to a non-lawyer like me as he pointed out where others’ arguments about preemption are weak and what’s most likely as a preemption.

And then it clicked, all the tumblers fell into place.

In my uneducated opinion, the underlying crime isn’t one which can be preempted by federal law.

It’s a crime which has been prosecuted by the state of New York already.

It’s a crime which has already been prosecuted by the Manhattan D.A.

It’s a crime which explains the narrow emphasis on business records and falsification of the same, and a crime which relied on falsified business records.

And the crime looked like this:

These are counts for which Trump Organization and its CFO (TO CFO) was already convicted and is now serving time in Rikers Island.

It’s the April 2017 and April 2018 tax returns and related supporting documentation filed based on falsified business records for which TO CFO Allen Weisselberg has already been charged.

But so has the Trump Organization – the same organization which was responsible for the financial records of Donald J. Trump Revocable Trust, and the financial records of Donald J. Trump.

This January both Trump Corporation and the Trump Payroll Corporation were assessed a total of $1.6 million in fines for their tax fraud as part of Trump Organization.

Again, I’ll remind you I’m not a lawyer, don’t even play one on TV, though I’ve done bookkeeping for several small businesses in my career and worked for a lawyer and CFO. I’ve shared my speculation here knowing I’m going to get a drubbing from my partner in (im)moderation bmaz.

I don’t even know if I can muster much defense of my own argument here except that Weisselberg’s case is one which hasn’t been discussed much at all since Tuesday morning.

Yet it was reported on March 30 that Weisselberg had “dumped” his Trump-funded lawyer Nicholas Gravante or that the Trump organization had fired Weisselberg’s lawyer. Gravante was apparently too willing to let Weisselberg talk with Bragg’s office.

Weisselberg is now represented by Seth L. Rosenberg who was a former member of the Manhattan D.A.’s office; Rosenberg has been with Clayman & Rosenberg LLP since 1986.

The late shuffle of attorneys could be a sign that it is the tax fraud for which Trump Org has already been charged that is the predicate to Trump’s 34-count indictment.

This situation would explain why Bragg would have been reluctant to outline the underlying crime when the 34 counts against Trump were filed and Trump was arraigned. Trump has already been manipulating Weisselberg through the legal representation Trump organization has been providing him; it’s reasonable to assume this is an attempt to throttle Weisselberg’s possible testimony against Trump.

What other crime might have been the predicate upon which the Manhattan D.A.’s charges would have relied if not the tax fraud charges against Trump Organization?

What other underlying crime would avoid preemption?

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Defendant-1 Charged with 34 Counts of Document Falsification to Hide 2016 Crimes

I’m starting a new post as we begin to get news from the arraignment. Among the 34 charges is a conspiracy count that will sweep in a great deal of damning evidence.

Update: Here is the indictment. That just lists the individual document fraud, check by invoice.

The statement of facts explains the underlying logic of the case.

Update: Alvin Bragg just explained the case. The argument is that in 2015 and 2016, Michael Cohen, David Pecker, Trump, and others agreed to conduct the catch-and-kill program to help Trump win. That violated three crimes, per Bragg:

  • New York State laws prohibiting the promotion of a candidate by false means
  • Federal campaign finance laws
  • Document falsification by American Media Inc (National Enquirer)

He alleges each invoice and check were an attempt to cover up those 2016 crimes.

Bragg did say that the indictment does not need to specify what the other crimes the document falsification was intended to hide. He also noted–as NYU’s Ryan Goodman has laid out–that it is the “bread and butter” of the white collar charges NY DA charges.

Bragg claimed that his office had received additional evidence and access to additional witnesses after he took over.

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