David Weiss Chose Not to Record the Alexander Smirnov Interview He Attended

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Alexander Smirnov has started filing motions in limine. I’ll return to them after Tuesday.

But for the moment I want to flag a detail he included in a motion to exclude the interview he had on September 27, 2023.

The interview takes up four pages of the indictment. In addition to providing varying statements about the charged false statement — that is, that in a call in 2019, Mykola Zlochevsky accused Joe Biden of accepting a bribe — Smirnov allegedly told a new false story, one that is not charged. he claimed that Hunter Biden had been recorded at the Premier Palace in Kyiv. As the indictment pointed out, that was obviously false, as Hunter Biden had never been to Kyiv.

I’ve always argued that that was an attempt to string on investigators, to give them more dirt on Hunter Biden, precisely what (I speculated) Smirnov perceived that they wanted.

But it was not charged for any of the claims he made in that interview, in which he substantially restated the initial false claim.

This may be why: His motion in limine describes that Special Counsel — that is, David Weiss — attended the interview, and it was not recorded.

Despite seeking an Indictment based solely on statements made in June 2020, Mr. Smirnov understands that the Government intends to introduce statements Mr. Smirnov allegedly made more than three years later, during his interview the FBI on September 27, 2023. Special Counsel was present at this interview, which was never recorded.

This is not — not remotely!! — how you approach an interview with a guy you suspect of lying.

On the contrary, it’s how you approach an interview with someone you’re still treating as a witness against someone else.

This strongly suggests that as late as September 27, 2023 David Weiss was still chasing the effort, launched by Bill Barr’s DOJ, to frame Joe Biden.

As I’ll explain more next week, there are other elements that suggest Weiss and his prosecutors are trying to hang all this exclusively on Smirnov.

Proud Boy Closure or John Roberts’ Get Out of Jail Free Card?

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There have been some developments in the Proud Boy prosecutions I want to note.

First, according to a status update filed on October 23, Jeremy Bertino — the most important cooperating Proud Boy witness — is done cooperating. That follows a four month continuance obtained in June. He will be sentenced in February.

Then, in the case of the Ron Loerkhe and Jimmy Haffner, on October 24, DOJ asked for and got an awkwardly timed 35-day motion to continue, until December 3, between the election and inauguration. AUSA Jason McCullough — who took over the case from Erik Kenerson a year ago, had previously asked for and gotten a 75-day continuance in July, which would have expired Tuesday. This case has done nothing but continue like this since they were first charged in December 2021. As I described then, Loehrke especially, who is a former Marine, was pretty instrumental in moving the crowd around on January 6, and would have been involved in any charges tied to the effort to open a second front of attack on the East doors of the Capitol.

Finally, on October 25, Alexis Loeb dropped off some or all of her cases. For years, the AUSA has shepherded a fairly breathtaking number of Proud Boy and Proud Boy adjacent cases — often those where the defendants couldn’t be tied to the Proud Boy leaders. In that role, she has had to manage a number of the cases that SCOTUS’ Fischer decision most complicated, in some cases shifting obstruction charges into civil disorder ones or arguing that defendants get the same sentence on the latter charge after the government gave up on the former. Ockham’s razor would suggest she’s dropping off because she has already put years into an investigation that for most others was a six month assignment. All the more so given she has finished up some recent business. On October 8, she got a plea with Jerry Braun; on October 18, Tim Kelly denied his bid to stay out of prison pending sentencing. On October 25, Colleen Kollar-Kotelly denied a bid by George Tenney to reduce his sentence. And on October 23, Kollar-Kotelly held a stipulated trial for Nicholas Kennedy’s obstruction charge (he already pled to his other charges, including Civil Disorder) under the new Fischer rules.

But not only is Fischer himself still pending, with trial scheduled in February, but Kennedy is not done. Immediately after the stipulated trial, Kollar-Kotelly ordered more briefing, scheduled out through November.

MINUTE ORDER as to NICHOLAS KENNEDY (1): Yesterday, October 23, 2024, the Court held a stipulated trial on Count Two of the 63 Second Superseding Indictment (Obstruction of an Official Proceeding and Aiding and Abetting, in violation of 18 U.S.C. §§ 1512(c)(2) and 2). After reviewing the stipulated facts with Defendant, the Court discussed with the parties the 82 Proposed Jury Instructions. During that discussion, it became clear that the parties agreed on the elements of a Section 1512(c)(2) offense but disagreed about the application of those elements to Defendant’s stipulated conduct. The Court has not yet reached a verdict. The Court ORDERS the Government to file proposed findings of fact and conclusions of law on or before NOVEMBER 1, 2024. Defendant shall respond on or before NOVEMBER 15, 2024. And the Government shall reply, if necessary, on or before NOVEMBER 25, 2024. Signed by Judge Colleen Kollar-Kotelly on 10/24/2024. (lcckk3) (Entered: 10/24/2024)

This briefing will go to the core of DOJ’s theory via which they think they can hold people accountable for trying to disrupt the counting of actual vote certifications.

Still, the most likely explanation is that Loeb has earned a break.

What I’m wondering, given the silence about the Proud Boys in Jack Smith’s immunity briefing, is what these movements mean for any implication of the militia into a case for Trump or his closest allies (the cases Loeb has overseen treated both Alex Jones and Roger Stone as unindicted co-conspirators).

I speculated earlier this month that we might see something implicating the Proud Boys after the election.

Back in December, in the last filing Jack Smith submitted before Trump’s lawyers got Judge Chutkan to prohibit such things, Smith said he wanted to introduce Trump’s encouragement of the Proud Boys as 404(b) evidence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.

[snip]

Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6. [my emphasis]

But the Proud Boys don’t appear, at all, in the immunity filing. You can go search for them using this OCR version. Nothing. Jack Smith said he wanted them to be part of the trial, but they’re not in this filing laying out that Smith might mention them at trial.

To be sure, there is a section of the immunity filing that addresses Trump’s fondness for convicted Jan6ers.

In the years after January 6, the defendant has reiterated his support for and allegiance to 39478 39479 rioters who broke into the Capitol, calling them “patriots478 and “hostages,479 providing them financial assistance,480 and reminiscing about January 6 as “a beautiful day.”481 At a rally in Waco, Texas, on March 25, 2023, the defendant started a tradition he has repeated several times—opening the event with a song called “Justice for All,” recorded by a group of charged—and in many cases, convicted—January 6 offenders known as the “January 6 Choir” and who, because of their dangerousness, are held at the District of Columbia jail.482 At the Waco Rally, of the January 6 Choir, the defendant said, “our people love those people, they love those people.”483 The defendant has also stated that if re-elected, he will pardon individuals convicted of crimes on January 6.484

But not only doesn’t it mention the Proud Boys directly (one of them was part of the Jan6 Choir, though not any of the seditionists), it doesn’t include the September 2023 interview in which Trump addressed Enrique Tarrio by name (bolded above).

478 GA 1973 at 16:52 (Video of Waco Rally 03/25/2023); GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1971 (Video of Trump Interview 02/01/2022).

479 GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024).

480 GA 1966 at 09:30 (Video of Trump Interview 09/01/2022).

481 GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1692 (Transcript of CNN Town Hall 05/10/2023).

482 GA 1973 at 03:00 (Video of Waco Rally 03/25/2023). See, e.g., United States v. Jordan Robert Mink, 21-cr-25 (D.D.C. 2023); United States v. Ronald Sandlin, 21-cr-88 (D.D.C. 2022); United States v. Barton Shively, 21-cr-151 (D.D.C. 2022); United States v. Julian Khater, 21-cr-222 (D.D.C. 2022); United States v. James McGrew, 21-cr-398 (D.D.C. 2022).

483 GA 1973 at 06:02 (Video of Waco Rally 03/25/2023).

484 GA 1971 at 15:51 (Video of Trump Interview with Schmitt 02/01/2022).

If you’re going to impress SCOTUS with Trump’s outrageous support for convicted rioters, you would include the Proud Boys.

Maybe that’s right.

Or maybe, with Fischer, John Roberts effectively wrote people like Jones and Stone a Get out of jail free card. For years, I’ve been laying out how Alex Jones and Roger Stone are right there in a networked conspiracy between the Proud Boys and Oath Keepers and Donald Trump.

But that was envisioned — I believe DOJ envisioned it, starting years ago — as a conspiracy built around obstruction charges, 18 USC 1512(k).

Given Fischer’s new evidentiary component, I’m not sure whether you could sustain charges for obstruction against Jones and Stone.

There’s at least one clue that DOJ doubts it can sustain such charges against people further from the action. In the SoCal Conspiracy, in which some anti-vaxers and Three Percenters joined up to plan their travel to January 6, DOJ just filed an information for Morton Irvine Smith, for just trespassing.

Smith funded much of the conspiring. He appeared to be involved in earlier plotting, going back to the MAGA March in December 2020. And DOJ imaged his computer years ago, back in June 2021.

To be sure, since he was charged via information, it’s clear that Smith has negotiated these charges. But particularly as the obstruction charges against the guys he funded, notably Alan Hostetter, have been put at risk with Fischer, I wonder whether DOJ has simply given up trying to hold Smith to any more serious charges.

It may be we’ll see some new Proud Boy developments after the election. But it’s just as likely that John Roberts’ revision of 18 USC 1512(c)(2) made it difficult if not impossible to hold key players between the crime scene and the Willard accountable.

On the Legacy of Bill Barr’s Luzerne County Intervention

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Somewhere, I have a half-finished post about the way that Bill Barr refused to cooperate with three different Inspector General Reports reviewing his actions — his actions during May and June 2020 protests in DC, his intervention in the Roger Stone sentencing, and his decision to seek out a voter fraud cause he could publicize. (There’s at least one more investigation, probably the one into subpoenas targeting journalists and Congress, that is ongoing.)

I hope to return to that if we still have a democracy next week.

But I want to review the third of these, because it hangs over DOJ’s ongoing investigation of a number of suspect election crimes, including the arson targeting ballot drop boxes in Oregon and Washington earlier this week.

As you may recall, someone — who turned out to be a mentally disabled man — threw away nine mail-in ballots in Luzerne County, PA in September 2020. The US Attorney for Middle District of Pennsylvania in Scranton, David Freed, big-footed into the investigation, in part (the IG Report discovered) because Bill Barr was looking for some case to talk about. Barr told Trump about the case and Trump made public comment.

…These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. They were Trump ballots—eight ballots in an office yesterday in—but in a certain state and they were—they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen. This is what’s going to happen, and we’re investigating that. It’s a terrible thing that’s going on with these ballots. Who’s sending them, where are they sending them, where are they going, what areas are they going to, what areas are they not going to?… When they get there, who’s going to take care of them? So, when we find eight ballots, that’s emblematic of thousands of locations perhaps.

After which, Barr and Freed decided to release a public comment about the investigation, including that all nine of the discarded ballots had been cast for Trump (that turned out to be inaccurate; Freed issued a corrected statement days later). By the time Freed made that statement, it was pretty clear they weren’t going to charge the man involved; nevertheless, it wasn’t until the following January before the US Attorney’s Office revealed there would be no charges. Nevertheless, Freed also sent a letter to the county providing still more details from the investigation.

Barr refused to be interviewed for the Inspector General investigation, though his attorney kept providing new statements that didn’t answer all the questions about his behavior (one of my favorite Barr comments is that of course he didn’t advertise this case for political reasons because that would be inconsistent with his public statement on December 1 that there had been no decisive voter fraud). Barr spun the entire thing as an effort to reassure people.

Barr told the OIG in his letter to the Inspector General that he “favored and authorized putting out information along the lines of [MDPA’s] September 24 statement,” and Freed told the OIG that Barr specifically approved inclusion of investigative details in the statement, including the fact that “all nine ballots were cast for presidential candidate Donald Trump.” Barr stated in his letter that he favored including “the basic facts that prompted the investigation” in the MDPA statement as a way to quell public concerns about election integrity. Specifically, Barr stated: “Due to the involvement of local officials and county witnesses, I thought that further revelations of information about the incident were likely, potentially could come at any time, and could be mistaken.” Barr further wrote:

…I was concerned that the vagueness of the local officials’ statement, coupled with the Department’s silence, was contributing to undue speculation and potentially unsettling the public more than necessary about the election’s integrity. I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation. Among other things, doing so would help dispel needless mystery and speculation by delimiting the nature and scope of the issue being investigated.

Barr’s letter went on to assert that a public statement would “have a salutary deterrent effect” and serve as “a reminder to election administrators” of their responsibility to safeguard election integrity. Barr ultimately stated that he had determined, in his judgment, that “a strategy of remaining silent” about details of the Luzerne County ballot investigation “would have ended up doing more harm to the public interest than getting out in front with a more forthcoming statement in the first place.”76 Freed, for his part, told us that he believed releasing details about the investigation was important because it was the “best way” to keep the public officials running these elections “honest,” and because it would alert military voters that their ballots may have been discarded.77

In comments submitted to the OIG after reviewing a draft of this report, Barr stated that it was important at the outset to reassure the public “that there was a legitimate basis for the federal government to take over the investigation.” Barr continued: “The key fact that justified the federal government taking over the investigation was that only Trump ballots—no Biden ballots—had been found discarded.” Barr added that this fact was a “red flag” for investigators and “suggested that the discarding of ballots was not random or accidental, but potentially intentional.” In comments submitted after reviewing a draft of this report, Freed’s counsel echoed this sentiment, stating: “Had the statement not included [that the discarded ballots were all for President Trump], it would have omitted the operative fact that provided the predicate for federal involvement and would have left the public completely confused.” We found that this concern expressed by both Barr and Freed about federal involvement could just as easily have been satisfied by stating that all of the ballots were for the same presidential candidate, rather than identifying a particular candidate, which would have avoided injecting partisan considerations into a public statement by the Department. Moreover, the MDPA statement includes no information about the choices of the voters in the district’s congressional race, which would have been equally relevant to establish federal jurisdiction in the matter.

76 We were struck by the similarity between the justifications presented here and the explanation former FBI Director James Comey gave during our review of his conduct in advance of the 2016 election. In explaining why he announced to Congress that the FBI had resumed its investigation of then presidential candidate Hillary Clinton less than 2 weeks before the 2016 election, Comey told the OIG that he had determined, in his own judgment, that “there was a powerful public interest” in commenting on the Clinton email investigation, and that it would have been “catastrophic” to the Department and the FBI to not do so. DOJ OIG, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Oversight and Review Division Report 18-04 (June 2018), https://oig.justice.gov/reports/review-various-actions-federal-bureau-investigation-and-department-justiceadvance-2016, 365.

77 Neither Barr nor Freed, nor any witness we spoke to, suggested that § 1-7.400(C)’s second exception—permitting comment on investigations when “release of information is necessary to protect the public safety”—applied here.

Ultimately, DOJ IG found the whole thing to be wildly inappropriate, but because of the discretion afford the Attorney General to share information with the President and make public comment, it said that it could not find that Barr had engaged in misconduct; it did find that Freed had engaged in misconduct, both by blabbing about an ongoing investigation and doing so without consulting with Public Integrity before doing so.

DOJ referred both Barr and Freed to the Office of Special Counsel for a review of whether this was a Hatch Act violation.

We concluded that the MDPA statement did not comply with the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed; however, we did not find that either Barr or Freed committed misconduct because of ambiguity as to the applicability of Barr’s authority to approve the release of the statement pursuant to 28 C.F.R. § 50.2(b)(9). We found that Freed violated the DOJ policy prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials. We found that Freed also violated DOJ policies requiring employees to consult with PIN before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI. Finally, while we were troubled that Barr relayed to President Trump investigative facts about the Luzerne County matter, we concluded that Barr’s decision to provide that information to President Trump did not violate DOJ’s White House communications policy because the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President when a communication is permissible under the policy, as we found was the case here.

We make a number of recommendations in this report. First, as DOJ policy does not address what information Department personnel may include in a statement that is determined to be necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety, we recommend that the Department revise this policy to require that the information contained in a statement released pursuant to JM 1-7.400(C) be reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety. Second, we recommend that the Department make clear whether the Justice Manual’s Confidentiality and Media Contacts Policy, Justice Manual § 1-7.000, applies to the Attorney General. Third, we recommend that the Department clarify its policies to address whether any of the provisions of 28 C.F.R. § 50.2 remain Department policy in light of the existence of the Confidentiality and Media Contacts Policy contained in the Justice Manual. Fourth, if 28 C.F.R. § 50.2(b)(9) remains valid Department policy, we recommend that the Department require that requests to the Attorney General or Deputy Attorney General for approval to release information otherwise prohibited from disclosure and any approval to release such information pursuant to § 50.2(b)(9) be documented. Lastly, we recommend that the Department consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.

As noted above, the federal Hatch Act prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”89 The U.S. Office of Special Counsel has sole jurisdiction to investigate Hatch Act violations.90 Because the circumstances described in this report raise a question as to whether these former Department officials’ actions violated the Hatch Act, we are referring our findings to the Office of Special Counsel for its review and determination of that issue.

It’s not entirely clear how many of DOJ IG’s recommendations DOJ has implemented since this report was released in July.

But one way or another, the conduct described in this report would look indistinguishable from the investigations currently ongoing. That is, weighing in to talk about whether specific election crimes were being committed by Trump or Harris supporters (or none of the above, as was the case in Luzerne and may be the case if the Northwest arsonist really is motivated by Gaza, as the incendiary devices imply) would be deemed a violation of DOJ guidelines.

DOJ is only supposed to make comments to reassure people that something is under investigation. DOJ has done so, formally, in Washington.

“The US Attorney’s Office and the FBI want to assure our communities that we are working closely and expeditiously together to investigate the two incendiary fires at the ballot boxes in Vancouver, Washington, and the one in Portland, Oregon, and will work to hold whoever is responsible fully accountable,” US Attorney Tessa M. Gorman and Greg Austin, acting special agent in charge of the FBI’s Seattle office said in a statement Tuesday.

But you are not going to hear more than that unless and until DOJ charges someone.

On September 4, at the very press conference where he rolled out the indictment against the useful idiots being secretly paid by RT, on the very last day before the election blackout would go into place, Merrick Garland discussed the Election Threats Task Force that Lisa Monaco put into place back in June 2021.

DOJ has made statements about specific crimes — including the one Elon Musk is suspected of committing, as well as more general efforts to prosecute Election Fraud.

I promise you, that’s all you’re going to get unless charges are filed.

Secret Documents! The Ten Month Privilege Fight Whingers Claim Didn’t Happen

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As always happens when people who don’t bother to check the public record get afraid, folks are complaining about Merrick Garland again, both that they didn’t notice the number of times Garland explained publicly that back in June 2021 DOJ had set up a special Election Task Force to prepare for this moment, and to complain that (they say) Garland hasn’t charged Donald Trump.

I was working on a timeline already when Politico’s two year effort to get the DC District Court to unseal grand jury proceedings bore fruit yesterday. Kyle Cheney has a story describing how the documents he liberated show both Beryl Howell and her successor as Chief Judge, James Boasberg, kept swatting back at Trump’s efforts to delay precisely because of the upcoming election.

More than 18 months ago, as Donald Trump sought to delay several high-profile witness’ testimony to a grand jury investigating his effort to subvert the 2020 election, Washington’s top federal district judge sensed a potential calamity.

“The special counsel’s investigation is moving quickly. There is an imperative that it moves quickly particularly so as not to interfere with the 2024 election cycle,” Chief Judge James Boasberg said on April 3, 2023, according to a newly unsealed transcript of the secret proceeding. “So when the former President’s pleading says that there will be a nominal impact from a delay, I think that is a vast understatement, that there would be a serious and deleterious impact from a delay.”

Boasberg’s warning in the early stages of special counsel Jack Smith’s investigation of the former president now rings prescient. A series of delays engineered by Trump, most notably an eight-month freeze while the Supreme Court considered his claim to be immune from the charges altogether, have caused the criminal proceedings to collide with the 2024 election cycle — and made it impossible for Trump to stand trial on the most serious charges he faces before Election Day.

The documents also confirm dates that, just yesterday, anti-Garland whingers claimed I made up. The fight over executive privilege started with a June 15, 2022 subpoena (probably to Greg Jacob and Marc Short) and continued through the next April, when Jack Smith — having come on after the precedents on executive privilege had already been set — got Mike Pence’s testimony on April 27.

Here’s the timeline mapped by the documents Politico liberated:

June 15, 2022: Subpoena to two officials (possibly Jacob and Short)

September 28, 2022: Order and opinion requiring testimony from two officials (possibly Jacob and Short)

October 6, 2022: Order and opinion denying stay of decision

November 19, 2022: Order and opinion requiring testimony (probably the two Pats, Cipollone and Philbin)

December 18, 2022: Order and opinion denying stay

January 23, 2022: Order and opinion extending appeal

December 9, 2022: Order and opinion requiring testimony (possibly Eric Hershmann, given description of his emails demanding written instructions)

January 10, 2023: Order and opinion denying stay

March 15, 2023: Order and opinion requiring testimony (this is the omnibus order covering eight people — see redacted list on page 2 — including Mark Meadows, Stephen Miller, and Dan Scavino)

March 25, 2023: Opinion requiring testimony, probably involving Mike Pence

April 3, 2023: Transcript of hearing, probably involving Mike Pence

April 10, 2023: Transcript of hearing, probably involving Mike Pence

Jack Smith’s Delicate Treatment of BadgerPundit Kenneth Chesebro

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As I’ve said a few times, when I was hunting for Lee Chatfield, I found Kenneth Chesebro.

There is a transcript in the mostly sealed Appendix I to Jack Smith’s immunity brief that must be Chesebro’s. Several passages describing events in which Chesebro was involved cite a transcript, spanning from roughly GA 97 to GA 103, that appears between Lee Chatfield and probable Pat Cipollone transcripts (GA 55-56 is someone whose name appears alphabetically between Bowers and Cannon; this may be Trump campaign staffer Michael Brown).

On December 16, [Chesebro] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office.315

[snip]

Later that morning, [Chesebro] worked with another attorney for the defendant, who contacted a U.S. Senator to ask him to obtain the fraudulent Wisconsin and Michigan documents from the U.S. Representative’s office and hand-deliver them to the Vice President.408

315 Documentary evidence, Presidential Daily Diary, GA 100-101

408 Documentary evidence, GA 55-56, GA 102-103, Chris Hodgson [Compare to full transcript]

That would mean that this section, which suggests the co-conspirators deliberately lied to fake electors, is sourced partly to Chesebro too (GA 517-518 is part of an at least 6-page section describing the fake elector involvement of someone whose name appears alphabetically between Raffensperger and Scavino, which hypothetically could be Mike Roman, but nothing marks it as necessarily him).

In practice, the fraudulent elector plan played out somewhat differently in each targeted state. In general, the co-conspirators deceived the defendant’s elector nominees in the same way that the defendant and [Eastman] deceived [Ronna McDaniel] by falsely claiming that their electoral votes would be used only if ongoing litigation were resolved in the defendant’s favor.282

282 Documentary evidence, GA 97-98, GA 517-518.

It’s not terribly surprising that Jack Smith got an interview with Chesebro. After all, Chesebro made a great show of cooperating in various state investigations — at a minimum, Georgia, Nevada, Wisconsin, and Michigan, as CNN laid out last December. But as CNN also reported, the veracity of his testimony came into question by February, when CNN caught Chesebro covering up a Twitter account he had.

So Jack Smith appears to have gotten an interview with Chesebro, but Chesebro may not be terribly reliable.

Perhaps for that reason, there are a great many things involving Chesebro that are not sourced to that transcript. Chesebro’s plotting about the fake electors plot, for example, is always sourced to the documents themselves.

More interestingly, this passage — describing that Chesebro followed Trump’s public instructions to go to DC, but also describing that he collected copies of the fake Michigan and Wisconsin elector certificates and handed them off to Congressman Mike Kelly — is sourced entirely to documentary evidence.

Meanwhile, [Chesebro] who had traveled to Washington as directed by the defendant’s public messages, obtained duplicate originals of the fraudulent certificates signed by the defendant’s fraudulent electors in Michigan and Wisconsin, which they believed had not been delivered by mail to the President of the Senate or Archivist.389 [Chesebro] received these duplicates from Campaign staff and surrogates, who flew them to Washington at private expense.390 He then hand-delivered them to staffers for a U.S. Representative at the Capitol as part of a plan to deliver them to Pence for use in the certification proceeding.391

Similarly, the description of Chesebro’s participation in the mob is sourced exclusively to documentary evidence.

Among these was [Chesebro] who had attended the defendant’s speech from the Washington Monument, marched with the crowd to the Capitol, and breached the restricted area surrounding the building.449

There’s a problem with Chesebro’s testimony on this point, of course: If he ferried fake elector certificates, then he wasn’t responding to Trump’s public tweeting about January 6. He was responding to the instructions of other plotters.

Which makes the way Smith sourced this passage, describing a December 16 meeting with Trump that Reince Priebus also attended, more interesting.

On December 16, [Chesebro] traveled to Washington with a group of private attorneys who had done work for the defendant’s Campaign in Wisconsin for a photo opportunity with the defendant in the Oval Office.315 During the encounter, the defendant complained about Wisconsin Supreme Court Justice [Brian Hagedorn] who two days earlier had cast the deciding vote in rejecting the defendant’s election challenge in the state.316 As the group was leaving, the defendant spoke directly—and privately—to [Chesebro]. 317 As late as early January, the conspirators attempted to keep the full nature of the fraudulent elector plan secret. On January 3, for instance, in a private text message exchange, [Boris Epshteyn] wrote to [Chesebro] “Careful with your texts on text groups. No reason to text things about electors to anyone but [Eastman] and me.” [Chesebro] responded, “K,” and followed up, “I’m probably a bit paranoid haha.” [Epshteyn] wrote, “A valuable trait!”318

315 Documentary evidence plus Chesebro

316 Probably Reince Priebus

317 Probably Reince Priebus

318 Documentary evidence

That is, Smith relies on Chesebro for the claim that this meeting was a photo op. But he doesn’t include Chesebro’s claims about what he said privately to Trump; he relies solely on what is likely Reince Priebus witnessing, but not participating in, that conversation.

Rather than describing what Chesebro claimed he and Trump said to each other, Smith relies on what Chesebro told another lawyer (likely Jim Troupis), afterwards. As soon as Chesebro saw Trump’s tweet announcing the January 6 rally, he texted someone else and boasted that “we” had a “unique understanding” of Trump’s December 19 Tweet calling people to DC.

The defendant first publicly turned his sights toward January 6 in the early morning hours of December 19. At 1:42 a.m., the defendant posted on Twitter a copy of a report falsely alleging fraud and wrote, ““. . . Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!”319 When [Chesebro] learned about the Tweet, he sent a link about it to another of the Wisconsin attorneys who had met with the defendant in the Oval Office on December 16 and wrote, “Wow. Based on 3 days ago, I think we have unique understanding of this.”320

319 Trump tweet

320 Documentary evidence

Chesebro has testified about the December 16 meeting. TPM got his testimony to Michigan prosecutors. He described to them that he told Trump that the real deadline for certification was January 6.

Chesebro traveled to Washington to meet with Trump on Dec. 16 alongside a coterie of other Trump campaign attorneys.

Three years later, in the interview with Michigan prosecutors, Chesebro recalled the meeting with Trump: “The marching orders were, don’t say anything that would make [Trump] feel more positive than he did at the beginning of the meeting.”

He did not follow that advice. Chesebro told prosecutors that he began to speak with Trump after listening to the President talk on speakerphone with Newt Gingrich about something to do with Georgia voting machines. Then, the conversation turned to Trump’s chances in Arizona.

Chesebro did exactly what he had been told not to do: give Trump a sense of hope. He recalled telling Trump that the “real deadline” was Jan. 6. He was later admonished by former White House chief of staff Reince Preibus because, as Chesebro put it later to prosecutors, “the vibe that I had given him was some ground for optimism.”

Chesebro himself compared the meeting to a widely reported and infamous late-night encounter, two days later on Dec. 18, between Trump, Sidney Powell, former Overstock CEO Patrick Byrne, and the White House counsel’s office, saying that it was “sort of unauthorized.”

If Chesebro reliably told Jack Smith the same thing, it might strengthen the obstruction case. As it is, Jack Smith argues that the riot happened, Trump did nothing to stop it, and then he opportunistically targeted Mike Pence as his mob was hunting him down. He stops well short of saying he summoned the mob to overrun Congress.

Chesebro’s apparent unreliability may be preventing Jack Smith from taking the next step, showing that Trump heard from Chesebro on December 16 that there was still one more step to certification on January 6, which led him — less than three days later — to summon his mob. But if Chesebro’s testimony were more reliable, then he would not simultaneously be explaining that he ferried a second set of fake Michigan and Wisconsin certificates to DC but also simply showed up on January 6 in response to Trump’s Tweets. And it might change the import of the way he shadowed Alex Jones.

Still, as it is, Chesebro is central to the continued viability of 18 USC 1512(c)(2) and (k) charges. Under Fischer, there must be an evidentiary component to the obstruction charge. And in Chesebro, you have the sole member of the conspiracy who joined the mob on January 6 having earlier ferried fake elector certificates to members of Congress in hopes that Mike Pence would use the certificates to throw out Joe Biden’s votes.

If this ever goes to trial, Chesebro’s role — and possible testimony — may be key. But thus far, at least, it doesn’t appear that his testimony is reliable enough to build the case on.

The Media Started Capitulating to Trump with Russia Russia Russia

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I took a few days to go wander around Paris.

In the meantime (as Nicole and I discussed on Friday), the WaPo has subjugated itself to Donald Trump by spiking an endorsement of Kamala Harris.

Whatever else WaPo and LAT’s capitulation to Trump has done, it has focused attention on media failures this year.

I concluded back in February that the media was not going to help hold Trump accountable this year. I concluded that when zero traditional outlets pursued the story of how Donald Trump’s DOJ used a side channel to ingest dirt Rudy Giuliani collected from — among others — known Russian spies to criminally frame Joe Biden, with the Alexander Smirnov bribery allegation.

One candidate’s DOJ criminally framed the other candidate and it has been simply ignored.

That’s not the only way the media has failed. Hell, there have been maybe two stories about Trump’s abuse of pardons. There has been no scrutiny about whether Trump works for the Saudis, rather than the American people. We don’t talk about the fact that Trump stole 100 classified documents, and probably more we haven’t located.

This failure is not surprising. After all, the first act via which Trump cowed the media came with his success at spinning the results of the Russian investigation.

The Mueller investigation and its aftermath obtained legal judgments that Trump’s Coffee Boy, his National Security Adviser, his campaign manager, his personal lawyer, and his rat-fucker all lied to cover-up what happened with Russia in 2016. That’s an astoundingly productive investigation, one that should keep the issue of what really did happen at the forefront (particularly after Treasury confirmed that Russian spooks did get the internal campaign information Paul Manafort shared). And yet the media has never taken the time to fact check Trump’s Russia Russia Russia chant, via which he dismisses the result of the Russian investigation as a witch hunt. The media never calls him on that lie.

For whatever reason — perhaps ignorance, perhaps exhaustion — the media has allowed Trump to dodge accountability for the help Russia gave him in 2016. They have allowed him to apply a double standard on the Iran and Chinese hacks this year, when Trump invited foreign hacks in 2016. They simply ignored how in advance of 2020, Rudy Giuliani flew around the world soliciting help from — again, this is uncontroversial — at least one known Russian spy, right out in the open.

This is one thing I’ve tried to accomplish with the Ball of Thread series. Here’s how it worked.

  • Trump and the media let the Steele dossier serve as a substitute for the actual things Trump did, both before and after the election.
  • Trump turned an investigation into people grifting off their access to him into an attack on him by the Deep State.
  • Republicans in Congress picked up and expanded the Steele dossier substitution.
  • Along the way, these efforts did real, undoubtedly intentional damage to the FBI, especially those with expertise on Russia.
  • Bill Barr thwarted what was intended as an impeachment referral.
  • In his effort to kill Zombie Mueller, Barr created propaganda about the investigation and Joe Biden and laid the groundwork for January 6.
  • The Durham investigation criminalized Hillary’s victimization by Russia.
  • Bill Barr helped Rudy criminally frame Joe Biden.
  • The Hunter Biden investigation(s) sucked up all the oxygen that should have been focused on Trump.

This is the process by which Trump has stoked grievance out of a Russian investigation that concluded that five top aides lied to hide what really happened.

And the media, to this day, lets him dismiss all that by chanting only Russia Russia Russia.

The media’s surrender, led by Jeff Bezos, to Trump’s authoritarianism is not new. The media has been doing this for six years.

Woodward Book: Joe Biden’s “Dementia” Tracked His Stress about Hunter Biden

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Axios’ Chief Dick Pic Correspondent, Alex Thompson, did something funny yesterday.

He got very aroused because Bob Woodward’s book describes that donors began expressing concerns about Joe Biden’s mental fitness after a fundraiser in June 2023.

Biden, who was 80, had flown in from Washington earlier that day. A donor acknowledged he had probably woken up very early but appeared tired. “He could not wait to sit down and only took two pre-arranged questions.” He carried a handful of note cards with the answers printed out, but even then seemed to wander off point.

But by later in the day — the following passage, not marked by Thompson, described — donors witnessed the opposite. Biden was energetic. He wouldn’t sit down for two hours.

Thompson did, however, mark a description of events eight days later in June where donors said he couldn’t complete a sentence.

Thompson treated this like a smoking gun. This was proof that Biden’s team was hiding his dementia!!!

But coming as it did from Axios’ Chief Dick Pic Correspondent, it was instead a confession.

That’s because any good Dick Pic Correspondent like Thompson would have started his perusal of Woodward’s book by consulting the parts about Hunter Biden; everyone in DC knows you start reading a Woodward book with the index! And right in the middle of a discussion about Biden’s decision to step down in July, there’s a discussion about Hunter.

Blinken knew Hunter’s struggles had derailed Biden emotionally much, much more than any outsider or the public realized. Another of Blinken’s friends called this “the real war,” the battle that affected Biden more than Ukraine, more than Israel. The guilt was overwhelming. If he were not president, “my beautiful boy,” “my little boy” would not be under the crushing scrutiny of all the investigations, he’d say. Biden was heartbroken.

In June 2023, Biden was showing what people viewed as signs of impairment, but also wild swings from hour to hour, on June 19. In June 2024, Biden had a disastrous debate performance, seemingly confirming real dementia.

And yet, as Tony Blinken described it, what was really going on, what the public didn’t realize, is that Biden was wracked with guilt in knowing that even as Hunter was trying to stay sober, Biden’s political adversaries — abetted by Chief Dick Pic Correspondents like Alex Thompson — had made private citizen and recovering addict Hunter Biden their singular focus, their means to find scandal with Joe Biden (before they moved onto marking just the passages of a book that described him struggling at fundraisers).

The connection between Biden’s worst moments and Hunter’s plight should have been clear to someone like Thompson.

It was to me.

The day after the disastrous debate, I laid out how much stress Biden had been under, pointing specifically to the toll of the deliberately humiliating trial earlier that month and the pending, even more humiliating one.

  • His kid was convicted in a trial that not only laid bare what a cost Joe’s political career has been on his family, but that would, without question, never have happened if his son were not the son of President Joe Biden

And the passage that Thompson treats like a smoking gun shows that on the day prosecutors first floated that there was an ongoing investigation (and, as became clear in retrospect, the first day the new prosecutors who would renege on the plea deal got added to the case), Biden was a mess. But later in the day, when the plea deal had seemingly been finalized, Biden was great.

Here is Chris Clark’s declaration, which describes how, on June 19, Hunter’s team thought they had reassurances that the entire ordeal would soon be over.

35. On June 19, 2023, at 2:53 PM EST, after I had a phone call with AUSA Hanson indicating I would do so, I emailed AUSA Hanson a proposed press statement to accompany the public release of both Informations that read, in part, “I can confirm that the five-year long, extensive federal investigation into my client, Hunter Biden, has been concluded through agreements with the United States Attorney’s Office for the District of Delaware.” (Emphases added.) A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit P.

36. Shortly after that email, I had another phone call with AUSA Hanson, during which AUSA Hanson requested that the language of Mr. Biden’s press statement be slightly revised. She proposed saying that the investigation would be “resolved” rather than “concluded.” I then asked her directly whether there was any other open or pending investigation of Mr. Biden overseen by the Delaware U.S. Attorney’s Office, and she responded there was not another open or pending investigation. Thereafter, at 4:18 PM EST that day, I sent AUSA Hanson a revised statement that read: “With the announcement of two agreements between my client, Hunter Biden, and the United States Attorney’s Office for the District of Delaware, it is my understanding that the five-year investigation into Hunter is resolved.” (Emphases added.) The new statement revised the language from “concluded” to “resolved,” a stylistic change that meant the same thing. A true and correct copy of Chris Clark’s June 19, 2023, email to AUSA Hanson is attached hereto as Exhibit Q. [Clark’s italics, my bold]

Days later, when disgruntled IRS agents and Chief Dick Pic Correspondents like Thompson began to claw away at the plea again, Biden was once again a wreck.

It’s absolutely true that Woodward’s book describes events a year ago when donors viewed Biden to be a wreck. It’s also true that Woodward provides the alternate explanation that Chief Dick Pic Correspondents should immediately recognize — but won’t, because they’re trying to drum up scandal somewhere else now. One of the things making Biden a wreck was the guilt of knowing his son had become enemy number one as a way to harm him personally.

I’m not saying Biden is not old. I’m not denying that Biden had difficulties advocating for his policies. Harris has done a far better job at doing so.

I am saying that the pack of rabid Dick Pic Sniffers who had spent the first two weeks of June wallowing in just how humiliating prosecutors had made that trial, for the entire Biden family, somehow forgot about what they themselves had described as an immense strain on the entire family a few weeks later when Biden bolloxed that debate. And now Chief Dick Pic Correspondent Alex Thompson can’t even recognize the significance of that date, June 19, 2023, when Biden was having wild emotional swings.

When Vice President Harris answered Hallie Jackson’s question that similarly tried to drum up a smoking gun about Kamala covering up Biden’s purported decline, Harris suggested that Jackson might ask Biden if there was another reason, beyond simple mental impairment, why he dropped out of the race.

Deciding to end the public targeting of his son could well be one reasons.

The Disappearing Cheshire Cat I Found in the Rabbit Hole Where Lee Chatfield Was Hiding

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I first fell into the rabbit hole of the largely invisible appendix looking for Lee Chatfield.

At the time Trump called him and then-Michigan Senate Majority Leader Mike Shirkey to the White House in November 2020, Chatfield was Michigan’s House Speaker. And one of the first things that I realized about the appendix is that Jack Smith relied on Shirkey’s January 6 interview — exclusively, it seems. But he relied — again, exclusively — on DOJ’s own interview with Chatfield (which appears, in sealed form, at roughly pages GA 70 through GA 82). To confirm that that was Chatfield and try to puzzle through why Smith might rely on J6C interviews for some people but do his own interview for others, I took the trouble to index the identifiable interviews. Among other things, I discovered a third interview pertaining to Michigan, a witness whose name falls between Barr and Bowers (Michigan State Senator Tom Barrett also attended the meeting, but it could also be MI Secretary of State Jocelyn Benson), as well as about 36 pages of interview transcripts, from GA 323 to 359, from Ronna McDaniel.

My original hypothesis about why Smith did his own interview of Chatfield was probably wrong. Chatfield was indicted in Michigan for embezzlement in April, and I figured you’d want to lock in the testimony of someone who is in legal trouble himself. A more likely explanation is that Chatfield’s interview with J6C was considered informal, so Smith had to get more formal testimony.

But one thing it the additional interviews allowed Smith to do was sort through a seeming discrepancy about the meeting. As the January 6 Committee Report noted, Shirkey and Chatfield had slightly different memories of the event, with Shirkey denying that Trump made any precise ask, whereas Chatfield described that he understood Trump’s “directive” about having “backbone” to be a request to overturn the election by naming fake electors.

Although Shirkey says he did not recall the President making any precise “ask,” Chatfield recalled President Trump’s more generic directive for the group to “have some backbone and do the right thing.”157 Chatfield understood that to mean they should investigate claims of fraud and overturn the election by naming electors for President Trump.158 Shirkey told the President that he was not going to do anything that would violate Michigan law.159

157. Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Lee Chatfield (Oct. 15, 2021). Leader Shirkey did not remember any specific “ask” from the President during the Oval Office meeting. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Michael Shirkey, (June 8, 2022), p. 16 (“One thing I do remember is that he never, ever, to the best of my recollection, ever made a specific ask. It was always just general topics[.]”).

158. Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Lee Chatfield (Oct. 15, 2021).

159. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Michael Shirkey, (June 8, 2022), p. 57.

As it is, there’s something missing in this telling. The report describes that Rudy Giuliani was on the call. But it makes no mention that, even though she had specifically told Trump she couldn’t be involved in a meeting with legislators because it might amount to lobbying, he had patched Ronna McDaniel into the call.

That detail does appear in Mike Shirkey’s testimony (he claimed that she said nothing of substance). But Shirkey offered the detail of McDaniel’s participation long after Chatfield’s “informal interview” on October 15, 2021 and a week after McDaniel’s own interview on June 1, 2022, in which her participation in the call never came up.

Smith’s brief doesn’t say much about what McDaniel said, though this section does cite to what must be her interview. He did reveal that McDaniel made the initial contact with Shirkey and Chatfield, then got looped into the call after being warned against participating.

On November 20, three days before Michigan’s Governor signed a certificate of ascertainment appointing Biden’s electors based on the popular vote, the defendant met with [Mike Shirkey] and [Lee Chatfield], Michigan’s Senate Majority Leader and Speaker of the House, at the Oval Office.148 The defendant initiated the meeting by asking RNC Chairwoman [McDaniel] to reach out to [Chatfield] and gauge his receptivity to a meeting.149 The defendant also asked [McDaniel] to participate in the meeting, but [McDaniel] told him that she had consulted with her attorney and that she could not be involved in a meeting with legislators because it could be perceived as lobbying.150 After [McDaniel] made the first contact, on November 18, the defendant reached out to [Shirkey] and [Chatfield] to extend an invitation.151

Shirkey testified that Trump made no specific ask. But, as noted, Chatfield was more equivocal.

The January 6 Committee described Chatfield’s description of Trump’s calls in the following weeks.

That was not the end, however. Chatfield and Shirkey received numerous calls from the President in the weeks following the election. Chatfield told the Select Committee that he received approximately five to ten phone calls from President Trump after the election, during which the President would usually ask him about various allegations of voter fraud.161 Chatfield said that he repeatedly looked into the President’s claims but never found anything persuasive that could have changed the outcome of the election.162

But it doesn’t provide a detail about follow-up calls included in the immunity brief: That Rudy contacted Chatfield and asked him to throw out the valid votes.

Despite failing to establish any valid fraud claims, [Rudy] followed up with [Shirkey] and [Chatfield] and attempted to pressure them to use the Michigan legislature to overturn the valid election results. On December 4, [Rudy] sent a message to [Chatfield] claiming that Georgia was poised to do so (based on [Rudy’s] and [John Eastman’s] false advocacy there in the December 3 hearing) and asked [Chatfield] for help: “Looks like Georgia may well hold some factual hearings and change the certification under ArtII sec 1 cl 2 of the Constitution. As [Eastman] explained they don’t just have the right to do it but the obligation. . . . Help me get this done in Michigan.”168 On December 7, [Rudy] attempted to send [Shirkey] a message (though failed because he typed the wrong number into his phone): “So I need you to pass a joint resolution from the Michigan legislature that states that, * the election is in dispute, * there’s an ongoing investigation by the Legislature, and * the Electors sent by Governor Whitmer are not the official Electors of the State of Michigan and do not fall within the Safe Harbor deadline of Dec 8 under Michigan law.”169 Campaign operative [Mike Roman] was involved in the drafting of this message with the assistance of [P41] who was associated with the defendant’s Campaign efforts in Michigan.170 The following day, [Rudy] shared the draft with the defendant, sending it to his executive assistant, [Molly Michael], by email.

That’s a far more specific ask than Chatfield admitted to with J6C.

This passage is all sourced to an entirely sealed section of Appendix III, but the type of evidence included there is somewhat obvious. The section relies on:

  • 168: A text to Chatfield
  • 169: Something recording Rudy’s attempt to send a text (to the wrong phone number!) and 10 more pages documenting what message Rudy wanted to send.
  • 170: One page showing some proof that Mike Roman and [P41] were involved in this messaging attempt.
  • 171: Rudy sharing the draft with Trump, via Molly Michael.

It’s possible this evidence doesn’t include evidence obtained from Rudy’s phone in April 2021; for example, Smith could prove that Rudy missent the text via Rudy’s call data and the text to Chatfield, showing a very specific ask, could have come from Chatfield. The text to Shirkey could not have come from Shirkey, though, because he never received the message (which may be why Shirkey was much sketchier about any asks from Trump than Chatfield, because he didn’t receive this shamelessly direct ask).  But, particularly given that the email to Michael is just one page long (when asked, she provided no specifics about communications pertaining to Chatfield and Shirkey in her J6C interview), it may well have partly relied on that phone seizure and may well have been necessary.

If it came from the phone, though, it came from legal steps Lisa Monaco first put into motion on her first day on the job, months before J6C was even formalized.

Wherever it came from, the added detail could be utterly critical to proving the case against Trump. Before you get this additional evidence (from both Rudy’s and, possibly, Roman’s phone, as well as an email sent to Molly Michael), you’ve got Chatfield and Shirkey claiming Trump made no specific ask. After you get the additional evidence (and so long as you reach the bar of proving that Rudy was Trump’s co-conspirator in this nefarious effort), you have a very specific ask to just throw out the legal votes that Rayne and I and millions of other Michiganders cast for Joe Biden in 2020.

Ball of Thread: Zombie Mueller

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In this episode of Ball of Thread, we showed how Bill Barr’s efforts to kill the parts of the Mueller investigation that continued after he misrepresented the report itself led directly to January 6. In his effort to lower the sentencing recommendation for Roger Stone, for example, Barr treated threats from Stone and the Proud Boys against a Federal judge a “technicality.” And after Barr’s efforts to reverse the prosecution of Mike Flynn failed, Trump pardoned his former National Security Adviser just as Flynn and Sidney Powell were creating the Big Lie.

So Help Me God: Lawyers, Encryption, and Insurrection

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I still owe you a longer post on what I gleaned from my deep dive into the mostly sealed immunity appendix over the weekend. Here’s my evolving understanding of the appendix so far.

Volume I:

  • GA 1 through around GA 660: Interview transcripts
  • Around GA 661 to GA 722: Material justifying treating Eric Herschmann as unofficial role

Volume II:

  • GA 723 through GA 771: Presidential Daily Diaries
  • GA 772 through GA 965: Social media

Volume III GA 968 through GA 1503: State-related documentary evidence

Volume IV:

  • GA 1503 through around GA 1684: Pence and January 6-related documentary evidence
  • GA 1685 though GA 1885: Material justifying treatment of Trump’s statements as unofficial conduct

But for now, I want to share a hypothesis: that Mike Roman and Boris Epshteyn used technical (in the case of Roman) or legal (in the case of Epshteyn) delays to stall the exploitation of their phones.

Again, this is all speculative.

As I laid out here, the superseding indictment does not name either Roman or Steve Bannon as co-conspirators using the designator “CC.” But the immunity filing treats both as co-conspirators, as least for the purpose of admitting their speech via a hearsay exception. In that post, I posited that Jack Smith considered a more substantive superseding indictment, adding charges based (in part) on their actions, but did not do so, possibly because of the timing in advance of the election. I further developed that hypothesis in this post, in which I suggested additional charges might pertain to inciting violence.

It is possible that SCOTUS’ decisions — not just Fischer and the Immunity ones, but also the 14th Amendment one — made Smith reconsider his charging decisions; see this post for how those rulings changed the legal landscape around Trump’s actions, and those of his co-conspirators.

But it may also be that a delay in accessing evidence meant that Smith could not yet consider such charges when he first charged Trump.

The mostly-sealed immunity appendix suggests there are fairly key texts obtained from the phones of Roman and Boris Epshteyn.

Much of the first 50 pages of Volume III, from GA 968 through GA 1014 (right up to the unsealed beginning of Pence’s book), are likely texts from Roman or Epshteyn’s phones. GA 968 to 996 are the texts in which Roman encourages a colleague at the TCF counting center in Detroit to “Make them riot.” The next three pages describe similar efforts in Philadelphia. It’s not clear where those came from, but Roman is from Philly, so it’s likely he’d be involved in any fuckery there.

Then, starting at GA 1004 (after three pages of unsealed transcripts showing Trump conceding in an AZ suit), there are what appear to be 11 pages of texts from Epshteyn’s phone. The texts start with the ones describing Steve Bannon telling Boris that Trump had just fired Justin Clark, he (Boris) would report to Rudy, and that Bannon, “had made a recommendation directly that if [Rudy] was not in charge this thing is over Trump is in to the end.” The apparent Epshteyn texts include his efforts to set up meetings to pressure Pence, ending with texts from January 5 where Epshteyn reported back to Bannon that Mike Pence’s counsel, Greg Jacob, had refused their last entreaty to just throw out all the Biden votes, in response to which Bannon said, “Fuck his lawyer.”

“So help me god,” Mike Pence says via the title page of his book on the very next page of the appendix.

It would probably make a dramatic narrative arc if we could read it in sequence.

These texts are (along with the transcript showing Trump’s campaign team conceding a legal case) the first pieces of documentary evidence presented to Judge Chutkan, to support the section of the immunity brief describing, “Formation of the Conspiracies.” But neither the specifics of the communications nor the treatment of Roman and Bannon as co-conspirators show up in the original and therefore the supseseding indictment.

I’ve been suspecting that Smith first obtained the Roman texts, from a phone seized in September 2022, sometime between August 1, 2023 (the date of the original indictment) and December 5, 2023, when Smith asked to submit the “Make them riot” texts in a 404(b) filing, the same filing that asked to present evidence of Trump ratifying the Proud Boys’s sedition that is entirely absent from this brief. That is, I suspect that in the four months after obtaining the original indictment, Jack Smith grew confident he had evidence to prove more than he had originally charged, but by that point, Trump had already secured his eight months of delay, putting the first chance to charge anything more in the pre-election window.

Mike Roman is technically sophisticated. It would be unsurprising if his phone were protected with the kinds of security that could cause a year long delay breaking into it. The reason I suspect there was a delay in getting these texts is that incredibly damning language that should otherwise merit treating Roman, from the start, as a co-conspirator, language that Smith now uses to open the start of his brief, only appeared in the public record in December 2023.

The reasons and means via which I think Epshteyn may have delayed access to texts that, like the Roman ones, don’t appear in the original indictment are different. These are the texts that got Bannon treated as a co-conspirator in the brief, that provided basis for Smith to use Bannon’s public commentary on his podcast — “all hell will break loose” on January 6– as a reflection of Trump’s own views.

Epshteyn’s phone, like Roman’s, was seized in September 2022. Starting in the months before the phone was seized, Epshteyn expanded his consigliere role for Trump, orchestrating Trump’s legal team that would help to hide stolen documents. It’s not entirely certain whether Jack Smith treats Epshteyn’s role as that of a lawyer in his stolen documents court filings. It was not until some months later that Epshteyn started billing his time as a lawyer. But Epshteyn got the press to describe him as serving in a legal role earlier than that.

According to someone who appears to be Eric Herschmann, Ephsteyn took on this lawyer role in order to obtain cover for his own earlier actions. In a November 2, 2022 interview, someone with Herschmann’s potty mouth and access  [Person 16] described how a “total moron” who looked like Epshteyn [Person 5] was, at that time, trying to give himself legal cover for previous activities.

According to Person 16, he “believed [Person 5] was now trying to create [redacted] to cover [him] for previous activities. [Person 16] believed [Person 49’s] records may reflect recent [redacted] that did not reflect what actually transpired.”

And it’s not just January 6 related crimes that Epshteyn might have been obscuring; prosecutors were also investigating a cryptocurrency scheme that Epshteyn and Bannon used to bilk Trump supporters.

To the extent that Epshteyn could claim there was attorney-client privileged material on the phone seized over three months after Epshteyn was involved in recruiting Christina Bobb to sign a declaration on June 3, it would create real obstacles in accessing material from the phone. And since 2023, Epshteyn’s lawyer, Todd Blanche, has also represented Trump, creating all sorts of complexities regarding the protective order.

It took nine months (April 2021 to January 2022), with the involvement of a Special Master, to exploit Rudy’s phones. It took far longer than that to exploit Scott Perry’s. Prosecutors only recently obtained content from James O’Keefe’s phone seized almost three years ago. It would be unsurprising if Epshteyn’s effort to retroactively create a privilege covering his phone extended how much time it took to access his content. And that might explain why details, like Bannon informing Epshteyn he was reporting to Rudy and Bannon’s treatment as a co-conspirator, would not be substantiated in time for the original indictment.

Again, this is all speculation based on what we see in the immunity brief that we didn’t see in August 2023 in the first indictment. But a delay in accessing the texts that have now become the opening act in Jack Smith’s documentation of Trump’s conspiracy might explain the shifted focus.