King John Would Like a Word with Justice Alito

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The Magna Carta Monument, Runnymede England

I am annoyed by folks who claim to love history and are blind to it. I am disgusted by folks who claim to love history, are willfully blind to it, and in their willful blindness try to use their power to inflict damage on others.

Why yes, I *did* listen to the oral arguments at SCOTUS today. Why do you ask?

sigh

Here’s an exchange between Justice Alito and Michael Dreeben, speaking for the government:

JUSTICE ALITO: Mr. Dreeben, you dispute the proposition that a former president has some form of immunity.

MR. DREEBEN: Mm-hmm.

JUSTICE ALITO: But, as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president.

Isn’t that true?

MR. DREEBEN: It is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions. And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.

JUSTICE ALITO: All right. So this is more, I think, than just a — a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference which I’m sure you’re very well aware of.

If it’s just a form of special protection, in other words, statutes will be interpreted differently as applied to a former president, then that is something that has to be litigated at trial. The — the former president can make a motion to dismiss and may cite OLC opinions, and the district court may say: Well, that’s fine, I’m not bound by OLC and I interpret it differently, so let’s go to trial.

And then there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the — the former president may be unable to engage in other activities that the former president would want to engage in. And then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal.

So the protection is greatly diluted if you take the form — if it takes the form that you have proposed. Now why is that better?

MR. DREEBEN: It’s better because it’s more balanced. The — the blanket immunity that Petitioner is arguing for just means that criminal prosecution is off the table, unless he says that impeachment and conviction have occurred.

Oh, the horrors of forcing a former president to defend himself in a trial! So sayeth Justice Alito, he who cites a 17th century English witchburner of a jurist (who also invented the marital rape exception), in order to justify denying women bodily autonomy.

If Justice Alito is fond of citing old English judicial writings, let me walk him back another 4 centuries and introduce him to John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou.

Once upon a time — long before a bunch of rabble-rousing colonial insurrectionists said that “Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” — there was a little dustup between John, by the grace of God King of England etc., and a bunch of his barons, as well as various bishops and archbishops. The barons and clergy, distressed at what seemed to them to be very ill treatment at the hand of their king, expressed their frustrations in a manner that could not be ignored.

In June 1215, John and the barons negotiated an agreement. In it, after an introduction and 60 separate clauses in which King John agreed to various reforms and promised to make specific restitution in various particular cases that were demanded by his barons, the 1215 version of the Magna Carta ends like this:

* (61) SINCE WE [ed: John] HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

* (62) We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. We have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between Easter in the sixteenth year of our reign (i.e. 1215) and the restoration of peace.

In addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of Stephen archbishop of Canterbury, Henry archbishop of Dublin, the other bishops named above, and Master Pandulf.

* (63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.

Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the abovementioned people and many others.

Given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign (i.e. 1215: the new regnal year began on 28 May).

Note the third paragraph, that begins “If we, our chief justice, . . .” In that paragraph, King John, by the grace of God King of England etc., is agreeing that he and his administration are not immune from accountability.

John and the barons agreed on a process for adjudicating disputes. They agreed on a panel that could both bring charges and judge them.  They agreed on how the panel should be chosen, and how the panel should select new members at the death of old ones. They agreed on how many members of the panel needed to agree in order for a judgment to be final. They agreed on a time frame for restitution. Most importantly, should John be found to have violated the terms of this document and yet refuse restitution, John, by the grace of God King of England etc., agreed that his castles and lands could be seized under order of the panel to make restitution for what he had done, or his officials had done on his behalf.

To be fair, the Magna Carta was changed and altered in the years and centuries that followed. But the original text of the original version makes it clear that even the King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou does not enjoy absolute immunity.

Trump may wish to be a monarch with absolute immunity and not a president.

Alito may wish to treat him as a monarch with absolute immunity and not a president.

But in a meadow at Runnymede, between Windsor and Staines, John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, said no. That’s not how even a divinely appointed monarch is to be treated.

Sam Alito Says that Donald Trump Is a Maligned Ham Sandwich

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I’m not, now, as full of despair as I was at one point in the SCOTUS hearing on Presidential immunity. (Here’s my live thread.) I believe that a majority of the court will rule that for private conduct — adopting the Blassingame rule that a President acting as candidate acts in a private role — a former President can be prosecuted.

But whooboy, Sam Alito really really believes everything Trump has said about this being a witch hunt. He repeatedly said that the protections that we assume ensure rule of law in the US — DOJ guidelines on prosecutions, the role of a grand jury, the role of a judge — are not enough in the case of Donald Trump. Sam Alito believes that Donald Trump should not have to be inconvenienced by a trial while he could be doing something else. Sam Alito also believes that January 6 was a mostly peaceful protest.

Alito even suggested that a President would be more likely to engage in violence after a closely contested election if he knew he might be prosecuted for it than not.

It was fairly insane.

Meanwhile, while I think there’s a majority (though Steve Vladeck is not as convinced) — with at least all the women in a majority — to let this case proceed at least on the private acts alleged in the indictment (with the huge caveat that Trump’s demands of Pence would not be considered a private act!), it’s clear that Neil Gorsuch doesn’t see how 18 USC 1512(c)(2) could be applied to Trump because we don’t know what corrupt purpose is, even though, of all the January 6 defendants, his corrupt purpose — his effort to obtain a improper private benefit — is most clearcut.

But there’s a whole lot of garbage that will come out of this decision, including immunity for core actions, like pardons and appointments, that could clearly be part of a bribe.

Notably, both Clarence Thomas and Brett Kavanaugh appear to be gunning for Special Counsels (though possibly only with respect to Presidents, not the sons of Presidents).

Michael Dreeben backtracked and backtracked far enough to preserve a case. But it’s not sure what else there will be.

The Phone Contacts between the “Total Moron” and the PAC Head

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According to Person 16 — who has the potty mouth and performed candor we’ve come to expect from Eric Herschmann — Person 5 is a “total moron” — an opinion about Boris Epshteyn that Herschmann has expressed elsewhere.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

Mr. Corcoran at one point sought to get on the phone with Mr. Herschmann to discuss his testimony, instead of simply sending the written directions, which alarmed Mr. Herschmann, given that Mr. Herschmann was a witness, the emails show.

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

At that same November 2, 2022 interview, Person 16 went on to tell Jack Smith’s investigators how Person 5 ingratiated himself to Trump after the former President left the White House.

Post January 2021, [Person 5] constantly sent FPOTUS what [he] had uncovered on the election fraud and maneuvered [his] way into FPOTUS’ circle. [Person 16] was unaware of an actual [redacted] for [Person 5], stating it was [Person 5] who would instruct media to report [on him] as [redacted].

I long laughed at the the way that journalist after journalist credited Ephsteyn with playing a role in Trump’s legal defense even while Ephsteyn was billing Trump’s PAC for strategy consulting, not law.

For the entirety of the time that Epshteyn was quarterbacking Trump’s response to the stolen documents probe, someone in his immediate vicinity has been telling reporters that he was playing a legal function, all the while billing Trump for the same old strategic consulting his firm, Georgetown Advisory, normally provides (though the two payments the campaign made to Epshteyn after Trump formalized his candidacy, totalling $30,000, were filed under “communications and legal consulting”).

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

All the time that NYT was describing Epshteyn as playing a legal role — and NYT is in no way alone in this — he was telling the Feds he wasn’t playing a legal function, he was instead playing a strategic consulting one. Many if not most of these stories also post-date the time, in September, when the FBI seized Epshteyn’s phone, which would give him a really good reason to try to claim to be a lawyer and not a political consultant.

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.”

It was around the time of this interview, in November 2022, when Ephsteyn did start billing for legal services, even while the press was credulously reporting that he had always been serving in a legal role. That happened in the aftermath of Ephsteyn’s phone being seized, in September 2022.

Person 16 also thought that “total moron” Person 5 might have shifted the concern about witness tampering from the January 6 investigation[s] to the stolen document one.

[Person 16] could not recall where the information that the concern about witness tampering was related to the document investigation and not the January 6th Committee. [Person 16] commented that sounded like something [Person 5] would do.

That interview was in November 2022.

In January 2023, according to an exhibit submitted in support of a discovery request for records on all correspondence and/or communications regarding counsel, Jack Smith’s office asked the FBI to pull together the toll records between Person 49 — who may be Susie Wiles, the head of America First PAC — and both Person 5 and Stanley Woodward.

The contacts between Person 49 and Woodward are not that interesting — just four phone calls in fall 2022, when Woodward started representing Kash Patel.

The contacts between Person 5 (whom I suspect is Ephsteyn) and Person 49 (whom I suspect is Wiles) are more interesting.

The contacts started on April 20, 2021, when Person 5 called Person 49, with sustained contact for a few months and then a lapse.

The contacts resumed in September and October 2021 (when the January 6 Committee was ratcheting up).

There were four phone calls in one week in November 2021, and two longer calls in December 2021.

And then nothing, until when Ephsteyn started ingratiating himself in Trump’s orbit after the documents issue went public in February 2022. From that point forward they were “in contact almost daily.”

Of course, these SMS texts might not be that useful. The paragraph of the superseding stolen documents indictment that describes Wiles vetting Carlos De Oliveira’s loyalty before arranging legal representation of him describes that Nauta confirmed his now co-defendant’s loyalty on a Signal chat, not an SMS text.

Just over two weeks after the FBI discovered classified documents in the Storage Room and TRUMP’s office, on August 26, 2022, NAUTA called Trump Employee 5 and said words to the effect of, “someone just wants to make sure Carlos is good.” In response, Trump Employee 5 told NAUTA that DE OLIVEIRA was loyal and that DE OLIVEIRA would not do anything to affect his relationship with TRUMP. That same day, at NAUTA’s request, Trump Employee 5 confirmed in a Signal chat group with NAUTA and the PAC Representative that DE OLIVEIRA was loyal. That same day, TRUMP called DE OLIVEIRA and told DE OLIVEIRA that TRUMP would get DE OLIVEIRA an attorney. [my emphasis]

Among the exhibits included in this request for discovery is a fragment of an interview with Person 49 denying unequivocally that she had done such vetting (as well as an earlier interview in which she said Person 16 was at the forefront of finding lawyers). If this is Wiles, she denied conducting loyalty checks before agreeing to find legal representation for people.

Mind you, that’s not the only place Wiles shows up in the superseding indictment.

In August or September 2021, when he was no longer president, TRUMP met in his office at the Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-t0-know classified information about the military operation.

That was around the time when Person 49 resumed phone contact with Person 5 again.

This ABC piece talks about what a big deal it is that Wiles might have to testify at trial in the height of a campaign she’s leading (though Aileen Cannon seems dead set on preventing that from happening).

And this post describes how Wiles likely showed up in another Trump-related indictment as the Florida campaign official who interacted — unwittingly — with Yevgeniy Prigozhin’s trolls.

Mark Meadows’ Proffer

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I continue to dig through the document dump Judge Aileen Cannon finally released the other day.

The dump included 70 exhibits (some FOIAed documents) submitted in conjunction with Trump’s motion to compel discovery and a few exhibits submitted with the government’s response.

The most titillating of the latter set is a November 2022 interview with Person 16 (whom I suspect to be Eric Herschmann, in part because Herschmann relishes giving titillating interviews in which he calls other lawyers morons).

But for the moment, I want to look at Person 27’s December 2022 proffer.

While the government is coy about the identity of Person 16, they’re not hiding Person 27’s identity: It is Mark Meadows.

The passages below, matched to the corresponding exhibits, makes it clear that Person 27 is Trump’s former Chief of Staff. Said Chief of Staff briefly got involved in the document recovery effort after NARA first threatened to make a referral to DOJ, then threatened to deem the boxes Trump had taken destroyed. Said Chief of Staff traveled to Mar-a-Lago in October 2021 (at a time when discussing the January 6 investigation would have been fruitful) and while there asked if Trump wanted help searching boxes, only to be told that Trump didn’t need help returning documents he wanted to keep.

A succession of Trump PRA representatives corresponded with NARA without ever resolving any of NARA’s concerns about the boxes of Presidential records that had been identified as missing in January 2021. By the end of June 2021, NARA had still received no update on the boxes, despite repeated inquiries, and it informed the PRA representatives that the Archivist had directed NARA personnel to seek assistance from the Department of Justice (“DOJ”), “which is the necessary recourse when we are unable to obtain the return of improperly removed government records that belong in our custody.” Exhibit B at USA-00383980; see 44 U.S.C. § 2905(a) (providing for the Archivist to request the Attorney General to institute an action for the recovery of records). That message precipitated the involvement of Trump’s former White House Chief of Staff, who engaged the Archivist directly at the end of July. See Exhibit 4 Additional weeks passed with no results, and by the end of August 2021, NARA still had received nothing from Trump or his PRA representatives. Id. Independently, the House of Representatives had requested Presidential records from NARA, further heightening the urgency of NARA obtaining access to the missing boxes. Id. On August 30, the Archivist notified Trump’s former Chief of Staff that he would assume the boxes had been destroyed and would be obligated to report that fact to Congress, DOJ, and the White House. Id. The former Chief of Staff promptly requested a phone call with the Archivist. Id.

[snip]

Fall passes with little progress in retrieving the missing records. In September 2021, one of Trump’s PRA representatives expressed puzzlement over the suggestion that there were 24 boxes missing, asserting that only 12 boxes had been found in Florida. Exhibit 7 at USA00383682, USA-00383684. In an effort to resolve “the dispute over whether there are 12 or 24 boxes,” NARA officials discussed with Su the possibility of convening a meeting with two of Trump’s PRA representatives—the former Chief of Staff and the former Deputy White House Counsel—and “possibly” Trump’s former White House Staff Secretary. Id. at USA-00383682. On October 19, 2021, a call took place among WHORM Official 1, another WHORM employee, Trump’s former Chief of Staff, the former Deputy White House Counsel, and Su about the continued failure to produce Presidential records, but the call did not lead to a resolution. See Exhibit A at USA-00815672. Again, there was no complaint from either of Trump’s PRA representatives about Su’s participation in the call. Later in October, the former Chief of Staff traveled to the Mar-a-Lago Club to meet with Trump for another reason, but while there brought up the missing records to Trump and offered to help look for or review any that were there. Exhibit C at USA-00820510. Trump, however, was not interested in any assistance. Id. On November 21, 2021, another former member of Trump’s Administration traveled to Mar-a-Lago to speak with him about the boxes. Exhibit D at USA-00818227–USA-00818228. That individual warned Trump that he faced possible criminal exposure if he failed to return his records to NARA. Id

[my emphasis, links added]

These passages, collectively, serve to rebut Trump’s claim that the involvement of Biden White House attorney Jonathan Su was in any way investigative or improper; the passage shows that Patrick Philbin involved Su, his successor as White House Deputy Counsel, and the White House had to further intervene when Meadows tried to reach out to a White House Office of Records and Management person, Person 40, directly.

This ABC story describing Meadows’ testimony, describing offering to help but being rebuffed, further corroborates that Person 27 is Meadows.

The former chief of staff also told investigators that shortly after the National Archives first requested the return of the official documents taken to Mar-a-Lago in 2021, he offered to Trump that he would go through the former president’s boxes to retrieve the official records and send them back to Washington. Meadows told investigators Trump did not accept his offer, according to sources.

So Government Exhibit C is a December 6, 2022 proffer from Mark Meadows.

I’m not so much interested in the content of that proffer. As ABC has reported, Meadows’ testimony was iterative, slowly evolving over at least three interviews as he was presented with more evidence of details that Jack Smith knew. Aside from a mostly redacted reference to Trump’s delegation of declassification authority (which may relate to the effort to declassify the Crossfire Hurricane binder and which might not be entirely true), the description of his trip to Mar-a-Lago to offer to help is the most interesting bit in this proffer.

But that’s the thing about proffers, offered by one of the best attorneys representing any Trumpster, George Terwilliger, offered before Beryl Howell overruled any Executive Privilege claims, and offered before the Georgia indictment made Meadows’ operative January 6 story told in DC less sustainable.

Proffers are the story you want to tell, not the full story.

As I wrote last August, after the first of ABC’s big scoops,

[T]his is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise.

There are a number of things to which Meadows eventually testify, per ABC’s reporting, that are not in this proffer. The most notable pertains to his ghost writers, on which topic his testimony evolved to accept that they were probably right that Trump was sharing classified documents in 2021.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said. Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

According to ABC, where Meadows’ other testimony would evolve to is that he would have been more diligent than Trump returning stolen documents.

Meadows also told investigators that he would have responded differently than Trump when the National Archives first asked Trump to return all remaining presidential records in his possession, and would have been very diligent in his handling of the initial search for documents to return to NARA, sources familiar with the matter said.

It’s unclear if there’s an “if” involved in this conditional statement, such as “if he knew Trump was stealing classified documents.”

That’s interesting, because in that proffer, Meadows claimed not to believe Trump had Presidential Records at all.

In July 2021, [Philbin] informed [Meadows] that NARA had contacted [Philbin] regarding missing boxes of documents. [Meadows] was already planning to travel to Mar-a-Lago for an unrelated meeting and offered to look for the missing boxes while [he] was there. [Meadows] was skeptical there were any presidential records as [he] believed, based on [his] experience with FPOTUS at the White House, that the boxes likely only contained newspapers.

Again, there’s a pretty big chance that this particular claim evolved, just like Meadows’ explanation for why he edited a really damning description from his ghost writers. The proffer is a baseline, a place from which prosecutors could slowly coax testimony closer to the truth, all the while locking in useful testimony to rebut Trump’s most outlandish claims. In this case, after all, the testimony is critical to rebutting Trump’s complaints about the involvement of Su, whether or not the testimony was entirely forthcoming, even while not giving anything away.

And I’m interested in it for that reason as well.

This proffer doesn’t tell us how Meadows would later testify. It doesn’t give anything away.

Robert Mueller’s team tried to flip witnesses against Trump, only to find that Trump bought them off with pardons — something that Person 16 describes already got promised to Walt Nauta. Here, there’s a far larger cast of characters, including people like Meadows who are central to all of Trump’s suspected crimes and also likely to welcome an offer of a pardon in exchange for loyalty. This slow squeeze is a different approach.

And along the way, Jack Smith got useful testimony — testimony that will give him what he needs to go to trial — but testimony that also can be used to inch closer to the truth.

Trump’s Attorney-Client Leak Privilege

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Pursuant to Judge Cannon’s order, her clerk has finally unsealed the substance of a complaint from Stan Woodward floated last summer: That, in a August 24, 2022 meeting, Jay Bratt insinuated that if Walt Nauta didn’t cooperate against Trump, then he’d lose his opportunity to be a Superior Court Judge. Here’s the letter presenting Woodward’s side of the story and here’s Jay Bratt’s explanation.

In his explanation of the dispute for Judge Cannon, Woodward repeatedly denied being the source for leaks to the press because “we litigate our cases in Court.” He even explained that multiple people got ahold of a longer letter including his complaint, but reporters, “agreed not to disclose defense counsel’s identity at defense counsel’s request because, we litigate our cases in Court.” That’s the same reason Woodward provided for not correcting Trump’s Truth Social attacks,

alleging prosecutors with the special counsel’s office had attempted to ‘bribe & intimidate’ a lawyer representing a witness in the case and claimed that the lawyer had been offered an, ‘”important judgship” in the Biden administration’ if the client ‘”flips” on President Trump.’

As Stan Woodward tells it, he spent a whole lot of time instructing journalists precisely how they should report on these allegations, but without correcting any false claims made by Trump.

It turns out, though, that Woodward’s complaint is not the only one Trump used in a bid to get grand jury testimony unsealed back in June 2023, after getting a target letter. Trump made a bunch of allegations:

  • Brett Reynolds was anxious to get Kash Patel to testify under the schedule when Beryl Howell had ordered it to occur even after Patel hired Stan Woodward just as the Oath Keeper trial tied up his schedule for months
  • Prosecutors asked Chamberlain Harris for a password to the laptop on which she had some classified information and she provided it
  • They gave Margo Martin somewhere between 72 hours and six days notice for a grand jury subpoena
  • They obtained a warrant for Carlos De Oliveira’s phone after having issued a subpoena for content because he hadn’t turned over a message from Nauta instructing him to cover up a July 10, 2022 return to Mar-a-Lago by Nauta and Trump
  • Tim Parlatore invoked attorney-client privilege 45 times during a grand jury appearance

It’s the last one that is the most remarkable. As Jack Smith explained — before even addressing the Woodward claims — the reason Parlatore was testifying before the grand jury in the first places was because Trump refused to have a real custodian of records attest to the thoroughness of the searches of Trump’s other properties for remaining stolen documents. As a result, Parlatore agreed to sit for a grand jury interview at which he would make item by item privilege claims about the thoroughness of the search he had overseen.

It was the same stunt Trump pulled with Christina Bobb in June 2022.

That part of Jack Smith’s response provides a ton more details about Parlatore’s efforts to string out prosecutors in fall 2022.

Trump made claims of abuse about one question in particular: whether Trump was the source for false claims Parlatore made about how cooperative Trump was during the June 2022 Jay Bratt visit, at which Parlatore was not present.

At one point, Parlatore ciaimed attorney-client privilege after being asked whether the former President was the source for Parlatore’s testimony about statements the former President purportedly made to government investigators about being cooperative. GJTr.40. The prosecutor then asked if a client could waive privilege and questioned why the former President had not allowed Parlatore to testify as to these conversations if he (the former President) meant to be cooperative, but the government prosecutor also quickly made clear that she was “absolutely not saying” that waiver of privilege is required to be cooperative and that, consistent with her earlier statement, she did not mean to “induce any waivers.”GJTr.40-43. Nonetheless, Parlatore on several occasions accused the government prosecutors of “trying to improperly invade the attorney/client privilege.”GJTr.45. see also GJTr.77. After one such accusation, a government prosecutor conveyed to Parlatore that “if [he] want[ed] to invoke the privilege, [he] can just say that” instead of casting aspersions about “what the people on this side of the table are and are not trying to do.”

In short, it was designed to create the opportunity to claim abuse, and Trump then claimed it.

What’s so interesting about the allegation — besides all the details of Parlatore stringing along prosecutors — is that shortly before this complaint, Parlatore loudly left Trump’s team and fairly routinely ran his mouth about details of Trump’s legal team. That is, Parlatore was more forthcoming with CNN than he was with the grand jury. And per a Hugo Lowell story, Parlatore shared a transcript of this grand jury appearance before Trump demanded a transcript of this grand jury appearance.

It’s all so predictable and obvious.

But … eight months later, it still seems to work wonders for Aileen Cannon.

Trump’s Nuclear Documents Were Mixed with Post-Presidential Press Clippings

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Some of the most interesting documents from the exhibits released with Trump’s motion to compel discovery yesterday pertain to the review of the original 15 documents returned in January 2022. This email thread within NARA describes an initial review of the documents. And these tables describe what the FBI found on initial review.

Together, they go a long way to describing why FBI had to pursue a criminal, rather than just a countrintelligence, investigation.

The initial review was written on January 18, the same day the 15 boxes arrived in DC. That initial review and a follow-up confirmed that NARA had received the things they had originally asked for: the weather map that Trump had altered, plus an accordian folder including the other documents they were seeking.

There was one accordian folder in the mess so it stood out. It contained, among other things, the Obama letter and North Korea correspondence. We need to verify that all of the correspondence is in there. But I think we are in good shape.

But even before discovering that, the person who wrote the memo described how an initial glance revealed classified documents, and a closer look after moving the boxes to a SCIF revealed news clippings that post-dated Trump’s presidency.

My plan was to glance into each box before I shelved it so I could give y’all a high level overview. As I fanned through the pile of newspapers at the top of the first box, I found several unfoldered classified docs in between some of the newspapers. So I took all the boxes to the SCIF. The first box I picked up in the SCIF had a newspaper on top that was post 1/20/2021. At that point I decided to take a closer look in each box to see if there are other issues that you three, David, and Deb might want to know about sooner than later.

From the start then, NARA knew that someone else at Mar-a-Lago had been accessing classified information after the end of his presidency.

For comparison, the FBI found that there were post-VP folders in a box with the Afghan documents at the core of Robert Hur’s investigation into Biden’s classified documents, but those were separate folders.

The person described that most of those classified documents — as claimed by Trump’s lawyers — were “state briefing papers and briefing cards” prepping Trump to talk to foreign leaders. But they “saw several docs that I think are PDBs” and “also found an incredibly sensitive SAP [Special Access Program] document.”

The person also found several things that Congress had requested.

I did see some material related to 1/6 and COVID. And at close glance I believe one of the classified docs is responsive to a third Congressional request. So we will need to review all of these boxes.

In other words, from the start there were two reasons for NARA to look more closely: the classified documents, but also the documents that Congress had already requested.

The FBI report, done a month later, provides three tables categorizing the classified documents found in those boxes. The single SAP document found by the NARA person, for example, is a 6-page memo dated to 2019.

In box 3, the FBI found three FRD (Formerly Restricted, an Atomic Energy Act designation that Presidents cannot override by themselves) documents totalling 57 pages.

All the FRD documents date to November 12, 2019, so they may pertain to Iran’s decision to resume enrichment at their Fordow facility announced on November 6.

Behrouz Kamalvandi, spokesman for the Atomic Energy Organization of Iran, said on Nov. 6 that 696 of the centrifuges allowed at Fordow would be used for enriching uranium up to 4.5 percent uranium-235, slightly above the 3.67 percent U-235 limit set by the deal. The remaining 348 machines will be used for medical isotope production, he said.

The International Atomic Energy Agency (IAEA) confirmed in its Nov. 11 report that Iran began enrichment at the site on Nov. 9.

This is the fourth step Tehran has taken in breach of its JCPOA commitments over the past six months. In May 2019, Rouhani said Iran would “reduce compliance” with its nuclear obligations under the deal in response to the Trump administration’s withdrawal from the deal in May 2018 and its reimposition of sanctions in violation of the accord. (See ACT, June 2019.)

The other parties to the deal (China, France, Germany, Russia, the United Kingdom, and the European Union) criticized Iran’s decision, but said they remain committed to preserving the nuclear deal.

In a Nov. 11 joint statement, the foreign ministers of France, Germany, the UK and the EU foreign chief said the Fordow decision “represents a regrettable acceleration of Iran’s disengagement” from its commitments under the nuclear deal.

The FBI noted that the single NATO document, a slide dated two days after the FRD ones, would trigger treaty obligations.

I argued in October 2022 that Trump’s strategy with these 15 boxes curated personally by Trump appear to mirror Trump’s disinformation strategy generally: to bury his crimes behind literal and figurative press clippings. It sounds like these initial documents actually had a higher proportion of press clippings than the documents ultimately seized in the Mar-a-Lago search.

But he tripped up: By including post-presidential clippings amid his nuclear documents, Trump gave investigators more reason to look, rather than less.

Trump’s White House Didn’t Archive Twitter DMs

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After a long wait, Judge Aileen Cannon has finally docketed the exhibits behind Trump’s motion to compel discovery in the Trump stolen documents case. Much of the dispute centers on claims that the Archives exhibited political bias because they wanted to archive Trump’s presidential materials.

As such, the exhibits include details about NARA’s efforts to archive the Twitter accounts Trump and others used during their tenure. NARA would later send Carol Maloney a version of this in 2022, which focused attention on tweets that people like Ivanka had deleted.

As that letter revealed, the exhibit reveals that Trump didn’t start automatically preserving tweets until 2018, but took quite some time to include everyone in the archiving process.

Whereas Ivanka’s deleted tweets seemed particularly important in 2022, Andrew Giuliani — who had contact with Kellye SoRelle — look more important from this vantage.

But the detail that takes on most new significance given what we’ve learned since is that the White House didn’t choose to archive DMs.

Again, this was in that 2022 letter to Maloney. But we now know that when Xitter tried to refuse to turn over material from Trump’s account, Jack Smith pointed to the incomplete nature of what NARA had as one of his bases for needing to go to Xitter directly.

I still doubt that was the most important item that Smith was looking for. But Trump’s earlier failures may have been part of what gave Smith cause to demand more important information on attribution from Elon Musk.

Trial Attention: Don’t Let a Pecker Distract from More Important Stories

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In my opinion, Donald Trump’s criminal trial, which starts in earnest today, is no more than the third most important thing happening to him this week. While I think charging Trump for alleged crimes for which his co-conspirators have already been punished and in which Bill Barr’s DOJ tampered has merit, and while I don’t think you can separate the allegations here from his other attempts to cheat to win elections, I believe the Trump Organization fraud case and the outcome of the January 6 case (and his claim to absolute immunity generally) have far more impact on Trump’s ability to continue to wreak havoc.

So I think Tish James’ bid to have Knight Specialty Insurance disqualified for providing Trump’s appeal bond and SCOTUS’ review of Trump’s absolutely immunity claims are far more important events this week than the Alvin Bragg trial.

The same is true of last week. Jury tampering — abetted by Jesse Watters and other Trump allies — will be an urgent, ongoing concern. But there are a slew of events — the UAW’s election win in a southern VW plant, the House’s passage of Ukraine funding (and follow-on repercussions we’re likely to see from it), continuing Israeli and Iranian tensions and attacks on Palestinians, the likelihood SCOTUS will narrow the application of the obstruction statute in the context of January 6, even the planned withdrawal of US troops from Niger — will be far more important to the fate of the US and the world than whether Trump glowered or slept or farted in the courtroom.

All of which is my way of saying: beware of letting this trial drown out more important events. Yes, it is unprecedented to see Trump subjected to discipline. But this trial is sucking up far, far too much attention that might better be directed elsewhere — and all that attention is one of the reasons why jury and witness tampering are such a risk.

I will be monitoring it in passing, but will rely on the very good journalists who are in the courtroom rather than covering it myself. Adam Klasfeld (with support from Just Security) is, as always, one of the best journalists providing live trial coverage, Lawfare has a full trial team covering it, NBC’s Lisa Rubin and Katie Phang have been offering useful expectation setting.

David Pecker may testify as soon as today about how he conspired with Trump and Michael Cohen to manage media focus during the 2016 election. This trial may have very much the same effect.

WaPo Gives Bill Barr Platform to Attack Joe Biden without Mentioning Barr’s Role in Framing Biden

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WaPo wrote a story on Bill Barr’s statement on Fox News that he would support Trump over Biden because Biden would represent a “continuation of the Biden administration is national suicide.”

On Wednesday, Barr maintained that voting for Trump would still be “Russian roulette” but claimed that a “continuation of the Biden administration is national suicide, in my opinion.”

Nothing in this story is news. It was always clear Barr was going to vote against Democrats, whom he decries (though the article notes that last July, he claimed to not know).

Much of the story simply regurgitates Barr’s own propaganda about how he is a “vocal critic” of Trump, without mentioning that before he criticized Trump’s Big Lie, Barr kicked it off, by attacking mail-in ballots. It doesn’t mention that the same people, Rudy Giuliani and Sidney Powell, whose election lawyering Barr attacked, Barr protected and enabled as Attorney General, shielding Rudy from any legal consequences for soliciting campaign dirt from known Russian spies, and helping Sidney Powell attempt to reverse the prosecution of Mike Flynn.

Crazier still, it makes no mention — none! — of the side channel Barr set up to funnel that dirt Rudy obtained from known Russian spies.

As I’ve reported repeatedly, in January 2020, Bill Barr ordered Scott Brady to conduct a side review of the dirt Rudy Giuliani collected from Russian spies and others. Via still unexplained circumstances, that side channel resulted in a claim from Alexander Smirnov being shared first with Brady, and then with Hunter Biden prosecutor David Weiss, a claim that Joe Biden had accepted a bribe from Burisma. After having received the lead in 2020 and not pursued it, Weiss revisited it after Barr made public comments last summer, as Republicans in Congress were chasing the claim.

That push to review what is now known as the Smirnov allegation resulted in David Weiss reneging on the plea deal he made with Hunter Biden and chasing the Smirnov allegation, only to discover Smirnov made it all up.

WaPo knows these details. A long piece on Smirnov described the side channel, though did not mention that Brady claimed to have verified precisely the travel details that Weiss alleges debunk Smirnov’s claims.

In October 2023, several months after Grassley’s release, Scott Brady, the former U.S. attorney for the western district of Pennsylvania, appeared before the GOP-controlled House Judiciary Committee to answer questions about the claims. Brady, who did not respond to a request for comment, had been tasked in 2020 by then-Attorney General William P. Barr to review information about Biden gathered in Ukraine by Trump attorney Rudy Giuliani.

Brady characterized the bribery claims as not thoroughly vetted as of 2020. At the same time, he told the committee that it was “correct” that the FBI considered that person credible at the time of the allegations.

And a piece from Devlin Barrett, listed as a contributor to this story, wrote a piece that obscured rather than highlighted the insanity behind Weiss’ decision to renege on the scope of the plea deal he made with Hunter to chase Smirnov’s allegations anew (Devlin did not mention Barr’s role in pitching the allegation in both 2020 and 2023).

Smirnov’s account was passed along to investigators in Delaware who were involved in the Hunter Biden investigation — a move which years later led to the charges against Smirnov, these people said.

U.S. authorities said that when agents questioned Smirnov again in 2023, he repeated some past lies, changed other parts of his story and offered new falsehoods after claiming to have met with Russian officials.

Bill Barr’s decision to set up a side channel to funnel dirt collected by Donald Trump’s lawyer on Trump’s opponent’s son to prosecutors already investigating Hunter Biden led directly to Joe Biden being framed. And it remains unexplained how Scott Brady came to find the lead — or whether it has anything to do with DOJ’s reported closure of an investigation into Mykola Zlochevsky in this same period.

At this point, Barr’s role in setting up a side channel that led to Biden being framed ought to be included in all discussions of his animus to Biden or his decision to back Trump. All the more so given that Jerry Nadler referred Scott Brady to at least DOJ IG for investigation of the way he misled Congress about his vetting corroborating Smirnov’s claims. After all, such an investigation may lead to places that scrutinize Barr’s own actions.

Sure Barr is going to back Republicans over Joe Biden, the guy he helped frame. But if the investigation into how that side channel ended up framing Biden gets very far, Barr may have far more self-interested reasons in ending Democratic control of DOJ.

Elon Musk’s Xitter Stalls a Criminal Investigation, Again

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On Friday, DC Chief Judge James Boasberg released a redacted version of a March 29 opinion on another attempt by Xitter to refuse compliance with legal process based on a complaint about a gag order (formally, a non-disclosure order, referred to as an NDO below). Kyle Cheney, who first posted on it and who tends to have a good read on these things, noted that it seems important.

As you recall, Xitter successfully delayed Jack Smith’s access to Trump’s Xitter account for 23 days in January and February of last year (from when then-Chief Judge Beryl Howell approved the warrant on January 17 until when Xitter finally complied on February 9), then spent several more months arguing that it should be able to inform Trump they had provided the information and should not have to pay fines for being in contempt.

This time around, Xitter delayed DOJ’s access to the mere subscriber records — that is, records showing who owns the accounts in question — for two Xitter accounts for over two months (January 25 through March 29 of this year) based on a similar complaint: that before it complied, it should be able to tell the subjects of the criminal investigation about the request.

While (as Cheney noted) there’s no clear tie to Trump, this investigation is focused on public figures of some sort.  We know that because Xitter argued that notifying the targets would not harm the investigation, and then claimed there was nothing publicly known about the targets to suggest informing them would lead to witness intimidation or any of the other bases DOJ provided for delaying notice for a year.

Judge Boasberg debunked Xitter’s claim. There was information in the affidavit, he said, even just “based on what is publicly known about the investigation’s targets,” to show that disclosure might result in witness intimidation. Xitter also complained that the government offered more information to justify its gag after Xitter challenged it, but Boasberg declined to “infer” from that the initial basis was lacking.

And while there’s no reason to believe that those public people have a tie to Trump, Boasberg cited last year’s legal dispute in three places to justify denying Xitter’s demand.

He invoked Yogi Berra (and the government’s filings) to explain why Xitter’s “imagined categorical prohibition on omnibus NDOs” was little different than the arguments it made last year.

On that question, much of X’s argumentation may be characterized by Yogi Berra’s immortal line, “It’s déjà vu all over again.” That is because the company mostly regurgitates the arguments that it made — which both this Court’s predecessor and the D.C. Circuit rejected — just last year in a case involving the same parties. See In re Sealed Case, 77 F. 4th 815, aff’g in the Matter of the Search; see also Redacted Gov’t Mot. at 13 (asserting that X “knows [its arguments] are losing arguments — having just had the D.C. Circuit reject them last year when it challenged a different NDO”); see also id., at 1, 7-8. The NDO at issue in In re Sealed Case accompanied a search warrant directing Twitter to produce information related to former President Trump’s account. See 77 F.4th at 821. Twitter challenged the NDO on much the same grounds as it does here, and the Circuit did not bite.

Boasberg likened Xitter’s glib offer to tell only the subjects of the investigation to Xitter’s similar offer last year to tell only Trump, which the DC Circuit rejected.

The company believes that “[a] less restrictive means of furthering the government’s interests . . . would be to permit X to disclose the Subpoena’s existence to the targeted users, while prohibiting disclosure . . . to anyone else.” Id. at 24. That is akin to asking for the donut minus the hole.

Indeed, the Circuit rejected an analogous alternative in In re Sealed Case. There, the company proposed notifying just Trump–the target of the warrant that the challenged NDO accompanied–of the warrant’s existence. Yet the Circuit considered that alternative a “nonstarter[]” because it “would not have maintained the confidentiality of the criminal investigation and therefore risked jeopardizing it.” In re Sealed Case. 77 F.4th at 831. Nor would it have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure was to avoid tipping off the former President about the warrant’s existence.” Id. at 832. X’s proposal here falls flat for precisely the same reason: permitting it to disclose the subpoena’s existence [redacted] would neither protect the investigation’s confidentiality nor safeguard its integrity. See Redacted Gov’t Mot. at 12 n.4.

[Paragraph redacted]

Notably, last year Xitter at least relied on a purported interest in preserving Executive Privilege. Here, there’s no such claim; just a specious argument that DOJ should have to get individualized NDOs for every subpoena it submits in this investigation, even if all of them ask for no more than basic social media account information. So this is not some protected class, like a member of Congress or staffer.

Perhaps Boasberg’s most interesting invocation of Xitter’s earlier attempt to tamper in the Trump investigation is where, in almost entirely redacted language, he compares the urgency of this investigation with that of Jack Smith’s investigation into, “activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government.”

He spends three (redacted) paragraphs describing the import of the investigation.

To be sure, the Government’s interest in In re Sealed Case “was particularly strong” because of the goal of the investigation at issue: “[T]o ferret out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government . . . and to assess whether that activity crossed lines into criminal culpability.” In re Sealed Case. 77 F4th at 830. The United States does not purport to target election interference in this case. But it submits that its interest are nevertheless heightened here for another reason: [1.5 lines redacted] The Court wholly agrees based on the evidence outlined in the Government’s ex parte briefing. [3 paragraphs redacted]

Whether or not this has a direct tie to Trump, it’s worth noting that Musk met with Trump (on March 2) during the pendency of this fight; last year, Musk met with Jim Jordan twice during Xitter’s challenge to the Trump warrant.

Whatever that three paragraph description was, Boasberg described the type of investigation using a short word — four or maybe five characters. This could be a FARA investigation or a leak investigation, for example, or perhaps he cited code to describe it.

Update: I guess I should explain why I used Musk’s Council of Nicea tweets as my featured image? In this post (linked above), I noted that on the day Xitter started complying with the Trump warrant, Musk posted this tweet:

So I went to Musk’s tweets from the day after Boasberg’s order and noted that he tweeted obliquely about “trac[ing] to source documents.”

If this is a leak investigation, it could be a reference to an attempt to source a leak.

Timeline

December 11, 2023: Application for omnibus NDO

January 5, 2024: DOJ serves Xitter with subpoena for subscriber information

January 24: Xitter moves to vacate the NDO, review the affidavit, and stay compliance

January 25: Initial deadline for compliance

March 2: Musk meets with Trump in Florida

March 29: Boasberg orders Xitter to comply

April 12: Boasberg released redacted opinion