Ball of Thread: Introduction

In my post on Elise Stefanik’s decline into fascism, I described that I’ve been meaning to lay out how Trump used his legal cases to train Republicans to hate rule of law, which has been a key part of how the Republican party has come to embrace fascism. I’ve been dreading and therefore putting off writing that, in large part because it’ll involve rehashing the Russian investigation, and the counter-propaganda to the Russian investigation has been so effective that even addressing the reality of the Russian investigation at this point is always a real chore.

One other reason I’ve been putting it off is because there are a lot of things I want to have in the background — what I’ll call a Ball of Thread. These are not so much related points. Rather, they’re just things that I want to have in the background so I can pull on one or another thread without distracting from the main argument.

So I’m going to first try to write those up fairly quickly, so they’re out there, my Ball of Thread. Some of these posts will be more observation than detailed collection of facts. Others will not show my proof to the extent I normally do. Some will update things I’ve already said. Still others would not normally merit their own post, but I want to have it out there, as part of my Ball of Thread.

Plus, I’m going to try to do this while continuing to cover two Trump prosecutions, multiple Hunter Biden dick pic sniffing campaigns, 1,200 January 6 cases, and some other things that will come up. You know? My day job. All while learning to walk again, after foot surgery.

Happy New Year!

As of now, I anticipate that my Ball of Thread will include:

These will hopefully be quick; they may be sloppy; they likely will not be in this order. But hopefully I can spin my Ball of Thread then move onto the larger task.

Update: Updated the “flipping focus” bullet since I decided it was a misnomer.

On the image: The featured image for this post comes from the Library of Congress’ Farm Services Administration set. 

The (Il)Logic of Elise Stefanik’s Hostage Video

I read a column recently by someone who argued that DOJ had failed because Trump and his top deputies are not yet in prison.

It was the expression of someone who always had unrealistic expectations about how long white collar investigations take, even ignoring the delays overtly attributable in this case to Executive Privilege claims (which stretched from June 2022 to April 2023), other privilege fights (9 months for Rudy’s devices, longer for John Eastman’s, and still longer for Scott Perry’s, with a total of 25 witnesses invoking some kind of privilege), and litigation that would be inevitable when prosecuting the first former President (three months so far on the immunity claim).

Where the column made a decent point, though, is in the ethical response to Trump’s prosecution. Normally, if a politician were charged with 91 felonies on top of the several personally damning civil suits and two trials involving your eponymous corporation, it would be sheer insanity for any politician to have anything to do with the scoundrel.

Republicans don’t give a fuck anymore.

And until we can solve that problem, we will always be fighting an uphill battle against fascism, because Republicans simply do not give a shit about rule of law anymore.

As I hope to write up one of these days, Trump has spent the last 8 years training Republicans to loathe rule of law. At first, he trained Republicans to adhere to him over rule of law. Now, opposing rule of law is an explicit litmus test for politicians in the Republican Party, who as a result join Donald Trump as he assaults rule of law at every turn.

Which is important background to Elise Stefanik’s appearance on Meet the Press today. Along with refusing to commit to certifying the election, Elise called those prosecuted for their crimes on January 6 “hostages” (much of the transcript is below).

In context, I don’t think Elise was explicitly comparing the Jan6ers to hostages held by Hamas, as many took her comment to be.

Rather, and perhaps more damning, I believe this was defensiveness. I believe she was, instead, defensively responding to the clip Kristen Welker had shown of Trump adopting the term, a term Trump has adopted from the culture of martyrdom that right wing supporters of terrorism adopted (as right wing terrorists always do) long before October 7. Elise was also defensively responding to a clip Welker showed of Elise herself, condemning the violence that Trump has now embraced.

Before I look at what Elise said, let’s talk about why.

In response to a great post on January 6 and fascism the other day, I attempted to write a taxonomy of the reasons why Republicans are waltzing along with Trump towards fascism. This is evolving, but I came up with:

  1. Cowards afraid of his retaliation
  2. People conned by his grift
  3. Utilitarians who believe he’s the only way GOP wins
  4. Adherents of fascism
  5. Christian nationalists

I have no doubt that Elise worries that defending her past statements might elicit retaliation from Trump, item 1. But for her, this is about ambition, utility, item 3.

In a profile that describes friends explaining that Elise wasn’t radicalized to Trump’s radical beliefs, she just sold out to her ambition, Nicholas Confessore described her gradual transformation into one of the most ardent MAGAts. With Elise it’s all about naked ambition, the conviction that by yoking her own destiny to Donald Trump’s she will gain power herself.

But according to current and former friends, she felt increasingly frustrated and lost in the House, horrified by the behavior of her harder-right colleagues and unsure of her place. As Mr. Trump’s presidency unfolded, it was becoming more difficult to play the middle. Some of the high-profile issues on which she had positioned herself as a bipartisan leader — climate action, immigration — had little traction in the Trump era. The president’s base wanted revenge, not high-minded ideas; Mr. Trump set policy by tweet, not white paper. As the 2018 midterms approached, Ms. Stefanik’s campaign took on a grim, joyless air. According to friends and advisers, she seemed brittle and unhappy. No longer a novice candidate, she dictated a hyperlocal campaign, emphasizing her bipartisanship and focus on regional issues. Though Democrats took the House that fall, Ms. Stefanik won the largest margin of any Republican in New York, a seeming validation of her carefully calibrated approach. But it was bittersweet. She was a promising young lawmaker with a seat at no particular table, respected by her party’s fractured establishment but viewed with suspicion by its ascendant Trump wing.

Still, the campaign had given Ms. Stefanik a glimpse of an alternate path. That August, she had appeared with Mr. Trump at Fort Drum, a major military base in her district, to mark the signing of that year’s defense bill. With a Democratic wave approaching, Ms. Stefanik had fretted for weeks over whether and how she wanted him to appear, but ultimately lobbied hard for Mr. Trump’s visit, according to a former White House official involved in the planning. At Fort Drum, Mr. Trump mispronounced her name — calling her “STEF-a-nik,” not for the last time — and offered backhanded praise. “She called me so many times” that he had dodged her calls, Mr. Trump told the audience. Ms. Stefanik gave a brief speech from behind the presidential lectern, lit for television as she cited the bill’s pay increase for soldiers and provisions she had written providing support for military spouses.

The day made a powerful impression, according to people who know or have worked with her. The cheering crowd was “a taste of being Jim Jordan and Mark Meadows for a day,” said the former White House official, referring to two of Mr. Trump’s staunchest House allies. More important, she had successfully maneuvered the power of the presidency — even if it was his presidency — behind a piece of her own agenda. It was a taste of the influence she had always imagined having.

[snip]

Virtually no one who knows her believes she has any genuine attachment to Trump-style populism — unlike Mr. Trump’s earliest supporters, for example, or media figures like the Fox host Tucker Carlson. Indeed, over dozens of interviews, former aides, advisers and friends going back to Ms. Stefanik’s Harvard days struggled to identify any of her deeply held political beliefs at all. Most recalled, instead, her generic loyalty to the Republican Party, her intense competitiveness and her unerring ability to absorb what she thought people around her wanted and to reflect it back at them. Eager to advance, skilled at impressing more powerful figures with her intelligence and work ethic, she has spent years embedding herself wherever the action seems to be at the time.

Today’s appearance was, as everything will be for the next six months, an audition by Elise to be Trump’s running mate.

And that dictated her pitch perfect — from a Trumpian sense — answers to Welker’s questions.

Watch how she did it (I’m paraphrasing the transcript below. Direct quotes are marked. Trump keywords are in pink):

Welker: Do you still stand by your criticism of violence from January 6?

Elise: You cut my defense of “election integrity“! Plus, I also condemned BLM violence. And did you know that [we are claiming without evidence] Joe Biden coordinated with Hunter Biden, who blew off our subpoena, which makes Joe Biden the most corrupt President ever?

Welker: Well, the White House refutes your claim, but Trump lost fair and square. Do you think insurrectionists should be held accountable?

Elise: Hostages! Prisoners! “I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives.” Weaponization. Two sets of rules. “If your last name is Clinton or it’s Biden, you get to live by a different set of rules.” Condemn the violence. Election integrity. “if we don’t have [election integrity], we do not have a democracy.” “[T]he real threat to our democracy is these baseless witch hunt investigations and lawsuits against President Trump.” Witch hunt. Tish James. DC Circuit. Undemocratic. Shredding our Constitution. “[Y]ou know who agrees with me, Kristen? The American people. That’s why President Trump is winning in poll after poll against Joe Biden.”

Welker: But DOJ indicted top-name Democrats, including the president’s son, twice

Elise [Interrupts] “[T]he American people are very smart. They know that they tried to give Hunter Biden a sweetheart deal. We’ve heard from multiple IRS blowers” [sic] [sic]

Welker: “He’s been indicted twice, Congresswoman –”

Elise: “A judge that threw out a sweetheart deal that was negotiated on Joe Biden’s behalf. Joe Biden and the Department of Justice have been withheld from going after the Biden crime family, which Joe Biden sits atop of.”

Welker: “Other top Democrats have been indicted, as well. But we have a lot to get to, so I want to stay on track.”

Elise is as good at this kind of word salad filibuster as Jim Jordan, and she cleans up a lot better.

It wasn’t (just) that Elise adopted the word “hostages” for Jan6ers, adopting the term Trump used to turn Jan6ers into martyrs. Much of the rest of her response consisted of blurting the key words she knows Trump wants to see on TV.

This is not meant to be a rational response. Trump is not in the business of fielding rational responses. This was a brilliant performance of Trump’s own degradation of rational response, with many of the required key words included.

Hunter Biden. Dick Pics. Hunter Biden. Dick Pics.

Elise’s response was an overt rejection of rule of law — excuses made for the terrorists who assaulted her work place. It was a defense of Nazis just weeks after her success at accusing liberals of anti-semitism. But it was also a willful rejection of rational argument, in favor of blurting the key words she knows will win her favor from Trump.

It was, most of all, an assault on rationality and truth itself: a refusal to engage in Welker’s futile attempt to get Stefanik to abide by her own words, much less adhere to rational defense of her, much less Trump’s, actions.

I’m not really sure what to do with these exchanges, short of big outlets like Meet the Press refusing to invite insurrectionists. At the very least, people who chant fascist slogans to please Trump need to pay a price. But where? How?

But the press needs to understand that interviews with Trump’s people are not, for him, designed to be a defense of his beliefs — or lack thereof. They are designed to throw out as many key words as possible to blur matters of truth.

Which task Elise performed spectacularly today.


KRISTEN WELKER:

In terms of what we’re hearing today, former President Trump has referred to January 6th as a, quote, “beautiful day.” Just this weekend, he referred to some of those who are serving time for having stormed the Capitol as, quote, “hostages.” Do you still feel as though that day was tragic and that those who were responsible should be held responsible to the fullest extent of the law?

REP. ELISE STEFANIK:

Well, first of all, Kristen, as typical for NBC and the biased media, you played one excerpt of my speech. I stand by my comments that I made on the House floor. I stood up for election integrity, and I challenged and objected to the certification of the state of Pennsylvania because of the unconstitutional overreach. So, I absolutely stand by my floor speech. I am proud to support President Trump. And I want to correct another statement you made that there is no coordination with Joe Biden and the Department of Justice in prosecutions against President Trump. We just saw Hunter Biden defy a congressional subpoena and the White House admitting it was in coordination with Joe Biden the morning of. That is coordination, and I believe that Joe Biden will be found to be the most corrupt president in our nation’s history. And that’s why all of the investigative work that we’re doing is so, so important, because the American people, they deserve transparency and accountability.

KRISTEN WELKER:

A lot to unpack there. Of course, the White House has said that Hunter Biden is acting unilaterally. On the issue of election integrity, though, as you know, Trump took his case to court more than 60 times that there was fraud. He didn’t win. But I want to get back to this key question. Do you still think it was a tragic day? Do you think that the people who stormed the Capitol should be held responsible to the full extent of the law –

REP. ELISE STEFANIK:

I have concerns about the treatment of January 6th hostages. I have concerns – we have a role in Congress of oversight over our treatments of prisoners. And I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives. We’re seeing it against Catholics. And that’s one of the reasons why I’m so proud to serve in the Select Committee on the Weaponization of the Government, because the American people want answers. They want transparency. And they understand that, as you look across this country, there seems to be two sets of rules. If your last name is Clinton or it’s Biden, you get to live by a different set of rules than if you’re an everyday, patriotic American. I’ve been clear, Kristen. If you go back and play the full speech I gave on the House floor, I condemn the violence just like I condemned the violence of the BLM riots. But I also, importantly, stood for election integrity and security of our elections, which, if we don’t have that, we do not have a democracy. So, the real threat to our democracy is these baseless witch hunt investigations and lawsuits against President Trump, whether it’s Tish James or whether we see in the DC Circuit Court. And that is undemocratic, and it’s shredding our Constitution. And you know who agrees with me, Kristen? The American people. That’s why President Trump is winning in poll after poll against Joe Biden.

KRISTEN WELKER:

The Justice Department has indicted a number of top-name Democrats, as well, including the president’s son, twice. So, I mean, a lot of critics would argue that undercuts your argument there are two systems of justice.

REP. ELISE STEFANIK:

If you want to try to –

KRISTEN WELKER:

Let me – can I follow up with you –

REP. ELISE STEFANIK:

I want to answer that. If you want to – if you want to make that case, the American people are very smart. They know that they tried to give Hunter Biden a sweetheart deal. We’ve heard from multiple IRS blowers –

KRISTEN WELKER:

He’s been indicted twice, Congresswoman –

REP. ELISE STEFANIK:

But it was because of a judge that threw out a sweetheart deal that was negotiated on Joe Biden’s behalf. Joe Biden and the Department of Justice have been withheld from going after the Biden crime family, which Joe Biden sits atop of.

KRISTEN WELKER:

Other – other – other top Democrats have been indicted, as well. But we have a lot to get to, so I want to stay on track.

Dan Scavino, Alone with Trump, Had Access to the Attempted Murder Weapon

Since DC District unsealed Jack Smith’s warrant to obtain Trump’s Twitter account, I have described that one of the most important things prosecutors were seeking was attribution: to learn, before conducting an Executive Privilege-waived interview with Dan Scavino, whether Trump or Scavino wielded the murder weapon, Trump’s Twitter account, that almost got Mike Pence killed three years ago.

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

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

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

ABC News reported details from several of the interviews that took place after Jack Smith got that Twitter warrant, including extensive details about what Scavino told prosecutors. Sure enough, he claimed that he had nothing to do with the Tweet that almost got Pence killed — that instead, he had left Trump alone with the murder weapon. He claimed — as the indictment made it clear he must have — that he wasn’t in the room.

According to what sources said Scavino told Smith’s team, Trump was “very angry” that day — not angry at what his supporters were doing to a pillar of American democracy, but steaming that the election was allegedly stolen from him and his supporters, who were “angry on his behalf.” Scavino described it all as “very unsettling,” sources said.

At times, Trump just sat silently at the head of the table, with his arms folded and his eyes locked on the TV, Scavino recounted, sources said.

After unsuccessfully trying for up to 20 minutes to persuade Trump to release some sort of calming statement, Scavino and others walked out of the dining room, leaving Trump alone, sources said. That’s when, according to sources, Trump posted a message on his Twitter account saying that Pence “didn’t have the courage to do what should have been done.”

Trump’s aides told investigators they were shocked by the post. Aside from Trump, Scavino was the only other person with access to Trump’s Twitter account, and he was often the one actually posting messages to it, so when the message about Pence popped up, Cipollone and another White House attorney raced to find Scavino, demanding to know why he would post that in the midst of such a precarious situation, sources said.

Scavino said he was as blindsided by the post as they were, insisting to them, “I didn’t do it,” according to the sources. [my emphasis]

Why would Pat Cipollone confront Scavino about the Tweet if “Scavino and others walked out of the dining room” — implicitly, walked out together — “leaving Trump alone”? Cipollone would only confront Scavino if he had believed that Scavino were still there with Trump, as his testimony describes he had been until just before Trump sent the Tweet.

The warrant on Twitter, which would have shown whether it is really true that Scavino was the only other person with access to Trump’s Twitter account, is not the only way Jack Smith tested this claim, knew the answer to this claim before interviewing Scavino.

As an expert witness notice revealed last month, Smith will call a witness at Trump’s trial to describe what they found on Trump’s White House phone and that of one other person — which might be Scavino, Nick Luna (whose testimony is also described in detail in the ABC piece), or one of several other people. That witness will explain when Trump’s phone was unlocked and using Twitter on January 6.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

So whether it is true that Scavino was blindsided by the Tweet, as he told Jack Smith he told Cipollone, Jack Smith has Scavino’s testimony that he wasn’t present (again, as I said he must), Cipollone’s testimony that Scavino said he wasn’t present, and metadata consistent with Trump sending the Tweet himself.

As you read the rest of the ABC piece, keep two things in mind. This leaked testimony concentrates on other aspects of the claims made to Jack Smith about how Twitter was used that day, such as this description of Luna’s testimony, describing that he warned Trump before the then-President sent a Tweet making him look “culpable” the day of the attack.

According to the sources, shortly before 6 p.m. on Jan. 6, Trump showed Luna a draft of a Twitter message he was thinking about posting: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots. … Remember this day for forever!” it read.

The message echoed what Trump had allegedly been saying privately all day.

Sources said Luna told Trump that it made him sound “culpable” for the violence, perhaps even as if he may have somehow been involved in “directing” it, sources said.

Still, at 6:01 p.m., Trump posted the message anyway.

That testimony — that Luna warned Trump the Tweet would make him look like he was responsible for the violence — will only strengthen the extent to which this Tweet was already going to be used to prove that Trump ratified the violence, effectively showing that Trump remained in a conspiracy with those who violently attacked the Capitol even after watching them do so.

Which brings me to the second point. Multiple people who gave this testimony — and probably the person or persons who shared it with ABC — claim to believe that they witnessed that Trump almost murdered his Vice President, someone who had been just as (or in Scavino’s case, almost as) loyal as they had been.

Again, there has to be a bunch of metadata that is consistent with the stories told to Jack Smith, so it’s not so much I doubt Scavino’s claim that he was not in the room when that Tweet was sent out. It’s that this testimony came from people who chose to stick around — some of whom, including Scavino, continue to stick around — knowing that if Trump ever turns on them he wouldn’t stop short of using his mob to get them killed.

How Trump Manipulated 3 NYT Journalists to Make a Campaign Ad for Fascism

In the face of Trump’s gas-lighting, journalists are struggling mightily to report Joe Biden’s accurate warnings about the authoritarian threat Trump poses.

In advance of Biden’s Valley Force speech — which the AP dubbed his first campaign speech of 2024 — AP spun Trump’s lies about January 6 as just one interpretation driven by politics.

With Biden and Trump now headed toward a potential 2020 rematch, both are talking about the same event in very different ways and offering framing they believe gives them an advantage. The dueling narratives reflect how an attack that disrupted the certification of the election is increasingly viewed differently along partisan lines — and how Trump has bet that the riot won’t hurt his candidacy.

In a WaPo story chronicling how Trump has trained the GOP to love insurrection, Isaac Arnsdorf and Trump-whisperer Josh Dawsey allowed propagandist Julie Kelly to complain about her portrayal without ever noting a number of persistent lies she tells — about which January 6 defendants are held in pre-trial detention, how they’re treated there, and the number of people charged with assault.

“I was being considered an outlier, to put it nicely,” Kelly said in an interview. “Conspiracy theorist or whack job, to put it more accurately, how I was portrayed.”

It described Tucker Carlson at length without describing the depths of his lies (nor the overproduced propaganda piece he did for the first anniversary). It referred to Nazi Timothy Hale-Cusanelli’s views as simple “notoriety for wearing a Hitler-style mustache.” The only thing it affirmatively identified as false is the claim no rioters had guns (and focuses on Darren Beattie’s “conspiracy theory” about Ray Epps rather than his fabricated claims that Thomas Caldwell’s devoted spouse was instead an FBI informant who framed him. In short, it repeated the Big Lie about the Big Lie as an interesting political development, not something it has responsibility to debunk.

Then there’s the NYTimes, in a piece by Michael Bender, Lisa Lerer and Michael Gold. It seems to be a genuine attempt at cataloging Trump’s “brazen” attempt to “cast[] Mr. Biden as the true menace,” the subhead of the piece.

But it proceeded to quote just 31 words of what it calls Joe Biden’s “forceful” speech, before it aired:

  • A 13-word false quote from Trump about his prosecution
  • 30 words of projection from Trump, attacking Biden
  • A 20-word false attack on Jack Smith
  • 11 more words lying about DOJ, quoted from a Trump fundraising email
  • Trump’s 3 word celebration of January 6 and another word rebranding convicted Jan6ers
  • 36 words from Trump’s campaign managers attacking Biden (a statement the AP also quoted)
  • In an attempt to label all this projection, Trump’s 5-word attack on Hillary Clinton
  • A 3-word attack on Biden that Trump uses in rally signage
  • 28 words of attack on DOJ from Marjorie Taylor Greene
  • 21 words from a Trump supporter at a rally

And they did so in an article talking about the import of focusing on democracy, not on Trump’s false claims about it.

Even including a 33-word quote from Josh Shapiro about how Pennsylvanians have learned to see through Trump’s bullshit and 30 words about the threat of violence, NYT still quoted Trump or his supporters’ false attacks on Biden and rule of law almost twice as much as they did true claims about Trump.

Effectively, it rewarded Trump for telling “audacious” lies. By telling them, he got three NYT journalists to quote his lies about Joe Biden and rule of law over and over and over.

The reason Trump projects his own failures on other people is because journalists never fail to reward him for it, presenting his false claims alongside true ones, leaving the impression that truth is up for debate, that professionals are helpless to discern which of these claims are true.

Trump’s goal is to degrade the very notion of truth. And this kind of journalism only helps him do that.

Update: After I wrote this, NYT changed the headline of this piece, from “Clashing Over Jan. 6, Trump and Biden Show Reality Is at Stake in 2024,” to “Trump Signals an Election Year Full of Falsehoods on Jan. 6 and Democracy.”

“Stand Back and Stand By:” Jack Smith’s Hidden Cards

Two years ago, I wrote a January 6 post describing how the vastness of the attack makes it unknowable, even for someone who had been tracking it full time.

I have spent the better part of the year working full time, with few days off, trying to understand (and help others understand) January 6. I’ve got a clear (though undoubtedly partial) vision of how it all works — how the tactical developments in the assault on the Capitol connect directly back to actions Donald Trump took. Zoe Tillman, one of a handful of other journalists who is attempting to track all these cases (while parenting a toddler and covering other major judicial developments) has a piece attempting to do so with a summary of the numbers. But both those methods are inadequate to the task.

But thus far, that clear vision remains largely unknowable via the normal ways the general public learns. That’s why, I think, people like Lawrence Tribe are so panicked: because even beginning to understand this thing is, quite literally, a full time job, even for those of us with the luxury of living an ocean away. In Tribe’s case, he has manufactured neglect out of what he hasn’t done the work to know. To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

I know a whole lot about what is knowable about the January 6 investigation. But one thing I keep realizing is that it remains unknowable.

I wrote the post, in part, hoping to allay the fear many people seemed to have because they couldn’t understand the investigation and therefore were sure that DOJ was only investigating MAGA tourists, who at that point made up most of the prosecutions. Since that time, hundreds of assault convictions and three seditious conspiracy trials later, we’ve learned that DOJ was already investigating three of Trump’s co-conspirators, it’s just that those investigations didn’t look like what people were looking for.

I’d like to reprise the theme, again to reassure people.

Two years later, 500 and the all important One defendants later, the investigation remains unknowable.

Specifically, while it seems that my assumption from last summer — that Jack Smith chose to charge just Trump first, presumably in a bid to get to trial before the election — was correct, we have no idea what he plans from here forward. A filing in December even revealed that there are others, besides the six identified in the Trump indictment, that the government plans to treat as unindicted co-conspirators at Trump’s eventual trial. Given the prosecution’s plan to introduce Trump’s shout out — “stand back and stay by” — to the Proud Boys, that suggests DOJ might even treat the seditious militia as Trump’s co-conspirators.

We don’t know what Jack Smith planned to do with all the other co-conspirators last summer. We don’t know what he plans to do with them now.

Unlike the Mueller investigation, we don’t even know all the prosecutors Jack Smith has working for him. We didn’t even hear that Michael Dreeben had returned to government to work for him until his name appeared on an appellate brief. There are at least four AUSAs who have not shown up, not recently anyway, in public filings. I’m quite certain they haven’t been twiddling their thumbs in the last year.

What we do know, however, is that Jack Smith team members JP Cooney and Molly Gaston both survived the aftermath of the Mueller investigation, the former in dealing with the aftermath of the Roger Stone resignations, and the latter in the aftermath of the Paul Manafort prosecution. They know how Trump pardoned his way out of a Russian conspiracy charge in 2020. They likely have some ideas about how to avoid that this time around (which may be why Smith hasn’t indicted any of Trump’s co-conspirators yet).

Since Judge Chutkan stayed proceedings for Trump’s immunity appeal, Jack Smith’s team has continued submitting filings — including the 404(b) notice warning prosecutors would raise Trump’s support for the Proud Boys at trial. And it’s driving Trump nuts; he even asked Judge Chutkan to hold Jack Smith in contempt for continuing to meet deadlines that she has stayed (issuing a filing complaining that they’re issuing filings!). One way to create the opportunity to tell more of the story of January 6, as Trump attempts to keep it out of the news through the primaries, is to indict more people, possibly sub-conspiracies tied to each of Trump’s identified co-conspirators.

Jack Smith made a choice last summer to only indict Trump at that time. But if the DC Circuit creates further delays in prosecuting Trump, Smith can make a different choice now.

We don’t know what his team has been doing while Gaston and Thomas Windom have been the primary faces of the prosecution. But he has cards left to play.

In Rudy Giuliani Affidavit, SDNY Hung Up the Perfect Phone Call

Consider this: The April 21, 2021 warrant affidavit showing probable cause for the search of Rudy Giuliani’s home, office, and devices did not mention the Perfect Phone Call between Donald Trump and Volodymyr Zelenskyy.

It could have done so. Earlier warrant affidavits targeting Lev Parnas and Igor Fruman, starting with a bunch obtained on October 21, 2019, included it.

On July 25, 2019, President Trump spoke to Ukrainian President [Zelenskyy]. According to a memorandum of the call, which the White House released publicly, President Trump noted that “[t]he former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news.” He also praised a “very good prosecutor,” which appears to be a reference to [Lutsenko,] who was still in place at that time following [Zelenskyy’s] election but subsequently removed from office, or possibly [Shokin,] the former prosecutor.

While SDNY did not release the affidavit for a December 10, 2019 warrant focused exclusively on the Foreign Agent charges, this same reference did appear in an affidavit to obtain the contents of Lev Parnas’ Instagram account the same day.

In context of the potential FARA charges tied exclusively to the firing of Marie Yovanovitch, the paragraph showed that Trump had been persuaded by Rudy Giuliani’s lobbying not just that Yovanovitch “was bad news,” but that the prosecutors behind the effort to oust her, Yuriy Lutsenko and/or Viktor Shokin, were “very good.”

Moreover, the paragraph is particularly relevant evidence in the affidavit targeting Rudy. Far more specifically than the (much earlier) affidavits targeting Lev Parnas, the Rudy affidavit describes that Rudy lobbied Trump to fire Yovanovitch at least three times (the affidavit clearly identifies two instances: once on February 16, 2019, and again on March 22) and lobbied Mike Pompeo at least twice (once on February 8 and again when the White House forwarded his packet of disinformation in March) before he and Parnas turned to a press campaign involving John Solomon to get her ousted.

Yet the only public affidavit targeting Rudy, unlike several targeting Lev Parnas, excluded the paragraph showing the extent of Rudy’s influence.

There may be a perfectly banal explanation, such as an attempt, relatively early in Merrick Garland’s tenure, to minimize the extent to which this was about Trump personally. Or, the Perfect Phone Call might embody some of the uncertainty, noted explicitly in the affidavit, about whether Rudy was targeting Yovanovitch to get contracts with Lutsenko, or whether he was doing it only to get disinformation, to benefit Trump, on Hunter Biden. Given the high likelihood that data seized in this search was also used in other, undisclosed investigations into Rudy — DOJ may not yet have had a January 6 warrant targeting Rudy, but in June 2021, DOJ took overt steps in the investigation into an anti-Hunter Biden film that Rudy plotted — the silence about the Perfect Phone Call may simply reflect the boundary line between investigative prongs. That is, maybe the Perfect Phone Call appears in another affidavit.

The anti-Hunter film was, reportedly, an investigation into possible foreign support. As this table, which compares the scope of investigation in three warrants for substantially the same Foreign Agent investigation, shows, the funding of Rudy’s shenanigans shifted focus over the course of the investigation.

The warrants include:

  • October 21, 2019, 19 MJ 9832, obtained days after Parnas’ arrest, as SDNY obtained warrants to expand the scope of the investigation to incorporate its expanding Foreign Agent focus
  • December 10, 2019, 19 MJ 11500, obtained days after Rudy met with Andrii Derkach, which would have been a natural follow-on investigation to the Parnas investigation, but which Barr moved to EDNY to protect Rudy’s ability to solicit dirt from Russian agents to help Trump’s 2020 campaign
  • April 21, 2021, 21 MJ 4335, obtained on Lisa Monaco’s first day as Deputy Attorney General, when SDNY finally obtained approval for warrants targeting Rudy’s home and devices

In October 2019, DOJ wasn’t looking closely at how the Ukraine caper was funded. In December 2019, it made up two bullets of the warrants, permitting the seizure of:

  • Evidence of any funds sent into any account controlled by or associated with [redacted] or Giuliani, or any instructions to send such funds. (c)
  • Evidence of money, actions, or information requested by, or offered or provided to Parnas, Fruman, Giuliani, or [Toensing] by any Ukrainian national in connection with efforts to remove [Yovanovitch], including but not limited to any Ukrainian investigation of [Burisma Holdings] Ltd., [Hunter Biden], or potential interference in the 2016 U.S. presidential election. (e)

That December 2019 focus on funding may have reflected details about Lev Parnas that SDNY had only just discovered. In an unsuccessful bid to have Parnas detained pretrial submitted the day after DOJ obtained that December 10 warrant targeting Lev Parnas, SDNY laid out what it had learned about the funding of the Ukraine caper.

Parnas poses a significant risk of flight for several reasons, the chief among which are his considerable ties abroad and access to seemingly limitless sources of foreign funding. Parnas has extensive and significant international ties, particularly in Ukraine, the country of his birth. Over the past two years, Parnas traveled repeatedly to Ukraine, and met with numerous Ukrainian government officials, including officials at the very highest level of government. More broadly, Parnas has traveled abroad more than twenty times over the past four years, including on a nearly monthly basis in 2019. Parnas took circuitous travel routes that obscured his final destination, such as by departing the U.S. for one country, but returning from a different country on a different airline. Parnas traveled internationally by private jet as recently as this year; bank account records from Account-1 show that Parnas spent more than $70,000 on private air travel in September 2019 alone.

[snip]

In addition, Parnas’s close ties abroad include connections to Russian and Ukrainian nationals of nearly limitless means, including [Andrey Muraviev] and a Ukrainian oligarch [Dmitry Firtash] living in Vienna who is currently fighting extradition to this country. Parnas has proven adept at gaining access to foreign funding: in the last three years, Parnas received in excess of $1.5 million from Ukrainian and Russian sources. In sum, given Parnas’s significant, high-level connections to powerful and wealthy Ukrainians and at least one Russian national, he could quickly and easily flee the United States for Ukraine or another foreign country, and recoup the security posted to his bond. It is difficult to overstate the extreme flight risk that Parnas poses.

[snip]

  • Between August and October 2019, Parnas received $200,000—not $50,000, as he told Pretrial Services—from the Law Firm into Account-1, which was held in Svetlana Parnas’s name, in what appears to be an attempt to ensure that any assets were held in Svetlana’s, rather than Lev’s, name.5 A portion of this money existed in Account-1 at the time that Parnas submitted his financial affidavit, and, to the Government’s knowledge, does so today, underscoring that Parnas continues to mislead the Government and the Court about his financial condition.
  • Parnas failed to disclose, in describing his income to the Government and Pretrial Services, the fact that in September 2019, he received $1 million from a bank account in Russia into Account-1. While the majority of that money appears to have been used on personal expenses and to purchase a home, as discussed below, some portion of that money existed in Account-1 at the time Parnas submitted his financial affidavit.
  • At the time of his arrest, Parnas had at least $200,000 in an escrow account, in connection with his intended purchase of a property located in Boca Raton, Florida, which was listed for sale at approximately $4.5 million. The escrow account was funded with $200,000 from Account-1 in September 2019. Parnas did not disclose this asset (either the property or the funds in the escrow account) to either Pretrial Services or the Government. It is unclear whether Parnas proceeded with this real estate purchase or received the funds back from the escrow account.

In an appearance on Michael Cohen’s podcast last month, Parnas addressed how various Ukrainian, Russian, and American oligarchs were funding his and Rudy’s efforts; he says it’ll also appear in his forthcoming book.

The warrant targeting Rudy 17 months later doesn’t reveal what SDNY had learned about the funding in the interim, nor does it sustain the focus on how this was all funded. It states with some certainty that in spite of two rounds of discussions of retainer agreements with Lutsenko and others, Rudy never got any money from them.

Based on my involvement in this investigation and my review of text messages, it appears that Giuliani was referring to the execution of [redaction] retainer agreement and the wiring of funds. However, based on my review of bank records, it does not appear that [redacted] wired funds to Giuliani at that time, or any subsequent time.

As NYT emphasized in their report on these warrants, the later warrant does describe that Rudy needed the money.

6 Based on my review of a financial analysis prepared based on bank records and public reports, it appears that around this time, Giuliani had a financial interest in receiving a retainer agreement from [redacted] Specifically, in May 2018, Giuliani left his former law firm and its substantial compensation package. Based on my review of a financial analysis of bank records that have been collected to date (which may not include all of Giuliani’s checking and credit card accounts), on or around January 25, 2018, Giuliani had approximately $1.2 million cash on hand, and approximately $40,000 in credit card debt. By contrast, on or around January 25, 2019, right before he met with [redacted] Giuliani had approximately $400,000 cash on hand in those same accounts and approximately $110,000 in credit card debt. By on or around February 16, 2019, his account balances had dropped to approximately $288,000 and his credit card debt remained over $110,000.

Perhaps because of what SDNY claimed were Parnas’ efforts to obscure his travel, the December 2019 warrant (for which, remember, it did not release the affidavit) added a bullet point, seemingly an afterthought unmarked by a letter, authorizing seizure of evidence that the men were hiding meetings with Ukrainians.

Evidence of efforts or attempts to conceal meetings with individuals acting on behalf of or associated with any Ukrainian national or government official. (no letter)

By contrast, the April 2021 affidavit targeting Rudy was interested in one single trip: His February 2019 trip, with Parnas, to Warsaw.

Evidence relating to a trip by Rudolph Giuliani to Poland in February 2019.(5)

As the affidavit describes, there was good reason to believe Rudy’s public claims about the trip — made in the days after the Perfect Phone Call was released — were lies, because immediately after the meeting, Rudy drafted a retainer shortly after the meeting and started lobbying Trump and Pompeo.

7 Based on my review of public reporting, I have learned that according to an article published on September 29, 2019 in Reuters, Giuliani admitted that he met [Lutsenko] in Warsaw in February 2019 after first meeting him in New York in January, but that the meeting with [redacted] in Warsaw was “really social . . . I think it was either dinner or cigars after dinner. Not opportune for substantive discussion.” However, this does not appear to be accurate, as described herein, Giuliani circulated a draft retainer agreement between [2 words redacted] and [redacted] (a firm owned by [Toensing] and her husband, [Joe DiGenova]) only five days after meeting with [redacted] and communicated with Parnas and [redacted] about lobbying [Pompeo] and Trump to remove [Yovanovitch] on the same day, and in the days following, his meeting with [redacted].

The reference to Lutsenko in that Reuters story is minor; far more of the story focuses on who paid for Rudy’s galivanting — again, a topic dropped in the later known warrant.

One of the key questions is who financed Giuliani’s globe-trotting as he pursued unsubstantiated allegations that Biden had tried to fire Ukraine’s then chief prosecutor, Viktor Shokin, to stop him investigating an energy company on which his son Hunter served as a director.

“Nobody pays my expenses,” Giuliani said in an interview with Reuters on Friday. “What does it matter if I’m getting paid for it. Isn’t the real story whether he (Biden) sold out the vice presidency of the United States, not whether I got paid for it?”

The singular focus on that Warsaw meeting — a meeting that took place at an event designed to undermine Obama’s Iran Deal, which Rudy attended in conjunction with MEK (former NJ Senator, Robert Torricelli, with whom John Solomon has a past, also attended with MEK) — is all the more interesting given the temporal scope of the warrant.

The other two warrants I adress here were dictated by dates of collection. Because the October 21 warrant authorized an expanded search of materials obtained months earlier, its temporal scope necessarily ended at the collection date, May 16, 2019. Because the December 10 warrant authorized an expanded search of materials seized from the search of Parnas and Fruman’s residences (primarily Parnas’ — by this point, SDNY seemed to be scrutinizing Parnas far more closely than it did Fruman), its temporal scope necessarily ended on that collection date, October 9, 2019.

But the Rudy warrant extended long past the last overt act, the firing of Yovanovitch, described in the warrant, to December 31, 2019. Here’s how the FBI justified that:

To the extent materials are dated, this warrant is limited to materials created, modified, sent, or received between August 1, 2018, and December 31, 2019. Materials going back to approximately August 2018 are relevant to understand Giuliani’s relationship with Parnas and information he was provided in the fall of 2018 relating to, among other things, Ambassador [Yovanovitch] and Ukraine. Materials created, modified, sent, or received after approximately May 2019, when the Ambassador was removed from her post, through the end of December 2019, during which time Giuliani traveled to Europe to meet [Lutsenko] with are relevant because based on my review of the Prior Search Warrant Returns, it appears that Giuliani continued to make public statements about Ukraine and the Ambassador.

Thus, it rationalized extending the warrant’s temporal scope through December 2019 — a temporal scope that would include the trip for the anti-Hunter Biden documentary, on which Rudy again met Lutsenko, but also met known Russian asset Andrii Derkach and others who would later be deemed Russian assets — based on Rudy’s continued focus, vaguely, on Ukraine (as well as Yovanovitch).

But it’s not clear whether FBI would be able to access details of Rudy’s meeting with Derkach, as opposed to Lutsenko, with this warrant. The long redaction in this bullet point shields who else, in addition to Parnas and Lutsenko, was included in the scope of the known warrant.

In other words, though the temporal scope of the warrant would permit FBI to review information about Rudy’s later meetings with Lutsenko, in association with which trip Rudy also met a series of Russian assets, nothing unredacted in the warrant permitted FBI to seize information about that later meeting (or about the anti-Hunter Biden documentary).

For that matter, nothing unredacted in the April 2021 warrant explicitly permits the FBI to seize information about Rudy’s attempts to dig up disinformation targeting Hunter Biden and his father, even though the warrant affidavit likely mentions such efforts at more than twelve times (one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve).

Still, as I’ve noted repeatedly, by the time Judge Oetken approved the Special Master process that Rudy himself had demanded, Special Master Barbara Jones was instructed to review all content post-dating January 1, 2018, a temporal scope significantly broader than the one laid out in the warrant. And according to her reports, while for some devices she focused more nearly on the timeframe of the Ukraine caper, those she reviewed first, she reviewed through the date of seizure.

We still know just a fraction of the story about how Bill Barr obstructed the investigation into Rudy Giuliani’s Ukrainian influence peddling — and the degree to which that let Rudy get rid of phones before the investigation would have otherwise developed (for example, the warrant describes that Rudy replaced a phone used with his main phone number on the date the House started subpoenaing records in advance of impeachment). That is, even though SDNY took aggressive investigative steps on Lisa Monaco’s first day as Deputy Attorney General, it was likely already too late.

Update: Back in real time, I posited that the first time Rudy pitched Mike Pompeo on firing Marie Yovanovitch was done while in Trump’s presence.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing.

  • January 18, 2019, 19 MJ 1729: Yahoo and Google content

May 15, 2019: Marie Yovanovitch firing public

  • May 16, 2019, 19 MJ 4784: iCloud content
  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7594: Unknown warrant
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9830: Unknown warrant
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrant for Rudy’s iCloud
  • November 4, 2019: Warrant for Rudy’s email
  • November 4, 2019: Warrant for Victoria Toensing’s iCloud
  • November 6, 2019: Warrant for Yuriy Lutsenko’s email

December 5, 2019: Rudy meets with known Russian asset, Andrii Derkach

  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram
  • December 10, 2019, Warrant for Roman Nasirov’s email
  • December 13, 2019, Warrant for Victoria Toensing’s email

December 14, 2019: Barr aide texts him: “Laptop on way to you”

January 3, 2020: Barr establishes dedicated channel to ingest Rudy’s dirt

January 17, 2020: Jeffrey Rosen makes Richard Donoghue a gatekeeper for all Ukraine-related investigations

  • February 28, 2020: iPhone of Alexander Levin
  • March 3, 2020: iPad of Alexander Levin
  • March 20, 2020, 20 MJ 3074: Fruman iCloud content obtained with October 21, 2019 warrant to cover earlier periods

June 20, 2020: Barr fires Geoffrey Berman

November 2020: SDNY denied authority to seek devices of Rudy Giuliani

January 2021: SDNY denied authority to seek devices of Rudy Giuliani

  • April 13, 2021: Cell site data for Rudy and Toensing

April 21, 2021: Lisa Monaco sworn in

  • April 21, 2021, 21 MJ 4335: Rudy’s office, residence, and devices
  • April 21, 2021: Victoria Toensing iPhone

What Joseph Ziegler Didn’t Find When He Looked for Hunter Biden’s Sex Workers

Joseph Ziegler, the disgruntled IRS agent who built a tax case on the digital payments Hunter Biden made during the depth of his addiction, is quite proud that he found one of the sex workers who slept with Joe Biden’s son. He brought it up twice in his testimony.

First, he boasted that he sought out women he called prostitutes and impressed the prosecutors.

Yeah. So standard practice is — for any transaction, you want to go out — and a lot of our job is hitting the pavement, going out and talking to people. There was a lot of different investigative steps that we took, that even going and talking to the prostitutes, we found multiple people that he called his employees that were also prostitutes, and that he would have them clean his hotel room or — there were a lot of these interviews that we ended up going and doing and talking to people that were so worth it, even though someone might — we were always being told by the prosecutors, you guys are wasting your time going and doing that. It’s not worth it. And literally, I would surprise them every time and find everyone.

Though maybe Ziegler was speaking loosely when he called these women prostitutes. Later in his testimony, he admitted that he had been calling Lunden Roberts, a former stripper and the mother of Hunter’s fourth child, a prostitute.

Then, he complained that prosecutors had withheld the sex videos involving a “potential prostitute” they had interviewed — effectively confessing that he had looked online for things that would have tainted his testimony.

But there was other things — we went out and talked to one of the potential prostitutes. And there were videos that I’ve seen out there on Twitter, on the internet, and information related to that person that I had never seen before.

He — or rather, Homeland Security Investigations — did find at least one sex worker, though.

In the documents Ziegler released last September, he included two interview excerpts, one with Hunter’s accountant, Jeffrey Gelfound, and another with a sex worker whom he calls “Gulnora.” Ziegler explained the two show that Hunter wrote off a payment to Gulnora, who admitted she met with Hunter as an escort.

EXHIBIT 1F & 1G: This was a memorandum of interview of Jeffrey Gelfound, Edward White & Company tax accountant who assisted with the preparation of RHB’s delinquent tax returns, to include the RHB’s personal and corporate tax returns for 2017 and 2018. When discussing deductions on RHB’s tax returns, Gelfound was asked about whole dollar transfers to Gulnora. Gelfound was asked if RHB verified this as a business expense in which Gelfound stated “Yes, we put it on the returns so …”. EXHIBIT 1G was an interview report turned over to the investigative team as a part of the RHB investigation. I have included a redacted excerpt of that interview of an escort by the name of Gulnora that was conducted on or about April of 2021 in which she admits to meeting RHB relating to escort work.

Note the interview with Gelfound, not the one with “Gulnora,” appears to have been in April 2021; the “Gulnora” one appears to have taken place in June 2021. Close enough for IRS-CI work, I guess.

In the Gelfound interview, DOJ Tax Prosecutor Mark Daly actually asks the accountant about two Venmo payments, one for $1,500 and another for $2,700.

DOJ-Tax Daly: [redacted] there is a series of large whole dollar transfers to something called Gulnora?

Jeffrey Gelfound: OK.

DOJ-Tax Daly: Do you know what that is?

Jeffrey Gelfound: I-I don’t.

DOJ-Tax Daly: OK – But Hunter verified to you that that was a business expense?

Jeffrey Gelfound: Yes, we put it on the returns so …

DOJ-Tax Daly: OK, um, there’s a series of Venmo transfers, large dollar ones, for example, [redacted]

Jeffrey Gelfound: OK.

DOJ-Tax Daly: On August 14th there’s a $1500 expense and on September 4th there’s a $2700 expense.

The $1,500 expense appears to be the one mentioned in the tax indictment, which I wrote about here. That payment was the first obvious charge on Hunter’s Venmo account after two new devices were added to Hunter’s Venmo account in two different cities. It appears to have happened a day earlier than described in the indictment (and than described in this interview, which will be admissible for impeachment at trial). To prove that Hunter intentionally wrote this off improperly, prosecutors will need to prove not just that Hunter — as opposed to the people who accessed his Venmo account days before this — made the payment, that Hunter, rather than the dancer, listed the payment as Art, and that he remembered all that in 2020.

And while the $2,700 payment doesn’t obviously appear in the indictment, it’s yet more proof of how problematic relying on payments Hunter made to sex workers will be for prosecutors (there are plenty of other payments they would have an easier time proving were improper write-offs, though).

The Venmo described as a September 4 payment appears to have been made on August 30, 2018. If that’s correct, then it was paid to a woman who was paid at least three times in two days, probably four. In addition to the $2,700 Venmo payment (shown in pink in the timeline below), she was paid a total of $1,800, via two payments, on Zelle. Then she was entered as a wire transfer recipient in Hunter’s Wells Fargo account, immediately after which someone was transferred $4,000. Those payments are shown in red on the timeline.

The three different methods of payment (from at least two bank accounts and a Visa debit card) are suspect enough.

They happened in a period when Hunter’s life was in remarkable turmoil, even by his standards. On Sunday, August 26, he left his bank card in an ATM machine. The next day, Monday, he either lost his phone or someone used the Lost Phone function to track Hunter as he moved across Venice, CA and ultimately to the AirBNB in the Hollywood Hills where he was staying for two nights. The next day, Tuesday, after he left the AirBNB, he discovered he had left a bag there. Ultimately the owner gave the bag to an Uber driver (but there’s no obvious Uber payment showing that Hunter got the bag back). The next day, Wednesday, Hunter either spent two hours trying to get onto Venmo; or someone spent hours trying to break into his account. Also that day, Hunter’s contact information for Wells Fargo was changed; it looks like Wells Fargo had two separate numbers ending in 9396 for him. That night appears to be when he first interacted with the sex worker the IRS calls Gulnora, because he paid her at close to 4AM. Consistent with what she told HSI 34 months later, they met again the next night, Thursday. He paid her via Zelle at 9:50PM, via Venmo at 11:04PM, and then probably via wire transfer at 6:41AM. Later that day, just after 7PM on August 31, Hunter would buy a new MacBook Pro using two credit cards; this is believed to be the laptop that would eventually end up in Fox News pundit Keith Ablow’s possession. Two and a half hours later, Hunter made an Account Recovery request to Apple (using a different phone number than the one(s) recently added to his Wells Fargo account), and the next day, Saturday, September 1, he started accessing his accounts from the new device. This was one of only two Apple Account Recovery attempts recorded in the publicly available emails, and unless he lost a laptop at the AirBNB, it’s not clear what device had been compromised (though he had lost an iPad earlier in August).

But that’s not all. The $4,000 wire transfer made in the same minute the sex worker was made a wire transfer recipient occurred immediately after something that also frequently occurred on Hunter’s Wells Fargo account: a reset of access after a suspected compromise.

On at least 36 occasions in 2017 and 2018 — and three times (marked in blue in the timeline) in the period in which this payment was made to a woman the IRS is calling Gulnora — Wells Fargo suspended his access because it suspected someone else was trying to access his account, which required him to change his password before he could access it. Most often, the password got changed and Face ID, allowing anyone with access to Hunter’s face or perhaps his fingerprint, would be turned back on. Probably, many if not most of those were not someone else trying to access the account; they were probably just Hunter trying to access the account, in ways that looked suspect. But the result is that he almost certainly repeatedly accessed his bank account while in the presence of a dealer or a sex worker awaiting payment, watching that he reset his password and then turned on Face ID. This would alert them that they could access Hunter’s account by using his face (or fingerprint), either of which would be accessible to them when he was wasted. As a result, like that Venmo payment made earlier in August, law enforcement wanting to prove that Hunter made a particular payment would need a whole lot of evidence about the circumstances of payment, to rule out someone else paying him or herself.

And unless someone interviewed the woman they call Gulnora (who was paid under a Russian last name) a second time, they didn’t get that evidence from her.

As it was, just two pages of nine in the interview pertained to Hunter Biden. The interview appears to have focused on how she became involved in an escort network run on Telegram. She claimed she only took two jobs with the madam who arranged the meeting with Joe Biden’s son — the two dates with Hunter, and one more, with a guy she called “John.” Though later in the interview she described interacting with the madam face to face once and with people she worked with on multiple “occasions,” which sounds like more than two clients (especially since, by description, Hunter called her directly to arrange the second date).  The woman wasn’t sure what website he would have used to contact the madam. She was not asked the dates of the trysts.

What she did describe is that she had some uncertainty about the ID Hunter used to verify his identity, because it was not a California Driver’s License. That’s what led Hunter to explain who his father was, after which the woman the IRS calls Gulnora “became afraid.” But then, when she returned to her apartment, a friend provided her more information.

After [Gulnora] left the location, she arrived back at her apartment and told her friend who she was just with. [Gulnora] stated that her friend told her “you have no idea who you’re dealing with.” [Gulnora] stated that she deleted [redacted] number.

So by the time she went back that second day — to be paid $1,200 via Zelle at 9:50 and then $2,700 at 11:04 in the first Venmo payment after whatever had happened with Hunter’s Venmo account days earlier, probably followed by $4,000 the next morning — she did know who she was dealing with.

One more thing about the payments to this woman. Someone attempted to wire her $100 from Hunter’s account on February 27, 2019, in between the time when Hunter’s digital identity was packed up on a laptop and the day when that laptop would walk into a computer repair shop in Wilmington. That payment failed.

I don’t doubt that the sex worker did meet Joe Biden’s son. But there are no less than six possible identity compromises in the days leading up to their meetings. The very same day she was probably paid a fourth time in two days, Hunter Biden attempted to reclaim his digital identity.

It’s not just that prosecutors would have a difficult time proving that Hunter made these payments. It’s that they decided that turning them into a tax felony was the appropriate response to six possible identity compromises of the former Vice President’s son in one week.

Timeline

August 26 at 12:16PM: DroidHunter added to Apple account.

August 26 at 4:16PM: Hunter reserves AirBNB.

August 26 at 4:34PM: Hunter withdrew $800 from an ATM but left the card.

August 26 at 7:24PM: Hunter arrives AirBNB.

August 27 at 1:40AM: Hunter added a new Zelle recipient and then, a minute later, sent him $750. Two hours later, at 3:40 AM Hunter sent another $750.

August 27 at 4:13AM: Wells Fargo suspended his online access. Eight minutes later, Hunter’s password was reset, Face ID was turned back on, a new recipient was added, and $2,000 was transferred to that new recipient.

August 27 at 11:15PM: A sound was played on iPhone.

August 27 at 11:18PM: Hunter’s phone put into Lost Mode.

August 27 at 11:18PM: Apple Pay was suspended on his phone.

August 27 at 11:18PM: iPhone found in Venice, CA.

August 28 at 1:41AM: Wells Fargo suspended his online access. Seven minutes later, Hunter’s password was set, Face ID was turned back on.

August 28 at 9:25AM: iPhone found 11 minute walk away in Venice.

August 28 at 9:30AM: iPhone found 20 minute walk away in Venice.

August 28 at 10:42AM: iPhone found 9 minute walk away in Venice.

August 28 at 11:17AM: iPhone found 26 minute walk away in Venice.

August 28 at 11:35AM: iPhone found 13 minute drive away in LA.

August 28 at 11:53AM: iPhone found 11 minute drive away in LA.

August 28 at 12:11PM: iPhone found 4 minute drive away at AirBNB where Hunter was staying.

August 28 at 5:04PM: Apple Pay was reactivated to a device called “ChatMa.”

August 28 at 5:04PM: A sound was played on iPhone.

August 28 at 10:08PM: Hunter informs AirBNB owner he left a bag there.

August 28 at 11:54PM: AirBNB owner arranges to drop bag off with Uber driver.

August 29 at 2:00AM: Face ID turned on for Wells Fargo (possibly a different account?).

August 29 at 2:13AM: $2,000 requested on Venmo (probably associated with attempt to rent a place).

August 29 at 2:14AM: Please verify your email address on Venmo.

August 29 at 2:15AM: Please verify your email address on Venmo.

August 29 at 2:18AM: Please verify your email address on Venmo.

August 29 at 4:27AM: Please verify your email address on Venmo.

August 29 at 9:23AM: A new recipient, OA, added to Zelle.

August 29 at 9:36AM: A device is registered with Wells Fargo.

August 29 at 9:37AM: $600 sent to OA.

August 29 at 9:43AM: Updated contact info for Wells Fargo (seemingly two numbers ending in 9396); Hunter had at least one other number at the time.

August 30 at 3:57AM: EK added to Zelle.

August 30 at 3:58AM: $600 sent via Zelle to EK from 4605.

August 30 at 4;45PM: $750 sent to Naomi Biden from 5858.

August 30 at 4:46PM: $750 sent to Roberta Biden from 5142.

August 30 at 4:46PM: $1000 sent to IS from 5858.

August 30 at 9:50PM: $1,200 sent via Zelle to EK from 5858.

August 30 at 11:04PM: $2,700 sent via Venmo to EK.

August 30 at 11:33PM: Wells Fargo suspends access.

August 31 at 6:03AM: Hunter’s password was reset. 

August 31 at 6:34AM: Face ID turned on for Wells Fargo.

August 31 at 6:41AM: EK added as wire transfer recipient.

August 31 at 6:41AM: $4,000 transferred from 5858.

August 31 at 7:04PM: Ablow laptop purchased, using two credit cards, at Best Buy.

August 31 at 9:36PM: Apple account recovery request.

September 1 at 10:29AM: Password change.

September 1 at 10:34AM: Sign into MacBook Pro.

September 1 at 10:42AM: Sign into iCloud from browser.

September 1 at 4:24PM: Sign into DroidHunter.

September 1 at 4:27PM: KD added as wire transfer recipient.

September 1 at 4:28PM: $10,000 to be transferred on September 4 from 5142.

September 1 at 9:36PM: Call or text from Apple alerting him his Account Recovery was available due.

September 2 at 5:00AM: Hide2Vault downloaded to new Mac.

September 2 at 6:15AM: Sign into Rosemont Seneca.

February 27, 2019: Attempted $100 Zelle payment to EK.

When Michael Dreeben Accepted John Sauer’s Invitation to Talk about Speech and Debate

Trump’s appeal of Judge Tanya Chutkan’s immunity opinion is interesting for the personnel involved. The briefs repeat the very same arguments — and in some instances, include the same passages almost verbatim — made less than three months ago. But first Trump brought in John Sauer to argue his appellate cases, then in the last few weeks, former Deputy Solicitor General Michael Dreeben quietly joined the Special Counsel team (importantly, the Solicitor General appointed by Joe Biden has no role in this appeal).

That makes any changes in the arguments of particular interest, because accomplished appellate lawyers saw fit to add them.

Admittedly, two things happened in the interim to change the landscape significantly. In Blassingame, issued hours before Chutkan released her order, DC Circuit Chief Judge Sri Srinivasan laid out how a President running for reelection does not act in his official duty. In Meadows, 11th Circuit Chief Judge William Pryor adopted that analysis in the criminal context with regards to Mark Meadows in the Georgia case.

That provided both sides the opportunity to address what I had argued, on October 21, was a real weakness in Jack Smith’s first response: the relative silence on the extent to which Trump’s actions were not part of his official duties.

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

Citing both Blassingame and Meadows, Smith and Dreeben invited the DC Circuit to rule narrowly if it chose, finding that the crimes alleged in the indictment all pertain to Trump’s role as candidate.

The Court need not address those issues here, however. The indictment alleges a conspiracy to overturn the presidential election results, JA.26, through targeting state officials, id. at 32-44; creating fraudulent slates of electors in seven states, id. at 44-50; leveraging the Department of Justice in the effort to target state officials through deceit and to substitute the fraudulent elector slates supporting his personal candidacy for the legitimate ones, id. at 50-54; attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at 55-62; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at 62-65. The indictment thus alleges conspiracies to advance the defendant’s prospects as a candidate for elective office in concert with private persons as well as government officials, cf. Blassingame, 87 F.4th at 4 (the President’s conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity as a candidate for re-election), and the defendant offers no plausible argument that the federal government function and official proceeding that he is charged with obstructing establish a role—much less an exclusive and conclusive role—for the President, see Georgia v. Meadows, No. 23-12958, 2023 WL 8714992, at *11 (11th Cir. Dec. 18, 2023); United States v. Rhodes, 610 F. Supp. 3d 29, 41 (D.D.C. 2022) (Congress and the Vice President in his role as President of the Senate carry out the “laws governing the transfer of power”) (internal quotation marks omitted).

The short term goal here is to convince Judge Karen Henderson, the Poppy Bush appointee on this panel whose judicial views have grown as radical as any Trump appointee’s, to reject Trump’s claims. Ultimately, Jack Smith is arguing against Presidential immunity even for official acts, but a ruling limited to acts taken as a candidate might provide a way to get Judge Henderson to join the two Biden appointees on the panel, Florence Pan and Michelle Childs, in rejecting Trump’s immunity claims.

In both his briefs, Trump had — ridiculously! — argued that Nixon’s Watergate actions were private acts yet Trump’s January 6 actions were part of his official duties. Smith swatted that claim away in a passage noting that Nixon’s acceptance of a pardon served as precedent for the notion that a President could be tried for actions done as President.

That President Nixon was named as an unindicted coconspirator in a plot to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687, entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that case as involving private conduct. See United States v. Haldeman, 559 F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that the offense conduct included efforts “to get the CIA to interfere with the Watergate investigation being conducted by the FBI” and “to obtain information concerning the investigation from the FBI and the Department of Justice”) (internal quotation marks omitted). And President Nixon’s acceptance of the pardon represents a “confession of guilt.” Burdick v. United States, 236 U.S. 79, 90-91 (1915).

Again, once the categorization adopted by Srinivasan is available, it makes the comparison with Nixon far more damning.

One of the most interesting additions to the earlier arguments, however, is that Sauer added a second kind of immunity to Trump’s earlier discussion that the principles of judicial immunity carry over to Presidential immunity: Speech and Debate. In two cursory paragraphs, Sauer claimed that, like members of Congress, Trump should enjoy both civil and criminal immunity for their official, “legislative” acts.

Legislative immunity. Legislative immunity encompasses the “privilege … to be free from arrest or civil process” for legislative acts, i.e., criminal and civil proceedings alike. Tenney, 341 U.S. at 372. Such immunity enables officials “to execute the functions of their office without fear of prosecutions, civil or criminal.” Id. at 373–74 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).

Thus, legislative immunity “prevent[s]” legislative acts “from being made the basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at 180. A legislative act “may not be made the basis for a civil or criminal judgment against a Member [of Congress] because that conduct is within the sphere of legitimate legislative activity.” Gravel v. United States, 408 U.S. 606, 624 (1972) (emphasis added). Speech and Debate immunity “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Id. at 616.

Did I say two developments have changed the landscape of this discussion? I’m sorry, I should have added a third: In response to the September DC Circuit remand of Scott Perry’s appeal of Judge Beryl Howell’s decision that Jack Smith could have some stuff from his phone — in a panel including Henderson — on December 19, Howell’s successor at Chief Judge, James Boasberg reviewed the contested files anew and ruled that Smith could have most of them, including communications pertaining to “efforts to work with or influence members of the Executive Branch.”

Subcategories (c), (d), (e), and (f) comprise communications about non-legislative efforts to work with or influence members of the Executive Branch. Even if such activities are “in a day’s work for a Member of Congress,” the Speech or Debate Clause “does not protect acts that are not legislative in nature.”

Kyle Cheney (who snagged an accidentally posted filing before it was withdrawn) described what many of those communications would include, including Perry’s advance knowledge of Trump’s efforts to install Jeffrey Clark as Attorney General.

Boasberg’s order required Perry to turn over those communications by December 27; if he appealed that decision, I’m not aware of it. So as you read this Speech and Debate section, consider the likelihood that Jack Smith finally obtained records from a member of Congress DOJ has been seeking for 17 months, since before Smith was appointed.

The DC Circuit opinion in Perry is not mentioned in any of these briefs. But the developments provide an interesting backdrop for Dreeben’s much longer response to Sauer’s half-hearted Speech and Debate bid. Much of it is an originalist argument, noting that whereas Speech and Debate was explicitly included in the Constitution, immunity for Presidents was not, not even in a landscape where Delaware and Virginia had afforded their Executive such immunity.

Along the way, Dreeben includes two citations that weren’t in Jack Smith’s original submission: One from Clarence Thomas making just that originalist argument about Presidential immunity: “the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.” And one from Karen Henderson, the key vote in this panel, noting that, contra Sauer’s expansive immunity claim, “it is well settled that a Member is subject to criminal prosecution and process.”

Unlike the explicit textual immunity granted to legislators under the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, which provides that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place,” the Constitution does not expressly provide such protection for the President or any executive branch officials. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”); JA.604-06. By contrast, state constitutions at the time of the founding in Virginia and Delaware did grant express criminal immunity to the state’s chief executive officer. JA.605 (citing Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). To be sure, the federal Constitution’s “silence . . . on this score is not dispositive,” Nixon, 418 U.S. at 705 n.16, but that silence is telling when placed against the Constitution’s Impeachment Judgment Clause, which presupposes and expressly preserves the availability of criminal prosecution following impeachment and conviction. See U.S. Const. art. I, § 3, cl. 7.

[snip]

The defendant suggests (Br.16-17, 18-19) that common-law principles of legislative immunity embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model for the defendant’s immunity claim.

In contrast to the defendant’s sweeping claim of immunity for all Presidential acts within the outer perimeter of his duties, the Speech or Debate Clause’s scope is specific: it is limited to conduct “within the ‘sphere of legitimate legislative activity.’” Gravel v. United States, 408 U.S. 606, 624 (1972). “Legislative acts are not all-encompassing,” and exclude a vast range of “acts in [a Member’s] official capacity,” such as outreaches to the Executive Branch. Id. Beyond that limitation, the Clause “does not purport to confer a general exemption . . . from liability . . . in criminal cases.” Id. at 626. Nor does it “privilege [Members or aides] to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. Courts have therefore recognized for more than 200 years that a Representative “not acting as a member of the house” is “not entitled to any privileges above his fellow-citizens” but instead “is placed on the same ground, on which his constituents stand.” Coffin v. Coffin, 4 Mass. 1, 28-29 (1808); see Rayburn House Off. Bldg., 497 F.3d at 670 (Henderson, J., concurring in the judgment) (observing that “it is well settled that a Member is subject to criminal prosecution and process”). The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” United States v. Brewster, 408 U.S. 501, 516 (1972). The defendant’s immunity claim, however, would do just that, absent prior impeachment and conviction.

The Speech or Debate Clause’s historical origins likewise reveal its inapplicability in the Presidential context. The Clause arose in response to successive British kings’ use of “the criminal and civil law to suppress and intimidate critical legislators.” United States v. Johnson, 383 U.S. 169, 178 (1966); see United States v. Gillock, 445 U.S. 360, 368-69 (1980) (noting that the English parliamentary privilege arose from “England’s experience with monarchs exerting pressure on members of Parliament” in order “to make them more responsive to their wishes”). In one instance, the King “imprison[ed] members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment,” and the judiciary afforded no relief because “the judges were often lackeys of the Stuart monarchs.” Johnson, 383 U.S. at 181. That history has no parallel here: the defendant can point to no record of abuses of the criminal law against former Presidents, and the Article III judiciary provides a bulwark against any such abuses. [my emphasis]

Having been invited to discuss congressional immunity, Smith’s brief cites another comment from Henderson’s Rayburn concurrence elsewhere. “[T]he laws of this country allow no place or employment as a sanctuary for crime.”

see United States v. Rayburn House Off. Bldg., 497 F.3d 654, 672-73 (D.C. Cir. 2007) (Henderson, J., concurring in the judgment) (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (citing Williamson v. United States, 207 U.S. 425, 439 (1908)). [my emphasis]

Tactically, all this is just an argument — an originalist argument — that even an immunity explicitly defined in the Constitution, Speech and Debate, does not — Judge Karen Henderson observed in 2007, when the question of immunity pertained to Black Democrat William Jefferson, in a case in which she sided with DOJ attorney Michael Dreeben — exempt anyone from criminal prosecution. Read her concurrence! She makes the same arguments about Tudor kings that Smith and Dreeben make!

But much of Jack Smith’s response, in my opinion, lays the ground work for other, future appeals. For example, this brief adopts a slight change in the way it describes the fake elector plot, emphasizing the centrality of Trump, “caus[ing his fake electors] to send false certificates to Congress,” a move that may be a preemptive response to any narrowing of 18 USC 1512(c)(2) that SCOTUS plans in the Fischer appeal of obstruction’s use for January 6.

Ultimately, Smith is still arguing for a broader ruling, rejecting Trump’s presidential immunity claims more generally. Ultimately, I imagine this adoption of language from Clinton v Jones is where Jack Smith would like to end up.

Given that, the Constitution cannot be understood simultaneously (and implicitly) to immunize a former President from criminal prosecution for official acts; rather, the Constitution envisions Presidential accountability in his political capacity through impeachment and in his personal capacity through prosecution. See Clinton, 520 U.S. at 696 (“[F]ar from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.”) (quoting 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson)).

To get there without possibly fatal delays, though, Dreeben and Smith need to get Henderson to agree to at least a narrow rejection of Trump’s immunity claims.

And so, responding to Sauer’s invitation, Dreeben reminded Henderson of what she said about a case he argued 16 years ago.

But if I were Scott Perry, three days after he was ordered to turn over records about his plotting with Donald Trump to overturn the election, I’d be watching these arguments closely.

What Jack Smith Didn’t Say in His Double Jeopardy Response

Jack Smith just submitted his response to Trump’s immunity claims before the DC Circuit.

While most attention will be on the absolute immunity claims, given the disqualification of Trump in Colorado and Maine, I’m more interested in Smith’s response to Trump’s claim that his impeachment acquittal precludes these charges.

That’s because, depending on how this appeal goes, Jack Smith could make the question of Trump’s (dis)qualification much easier by superseding this indictment with an insurrection charge.

Most of the response argues that impeachment and criminal charges are different things. That argument is likely to prevail by itself.

In addition, though, the response repeated a passage, almost verbatim, that appeared in Smith’s response before Chutkan. In it, Smith said that the elements of offense currently charged do not overlap with the elements of offense for an insurrection charge.

Any double-jeopardy claim here would founder in light of these principles. Without support, the defendant asserts that his Senate acquittal and the indictment in this case involve “the same or closely related conduct.” Br.52. Not so. The single article of impeachment alleged a violation of “Incitement of Insurrection,” H.R. Res. 24, 117th Cong. at 2 (Jan. 11, 2021) (capitalization altered), and charged that the defendant had “incit[ed] violence against the Government of the United States,” id. at 3. The most analogous federal statute is 18 U.S.C. § 2383, which prohibits “incit[ing] . . . any rebellion or insurrection against the authority of the United States or the laws thereof.” A violation of Section 2383 would therefore require proof that the violence at the Capitol on January 6, 2021, constituted an “insurrection against the authority of the United States or the laws thereof” and that the defendant incited that insurrection. Incitement, in turn, requires proof that the speaker’s words were both directed to “producing imminent lawless action” and “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927-28 (1982). None of the offenses charged here—18 U.S.C. § 371, 18 U.S.C. § 1512(c)(2) and (k), and 18 U.S.C. § 241—has as an element any of the required elements for an incitement offense. And the elements of the charged offenses—e.g., conspiring to defeat a federal governmental function through deceit under Section 371, obstruct an “official proceeding” under Section 1512, and deprive persons of rights under Section 241—are nowhere to be found in the elements of a violation of Section 2383 or any other potential incitement offense. The mere fact that some of the conduct on which the impeachment resolution relied is related to conduct alleged in the indictment does not implicate the Double Jeopardy Clause or its principles. See Dixon, 509 U.S. at 696.

This doesn’t mean that Smith will supersede Trump, if this appeal succeeds. There are a lot of reasons not to do so (including that Trump would get to file a motion to dismiss that charge).

That said, Smith might have another reason to do so if SCOTUS significantly narrowed the obstruction charge in the Fischer appeal, because the obstruction charge is how Smith is presenting the evidence that Trump caused the attack on the Capitol.

In my view, this language keeps options open.

Rudy Giuliani’s Scott Brady Interview Doesn’t Appear in His Warrant Affidavit

I’m about to do a larger post on some of the warrants targeting Rudy Giuliani and Lev Parnas, but first I want to make a point about the April 21, 2021 warrant targeting Rudy.

It doesn’t once mention Rudy’s January 29, 2020 interview with the Pittsburgh US Attorney’s office.

It sources Rudy’s own claims about his activities to a series of articles, interviews, and Tweets.

But the affidavit never once mentions that Rudy Giuliani sat for a 4-hour interview with the Pittsburgh US Attorney and nine other people on January 29, 2020.

NYT first disclosed the interview in this December 2020 article.

Mr. Giuliani’s lawyer, Robert J. Costello, asked the Justice Department for a meeting to discuss what he felt was explosive information about Hunter Biden that he had gathered from people in Ukraine and elsewhere, according to a person with direct knowledge of the matter.

In response, Mr. Brady called Mr. Costello and offered to meet. Mr. Giuliani and Mr. Costello sent reams of documents to Pittsburgh, then traveled there on Jan. 29. They were picked up by F.B.I. agents and stopped for breakfast before meeting for nearly four hours at the local F.B.I. office with Mr. Brady and his top deputies on the inquiry, Stephen Kaufman and Ira Karoll, the person said.

Rudy described the interview at length in a letter claiming that the government should never have seized his devices (and revealing that SDNY requested, in both November 2020 and January 2021, to do so).

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

At Scott Brady’s deposition before House Judiciary Committee, there was an extensive exchange about that interview — including regarding then-Principal Associate Deputy Attorney General Seth DuCharme’s request that Brady sit in on the interview personally — which I first wrote about here.

And I’ll get copies for everyone. It’s very short. This is an email from Seth DuCharme to you, subject: “Interview.” The date is Wednesday, January 15, 2020. And, for the record, the text of the email is, quote, “Scott I concur with your proposal to interview the person we talked about would feel more comfortable if you participated so we get a sense of what’s coming out of it. We can talk further when convenient for you. Best, Seth.” And tell me if you recall that email.

A Yes, I do recall it.

Q Okay. And the date, again, is January 15, 2020, correct?

A That’s right.

Q So that was 14 days before the interview that you just described at which you were present, correct?

A Correct.

Q Does that help you recall whether this email between you and Seth DuCharme was referring to the witness that you participated in the interview of on January 29, 2020?

A Yes, it definitely did.

Q Okay. Just for clarity, yes, this email is about that witness?

A Yes, that email is about setting up a meeting and interview of Mr. Giuliani.

Q Okay. So the witness was Mr. Giuliani? That’s who you’re talking about?

A Yes.

Q Okay. And it was, in your judgment, important to get Mr. DuCharme’s opinion or, quote, “concurrence” about interviewing Mr. Giuliani. Is that fair to say?

A As I sit here, I don’t know if it was about interviewing Mr. Giuliani or just the logistics of where the interview would take place Pittsburgh, New York, D.C. It might’ve been about that.

Q So you needed Mr. DuCharme’s opinion about where the interview would be taking place?

A No, I didn’t need his opinion.

Q Oh. I’m just trying to

A Yeah.

Q understand, what was the reason, if you can recall, why you consulted with Mr. DuCharme about that particular decision, about whether or not you should interview Mr. Giuliani and any other aspect of that decision?

A Yeah, I I don’t know. I may have just been circling back to him, saying, “Hey, here’s the plan.” And he said, “Yeah, that sounds fine.”

Q Okay. Well, he also said that he would feel more comfortable if you participated, right?

A In that email, he did, yes.

Q Yeah. Was that consistent with what your experience with Mr. DuCharme was when you discussed interviewing Mr. Giuliani, or is there something unusual about the email?

A I don’t remember that there’s anything unusual. I would’ve sat in on that interview anyways, in all likelihood.

Q Okay. And just I don’t want to take this away from you, because I know you and I

A Oh, sure.

Q just have one copy. But just, again, what this email says is, “I concur with your proposal to interview the person we talked about.” And then he says, “Would feel more comfortable if you participated so we get a sense of what’s coming out of it.” Do you see that?

A Uhhuh.

Q Okay.

A Yes.

Q So what did he mean by “we”? Who was he referring to by “we”? Do you know?

A I don’t know.

Q Okay. Is it fair to infer that he is referring to the Attorney General and the Office of the Deputy Attorney General where he was working?

A I don’t know. Yeah, some group of people at Main Justice, but I don’t know specifically if it was DAG Rosen, Attorney General Barr, or the people that were supporting them in ODAG and OAG.

Brady would go on to concede there were a number of things — such as Rudy’s attempts to reach out to Mykola Zlochevsky and his possession of a hard drive of data from Hunter Biden — that Rudy never told the Pittsburgh US Attorney.

Q Okay. Then the other question I think that I have to ask about this is: This is a prior inconsistent statement of Mr. Zlochevsky that your investigation did not uncover, but it’s a statement that Mr. Giuliani was certainly aware of. Would you agree?

A Yes, if based on your representation, yes, absolutely.

[snip]

Okay. And what I am asking you is, have you ever heard that during the course of your investigation that Mr. Giuliani actually learned of the hard drive material on May 30th, 2019?

A No, not during our 2020 vetting process, no.

Q Mr. Giuliani never shared anything about the hard drives or the laptop or any of that in his material with you?

Mr. [Andrew] Lelling. Don’t answer that.

Q Oh, you are not going to answer?

Mr. Lelling. I instruct him not to answer.

Q. He did answer earlier that the hard drive. That Mr. Giuliani did not provide a hard drive.

Mr. Lelling. Okay.

Mr. Brady. He did not provide it. We were unaware of it.

By his own telling, Rudy spent four hours telling a team of ten people about these matters, and yet this affidavit doesn’t mention that interview at all.

To be sure, in his book, Geoffrey Berman — who was likely fired for conducting this investigation — provides one explanation for why Rudy’s 302s wouldn’t be incorporated in any warrant affidavit targeting Rudy: because the FBI refused to share those 302s with the NY Special Agent in Charge, William Sweeney.

So in January 2020 he came up with a plan. He described this plan he had hatched as “an intake process in the field.” That made it sound almost normal. The Department of Justice, in order to deal with the large influx of evidence, was going to employ this tried-and-true method in order to keep it all straight! But in all my years as a prosecutor and defense attorney, I had never heard of “an intake process in the field,” and neither had my executive staff or Sweeney.

His plan was to run all Ukraine-related matters, including information that Giuliani was peddling about the Bidens, through two other districts. His choices were Rich Donoghue, the US Attorney for the Eastern District of New York, who sat in Brooklyn; and Scott Brady, the US Attorney for the Western District of Pennsylvania, in Pittsburgh. Donoghue would oversee all Ukraine-related investigations, and Brady would handle the intake of information from Rudy and his lawyer.

This scheme, notably, did not include me or SDNY, which, as the office running the Lev and Igor case, was well versed in all things Ukraine. Barr’s implication seemed to be that with such a fire hose of material coming in from Rudy and his lawyer, we needed to spread the work out. And we had to have some kind of traffic cop to keep it all organized and flowing in the right direction—which was to be Brady in Pittsburgh.

All of this, of course, was utter nonsense. If somebody has information about an ongoing case, they typically hire a lawyer and approach the office that’s involved. Regardless of the quality or veracity of the material, I wanted to see it. We were the office with the background to determine its value. And we certainly would have had our own questions for Rudy, because he was a close associate of the two guys we just indicted. What’s more, our office was only a taxi ride away for Rudy and his lawyer—Pittsburgh was a 350-mile trip for them.

We could have handled whatever information Rudy had. With more than two hundred fully capable attorneys, I would have found a couple more to throw into the mix if it came to that. But that’s not what was driving the attorney general’s machinations. I believe it was really an effort by Barr to keep tabs on our continuing Lev and Igor investigation and keep us segregated from potentially helpful leads or admissions being provided by Rudy.

This became immediately clear to me and to Sweeney when we tried to access the information Rudy was providing. Rudy and his lawyer met several times with Main Justice and then with Brady’s team in Pittsburgh. There were FBI reports of those meetings, called 302s, which we wanted to review. So did Sweeney. Sweeney’s team asked the agents in Pittsburgh for a copy and was refused. Sweeney called me up, livid.

“Geoff, in all my years with the FBI I have never been refused a 302,” he said. “This is a total violation of protocol.”

Sweeney asked Jacqueline Maguire, his special agent in charge, to reach out to the acting head of the FBI’s office in Pittsburgh, Eugene Kowel, to request the 302s and related information. A few days later Kowel got back to Maguire and repeated what Brady had told him about the 302s: “It’s not my job to help the Southern District of New York make a case against Rudy.” [my emphasis]

Yet SDNY had to wait until Bill Barr was long gone before they got approval to serve this warrant. How is it possible that in the month and a half since Merrick Garland came in, SDNY had never gotten permission to read the 302s from Rudy’s “cooperation” in Pittsburgh?

Related: In related news, in a request for a delay in responding to Hunter Biden’s lawsuit against Rudy and his former attorney now creditor Robert Costello, it appears they are represented by the same firm.