Jim Jordan Dragged Martin Estrada Away from Fighting Fentanyl To Chase Hunter Biden’s Dick Pics

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Yesterday, Ohio Senator JD Vance gave a speech explaining that he is holding up the confirmation of a US Attorney candidate for his own state because Donald Trump is being prosecuted for stealing classified documents but — Vance claimed in an earlier version of this rant — “the President and his family [go] completely untouched.”

Meanwhile, yesterday’s version of Vance’s harangue claimed that “it is Joe Biden’s border policies that have invited this fentanyl into our country at record levels.”

It’s an interesting take, given that Republicans keep dragging law enforcement away from fighting the fentanyl crisis  so they can explain that the conspiracy theories right wingers believe about the investigation into Hunter Biden are false.

In a July hearing where both Jim Jordan and now-Speaker Mike Johnson complained — relying on Terry Doughty’s badly misinformed opinion — that (they claimed) the FBI had prevented millions of people from sniffing Hunter Biden’s dick pics before the 2020 election, Chris Wray pointed to the impact two drug busts had had in Marion, Ohio.

Just last month, for instance, the FBI charged 31 members of two drug trafficking organizations responsible for distributing dangerous drugs like fentanyl, cocaine, and methamphetamine throughout the area around Marion, Ohio. In that one investigation, run out of the FBI’s 2-man office in Mansfield, we worked with partners in multiple local police departments and sheriff’s offices to take kilos of fentanyl off  Marion’s streets, enough lethal doses, I should add, to kill the entire population of Columbus, Cleveland, and Cincinnati, combined.

As I noted at the time, this was good staff work. Marion, Mansfield, and Lorrain are all in Jim Jordan’s district (and so all obviously constituents of Vance, as well).

Jim Jordan took time out of Chris Wray’s day so he could complain about Hunter Biden’s dick pics, while ignoring the drug problems facing his own constituents.

It’s not just Wray.

In testimony last week before Jordan’s committee, the US Attorney for Los Angeles, Martin Estrada, struggled to explain to Jordan’s staffers why his own top AUSAs didn’t think it smart to reallocate prosecutors to partner on the Hunter Biden investigation at a time his office was 40 prosecutors short of the number they’re supposed to have. As Estrada explained, instead, CDCA granted Special AUSA status to some prosecutors from Delaware and had done so even as Gary Shapley wailed that nothing was going on in LA.

Jordan’s top aide Steve Castor was incredulous that Estrada wouldn’t know specific details about what the Delaware prosecutors granted Special Assistant status to pursue a case against Hunter Biden in LA were doing.

I mean, this is a potential prosecution of the President’s son. If the lawyers from the District of Delaware were out in your district discussing the case, don’t you think you’d know about it?

When Estrada tried to get Castor to understand how different the priorities looked when you were running the country’s biggest US Attorney’s office, fentanyl was the first thing he raised.

I think a little context would be helpful. So, as I said, we have the largest district in the country. We have a Fentanyl epidemic which is one of the worst in the country’s. We’ve done more death-resulting cases than any other district in the country. We’re on pace to do more this year than we ever had before.

[snip]

There are a lot of high-profile cases, so I don’t meet with attorneys on every single high-profile case.

[snip]

We have a fentanyl epidemic. That includes not just death-resulting cases, it includes going after cartels which are distributing these pills, not just in powder form but in pill form. We routinely seize over a million pills at a time from vehicles, and we need to prosecute those cases. Each pill could be a death. And routinely now we’re finding cartels transporting fentanyl in liquid form, which is a new thing that they’re doing. So we have to do those cases.

Republicans claim to care about the fentanyl crisis. But in reality, they keep proving that they care more about Hunter Biden’s dick pics than they do about their troubled constituents in Marion, OH.

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NYT Keeps Downplaying Trump’s Past Retribution Tour

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Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

At the core of the stories is that Trump is going to use a second term for retribution, to which the June 15 article is dedicated.

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Yet even though Savage did some important reporting on some of this (reporting that was counterbalanced by Maggie’s central role in helping Trump obstruct criminal investigations), these pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

In the spring of 2018, Mr. Trump told his White House counsel, Donald F. McGahn II, that he wanted to order the Justice Department to investigate his 2016 rival, Hillary Clinton, and James B. Comey Jr., the former head of the F.B.I. Mr. McGahn rebuffed him, saying the president had no authority to order an investigation, according to two people familiar with the conversation.

Later in 2018, Mr. Trump publicly demanded that the Justice Department open an investigation into officials involved in the Russia investigation. The following year, Attorney General William P. Barr indeed assigned a Trump-appointed U.S. attorney, John Durham, to investigate the investigators — styling it as an administrative review because there was no factual predicate to open a formal criminal investigation.

Mr. Trump also said in 2018 and 2019 that John F. Kerry, the Obama-era secretary of state, should be prosecuted for illegally interfering with American diplomacy by seeking to preserve a nuclear accord with Iran. Geoffrey S. Berman, a former U.S. attorney in Manhattan whom Mr. Trump fired in 2020, later wrote in his memoir that the Trump Justice Department pressured him to find a way to charge Mr. Kerry, but he closed the investigation after about a year without bringing any charges.

And as the 2020 election neared, Mr. Trump pressured Mr. Barr and Mr. Durham to file charges against high-level former officials even though the prosecutor had not found a factual basis to justify any. In his own memoir, Mr. Barr wrote that the Durham investigation’s “failure to deliver scalps in time for the election” eroded their relationship even before Mr. Barr refused Mr. Trump’s baseless demand that he say the 2020 election had been corrupt.

Where Mr. Trump’s first-term efforts were scattered and haphazard, key allies — including Jeffrey B. Clark, a former Justice Department official who helped Mr. Trump try to overturn the 2020 election — have been developing a blueprint to make the department in any second Trump term more systematically subject to direct White House control.

This effort was in no way haphazard!!! Most FBI personnel involved in the Russian investigation, from Jim Comey down to line analysts, had their careers systematically ruined, with Peter Strzok (who, the actual record of the Russian investigation shows, repeatedly took steps to protect Trump and Mike Flynn, even if he disliked Trump) offered up as an example of what will happen to people who don’t meekly just accept their punishment or, better yet, retreat to the private sector. The exceptions were the cyber guys who completely bolloxed the Alfa Bank investigation and people like Bill Barnett, who misrepresented the steps he himself took to provide “proof” of corruption on the Mueller investigation. That precedent has been sustained as right wingers take out other FBI agents deemed insufficiently loyal, like Tim Thibault, who personally opened an investigation into the Clinton Foundation in 2016 but who was targeted last year because in 2020 he didn’t mainline disinformation about Hunter Biden.

Yes, Bill Barr ordered Geoffrey Berman to investigate John Kerry. But he also set up a complex, systematic structure to halt  any investigation into Rudy Giuliani so the President’s lawyer could get dirt from Russian spies, feed it to Scott Brady, who would then push that information into the investigations of Hunter Biden and others. When Berman and Jessie Liu refused to break (after a good deal of bending to Barr’s will), he fired them both.

Barr didn’t just pressure John Durham to prosecute high-level people: He skipped, hand-in-hand, with Durham as they used Russian intelligence to fabricate an attack on Hillary Clinton, the organizing logic of an investigation that swept up private sector people and who had the temerity to research Donald Trump or — worse!! — to help Hillary recover from a hack-and-leak. The effort even took out academic researchers who were simply trying to keep the US safe from Russian hacking. Trump did get DOJ to investigate Hillary, with investigations lasting the entirety of his presidency, and that investigation included precisely the kind of fabricated evidence and coached testimony that NYT imagines is a hypothetical left for Trump’s second term.

To the extent these stories talk about Trump’s pardons, they do so prospectively. There’s no discussion of how the pardons of Mike Flynn and Roger Stone rival any of the most corrupt in US history, but were necessary to prevent DOJ from developing proof that Trump conspired with Russia.

These articles don’t describe how Congress has served as a wing of this politicization, from the leaks to Mike Flynn in 2018 about how to undermine his own investigation to sham hearings — like the one with George Papadopoulos unencumbered by the documents that would have provide evidence of “collusion,” in which he spewed out conspiracy theories that Bill Barr and John Durham quickly got on a plane to chase. These articles don’t describe how the current unrelenting attempt to manufacture an impeachment out of the detritus of Hunter Biden’s life could not have happened if Bill Barr hadn’t made very systematic attempts to enable Trump’s retribution tour in 2020.

And these articles don’t describe the violent threats that have become routine for anyone deemed insufficiently loyal to Donald Trump. The threats Trump deployed against Lisa Page and Marie Yovanovitch — “she’s going to go through some things” — exist on an unrelenting continuum as the threats against Ruby Freeman and Lesley Wolf and Fani Willis and Don Bacon’s wife.

Yes, it’s important to warn about what Trump plans to do with a second term. But calling Trump’s past retribution “haphazard” is a journalistic cop-out, a way to avoid admitting that we don’t yet fully understand how systematic Trump’s past retribution was or — worse — don’t want to come to grips with our own central role in it.

For a warning to be effective, we have to show the human costs of all the past retribution — the thousands of Jan6ers who had their lives ruined, the significant degradation in US national security, the fear, especially the fear among Republicans — costs that no one, no matter how loyal, will ultimately escape.

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Hours After Aileen Cannon Suggests She’ll Stall Florida Prosecution, Trump Moves to Stall DC One

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Judge Aileen Cannon has not yet released a ruling describing how much she’ll bow to Trump’s manufactured claims of classified discovery delays in the stolen documents case, but she made clear that she will delay the trial somewhat. As reported, at least, that delay will come because of the competing schedule in DC.

Trump’s lawyers argued that they need a delay in the documents case because preparations for it will clash with the federal election case, which is slated to go to trial on March 4 and could last several months.

Trump’s indictment in the election case — which came days after Cannon set her initial timeline for the document case — “completely disrupted everything about the schedule your honor set,” Trump lawyer Todd Blanche told Cannon.

Another Trump lawyer, Chris Kise, personified the crunch the former president’s attorneys are facing, phoning into the hearing from a New York courthouse where Trump is undergoing a civil trial targeting his business empire.

“It’s very difficult to be trying to work with a client in one trial and simultaneously try to prepare that client for another trial,” Kise said. “This has been a struggle and a challenge.”

Note: as DOJ pointed out, Kise’s NY trial schedule was already baked into Cannon’s schedule.

Having secured that delay, Trump turned to delaying his DC trial, with a motion to stay all other DC proceedings until his absolute immunity claim is decided, a 3-page motion Trump could have but did not submit when he was asking for a delay before submitting his other motions. Everything he points to in that 3-page motion, the completed briefing on the absolute immunity bid, was already in place on October 26. But he waited until he first got Cannon to move her trial schedule.

As I laid out the other day, Trump is not making legal arguments sufficient to win this case — certainly not yet. He is making a tactical argument, attempting to run out the clock so he can pardon himself.

Update: LOL. Trump filed the DC motion too soon, giving DOJ a chance to notice the cynical ploy in DC before Aileen Cannon issues her order.

Yesterday, the Court conducted a hearing on the defendants’ motion to adjourn trial, in which defendant Trump claimed that trial in this matter should be delayed in part because “[t]he March 4, 2024 trial date in the District of Columbia, and the underlying schedule in that case, currently require President Trump and his lawyers to be in two places at once.” ECF 167 at 1. Defendant Trump’s counsel reiterated that argument during the hearing yesterday. However, defendant Trump’s counsel failed to disclose at the hearing that they were planning to file – and yesterday evening did file – the attached motion to stay the proceedings in the District of Columbia until their motion to dismiss the indictment based on presidential immunity is “fully resolved.” See United States v. Donald J. Trump, No. 23-cr-257-TSC, ECF No. 128 at 1 (D.D.C. Nov. 1, 2023), attached as Exhibit 1. As the Government argued to the Court yesterday, the trial date in the District of Columbia case should not be a determinative factor in the Court’s decision whether to modify the dates in this matter. Defendant Trump’s actions in the hours following the hearing in this case illustrate the point and confirm his overriding interest in delaying both trials at any cost. This Court should [sic] allow itself to be manipulated in this fashion.

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Chuck Grassley and James Comer Brag that 40 Informants Couldn’t Substantiate a Crime against Biden

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Philip Bump notes that James Comer is now fundraising not just off his own conspiracy theories, but also Chuck Grassley’s.

Comer presents himself as a warrior for the truth, standing up to the media and the left-wing hordes, etc. Then the money ask appears.

Now, I track Comer and the Oversight Committee’s work more closely than most, so what struck me wasn’t that the chairman was trying to fundraise off what he was doing (he’s done that more than once in the past) but that he was trying to fundraise off this. After all, the allegation about the informants wasn’t something that came from his and his party’s efforts. The pitch couches that a bit, asserting in boldface text that “[i]t has come to light” that these informants purportedly existed. But there’s no news release about it from the normally news-release-enthusiastic House majority and no mention of it on Comer’s X/Twitter feed. The account for the Oversight Committee did mention it once, pointing back to the source of the claim: Sen. Charles E. Grassley (R-Iowa).

[snip]

That Comer is raising money off Grassley’s claim — raising money by exaggerating the claim to assert that there were 40 informants for 50 years — is the point. This wasn’t his work; it was simply an allegation that those who would respond to an “I’m fighting Biden for you” appeal would find compelling. I once referred to Comer’s efforts as a fishing expedition, but he’s not simply throwing out bait to see what he gets, he’s throwing out as much bait as he can to vacuum up as many fish as there are in the sea.

Actually, Comer is fundraising off Fox’s breathless regurgitation of Chuck Grassley’s conspiracy theories, which appeared in a letter to Chris Wray and Merrick Garland.

I find Bump’s observation notable for several additional reasons, beyond what Bump lays out.

First, it comes as Jamie Raskin’s whack-a-mole efforts to track Comer’s lies have gotten punchy. Monday, Raskin released a new 9-page letter listing the top lies Comer told after sniffing too many dick pics, to which the Maryland Congressperson appended the previous 12 letters Raskin sent debunking Comer’s bullshit.

  • Falsely claimed that witness interviews actually conducted by Committee staff never happened;27
  • Referred to a fugitive from justice charged with multiple felonies as a “very credible witness;”28
  • Suggested you were present at a transcribed interview that you did not attend;29
  • Repeatedly mischaracterized the statements of witnesses in interviews while refusing to publicly release interview transcripts; 30
  • Claimed that the National Archives and Records Administration failed to turn over records to the Committee when they were actively cooperating;31
  • Wrongly claimed that a transcribed interview suggested the President was involved in his family’s business dealings; 32
  • Incorrectly asserted that suspicious activity reports, which you routinely mischaracterize as “bank violations,” implicate President Biden in wrongdoing; 33
  • Dishonestly suggested that the President had the prosecutor of Ukraine fired as part of a bribery scheme;34
  • Falsely accused the Biden-Harris Administration of obstructing the Committee’s investigation and interfering in U.S. Attorney Weiss’s investigation;35 and
  • Falsely denied the existence of bank records in the Committee’s possession.36

See below for Raskin’s footnotes to just these 10 bullet points.

One reason the far right might stoke the conspiracy fires via Chuck Grassley rather than Comer is because Comer’s claims never last more than 20 minutes before Raskin or Dan Goldman expose them as nonsense. Grassley can make wildly unsubstantiated and often recycled and debunked claims and no one in the Senate will mock him for it.

But his claims are, if possible, even more ridiculous than Comer’s.

Take the headline claim — the one Comer is fund-raising off of: Chuck Grassley claims that the FBI sicced forty informants on Joe Biden, his brother, and his son.

As just one initial example, I’ve been made aware that at one point in time the FBI maintained over 40 Confidential Human Sources that provided criminal information relating to Joe Biden, James Biden, and Hunter Biden. An essential question that must be answered is this: did the FBI investigate the information or shut it down? Indeed, if those sources were improperly shut down, it wouldn’t be out of the ordinary for the FBI, as this letter will address.

Four-zero. Forty.

When just three informants interacted with Trump’s Coffee Boy as part of the Russian investigation, Republicans squealed about it for years. They claimed it was a gross weaponization of the FBI, not against Trump’s Coffee Boy (who told one of the informants, “I have to be an idiot not to monetize” access to Trump and “if [Trump] loses probably could be better for my personal business”), but Trump himself. But Chuck Grassley rolls out the claim that the FBI used forty informants against Biden and his immediate family, some known examples of which would have come during the period when Biden was the expected or declared candidate against Trump, and somehow he doesn’t see flashing sirens of abuse at the FBI?

🚨🚨🚨🚨

Nope. Instead, he’s sure that the FBI must have ignored those forty informants because they haven’t yet substantiated any crime against Biden and his family.

Grassley makes a similar move when he raises the FD-1023 he recklessly released this summer, which showed that Mykola Zlochevsky said something different in late 2019, probably during impeachment, than he had said earlier in the year. Grassley points to what he claims as confirmation from Bill Barr, Chris Wray, and Paul Abbate that there’s an ongoing investigation into the allegation as proof that it must have validity (in reality, Wray and Abbate appear to have been trying to protect the viability of this and all other informants, which Grassley instead decided he should burn to the ground).

The report, including information on the Biden family 1023, was ultimately transmitted to U.S. Attorney Weiss who, according to Attorney General Garland, had every investigative tool at his disposal even before being designated as a special counsel. 14

Since making the Biden family 1023 public on July 25, 2023, it’s been made clear by former Attorney General Barr, Director Wray, and Deputy Director Abbate that the 1023 is part of an ongoing investigative matter, indicating its investigative credibility and authenticity. 15 As such, it’s essential that we examine the alleged attempts by FBI personnel to sweep it under the rug, as well as what steps U.S. Attorney Weiss has taken to use the document for his ongoing investigation.

The one person who said there was an ongoing investigation pertaining to the FD-1023 was David Weiss, in a letter to Lindsey Graham. The fact that the guy in charge of the Hunter Biden investigation said this is a pretty good indication it hasn’t been swept under the rug.

As to the rest of Chuck Grassley’s claims, they have been almost entirely debunked by the House investigation.

For example, Grassley cites to his own letter about Joseph Ziegler and Gary Shapley’s testimony to support a claim that Lesley Wolf “prevented investigators from seeking information” about Biden’s involvement in what he claims were Hunter Biden’s “criminal arrangements.”

Also on October 23, 2020, Justice Department and FBI Special Agents from the Pittsburgh Field Office briefed Assistant U.S. Attorney Lesley Wolf, one of U.S. Attorney Weiss’s top prosecutors, and FBI Special Agents from the Baltimore Field Office with respect to the contents of the Biden family 1023. However, the meeting did not include any IRS agents, and AUSA Wolf prevented investigators from seeking information about Joe Biden ‘s involvement in Hunter Biden’s criminal arrangements. 18

What the evidence actually shows, however, is that agents blew off Wolf’s restrictions on references to the then-President-elect, and asked those questions anyway. In response, Hunter’s former partner, Rob Walker, told investigative agents that Joe was never involved in Hunter’s business. “I certainly never was thinking at any time the VP was a part of anything we were doing.”

But even that was a cherry-pick. After Shapley revealed that claim, Ziegler released the full Walker transcript (compare the excerpt from Shapley’s deposition with the full transcript released in September). The excerpt Shapley released at first left out critical details, details that impact Grassley’s complaints that Tony Bobulinski hasn’t been treated as a star witness.

The full Rob Walker interview makes it clear there was a whole lot of bad blood between Hunter Biden and Bobulinski that should raise questions about Bobulinski’s biases. At least per Walker — at the time (in 2017), Hunter believed that Bobulinski was too close to some Russians, which Walker explained that he treated as credible because the first time Walker met Bobulinski, Bobulinski was with someone claimed to be Viktor Vekselberg’s son.

Walker: …but ah.., um.., I.., I think that he was “blown off” because um.., ah.., Tony’s a.., an asshole…,

Wilson: (Laughs).

Walker: …um, but um.., you know, I think Hunter ah.., at one point, was ah.., um.., a little “bent out of shape” with Tony and ah..,

Wilson: Hmph hmph.

Walker: …granted he wasn’t in his.., his right mind but ah.., he thought that ah…, um.., Tony had some weird ah.., business background stuff…

Wilson: Okay.

Walker: …and Hunter did tell me that he had Tony, ah, checked out at one time…,

[snip]

Walker: …and he ah.., he thought that ah.., Tony was ah.., close or too close to ah.., ah.., some Russians.

[snip]

Walker: The first time, which it didn’t seem so unbelievable to me because the.., the.., the first time that I met Tony, um, I was in ah.., Las Vegas.  Ah, James came over, um, and ah.., I had a friend from here come up with me and ah.., some people from Los Angeles came over that were friends of James.  One was Tony and Tony was with ah, a kid named Alex and ah.., Tony didn’t tell me this but Alex was Russian and they thought it was ah.., or I was told it was ah.., Viktor…

Soline: Hmph hmph.

Walker: …Vexelberg’s (phonetic) son who was ah.., who Viktor is.., at the time he wasn’t on the sanctions list I’m sure.., but I think he’s been sanctioned now…

[snip]

Walker: …Tony’s background was that he.., ah.., you know.., had been pushing deals in the past in New York.., in and around New York.., and um.., ah.., with ah.., ah.., Russians and ah.., Russian money.

At the time Walker shared these details in December 2020, he was absolutely livid about Bobulinski’s public claims after the release of the “laptop,” so Walker’s comments shouldn’t be credited all that heavily either. But Walker temporally placed both Hunter’s suspicions about Bobulinski and the even earlier incident in Vegas years before Bobulinski’s Fox News media tour. Walker wasn’t insinuating that Bobulinski had ties to Russia because he was involved with the laptop caper; he was describing what he and Hunter believed three years before the laptop caper.

That’s important background to Grassley’s similarly unsubstantiated claim that Bobulinski’s testimony — at which he was represented by White House Counsel Stefan Passantino — matched something in Gary Shapley’s testimony.

On October 23, 2020, Tony Bobulinski met with and was interviewed by James Dawson, a Washington Field Office Special Agent in Charge, Acting Assistant Special Agent in Charge Giulio Arseni, Special Agent William Novak, and Special Agent Garrett Churchill. 16 Bobulinski provided first-hand knowledge as an eye and ear witness to Joe Biden’s involvement in potentially criminal schemes with Hunter Biden. Notably, on October 13, 2022, I wrote a letter to the both of you and U.S. Attorney Weiss with respect to a summary of Bobulinski’s FBI interview that my staff reviewed which included, in part, reference to the Biden’s receiving an unsecured $5 million loan, intended to be forgivable, from CEFC in 2017 that would serve as payment for actions Joe Biden took during his vice presidency. This financial strategy to illegally treat income as a loan is consistent with IRS whistleblower testimony that indicated Hunter Biden attempted the same with respect to other income, including payments received from Burisma. 17

It’s true that Shapley made this allegation over and over (it’s also true that Hunter did rely on loans as he grew more and more broke overcome by his addiction). But Ziegler’s testimony and David Weiss’ own explanation for not charging the earlier Burisma years revealed that the circumstances of the Burisma payments were not as clearcut as Shapley claimed.

[N]ow that the U.S. Attorney looked at the case, they don’t want to move forward with it.

And essentially what he told me is that not only are they not going to join the case and give us assistance — so give us another AUSA, give us someone to help there — they also told our prosecutors that they don’t think we have — that we can — or they don’t think that we have the charges — or not the ability, but the evidence for the charges to charge in D.C.

Then there are the other Grassley complaints that had already been debunked by Tim Thibault’s and other House witnesses’ testimony.

Grassley complains that “an avenue of derogatory Hunter Biden reporting” was ordered closed by Tim Thibault.

In that same letter, I noted that in October 2020, an avenue of derogatory Hunter Biden reporting was ordered closed at the direction of Assistant Special Agent in Charge Tim Thibault. My office has been made aware that FBI agents responsible for the information that was shut down were interviewed by the FBI HQ team in furtherance of Auten’s assessment.

Grassley doesn’t admit what Peter Schweizer has admitted: that he was the “avenue of derogatory … reporting” in question: Steve Bannon’s sidekick and propagandist (and so two degrees from two influence operations the FBI investigated, that of Andrii Derkach and that suspected of Guo Wengwui).

Schweizer is one of the 40 informants Grassley boasted about and the reason why he claims that the other 39 informants may have been shut down too.

Grassley seems to have botched the details about his handlers being interviewed by the Foreign Influence Task Force: Thibault tried to get them into the briefing, but FBI refused — in part because the daughter of one was posting related content on Daily Caller).

As Thibault testified, there were two reasons why he shut down Schweizer (based on whose book, Clinton Cash, Thibault had opened an investigation into Hillary in 2016). The first was that the Baltimore FBI team didn’t want Schweizer’s reporting, some of which was sourced to the laptop, because they already had the laptop and follow-on warrants and Schweizer’s involvement would only provide something Hunter’s attorneys might one day use to undermine the credibility of the inevstigation.

Here’s how Grassley twists what must be that discussion.

On October 5, 2020, Supervisory Special Agent Eric Miller and Assistant Special Agent in Charge Thibault participated in a call with the Washington Field Office; Baltimore Field Office; Wilmington, Delaware FBI agents; and FBI management personnel. That call allegedly included Assistant Special Agent in Charge Alfred Watson, Supervisory Special Agent Joe Gordon, Special Agent Susan Roepcke and Special Agent Joshua Wilson. Notably, FBI agents from the Baltimore Field Office were attached to U.S. Attorney Weiss’s investigation. My office has been informed that on that call it was confirmed the Delaware case currently run by U.S. Attorney Weiss was opened as a money laundering and Foreign Agents Registration Act case, not a bribery case as the Biden family 1023 would appear to require, and that it was jointly worked with the IRS. On that call, it was made clear that Delaware FBI agents were in possession of email evidence that contradicted denials made by Joe Biden that he was never aware of or involved in Hunter Biden’s business arrangements.

When Grassley said that the Delaware team was in possession of email evidence that, “contradicted Biden’s denials,” he meant they had the laptop and probably the iCloud warrant returns. There, too, he appears to be parroting Shapley’s claims about the laptop, which spun Hunter claiming to involve his father in business calls as proof that Joe was involved.

The other reason Thibault shut down Schweizer is because of what he learned in a Foreign Intelligence Task Force briefing that provided more context about things. Grassley claims that what persuaded Thibault was a Brian Auten assessment about disinformation that “improperly” discredited claims about Hunter Biden as disinformation.

On July 25, 2022, I wrote to the both of you.5 In that letter, I described whistleblower allegations that the FBI developed information in 2020 about Hunter Biden ‘s criminal financial and related activity but ultimately shut it down based on false assertions that it was subject to foreign disinformation. It’s been alleged that the basis for shutting the investigative activity down was an August 2020 assessment created by FBI Supervisory Intelligence Analyst Brian Auten. That assessment was used by an FBI HQ team to improperly discredit negative Hunter Biden information as disinformation and caused investigative activity to cease.

Yet Laura Dehmlow testified to the House that the claim that, “there was an assessment on Hunter Biden disinformation,” was inaccurate and agreed that, “the allegations … with respect to Mr. Auten are just wrong.”

Grassley ends with a claim that his story is based on “multiple credible whistleblowers” and a wail about political infection.

Based on the information provided to my office over a period of years by multiple credible whistleblowers, there appears to be an effort within the Justice Department and FBI to shut down investigative activity relating to the Biden family. Such decisions point to significant political bias infecting the decision-making of not only the Attorney General and FBI Director, but also line agents and prosecutors. Our Republic cannot survive such a political infection and you have an obligation to this country to clear the air.

But we know these whistleblowers aren’t credible. Several of them are undoubtedly agents disgruntled because Thibault shut down a propagandist as a source. One likely disgruntled agent — the aforementioned father whose daughter was reporting related content on Daily Caller — went to work for Heritage Foundation after he quit the FBI rather than be reassigned from a position where he could politicize public corruption investigations. Another chased the ItalyGate conspiracy theory long after Richard Donaghue debunked it. Ziegler and Shapley’s claims have been debunked by every witness who testified and a great many of the documents they themselves shared.

And that’s just the whistleblowers. Consider what we know about those forty informants. They definitely or may include (as Raskin partly addressed):

  • Gal Luft, whose March 2020 claims came amid interviews where he also allegedly lied to the FBI
  • The aforementioned June 2020 FD-1023 reporting a late 2019 statement from Zlochevsky that conflicted with things Zlochevsky had said earlier in 2019
  • Steve Bannon flunky Peter Schweizer’s election 2020 season pitches
  • Probably at least three Ukrainian sources that were part of Rudy’s campaign efforts
  • People tied to Dmitry Firtash and Andrii Derkach

There may be localized people with their own political gripes, too; for example, in addition to metadata that could have been manufactured by anyone in possession of a “Hunter Biden” “laptop,” one reason the FBI treated John Paul Mac Isaac’s claims seriously was “intelligence” that said Hunter was in Delaware at the time.

The point being, even if the notion that the FBI used forty — 40!!!! — informants to investigate Donald Trump’s rival doesn’t set off alarm bells, the quality and the biases of the known informants should.

The House investigation has made it clear that Grassley’s credible whistleblowers aren’t credible whistleblowers. As DC US Attorney Matthew Graves charitably described it, Grassley’s sources delivered, “the garble that can happen when you layer hearsay on top of hearsay on top of hearsay. And when you look at a lot of this, it’s someone said that someone said that someone said.” The House investigation also made clear that at least some of Grassley’s forty informants aren’t credible sources, either.

And that may be why Republicans are recycling these debunked claims over in the Senate, where they’ll continue to churn up Fox viewers, but where they’ll avoid the scrutiny that has already debunked the claims in the House.

27 Letter from Ranking Member Jamie Raskin, Committee on Oversight and Accountability, to Chairman James Comer, Committee on Oversight and Accountability (Sept. 19, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-09- 19.JBR%20to%20Comer%20re%20Schwerin%20Interview.pdf); see also House Republicans Downplay Meeting with Key Biden Aide, HuffPost (Sept. 19, 2023) (online at www huffpost.com/entry/eric-schwerin-oversightcommittee-joe-biden_n_65098430e4b0d98f39e80e1d).

28 Letter from Ranking Member Jamie Raskin and Rep. Dan Goldman, Committee on Oversight and Accountability, to Chairman James Comer, Committee on Oversight and Accountability (July 11, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-07- 11.JBR%20Goldman%20to%20Comer%20re%20Luft.pdf); Rep. James Comer (@RepJamesComer), X (July 7, 2023) (online at https://twitter.com/RepJamesComer/status/1677414170411560962?s=20).

29 Rep. Dan Goldman (@RepDanGoldman), X (Aug. 7, 2023) (online at https://x.com/RepDanGoldman/status/1688667691584737280?s=20).

30 Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Transcribed Interview of Former FBI Supervisory Special Agent (Aug. 16, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-08- 16.Democratic%20Member%20Memorandum%20re%20FBI%20SSA%20Transcript.pdf); Transcript of Devon Archer Testimony Doesn’t Back Key Claims About Joe and Hunter Biden, PolitiFact (Aug. 4, 2023) (online at www.politifact.com/article/2023/aug/04/transcript-of-devon-archer-testimony-doesnt-back-k/); Devon Archer Said the Opposite of What Republicans Claimed, Washington Post (Aug. 3, 2023) (online at www.washingtonpost.com/politics/2023/08/03/devon-archer-transcript-biden/); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Oversight Committee Investigation into Presidential and Classified Records and Transcribed Interview of Former Executive Assistant to then-Vice President Biden (May 3, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/5.3.2023%20Chung%20Memo%20- %20FINAL.pdf).

31 Rep. Comer to Newsmax: Impeachment Inquiry Vote Possible Mid-Sept., NewsMax (Sept. 7, 2023) (online at www newsmax.com/Politics/newsmax-tv-biden-impeachment-inquiry/2023/09/07/id/1133671/); Committee on Oversight and Accountability Democrats (@OversightDems ), X (Sept. 8, 2023) (online at https://x.com/OversightDems/status/1700178556175692271?s=20).

32 Transcript of Devon Archer Testimony Doesn’t Back Key Claims About Joe and Hunter Biden, PolitiFact (Aug. 4, 2023) (online at www.politifact.com/article/2023/aug/04/transcript-of-devon-archer-testimony-doesnt-backk/); Devon Archer Said the Opposite of What Republicans Claimed, Washington Post (Aug. 3, 2023) (online at www.washingtonpost.com/politics/2023/08/03/devon-archer-transcript-biden/); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Transcribed Interview of Devon Archer (Aug. 3, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight.house.gov/files/2023-08- 03.Democratic%20Member%20Memorandum%20re%20Archer%20Transcribed%20Interview%20Final.pdf).

33 The Faulkner Focus, Fox News (Apr. 21, 2023) (online at www.foxnews.com/video/6325510578112); Chairman James Comer (@RepJamesComer), X (Apr. 16, 2023) (online at https://twitter.com/jamescomer/status/1647645180260958211?s=46); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Chairman Comer’s Misuse and Distortion of Confidential Bank Information (May 10, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023.05.10%20Memo%20to%20Me mbers%20re%20Misuse%20and%20Distortion%20of%20Confidential%20Bank%20Information%20FINAL.pdf); Comer Releases Biden Family Probe Update Without Showing Link to President, Politico (May 10, 2023) (online at www.politico.com/news/2023/05/10/james-comer-biden-probe-00096067).

34 Fox and Friends, Fox News (Mar. 31, 2023) (online at https://video.snapstream net/Play/8cJmJQ9KSgTuI2622JTEza?accessToken=cr1lk3ctb7qf0); Jesse Watters Primetime, Fox News (July 3, 2023) (online at www foxnews.com/video/6330534582112); My Fellow Republicans: One Disgraceful Impeachment Doesn’t Deserve Another, Washington Post (Sept. 15, 2023) (online at www.washingtonpost.com/opinions/2023/09/15/congressman-ken-buck-biden-impeachment/); Debunking 4 Viral Rumors About the Bidens and Ukraine, New York Times (Oct. 29, 2019) (online at www.nytimes.com/2019/10/29/business/media/fact-check-biden-ukraine-burisma-china-hunter.html); Memorandum from Democratic Staff to Democratic Members, Committee on Oversight and Accountability, Chairman Comer and Senator Grassley’s Decision to Publicly Release FBI Form FD-1023 (July 24, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-07- 24.Dem%20Memo%20re%20Comer%20Grassley%20Letter%20FD-1023_.pdf).

35 Sunday Morning Futures, Fox News (Aug. 20, 2023) (online at www.foxnews.com/video/6334869612112); Kudlow, Fox Business (June 29, 2023) (online at www.foxbusiness.com/video/6330314725112); The Daily, New York Times (Sept. 15, 2023) (online at www.nytimes.com/2023/09/15/podcasts/the-daily/biden-impeachment html?showTranscript=1); McCarthy Launches Biden Impeachment Inquiry—With Zero Evidence, New Republic (Sept. 12, 2023) (online at https://newrepublic.com/post/175504/mccarthy-biden-impeachment-inquiry-no-evidence-not-enough-votes); Memorandum from Democratic Staff to Democratic Members, Committee on the Judiciary and Committee on Oversight and Accountability, IRS and FBI Witnesses Debunk Republicans’ False Claims About Political Interference in Special Counsel Weiss’s Investigation (Sept. 27, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023-09- 27%20Joint%20Democratic%20Memorandum%20re%20IRS%20and%20FBI%20Witnesses%20Debunk%20Politic al%20Interference%20Claims.pdf).

36 Mornings with Maria, Fox Business (Oct. 25, 2023) (online at www.youtube.com/watch?v=gFkB5qFBhaQ); Letter from Ranking Member Jamie Raskin, Committee on Oversight and Accountability, to Chairman James Comer, Committee on Oversight and Accountability (Oct. 26, 2023) (online at https://oversightdemocrats.house.gov/sites/democrats.oversight house.gov/files/2023.10.26.%20JBR%20to%20Com er%20re.%20Subpoenas.pdf); GOP Touts Bombshell Biden Payments—But Records Suggest Otherwise, Messenger (Oct. 26, 2023) (online at https://themessenger.com/politics/gop-touts-bombshell-biden-payments-but-recordssuggest-otherwise); Another GOP “Bombshell” About Joe Biden Turns Out to Be a Dud, HuffPost (Oct. 23, 2023) (online at www huffpost.com/entry/james-biden-payment-joe-biden_n_6536badee4b0689b3fbd8cf1).

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After Trump Issued Threats, Abigail Jo Shry “Came after” Judge Tanya Chutkan

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As noted, Judge Tanya Chutkan lifted the stay on the gag she imposed on Donald Trump. In her opinion lifting the stay, Chutkan laid out how Trump’s garden variety attacks on Joe Biden were fair game under the gag, but his specific attack on Mark Meadows in conjunction with the Jack Smith prosecution was not.

Two of Defendant’s social media posts since the Order’s entry illustrate the comprehensible difference between the statements it permits and those it proscribes. First, on October 20, 2023—after the Order was entered, but before it was administratively stayed— Defendant stated:

Does anyone notice that the Election Rigging Biden Administration never goes after the Riggers, but only after those that want to catch and expose the Rigging dogs. Massive information and 100% evidence will be made available during the Corrupt Trials started by our Political Opponent. We will never let 2020 happen again. Look at the result, OUR COUNTRY IS BEING DESTROYED. MAGA!!!3

This statement asserts that Defendant is innocent, that his prosecution is politically motivated, and that the Biden administration is corrupt. It does not violate the Order’s prohibition of “targeting” certain individuals; in fact, the Order expressly permits such assertions. Order at 3.

By contrast, on October 24, 2023—after the Order was administratively stayed— Defendant stated:

I don’t think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you’ll be going to jail for the rest of your life, your money and your family will be forever gone, and we’re not at all interested in exposing those that did the RIGGING — If you say BAD THINGS about that terrible “MONSTER,” DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible “STUFF” a out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!4

This statement would almost certainly violate the Order under any reasonable definition of “targeting.”5 Indeed, Defendant appears to concede as much, Reply in Support of Motion to Stay, ECF No. 123, at 10 n.3 (“If the Gag order had been in effect, President Trump would have been unable to [make the statement].”)—and for good reason. The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a “lie” “mad[e] up” to secure immunity, and it attacks him as a “weakling[] and coward[]” if he provides that unfavorable testimony—an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case. The plain distinctions between this statement and the prior one—apparent to the court and both parties—demonstrate that far from being arbitrary or standardless, the Order’s prohibition on “targeting” statements can be straightforwardly understood and applied.

3 https://truthsocial.com/@realDonaldTrump/posts/111267550982205234.

4 https://truthsocial.com/@realDonaldTrump/posts/111293117150329703.

5 Because of the administrative stay on the Order, this statement is not before the court. Before concluding that any statement violated the Order, the court would afford the parties an opportunity to provide their positions on the statement’s meaning and permissibility.

Since Chutkan lifted the stay, Trump has made six attacks on his failing social media platform, four complaining that the prosecution against him wasn’t initiated three years ago (under Bill Barr?!?! at a time when Bill Barr was still corruptly shutting down prosecutions of Trump and his people?!?!?!), before the conspiracies charged against him started, and two attacking Judge Chutkan.

All of these attacks are perfectly permissible under the gag.

While Chutkan’s staffers are covered by the gag, she specifically excluded Joe Biden and herself from the gag.

Because Chutkan is excluded from the gag, I thought it worth reviewing the specific circumstances of the threat Abigail Jo Shry made against Judge Chutkan, which as I noted first got raised in the government’s opposition to staying the gag.

Such risks are far from speculative here, the Court found, given uncontradicted facts submitted by the Government showing that when the defendant “has singled out certain people in public statements in the past,” it has “led to them being threatened and harassed.” ECF No. 103 at 66-67.1

1 Shortly after being assigned to the case, the Court itself received a racist death threat explicitly tied to the Court’s role in presiding over the defendant’s case. See United States v. Shry, No. 4:23-cr-413, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023) (caller stating, among other things, “‘If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, b***h. . . . You will be targeted personally, publicly, your family, all of it.’”). This incident, like many of the others the Government cited, was widely publicized and surely well known to the defendant.

That is, it first got raised explicitly in the opposition to lift the stay.

Not stated anywhere in this filing is that when DOJ said Shry made her threat against Judge Chutkan and Sheila Jackson Lee “shortly after” Judge Chutkan was assigned to the case, they mean Shry made the threat on August 5, one day after Trump issued his, “if you come after me” threat, which was included in the initial motion for a gag (the consideration of which, remember, John Lauro succeeded in stalling for ten days).

Trump followed that attack with more, including several almost identical to the ones he used overnight, except that they swapped out Jack Smith (who is covered under the gag) for Joe Biden.

When DOJ first moved for a gag on September 5, Shry remained detained pretrial, based on the findings that she had repeatedly made increasingly serious threats in the previous year.

Defendant has been criminally charged four times in the past year for engaging in similar conduct. On September 20, 2022, she was convicted in two separate cases (misdemeanor resisting arrest and misdemeanor criminal mischief) and sentenced to 30 days imprisonment. Recently, on July 11, 2023, she was charged with misdemeanor threat causing fear of imminent serious bodily injury. It is alleged that she committed the instant offense while on bond for the July 11 incident, less than one month after it occurred.

Defendant suffers from major depression and has a long history of substance abuse. She denies using any illegal substances for the past year. However, according to Defendant’s father, she excessively drinks beer daily. Defendant lives with her boyfriend, but he is presently charged with a family assault against her. Defendant has two children, ages 17 and 19, who currently live with her parents.

Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats. He has agreed that Defendant can reside with him and Defendant’s mother, and he would serve as a third-party custodian.

Defendant’s aggressive and threatening behavior has continually escalated during the past year as evidenced by her criminal conduct in four separate cases.

But by the time DOJ resubmitted the motion on September 15, Shry had been released to home detention with an order to get mental health and substance abuse treatment.

In less than 24 hours since the stay, Donald Trump has shown a fine-tuned ability to continue to issue threats even as he adheres to the letter of the gag, just like I used to legalistically adhere to my seventh grade Geometry teacher’s rule against chewing gum in class by simply not chewing the gum in my mouth.

But there are thousands — maybe millions — of Trump supporters with mental health problems out there, sitting on couches, getting worked up about what they see on Fox News.

And as this gag gets appealed all the way to SCOTUS, Judge Chutkan has chosen to entrust her own safety from threats like Shry’s to the US Marshals, not to any gag.

Update: Fixed some points where I said the opposite of what I meant wrt lifting or staying the gag.

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The “Piles” of Chris Kise Bullshit Devlin Barrett Claims to Believe

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According to this piece, Devlin Barrett (this time, with Perry Stein) claims to believe a bunch of Chris Kise bullshit that has already been debunked in court filings.

One key issue is how much time Trump and his legal team get to review the piles of secret evidence in the case. Trump’s lawyers have accused the government of being too slow to provide access to the full catalogue of classified papers, and insist they need more time to prepare.

It’s true that Trump has claimed that. It’s true that Trump insists they need more time. But these claims were largely manufactured, which was readily apparent if you read the court filings closely.

Over the last five weeks, Trump’s lawyers have made a series of claims about classified production to support a bid to delay the stolen document trial until after the election.

Some of those were real: In particular, the Court Information Security Officer had to keep juggling a number of the documents Trump stole because they were so sensitive.

The first set probably involved the single charged and some number of uncharged nuclear documents, which defense attorneys were not yet cleared to access (the CISO basically removed them from the defense SCIF so the attorneys would be cleared to read everything that was left in there).

The second set — of first four and then another five — of the charged documents are Special Measures documents (those with additional compartments). Those could not be stored in the existing SCIFs in Miami without additional measures put in place. They were available in DC, and have now been made available in Miami. Altogether, it appears those Special Measures documents are around 44 pages in length. The defense team still needs a laptop equipped to write about them, the only apparent remaining delay in classified materials outstanding.

Those exchanges (most clearly laid out here) have revealed that, save for some classified FBI Agent emails that DOJ will provide closer to trial as Jencks production and some documents DOJ wants to provide with substitutions under CIPA 4 that this fight is holding up, this is the current universe of classified discovery in the case.

At less than 5,500 pages, it could hardly be called a “pile,” as Devlin did, unless you were referring to the horse manure that Kise was spreading.

Many of the claims that Chris Kise made were transparent bullshit. The most important one — because it appears to have fooled Aileen Cannon — is that the reason why a bunch of classified documents weren’t available in Miami (some were available in DC, where a number of Trump’s lawyers are) is because the defense attorneys weren’t in Miami to read them, something they delayed doing during several competing filings in this dispute. A CISO can’t just drop off nuclear documents in an unattended SCIF, but the guy who left the same document in his beach resort may not understand that.

It’s possible the defense put off going to Miami because the Special Measures documents were not yet there.

What’s clear, however, is that Trump’s team waited 11 days before reviewing documents that were ready for their viewing once they showed up to review them, then blamed DOJ because they waited.

A still more amusing complaint is that DOJ provided a disk with the items in a box of White House schedules that a Trump aide had scanned and then downloaded onto her computer, which because of duplicates amounted to 13,584 pages, of which just 15 pages were classified. DOJ had tried to provide all the unclassified pages in June, but Trump asked DOJ to hold off. That requested delay is one of the reasons Trump claims he can’t stand trial before the election.

Trump also spent weeks of October complaining that DOJ had provided 1,400 pages of Jencks materials (statements related to the case from people who’ll be witnesses at trial) in October, rather than the weeks before trial, when it is due.

Kise also complained he couldn’t review the classified discovery because he had to be in Trump’s 3-month fraud trial in New York, something that was known when Judge Cannon set the schedule.

As the government notes, Aileen Cannon’ schedule only had one deadline, for the initial production of classified documents, and the only delay in meeting that deadline came from Judge Cannon’s own dawdling over the protective order.

The Scheduling Order set September 7 as the deadline for the Government’s first production of classified discovery. The Government delivered certain classified discovery to the defense SCIF before then, but it was not available to the defense until September 13, after the Court entered the CIPA Section 3 protective orders, ECF Nos. 150-152.

Below I’ve put the series of claims Trump has made with DOJ’s debunking.

Claim:

On October 17, 2023, the Special Counsel’s Office caused approximately 2,487 pages of documents and four discs to be delivered to President Trump’s counsel, for the first time, at a secure facility in this District.

Debunking:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Claim:

[T]he Office’s October 6, 2023 production of approximately 2,400 pages of additional classified discovery is still not available for review in this District.

Debunking, One:

As the Government explained in a recent filing, ECF No. 187 at 5-6, it informed the defense on October 6 that the production had been provided to the Classified Information Security Officer (CISO) and inquired the next day when the defense would resume its review of classified discovery in the defense SCIF, so the Government could arrange for it to be delivered there. Defense counsel waited 11 days, from October 6 until October 17, to receive the materials in the defense SCIF.

Debunking, Two:

As in all federal criminal cases involving classified discovery, to ensure confidentiality for the defense, the Government does not have access to the defense SCIF. To deliver classified discovery to the defense SCIF requires the presence of either the CISO or appropriately cleared members of the defense team.

Claim:

A recent, untimely production nearly doubled the volume of classified discovery, and the Office has not explained why those materials were withheld from prior productions.

[snip]

[T]he Special Counsel’s Office recently made available a classified production consisting of approximately 2,400 pages and four discs.

Claim:

[T]he Office still has not explained the timing of its October 6, 2023 production of thousands of pages of additional classified discovery, which is greatly in excess of what the Office estimated to the Court as recently as September 12, 2023.

Debunking:

[T]he largest set of documents in the most recent classified production—a set of about 1,400 pages of emails described in defendant Trump’s classified supplement—consists mostly of Jencks material, which this Court has indicated is not due until closer to trial.

Claim:

Mr. Kise has not yet been cleared fully to review all the CIPA materials and is currently representing President Trump in a trial in New York which is expected to conclude by December 22, 2023, well after expiration of many current deadlines as well as the hearing dates this Court has established. See People v. Trump, et. al, Index No. 452564/2022 (N.Y. Sup. Ct. 2022). He has therefore had no opportunity to review any of the CIPA materials or to participate in the preparation of the defense. President Trump should not be denied the assistance of core counsel in a matter of this significance due to the Government’s delayed discovery process.

Debunking:

Mr. Kise received an interim security clearance in late July, which authorized him to review about 2,100 pages of classified discovery the moment they were produced on September 13–the same day the protective orders issued. ECF Nos. 150, 151, 152. These materials included 16 of 31 charged documents and about 600 pages of classified interview transcripts, among other materials. So, although it is true that as of their filing Mr. Kise had not been “cleared fully,” it is inaccurate to suggest that that fact at all explains his failure to review “any of the CIPA materials.” This leaves only one of the proffered explanations for Mr. Kise’s alleged inability to review “any of the CIPA materials” as the possibly accurate one—Mr. Kise’s competing obligations in the New York trial. But those obligations were aired at the July 18 scheduling hearing, July 18 Tr. at 35, 43, and the Court has already taken them into account in setting trial in May.

Claim:

[T]the Office omits from its “supplemental response” that the four discs contained more than three gigabytes of data relating to six facilities, approximately 13,584 additional pages.

Debunking:

[A]ll but 15 pages of this 13,584-page set of materials had already been produced in unclassified discovery; and the reason the entire set of materials—including the previously produced unclassified pages—was provided together in classified discovery is that the defense asked that it be done that way. The 13,584 pages consist of multiple copies of documents from a box of scheduling materials from Trump’s presidency stored at Mar-a-Lago and elsewhere in West Palm Beach. During the investigation of this case, the Government obtained duplicate copies of the box’s contents—including from the box itself, as well as from a laptop and a cloud storage account to which an aide to defendant Trump had scanned copies—totaling the 13,584 pages, only 4,242 of which are unique. Fifteen of the pages were classified. On June 21, the Government produced to defendant Trump the unclassified digitized contents of the box, containing all but the 15 classified pages of the total of 4,242 unique pages. During a meet-and-confer on September 20, the defense indicated that rather than receiving productions of only the classified pages extracted from electronic devices, separated from the digitized unclassified material already provided in unclassified discovery, they wanted to receive any classified pages from electronic media together with surrounding contents so that it could ascertain where the pages had been stored.

Claim [classified supplement]:

The special measures documents could not be discussed in the defense SCIF when counsel resumed review of materials there on October 17 and 18.

Debunking:

[A]n equipment failure deactivated a security measure that prevented discussion of the special measures documents in Defense SCIF 1 (but review could still occur), and that the following day, October 18, counsel moved one block over to Defense SCIF 2, which was authorized for both review and discussion of all the classified discovery and to which the special measures documents were re-delivered.

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Mike Pence Simplifies the Gag Order Dispute

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If my Irish Daylight Savings calculation and PACER operations are correct, Donald Trump submitted his reply to DOJ’s opposition to a stay on the gag Judge Tanya Chutkan imposed at around 8:50PM ET last night.

President Trump’s political opponents (some of whom are witnesses), the Biden Administration, and the citizenry writ large in connection with the 2024 campaign. This is precisely where the Gag Order runs headlong into unconstitutional shoals. President Trump is absolutely entitled to defend himself publicly and explain with specificity why the charges against him are false and meritless.

The filing includes the kind of sophistry John Lauro excels at. It continues to artificially dismiss the abundant evidence that Trump’s statements routinely lead to violence (in one place, by dismissing anything that happened more than three months ago: Taylor Taranto’s stalking of Barack Obama in response to Trump’s Truth Social post was on June 28, exactly four months before this filing).

But it is not frivolous. Trump wildly misrepresents the scope of the gag, particularly as it pertains to Joe Biden, about whom the gag imposes no restrictions.

This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.

These are not easy First Amendment questions.

And, Trump used the prosecution’s request to put restrictions on witness tampering into Trump’s release conditions (which is where Amy Berman Jackson put a similar gag for similar reasons on Roger Stone) to note its tactical position of strength.

The prosecution’s request is also jurisdictionally improper. The Court entered the Gag Order, and President Trump promptly filed a notice of appeal. The prosecution does not dispute that the Gag Order is an appealable order. See Doc. 110, at 8. Thus, when President Trump filed his notice of appeal, it divested the Court of jurisdiction to amend or modify the Gag Order: “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). The prosecution’s latest proposal seeks to end-run around the Court of Appeals’ jurisdiction by modifying and reasserting the Gag Order as a condition of release while it is being challenged on appeal, which the Court lacks jurisdiction to do. See id.

Trump intends to take this gag order to a partisan Supreme Court where several Justices are already raring to forcibly protect the kind of violent threats that Trump specializes in. Heck, if Trump succeeds as well as he might, his appeal of this gag could solve the problem with the “mob” part of the indictment which I’ve noted.

And all that’s why the stakes of Pence’s decision to drop out of the presidential race yesterday matters.

I came here to say it’s become clear to me: this was not my time. So after much prayer and deliberation, I have decided to suspend my campaign for president, effective today.

He’s absolutely right. It is not the time for someone running on having upheld the Constitution to run in the Republican Party. The GOP is little more than a criminal protection racket to shelter one man, Donald Trump.

Pence dropped out before 5PM ET. By the time Trump submitted his motion claiming some of the witnesses the gag would prevent him from attacking were his political opponents, Pence dropped out of the race.

So long as Pence was in the race running on the policy of upholding the Constitution, as he did on January 6, there was a clear conflict between the gag’s restrictions on Trump’s attacks on witnesses and its explicit permission to attack the policies of his rivals in the 2024 Presidential race.

That conflict has been resolved.

These First Amendment questions are still difficult. This appeal may still give Trump a vehicle to get SCOTUS to protect the kind of mob incitement that is at the core of the indictment.

But yesterday, Pence resolved the most difficult of the questions.

Update: On Sunday night, Judge Chutkan denied the stay. Her order notes:

  • Even if a request to alter Trump’s release conditions were procedurally proper, it’s not necessary to enforce the terms of the gag
  • Trump ignored the causal link between his attacks and certain kinds of threats
  • Trump failed to fully raise the First Amendment interests of his followers in his opposition to a gag
  • Trump ignored the way Judge Chutkan had tailored her order (for example, by not gagging attacks on DC)
  • Trump adopted a dictionary rather than the well-accepted legal definition of “interested parties”
  • The difference between Trump’s general attack on the “Election Rigging Biden Administration,” which is not gagged, and a post claiming “if [Meadows would] say BAD THINGS about that ‘MONSTER'” Donald Trump he might avoid prison, which is gagged, is clear
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Lurid Realities: Trump Implies That Selling Nuclear Secrets Is Treason

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In this post, I noted that two passages from DOJ’s response to Trump’s Motion to Dismiss for Absolute Immunity — one pertaining to exchanging pardons as part of a quid pro quo, another describing otherwise official acts that would clearly be illegal — actually described things that may have or likely happened under Trump.

Here’s the latter discussion:

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

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

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

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

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

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

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

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

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

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

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

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

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

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

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

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

Trump’s reply to that response addresses this second passage — at least, two items from it — in what it deems to be “lurid hypotheticals.”

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

Since Trump doesn’t include the entire list, here are the four items in it:

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

This footnote seems to suggest more than one and possibly all of these things — in a list including an order to the National Guard and an order to an FBI Agent — would be private acts.

That’s a consistent stance with the claim, in a footnote that concludes on this very same page, that Nixon’s suspected involvement in the DNC burglary as part of an attempt to win an election would also be a private act.

9 The Government relies on President Ford’s pardon of President Nixon, arguing that it presupposes that Nixon could have been prosecuted for acts he committed as President. Doc. 109, at 18. Not so. The fact that Nixon was never prosecuted—despite widespread public outrage and compelling evidence of wrongdoing—provides compelling evidence of the strength of the historical tradition against prosecuting former Presidents for their official acts, not its weakness. Moreover, this argument overlooks that much of the conduct at issue in the Watergate scandal—such as ordering the burglary of the Democratic National Committee headquarters—may well have been purely private acts, not shielded by immunity at all, thus necessitating a pardon. (Both of these points apply equally to President Clinton’s admitted perjury in the Paula Jones litigation, for which he was never prosecuted. Response, at 19.)

FWIW, I agree with this reply’s argument that DOJ doesn’t aggressively lay out the extent to which Trump’s alleged acts in the January 6 indictment are private acts. But if Trump concedes that Nixon’s suspected role in the DNC break-in to win an election was a private act, then it seems to concede that Trump’s own actions to reverse the outcome of an election he lost would also be a private act.

And Trump’s extension of private acts to this list of four “lurid hypotheticals” would seem to swallow up the entire argument about Presidential immunity.

But it seems to do something else.

There is nothing on that list resembling treason.

Accepting a bribe from Saudi Arabia to win a $2 billion contract for your son-in-law? Not treason.

Ordering the FBI to alter records to gin up an investigation against Joe Biden? Not treason.

Ordering 10,000 National Guard members to protect your mob as it attacks Congress? Not treason — at least not until it kicks off Civil War.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

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Trump Is Going Through the Motions to Dismiss until He Resumes the Presidency

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One of the reasons I suspect that Trump-leaning Republicans replaced Kevin McCarthy with a key player in Trump’s last attempted coup is because Trump shows no signs of any plan to try to win his Federal criminal trials.

For some time, it has appeared (to me at least) that he has approached these cases with the belief that if he can use them as a campaign prop with which to get reelected, then he can simply pardon himself or remain President indefinitely to beat the Federal rap. That’s one of the reasons, I think, why he is treating many of his DC court filings as stunts, especially his extensive fundraising and messaging campaign around the gag order.

Delay, disinform, then dismiss.

I get that. I expected that. Yet, I still expected him to present the best legal case he could as insurance in case winning or stealing the election and self-pardoning doesn’t work.

He has lawyers capable of making very competent legal arguments.

So I’m frankly shocked by how inadequate his Motions to Dismiss have been. I wrote them up here and made this nifty table summarizing the arguments.

This is not just a legal observation — though some of his purportedly legal arguments, most notably his selective prosecution motion — are legally shitty. Don’t take my word for it: take Carissa Byrne Hessick’s expert opinion, who says, “his motion is embarrassingly awful & should clearly be denied under current law.”

This is not just a legal observation. Partly, it’s box-ticking one. As I show below, Trump isn’t even addressing all the allegations against him.

As DOJ noted in the response to Trump’s MTD for Absolute Immunity, Trump totally misrepresented the indictment. As DOJ laid out, the indictment consists of four charges — three of them, conspiracy charges (18 USC 371, 1512(k), and 241). For each of those charges, DOJ alleged that Trump used five means of pursuing that conspiracy, laid out as five bullet points in the indictment. Those five bullets read:

a. The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant. [state]

b. The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws. This included causing the fraudulent electors to meet on the day appointed by federal law on which legitimate electors were to gather and cast their votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they were legitimate electors. Some fraudulent electors were tricked into participating based on the understanding that their votes would be used only if the Defendant succeeded in outcome-determinative lawsuits within their state, which the Defendant never did. The Defendant and co-conspirators then caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6. [fake electors]

c. The Defendant and co-conspirators attempted to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors. [Jeffrey Clark]

d. The Defendant and co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results. First, using knowingly false claims of election fraud, the Defendant and co-conspirators attempted to convince the Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than counting them. When that failed, on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused. [PenceCard]

e. After it became public on the afternoon of January 6 that the Vice President would not fraudulently alter the election results, a large and angry crowd–including many individuals whom the Defendant had deceived into believing the Vice President could and might change the election results–violently attacked the Capitol and halted the proceeding. As violence ensued, the Defendant and co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification based on those claims. [mob] [red brackets my own]

Here’s how DOJ described the indictment in their response to Trump’s Absolutely Immunity filing.

A grand jury charged the defendant in a four-count indictment. ECF No. 1. The defendant moved to dismiss the indictment on the ground that he “is absolutely immune from prosecution.” Mot. 1. When considering a motion to dismiss, the Court must view the indictment “as a whole[,] and the allegations must be accepted as true.” United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022) (internal quotation marks omitted).

Count One, which charges a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, alleges that the defendant, then a candidate seeking re-election to the presidency, conspired with, among others, several individuals outside the Executive Branch to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” ECF No. 1 at ¶¶ 1, 7, 8. The indictment further alleges that the defendant aimed at accomplishing the conspiracy’s objectives in five ways: [state] using deceit toward state officials to subvert the legitimate election results in those states, id. at ¶¶ 13-52; [fake electors] using deceit to organize fraudulent slates of electors in seven targeted states, and cause them to send false certificates to Congress, id. at ¶¶ 53-69; [Jeffrey Clark] leveraging the Department of Justice to use deceit to get state officials to replace the legitimate electoral slate with electors who would cast their votes for the defendant, id. at ¶¶ 70-85; [PenceCard] 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 ¶¶ 86-105; and [mob] exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at ¶¶ 106-124. Counts Two and Three, which incorporate allegations from Count One, charge conspiracy and substantive violations of 18 U.S.C. § 1512(c)(2) for corruptly obstructing the certification of the presidential election results on January 6, 2021. Id. at ¶¶ 125-28. Count Four, which likewise incorporates the allegations from Count One, alleges that the defendant conspired to violate one or more person’s constitutional right to vote and have one’s vote counted. Id. at ¶¶ 129-30. [red brackets my own]

Get used to this paragraph: you’re going to see some version of it in the response to many if not all of the MTDs submitted last week.

To address the charges, you need to explain why each of those five means don’t substantiate, either alone or in combination, the elements of the offense of the charges. Effectively, Trump has to show how these five means don’t prove the three different ways they have been charged criminally.

One reason you have to address the alleged means of conspiracy is that First Amendment protected activities, if they are part of a conspiracy, may be included as overt acts in that conspiracy. Scores of January 6 defendants have already made the same First Amendment argument Trump is, including some members of the Proud Boys and Oath Keepers who, like Trump, didn’t breach the Capitol. But if DOJ can prove speech was part of a conspiracy, that speech can come in as evidence of that conspiracy. Trump’s MTD on Constitutional Grounds, for example, which is substantially the same argument about the First Amendment that has already failed for other Jan6ers, names each of the crimes alleged.

These points are not in dispute. Nonetheless, in an astonishing display of doublethink, the prosecution simultaneously claims that President Trump—simply by speaking his mind and petitioning for a redress of grievances—also somehow conspired to “defraud the United States,” “oppress rights,” and “obstruct an official proceeding.” Id. at ¶ 5–6, 125–130.

Then, purportedly citing to the five bullets that describe the means, he spins the five means as giving voice to concerns about election integrity, not his unlawful goal of trying to invalidate the votes of 81 million Biden voters.

As the indictment itself alleges, President Trump gave voice to these concerns and demanded that politicians in a position to restore integrity to our elections not just talk about the problem, but investigate and resolve it. See id. at ¶ 10(a) (state legislators and election officials) act) [sic]; ¶ 10(b) (Vice President and other government officials); ¶ 10(c) (state officials); ¶ 10(d) (vice president); ¶ 10(e) (members of Congress).

This passage replaces the instrumentality alleged with the targets of what Trump calls persuasion. Trump correctly describes one target of the state means (but not the coercion involved). But then he spins the creation of fraudulent documents as, instead, an attempt to persuade Mike Pence. He redefines the hijacking of DOJ in order to make a seemingly authoritative false statement as an attempt to persuade state officials (long after the involvement of state officials was concluded). He describes efforts to get Pence to violate the law as instead an attempt to persuade him. And he calls a violent mob threatening to assassinate members of Congress as, instead, an attempt to persuade those members.

Trump is a con man. And his First Amendment argument is a breathtaking claim that the means he uses to sustain his con — including fraud and coercion backed by violence — are merely free speech.

To some degree, this quick sleight of hand doesn’t matter: In the discussion of the First Amendment that follows, he never returns to address the charges against him. As a result, Trump’s First Amendment argument is sloppy fluff compared to the First Amendment January 6 challenges that have gone before and will be before the DC Circuit by the time Trump goes to trial.

Having at least acknowledged the existence of all five “means” bullet points in his MTD on Constitutional Grounds (even if he redefined them as targets of persuasion), the section of Trump’s MTD on Statutory Grounds addressing 371 pretends the indictment names just three means, not five.

As relevant here, the indictment alleges three types of conduct that supposedly involved making a false statement: (1) claims that the 2020 Presidential election was rigged or tainted by fraud or other irregularities, made both in public and in communications with public officials; [state] (2) organizing and submitting contingent slates of electors to the President of the U.S. Senate and the Archivist of the United States; [fake electors] and (3) making public claims about the scope of the Vice President’s legal authority with respect to the election certification. [PenceCard] [red brackets my own]

Trump doesn’t even pretend to address two of the five means alleged involve a conspiracy to defraud the government: the Jeffrey Clark and mob means. In the sections addressing 1512 and 241, Trump never revisits those other two means (or, in any specificity, the three he does include).

And that’s how, in the section on 1512 (an area where he could, but does not, piggyback on two years of determined work from other January 6 defense attorneys, including several who are members of his larger defense team), he claims he did nothing that could have obstructed the official proceeding — the January 6 vote certification — that he never even identifies.

As discussed above, lobbying members of Congress and state officials to act in a certain way when they conduct an official proceeding does not “obstruct” or “impede” that official proceeding. Nothing about lobbying Congress to act a certain way “places an obstacle” or “impediments,” “hinders … from action,” “gets in the way of the progress of,” “holds up,” or “blocks” Congress from acting. See id. at 1132, 1159. On the contrary, lobbying Congress to act in a certain way presupposes that Congress will conduct an official proceeding, and it seeks to persuade Congress to act in a certain way during that official proceeding. That is the antithesis of “obstructing” or “impeding” the proceeding.

Think about that! If Trump bothered to mention the vote certification, he would literally be claiming that he had absolutely nothing to do with its interruption on January 6, 2021. Nothing.

Even the illegal order to Pence, clearly identified as item 3 in Trump’s 371 section and a primary focus of both Judge David Carter’s opinion finding it likely this did amount to obstruction and the January 6 Report, is gone here. Jeffrey Clark never gets put back in. Most importantly, the obvious means of sending thousands of angry Trump supporters, many armed, to Congress to chase lawmakers out of their chambers remains absent from Trump’s discussion.

This is why (as I noted earlier) I think Trump is simply trying to make his incitement of actual mobsters go away with the Motion to Strike. His legal arguments ignore the incitement of the mob entirely, even after his recusal stunt introduced evidence of someone convicted under 1512, Robert Palmer, who said he committed crimes “at the behest” of Trump, even after his gag fight introduced evidence of a Jan6er stalking Obama immediately after Trump sent him.

To the extent that Trump’s MTDs don’t result in the wholesale dismissal of his indictment (and DOJ argued that by allegedly conspiring with five people outside of government, most of the allegations against Trump couldn’t be treated as official acts even if he did win the Absolute Immunity argument) Trump’s failure to address some of the means he allegedly used will lead to the failure of these efforts.

With the exception of the MTDs for Absolute Immunity (arguing that as a former President Trump, can’t be charged for things he did as President) and Selective Prosecution, these MTDs don’t attempt to argue that the entire indictment should be dismissed. And where in some cases he could make compelling arguments — I think the Jeffrey Clark means, for example, is particularly prone to legal challenge, though Trump barely addresses it — so long as you leave one of the means intact, you won’t succeed in dismissing the indictment.

In practice, the scope of what Trump actually addresses in his MTDs looks something like this:

Not only doesn’t Trump ever address the indictment as alleged (DOJ notes that a Motion to Dismiss must accept the facts alleged as true), but in none of these MTDs does he address all the means alleged. The only place he fully deals with the Jeffrey Clark allegation (which, again, I think is the most susceptible to legal challenge) is in the Absolute Immunity filing that is weak for other reasons. The only place he deals with the mob means is in the Motion to Strike, his legal effort to sweep his role in the violence all under the rug.

If his effort to do that — to remove the descriptions of his own role in the violence from the indictment with his Motion to Strike — fails, then that means alleged in the indictment will survive no matter what else happens.

To be sure, these MTDs have no bearing on whether he’ll ultimately be successful. Trump doesn’t need any of these MTDs to succeed to be acquitted. There will be a contentious fight about admissible evidence and arguments, where this First Amendment argument will be even more contentiously argued than it is here. The fight over advice of counsel arguments has already started, And ultimately he only needs to find one MAGAt willing to ignore all evidence to keep on a jury.

But the big gaps in Trump’s MTD arguments, to say nothing of the way he spins having his campaign submit fraudulent documents to NARA and Congress, seem to reflect points where even his lawyers recognize his case is so weak they just won’t bother — they’ll just try to sweep it all under the rug some other way, like that Motion to Strike.

Again, even if this goes to trial in March as currently scheduled, Trump needs only persuade one voter. If he can use these court filings as a means to delay that trial and as campaign props to win the election, these weak points won’t matter.

Update: Corrected trial date, which is scheduled to start on March 4, per Sean Sullivan.

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