The Media Started Capitulating to Trump with Russia Russia Russia

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I took a few days to go wander around Paris.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It was to me.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ball of Thread: Zombie Mueller

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

So Help Me God: Lawyers, Encryption, and Insurrection

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

Volume I:

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

Volume II:

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

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

Volume IV:

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

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

Again, this is all speculative.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How to Read the Immunity Appendix

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I’m still working through a deeper dive of the appendix to his immunity brief that Jack Smith released on Friday.

But I thought I’d share how I’m reading it, as I’ll need to refer back to that when I write up some of the interesting things I’ve found.

The appendix was released in four volumes:

Volume I: GA 1 through GA 722

Volume II: GA 723 through GA 965

Volume III GA 968 through GA 1503

Volume IV: GA 1503 through GA 1885

There are also a bunch of GA 1900 references in the immunity brief; those are to video and other multimedia, but we don’t get them.

But what we’ve got may be better understood in sections:

GA 1 through at least GA 653: Most of Volume I consists of interview transcripts arranged in alphabetical order, Barr to Wren, in what is visible. Once you understand that that section is in alpha order, it helps to substantiate whether citations in the immunity brief are to one or another person. For example, it seems highly likely that the GA 97 to 102 range is Kenneth Chesebro, because citations to those pages describe stuff he was involved with, and those pages appear between the visible Rusty Bowers and Justin Clark sections, and after material that must be from Georgia Attorney General Christopher Carr and former MI House Speaker Lee Chatfield. I’ll return to both Chesebro and Chatfield tomorrow.

These transcripts are generally truncated, including just the pages necessary to substantiate the material in the brief — though there are transcripts in there, such as that of Ronna Not-Romney McDaniel in the GA 323 to GA 342 range, that cover the full range of activities in which she played a part.

There are people, like former MI Senate Majority Leader Mike Shirkey, whose only citations are to January 6 transcripts (and so are visible). There are far more people (like Chatfield, Chesebro, and McDaniel) whose only citations are to DOJ interviews, so are sealed. But some people, starting from Bill Barr, have citations to both J6C and DOJ transcripts. In general, the DOJ transcripts appear to come after the J6C ones (though I’m not sure that’s the case with Jason Miller).

GA 654 through GA 722: The balance of the first volume may also be transcripts, but it’s not in obvious order. Although one or several Eric Herschmann interviews appear from around GA 190 through GA 238 in the alpha order section, a great deal of GA 654 through GA 722 is also Herschmann-related material (including the blacked out pages starting at GA 709). There’s a lot of Herschmann in this brief, and I thought prosecutors did a less compelling job of explaining why those were unofficial than the Mike Pence material.

I had considered whether this section consists of more sensitive files, and it may. But it’s not the sensitivity I first considered: that of Executive Privilege (or grand jury versus interview transcripts). Mike Pence’s interviews appear starting at least by GA 413, between the visible Jason Miller and Katrina Pierson transcripts.

GA 723 through GA 771: The first 50 pages of Volume II are from the President’s Daily Diary, which documents all of the President’s calls and meetings. That the section tracked calls involving Trump was already evident from this footnote, which substantiates Steve Bannon’s near-daily phone calls with Trump resuming in mid-December:

And footnote 546 identifies GA 742 as PDD explicitly.

GA 772 to GA 965: The rest of that volume is Tweets and other social media, by Trump and by others. One interesting aspect of this volume is the type of Tweet. For example, it appears prosecutors attempted to include both the legal process version and the screen cap of all of Trump’s Tweets, but they don’t always do that. Trump’s RTs, in particular, appear to have been difficult to reproduce; remember that, because Trump’s account was suspended, there were some difficulties in reconstituting parts of it. There’s a bunch obtained from the Trump Twitter archive, suggesting they may not have been preserved at Twitter. There’s also just the text of the Mike Pence courage Tweet and his “sacred landslide” Tweet, which may come from a dump of the phone (and serve to substantiate that it was written with that phone). And there are a bunch of what appear to be text versions of Trump’s Tweets or Team Trump disseminations of them, the latter of which prosecutors point to to substantiate their argument that these are campaign, as opposed to Presidential, Tweets. If this ever goes to trial, how these got used will often say as much as the actual content included.

The other two volumes provide all the other kinds of backup to the immunity brief, largely documentary evidence.

This documentation generally follows the structure of the immunity brief itself, though obviously there’s a lot of overlap, particularly between Trump’s pressure on state parties and his fake elector plot. That may explain why prosecutors broke the Volumes where they did.

In addition to some random stuff (not included in my table), Volume III has the state-focused evidence.

GA 966 to GA 999: Forming the conspiracy

GA 1000 to GA 1236: Pressuring states to help deceive

GA 1245 to GA 1502: Fake Electors plot

Volume IV picks up from the effort to pressure Pence to throw out the votes and includes January 6. But it also includes a bunch of things — like campaign advertising and funding records — in there to substantiate an argument that Trump was acting in his role as a candidate, not as President.

GA 1503 to GA1663: Pressure Pence

GA 1664 to GA 1684: January 6

GA 1685 to GA 1869: Prove this is Unofficial

So Volume III and IV both have the same type of evidence: documentary backup. But rather than showing what happened, there’s a part of Volume IV that aspires to show that what happened amounted to campaign activity.

With that as a framework, one can figure out almost all of what is in the appendix in sealed form, based off the footnotes. And while none of the good stuff — the dickish comments Mike Roman made while on a conference call trying to tamp down a revolt from Pennsylvania’s fake electors, for example — are unsealed in the appendix, those two pages of text messages that appear at GA 1407 and 1408 do appear in the text itself.

We can’t see most of what’s in the appendix. But understanding how it works does provide some insight about the investigation.

Update: Corrected post to reflect beginning of Volume II as entries from the Presidential Daily Diary.

Witnesses

Update: Here’s a list of my best guesses for the interviews included in Volume I. I’m fairly certain about the identity of the people listed here; I’m fair less certain about where they begin and end. I’ve bolded the people I’m pretty certain have both sealed and unsealed content. I’ve italicized the people who, I think, have only unsealed content. The rest have just sealed content.

This is very rough!!!

GA 2-6: A cop who will testify about the riot.

GA 7-13: Bill Barr, sealed and unsealed.

GA 15: A Chapman/Shirkey related witness.

GA 20: Rusty Bowers.

GA 55-56: A lawyer who worked with Chesebro to deliver fake certificates.

GA 58-59: Probably Alex Cannon, testifying to the quasi campaign role Herschmann had.

GA 62-67: GA Attorney General Christopher Carr.

GA 70-82: Former MI Speaker of the House Lee Chatfield.

GA 97-103: Kenneth Chesebro.

GA 105-122: Pat Cipollone, testifying about things he wasn’t involved in, as well as efforts to get Trump to do something on January 6.

GA 126-?: Justin Clark has both sealed and sealed content. His testimony may extend to where Kellyanne Conway’s begins.

GA 160: Kellyanne Conway. [May be an unsealed only.]

GA 164-5: A fake elector.

GA 166: White House valet.

GA 170: Ruby Freeman.

GA 173: Details of the targeting of PA electors.

GA 175: Details of the riot; possibly Pence’s Secret Service.

GA 180: Stephanie Grisham.

GA 184-189: WI Supreme Court Judge Hagedorn.

GA 190: Vincent Haley, testifying about adding attacks on Pence back into speech.

GA 194 – ??: Where Eric Herschmann begins and ends is tough to tell, but it’s roughly from GA 194 through GA 238.

GA 246-259: Hope Hicks.

GA 261: Chris Hodgson.

GA 266: Greg Jacob. It’s unclearhow much of this is Jacob, but at least through 283.

GA 295-296: Chris Krebs.

GA 297: Amy Kremer.

GA 310-319: Nick Luna.

GA 320: Tom Marino (he dropped off as a fake elector in PA).

GA 323 through 359: It’s unclear how much of this is Ronna McDaniel, but her testimony covers a range of topics.

GA 361 to 368: Mark Meadows. This may go further.

GA 374 until around 397: Jason Miller.

GA 399-406: The then SAC of the Washington Field Office Secret Service office.

GA 405-406: This may be Stephen Miller (in which case the SAC’s last name is Miller too).

GA 411-467: It’s unclear where Mike Pence begins and ends (and where Pat Philbin begins, but something like this.

GA 476: Pat Philbin.

GA 481: Katrina Pierson.

GA 488-495: Fake elector.

GA 497-501: I think this is Reince Priebus.

GA 513: Brad Raffensperger.

GA 517-523: Fake electors.

GA 525-541: Dan Scavino.

GA 550-551: Al Schmidt.

GA 553-578: Mike Shirkey.

GA 578-588: Marc Short.

GA 600: There may be a senior campaign advisor besides Bill Stepien in here.

GA 609: Bill Stepien. [If there is sealed testimony, it may only be a page.]

GA 616-633: Larry Tabas.

GA 634-642: Ross Worthington.

GA 643: Caroline Wren.

After Wren, there may be someone who was involved in calls to Doug Ducey.

 

 

Trump’s GOP Is Running on a Platform of Freeing Seditionists and Cop Assailants

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I’m halfway done my first review of the materials Jack Smith released today.

All of us who have followed this have concluded there’s not any new news (though the presentation of it reveals certain things about Smith’s investigation).

So why did Trump’s lawyers wail and wail about releasing these materials before the election?

Just days ago, after all, Trump’s lawyers argued that releasing these materials would alter the election.

It may be this:

As the appendix documents, on March 11, 2024, Trump posted to Truth Social that, along with closing the border and DRILL, BABY, DRILL, his first priority, Day One, was to free the seditionists and cop assailants who had fought for him on January 6.

Prosecutors cited that post to support their argument that Trump ratified the violence that day.

As the Government identified in its Rule 404(b) notice, ECF No. 174-1 at 8-9, the Government will introduce some of the defendant’s numerous statements that post-date his time as President in which he has blamed Pence and approved of the actions of his supporters who breached the Capitol and obstructed the certification proceeding,722 thus providing evidence of his intent on January 6.

The defendant’s endorsement of the violent actions of his supporters on January 6, and his sentiment that they were justified in threatening Pence—all made while the defendant was a private citizen after the end of his term in office—are probative of his intent during the charged conspiracies.

722 See, e.g., GA 1970 at 17:37 (Video of Trump Interview 07/10/2021); GA 1926 at 1:15:30 (Video of Conroe Rally 01/29/2022); GA 1971 at 15:51, 16:42 (Video of Trump Interview 02/01/2022): GA 1962 at 48:29 (Video of Trump at Faith and Freedom Coalition 06/17/2022); GA 1966 at 09:30 (Video of Trump Interview 09/01/2022); GA 1973 at 43:07 (Video of Waco Rally 03/25/2023); GA 1694 (Transcript of CNN Town Hall 05/10/2023); GA 1964 (Video of Trump Campaign Statement 2024); GA 1967 at 45:18 (Video of Trump Interview 08/23/2023); GA 1965 at 56:10, 57:11 (Video of Trump Interview on Meet the Press 09/17/2023); GA 1935 at 35:50, 01:16:16 (Video of Greensboro Rally 03/02/2024); GA 967 (Donald J. Trump Truth Social Post 03/11/2024); Isaac Arnsdorf and Maeve Reston, 7rump claims violence he inspired on Jan. 6 was Pence’s fault, WASH. PostT, (Mar. 13, 2023, 8:09 p-m.), https://www.washingtonpost.com/politics/2023/03/13/trump-pence-iowa/. [my emphasis]

The GOP candidate for President has a criminal docket. And in that criminal docket, today, the government included a post promising to free seditionists and cop-assailants with the same urgency with which Donald Trump promises to close the border. “My first acts,” the GOP standard-bearer stated, would include freeing the people who assaulted the Capitol on January 6.

This was the proposal back in March, one of the first things Trump did after Nikki Haley conceded. And since that time, the entire GOP has fallen into line behind that plan.

The Republican Party’s candidate for President is running on a platform of freeing cop assailants and seditionists.

There’s nothing new in this appendix. But that post does clarify things considerably.

Jack Smith’s Appendix

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Sorry it has taken me so long to post the appendix to Jack Smith’s immunity briefing. The four sections are here:

Volume I

Volume II

Volume III

Volume IV

There’s virtually nothing new here. Trump’s temper tantrum was little more than a public wail that if people saw already-public documents about his plotting to run fake electors, it would swing the election.

That said, there are a few things we can confirm from the structure of all this, which I’ll write up over the weekend.

Jack Smith Takes Up the Aid and Abet Theory Endorsed by Judge Amit Mehta in 2022

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Back in February 2022, 32 months ago, think I was the only one who made much of Judge Amit Mehta’s ruling that Trump might plausibly be on the hook for abetting the assaults of cops at the Capitol on January 6.

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

I noted at the time that Judge Mehta — whose ruling on Trump’s susceptibility to lawsuit for actions taken as a candidate would largely be adopted in the DC Circuit’s opinion on the topic — was presiding over a number of the key assault cases where the since-convicted defendants described being called to DC or ordered to march to the Capitol by Trump before they started beating the shit out of some cops.

He also presided over the Oath Keeper cases.

That’s interesting background to Jack Smith’s response to Trump’s supplement to his motion to dismiss his indictment.

As I expected, Smith noted that Trump’s frivolous supplement didn’t even mention the language in the superseding indictment alleging that Trump willfully created false evidence.

Beyond that critical flaw, the defendant’s supplement ignores entirely that the superseding indictment includes allegations that involve the creation of false evidence. As construed by Fischer, Section 1512(c)(1) covers impairment of records, documents, or objects by altering, destroying, mutilating, or concealing them, and Section 1512(c)(2) covers the impairment (or attempted impairment) of records, documents, and objects by other means—such as by “creating false evidence.” 144 S. Ct. at 2185-86 (citing United States v. Reich, 479 F.3d 179 (2d Cir. 2007) (Sotomayor, J.)). In Reich, for example, the defendant was convicted under Section 1512(c)(2) after he forged a court order and sent it to an opposing party intending to cause (and in fact causing) that party to withdraw a mandamus petition then pending before an appellate court. 479 F.3d at 183, 185-87. Just as the defendant in Reich violated Section 1512(c)(2) by “inject[ing] a false order into ongoing litigation to which he was a party,” id. at 186, the superseding indictment alleges that the defendant and his co-conspirators created fraudulent electoral certificates that they intended to introduce into the congressional proceeding on January 6 to certify the results of the 2020 presidential election. See ECF No. 226 at ¶¶ 50-66.

That’s the primary reason I didn’t even treat Trump’s filing with much attention: it ignored how differently situated Trump is than the Fischer defendants.

But I’m most interested in the way Smith rebuts Trump’s argument that he bears no responsibility for the riots at the Capitol. He adopts that same aid and abet theory that Judge Mehta endorsed back in 2022.

Contrary to the defendant’s claim (ECF No. 255 at 7) that he bears no factual or legal responsibility for the “events on January 6,” the superseding indictment plainly alleges that the defendant willfully caused his supporters to obstruct and attempt to obstruct the proceeding by summoning them to Washington, D.C., and then directing them to march to the Capitol to pressure the Vice President and legislators to reject the legitimate certificates and instead rely on the fraudulent electoral certificates. See, e.g., ECF No. 226 at ¶¶ 68, 79, 82, 86-87, 94. Under 18 U.S.C. § 2(b), a defendant is criminally liable when he “willfully causes an act to be done which if directly performed by him or another would be” a federal offense. See, e.g., United States v. Hsia, 176 F.3d 517, 522 (D.C. Cir. 1999) (upholding a conviction for willfully causing a violation of 18 U.S.C. § 1001). [my emphasis]

Smith then repeats that language of “willfully caus[ing]” people to storm the Capitol.

As described above, the superseding indictment alleges that the defendant willfully caused others to violate Section 1512(c)(2) when he “repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification,” ECF No. 226 at ¶ 86, by pressuring the Vice President and legislators to accept the fraudulent certificates for certain states in lieu of those states’ legitimate certificates. Those allegations link the defendant’s actions on January 6 directly to his efforts to corruptly obstruct the certification proceeding and establish the elements of a violation of Section 1512(c)(2), which suffices to resolve the defendant’s motion to dismiss on statutory grounds. [my emphasis]

Note that this reliance on an abetting theory of liability for the riot explains DOJ’s effort to sustain some select 1512(c)(2) charges against crime scene defendants. Smith will want to closely tie Trump to the actions of key crime scene defendants.

But that depends on sustaining at least some of those key cases. But they’ve already taken at least some steps to do that. In at least one case, cooperating Oath Keeper Jon Schaffer, they’ve done an addendum to the statement of facts to sustain the plea under Fischer.

Perhaps relatedly, the nature of Schaffer’s cooperation remains redacted in the government sentencing memo asking for probation for Schaffer.

For over a year, Trump’s team has been trying to disavow his mob, and for almost a year, prosecutors have promised to show how Trump obstructed the vote certification through the actions of specific rioters.

At trial, the Government will prove these allegations with evidence that the defendant’s supporters took obstructive actions at the Capitol at the defendant’s direction and on his behalf. This evidence will include video evidence demonstrating that on the morning of January 6, the defendant encouraged the crowd to go to the Capitol throughout his speech, giving the earliest such instruction roughly 15 minutes into his remarks; testimony, video, photographic, and geolocation evidence establishing that many of the defendant’s supporters responded to his direction and moved from his speech at the Ellipse to the Capitol; and testimony, video, and photographic evidence that specific individuals who were at the Ellipse when the defendant exhorted them to “fight” at the Capitol then violently attacked law enforcement and breached the Capitol.

The indictment also alleges, and the Government will prove at trial, that the defendant used the angry crowd at the Capitol as a tool in his pressure campaign on the Vice President and to obstruct the congressional certification. Through testimony and video evidence, the Government will establish that rioters were singularly focused on entering the Capitol building, and once inside sought out where lawmakers were conducting the certification proceeding and where the electoral votes were being counted. And in particular, the Government will establish through testimony and video evidence that after the defendant repeatedly and publicly pressured and attacked the Vice President, the rioting crowd at the Capitol turned their anger toward the Vice President when they learned he would not halt the certification, asking where the Vice President was and chanting that they would hang him. [my emphasis]

As I’ve said, I think Jack Smith may believe he has the evidence to prove Trump more actively incited violence, but was prevented from indicting that before the election. But for now, Smith is making it explicit that he is adopting the theory of liability that Judge Mehta ruled was at least plausible, years ago.

Searching for Jared Wise

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I want to talk about Jared Wise.

Jared Wise is a former counterterrorism FBI Supervisory Special Agent who was arrested for crimes related to January 6 on May 1, 2023; he was indicted on civil disorder, assault, and trespassing charges on May 31, 2023.

In June, Wise moved to suppress a May 5, 2022 AT&T warrant and everything derivative of it, based on the theory that the warrant sought evidence of a conspiracy for which it had not presented probable cause (he is represented by Oregon’s very good FPD office). The same filing moved to suppress a photo obtained in an April 2023 traffic stop that occurred just weeks before a search of his residence. Finally, it aimed to suppress the search of his home based, in part, on staleness grounds. Then last month, Wise supplemented his suppression motion, this time arguing that a tower dump warrant obtained in January 2021 was an unconstitutional geofence warrant under a recent Fifth Circuit decision.

I took the time to read all this because I’ve been tracking the geofence challenges that come out of the January 6 investigation (see here, here, here, here, here, here) and also because I’m fascinated by the former law enforcement types who ended up attacking the Capitol. But between the government’s initial response and the response, submitted yesterday, to his supplement, they provide a fascinating picture of the FBI’s investigation into one of their own.

The government’s response argues this is not about a geofence at all. Rather, the warrant Wise claims was a geofence was instead a tower dump warrant targeting two towers that exclusively serve the interior of the Capitol, basically a search for business records of access to a cell phone tower rather than location data offered up in response to a voluntary Google service.

The filings together present this timeline of the investigation into Wise.

January 22, 2021 tower dump warrant

April 18, 2021 query of tower dump returns

October 2021 final conversation between Wise and tipster

January 10, 2022 public tip regarding Wise

January 26, 2022 interview in which tipster reveals Wise told him he was at the Capitol

May 5, 2022 AT&T warrant for 1752 and 5104 from November 1, 2020 through February 1, 2021: Disclosed Wise made 62 calls and sent 46 text messages on January 6

November 23, 2022 AT&T warrant for 1752 and 5104 from November 3, 2020 through January 31, 2021: Shows Wise still using phone

April 2, 2023 traffic stop on suspicion of altered VIN

April 12 and 13, 2023 warrant, issued in CAED but never executed

April 18 warrant shows Wise still using phone

April 24, 2023 warrant for Wise’s house, car, and person for 1752, 5104, 1512(c)(2), 111, 231, 371, 372: On May 1, FBI seizes:

  • Apple iPhone
  • Apple MacBook Pro
  • Burner LG Phoenix 5 (unopened)
  • Clothing from riot

His phone number was collected in the tower dump, but he attracted no individualized attention until someone narced him out in January 2022, at which point they found the cell phone records that he had been in the building during the 2PM hour on January 6.

At first, the FBI only obtained information to support the two trespassing charges, 1752 and 5104, used with all January 6 suspects. But the affiant of that warrant described that a search might find “help identify co-conspirators or victims,” which is why Wise claimed that this warrant was, “a fishing expedition, hoping to find some evidence of conspiracy when there is no probable cause to believe that one exists.” But, the government noted in response, at that point “the warrant authorized the seizure only of evidence related to the noted offenses.” While the second warrant, dated November 23, 2022, remained focused on the trespassing charges, it noted that,

I know that many persons who came to the Capitol on January 6, 2021, engaged in planning between the time of the November 2020 election and January 6, 2021, and that they communicated with other like-minded individuals about their purpose in coming to the Capitol using their smartphones.

Things got more interesting when — at least as described — a California Highway Patrol officer stopped Wise in April 2023, weeks before a warrant would be issued for his arrest, because the color on his registration did not match the color of the vehicle and, partly because of Wise’s Texas plates, the officer suspected VIN swapping.

The officer decided to make a traffic enforcement stop of the vehicle based on the registration return, which indicated the car’s color was blue, rather than what the officer observed to be grey. The officer knew, based on his training and experience, that there are many vehicles in the state of California that have had their Vehicle Identification Number (VIN) switched in Texas.

Wise undoubtedly believed this was a pretext stop — a stop invented solely to collect information from a suspect. As a former CT officer, he would know how they are used. And so after the officer freed him to leave, Wise got out of his car and started filming the officer.

But after he was told he was free to leave, the defendant became verbally aggressive and irritated with the officer. The defendant insisted he was stopped unlawfully and said there was another reason why the officer made the traffic stop. The officer continued to advise the defendant of the reason for the stop and told him multiple times the stop was over and that he was “free to leave.” As the officer returned to his patrol vehicle, the defendant exited his vehicle, carrying his cell phone, and appeared to be recording the officer and his vehicle. The defendant approached the officer in a slightly aggressive manner and continued to appear upset that he was stopped. The defendant requested the officer’s name and badge number, which the officer then provided. The officer again advised the defendant that the traffic stop was over and he was free to leave. After approximately two minutes, the defendant returned to his vehicle and departed.

That’s when the officer got the picture of Wise’s car, which was used in the affidavit to search Wise’s house, car, and person.

But even if the defendant’s traffic stop was improper, there was no seizure at the time the relevant photograph of the defendant was taken. Indeed, the opposite was true. The traffic stop was conducted, the defendant’s license and registration were checked and returned, and the defendant was told he was free to leave. It was over. See Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.”); United States v. Maynard, 615 F.3d 544, 553 (D.C. Cir. 2010) (holding that the seizure of the defendant was over after the defendant’s license and registration was returned and he was told he was free to leave), aff’d in part sub nom. United States v. Jones, 565 U.S. 400 (2012). But the defendant did not leave. Instead, after being repeatedly told he was free to leave, the defendant—who has, in other filings, opined that he is in a “unique position to admonish law enforcement,” ECF No. 33 at 32 n.8—chose to exit his vehicle, pull out his cell phone, and start recording the officer who had stopped him. It was then that the photograph subsequently used in the search warrant—seen below—was taken. In other words, the defendant voluntarily remained to reprimand a police officer, and now complains when the officer happened to document the scene using a police-issued cruiser camera.

The traffic stop’s inclusion in these suppression motions is, legally, superfluous. The government compellingly argues that they got the probable cause information to search the vehicle via other means, including surveillance of Wise and a different picture of his vehicle.

The April 2023 affidavit recites facts tying the vehicle to the defendant: it identifies the vehicle as being registered to the defendant, see Exhibit D at ¶ 2, and it cites surveillance confirming the vehicle’s presence at the defendant’s residence, see Exhibit D at ¶ 56. But the affidavit never even mentions the April 2, 2024 traffic stop. See generally Exhibit D. Instead, the pertinent photograph appears as part of an attachment identifying the vehicle to be searched. See Exhibit D at Attachment A. That attachment states “[t]he Vehicle is depicted below” and includes two photographs—only one of which is from the traffic stop.

More importantly, nothing was seized from Wise’s car; there are no fruits of a search to suppress.

On the Fourth Amendment question, this dispute appears to arise from confusion about different technologies and therefore different probable cause formulas. Some of the confusion stems from temporal lapses between the execution of a warrant and queries of data obtained from it.

But what really appears to be going on is that a very paranoid former FBI guy, one who called cops “Nazis” on January 6, believes the FBI is or was investigating him more broadly. He believed in real time and still believes (and he may be right) that when a cop stopped him during his trip to California in April 2023, it was a pretext stop designed to collect more information; there are a good number of other January 6 defendants in which such stops were used.

Ultimately, Wise came to believe “they” were out to get him, “they” were out to investigate a larger conspiracy.

In the end, they were! The search of his house included two conspiracy charges, 371 and 372, among the suspect crimes.

But instead, he’s facing two civil disorder charges for his own actions, allegedly attacking cops.