Fani Willis Serves Up Cheese and Kraken

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Update: As Harpie and others noted in comments, in the hour since I’ve been taping with Nicole Sandler, Kenneth Chesebro pled guilty to a felony in GA.

Hours after the first 450 jurors appeared at the Fulton County Courthouse to fill out a questionnaire ahead of an expected monthslong trial where he faced seven felony counts, Chesebro and his attorneys pleaded guilty to a single felony charge of conspiracy to commit filing false documents.

Chesebro’s deal includes five years of probation, $5,000 in restitution to the secretary of state’s office, 100 hours of community service, a letter of apology, an agreement to testify in future trials and to hand over remaining documents and text messages to the district attorney’s office.

Here’s the colloquy.

As the news of Sidney Powell’s cooperation plea broke yesterday, there were people asking who could have predicted that Powell — the Kraken! — had turned state’s witness.

I laid out why she might flip back when the Georgia indictment came out.

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

For Powell, more than anyone else, flipping was a wise option. She’s one of the five people charged in Georgia also described as co-conspirators in Jack Smith’s indictment (Boris Epshteyn is believed to be co-conspirator#6 in DC, but is being subpoenaed as a witness in Georgia).

All five are likely aware that loyalty in DC, which might win them a pardon if Trump wins in 2024, won’t save them in Georgia, where pardons are much harder to come by.

After Judge Scott McAfee rejected a Powell bid to dismiss the non-RICO charges against her, the decision to flip likely became a lot easier. The hacking charges with which she was charged were the most serious free-standing charges in the Georgia indictment.

Irrespective of what happens in DC, Powell traded cooperation and six years of probation — with the possibility of having the charges expunged — to avoid the possibility of serious state prison time that Trump couldn’t pardon away.

In any case, Powell is not among the insiders Trump would be quickest to pardon.

One thing about the decision: in spite of all the TV lawyers claiming she’ll make a terrible witness because she’s so batshit, this was an eminently rational decision. She sounded absolutely sane in yesterday’s plea hearing, as I imagine she did when he provided her videotaped testimony before pleading.

As to the question of whether that means Powell would cooperate in DC, it’s worth noting that we can’t even be sure we would know if she were cooperating. After all, few people covering the case account for the part of the investigation into Sidney Powell — for fundraising only tangentially related to any conspiracy with Trump — that was overt over two years ago, or the fact that Michael Flynn and Patrick Byrne had already underbussed her at that point. No one knows the full details about why she spent money raised in that fundraiser to fund the defense of people on the Oath Keepers (and probably others).

More importantly, those trying to imagine how her cooperation would impact Trump seem to imagine that we  understand the entire nature of any such cooperation. As I noted in August, the indictment actually includes Powell for just one purpose: to prove that Trump took advice from someone he was publicly identifying as crazy.

[H]er role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

Aside from proving he knowingly lied, the indictment doesn’t really tell us why Powell plays such a central part of the case against Trump.

There are, however, two details that I think are being missed: First, Powell played a key role in Fox’s platforming of propaganda, as laid out in the Dominion lawsuit (after the Fox settlement, Dominion’s lawsuit against Powell moved into a more active phase).

Fox brought her on and off the campaign, and had a role in her conspiracy theories.

And while Powell appeared on Fox only four times when she was even arguably part of the President’s team, and six times when Fox was clearly aware that she was not. As important, Fox was instrumental in maneuvering Powell both into the Trump campaign and then out of it.

Third, Fox ignores its own role in developing the conspiracy theories it then aired See Dom. MSJ pp.39-44

These two claims — that Fox “maneuvered Powell … out of” the Trump campaign and that they played a role in developing these conspiracy theories, are discussed in heavily redacted passages of the earlier filing (probably redacted because Fox has claimed it pertains to internal business deliberations).

The first — describing how Fox “maneuvered Powell … out of” the Trump campaign after Tucker came under fire for questioning Powell — consists of almost four full paragraphs introduced with a description that Fox, including Tucker and Raj Shah, “mobilized.”

“We won the battle with Powell. Thank god,” the passage quotes a Tucker text later. Dominion is now explaining that that “battle” pertained to getting Powell ousted from Trump’s orbit.

The second claim — that Fox was the source of some of these conspiracy theories — incorporates the description of how Fox got Powell ousted from the campaign, but also includes redacted passages describing Lou Dobbs’ role in “promoting the narrative,” another making a redacted reference to Hannity, as well as the unredacted reference to Bartiromo chasing an email from Sidney Powell that Powell herself said relied on a “wackadoodle” source. The later filing suggests the earlier filing goes as far as saying that Fox played part in developing the conspiracy theories.

That includes a December 10 Lou Dobbs appearance in which Powell claimed there had been a cyber Pearl Harbor that undermined the vote.

Nonetheless, on the next day, December 10, Dobbs had Powell on again, where she repeated the false (and repeatedly debunked) story about the Smartmatic and Dominion machines being designed to flip votes to rig elections for Hugo Chavez,and allowing people to login and manipulate votes . See ¶179(q );Appendix D. But rather than questioning Powell’s claims, Dobbs attacked Attorney General Barr for saying he’d seen no sign of any significant fraud that would overturn the election and told Powell “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” noting “we have tremendous evidence already,” id. which he now admits was not true. See Ex.111,Dobbs 46:25-47:10,86:20-24 . Dobbs had seen no evidence from Powell, nor has he since. Id.

Powell had sent her claims about a “Cyber Pearl Harbor” to Dobbs (who forwarded to his team) in advance of the show. Ex.450;Ex.451. Prior to the show, Dobbs published a tweet to the @loudobbs Twitter account with the claim that “The 2020 Election is a cyber Pearl Harbor,” and embedding the very document Powell had sent to him just hours before which stated that Dominion was one off our entities that had “executed an electoral 9-11 against the United States” and “a cyber Pearl Harbor,” that “there is an embedded controller in every Dominion machine,” and that they had “contracts ,program details, incriminating information ,and history” proving these claims.¶179(p); Appendix D.

Later the same day, after Powell appeared on the 5pm broadcast and before the 7pm unedited rebroadcast of the show, Dobbs again tweeted “Cyber Pearl Harbor @SidneyPowell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.” ¶179(r); Appendix D. Dobbs conceded at his deposition that this tweet was false Powell had not presented any such evidence on his program that day. Ex.111,Dobbs 269 :2-271:5.

Claims like that were the basis not just of Powell’s lawsuits that provided Trump cover that the election remained undecided, but also of Powell’s sustained effort to obtain Dominion data from swing states, the crime to which she just pled guilty. It was tied to a bid for Trump to use Commander-in-Chief authorities to steal the election.

The Georgia indictment claims that crime started on December 1, 2020 and lasted at least through April 2021.

Indeed, the way in which this pursuit of data was a continuation of and continued after January 6 is one of the most chilling parts of Anna Bower’s account of it. Bower first lays out good reason to suspect that Cathy Latham — another of the charged co-conspirators in the Georgia indictment — was in the Willard Hotel consulting with people like Bernie Kerik.

On Dec. 17, Marilyn Marks, the executive director of Coalition for Good Governance—the election security organization that initiated the Curling suit—texted Latham. Through the election activism grapevine, Marks had heard about the supposed problems with Dominion machines in Coffee, she said in an interview with Lawfare. Something sounded “suspicious” about it all, she said, but she wanted to learn more. She spoke with elections board member Chaney, who suggested that she get in touch with Latham.

Marks texted the GOP chairwoman, explaining that her organization was involved in litigation to move away from the use of Dominion systems in Georgia. Marks asked when Latham might be available to chat. Latham replied: “I am in D.C. right now and am about to meet with IT guys.”

Latham would later admit under oath that she visited D.C. for an unspecified period sometime in December. But she did not confirm the reason she gave at the time. In her deposition, rather, she claimed that she traveled to the capital city because she had been invited to go on a “tour” by a woman named Juliana Thompson, because Latham hadn’t been able to go the previous year.

“We [got] to see the Christmas trees, and I got to go to the Bible Museum,” she explained.

When asked if she met with anyone who was not with the D.C. tour group, Latham replied, “I’m going to plead the Fifth on that.”

But if Latham was in D.C. only to tour the Museum of the Bible and see Christmas trees, why did she tell Marks that she was “about to meet with IT guys”?

And Latham did admit in her deposition that she stayed at the Willard Hotel during her trip.

“That’s where I slept,” she said.

If the Willard Hotel rings a Jan. 6 bell, that’s because it served as the “command center” for the legal arm of the Trump campaign led by Giuliani in this period of time. The rooms were organized and paid for by Bernie Kerik, the former police commissioner of New York City, who worked for the Giuliani legal team as an investigator. Kerik later sought reimbursement for the rooms from the Trump campaign.

According to his testimony before the select committee, Kerik paid for the room of an unnamed “whistleblower” from Georgia who traveled to the Willard to meet with Giuliani sometime during the post-election period. The “whistleblower,” he said, had been brought to the hotel by William Ligon, a Georgia state senator, and an Atlanta-area attorney named Preston Haliburton. He did not specifically identify the whistleblower by name.

That said, later that month, on Dec. 30, Latham appeared alongside Giuliani and other Trump surrogates at a legislative hearing chaired by Ligon. At that hearing, Latham claimed “whistleblower” status as she testified about the alleged “problems” with Dominion Voting Systems machines that led Coffee County to refuse to certify its machine recount results. Haliburton, who was listed as “counsel of record for the Giuliani legal team,” also represented Latham at the hearing.

Latham, in her Curling deposition, denied that she had ever visited the Willard with Haliburton.

As Bower lays out, minutes after Trump called off the riot on January 6, the Coffee County caper — the crime to which both Powell and bail bondsman and David Bossie brother-in-law Scott Hall have already pled guilty — went into motion.

At 4:17 p.m. on Jan. 6, 2021, the president of the United States belatedly tweeted out his video message to the mob that had forcibly disrupted the counting of electoral votes. “You have to go home now,” he finally said.

But even as Giuliani was keeping up pressure on senators to “slow it down,” Coffee County officials were undeterred.

Nine minutes after the president’s tweet, at 4:26 p.m. that afternoon, Hampton sent a text to Chaney: “Scott Hall is on the phone with Cathy about wanting to come scan our ballots from the general election like we talked about the other day,” she wrote.

The next morning, on Jan. 7, Latham texted Hampton to tell her that the SullivanStrickler forensics team had departed Atlanta and were on their way to Coffee County. Hall, she added, was flying in, too. “Yay!!!!” Hampton responded. These events are also mentioned in Acts 142-143 of Count 1 of the Fulton County indictment.

Several minutes later, Paul Maggio, the chief operations officer of SullivanStrickler, sent an email to Powell, Logan, Penrose, and others. “We are on our way to Coffee County Georgia to collect what we can from the Election / Voting machines and systems,” he wrote, attaching an invoice for SullivanStrickler’s $26,000 retainer fee. The invoice billed Powell’s PAC, Defending the Republic.

This may be what Rudy was pointing to when he was pleading with Members of Congress to just buy some days.

It may also be why people like Kerik have been underbussing Powell: because they want to blame her for the plans that continued even after the attack on the Capitol.

I don’t know whether Powell will or even if she already has flipped federally.

What I’m more confident about, though, is that if she did, she’d offer testimony about things that are not widely understood, if at all.

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Stan Woodward Blows Off Any Duty of Loyalty to His Former Client

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I noted yesterday that the government claimed that Stan Woodward had conceded he had a duty of loyalty to Yuscil Taveras that would limit what he could do in an eventual trial of Walt Nauta.

In his own response, however, Woodward makes no mention of any duty of loyalty to a former client. Instead, he engages in a great deal of word games to suggest precedents don’t apply to what he repeatedly describes as “[very] limited” representation of Taveras.

Instead, the Special Counsel’s Office seeks to micromanage defense counsel’s handling of any potential conflict arising from the trial testimony of a witness, which such witness benefited from limited former representation, no ongoing dual representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for crossexamination by the counsel in question (as co-counsel is available for the same).2

[snip]

[T]he very limited representation of an individual whom the Special Counsel’s Office wished to question in relation to a matter that later developed into a criminal prosecution of another client.

It’s a ploy used in Woodward’s surreply, as well.

The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale.

Even if it were the case that clients weren’t entitled to privilege if a representation was limited in time or scope, it ignores a very crucial detail of this case.

DOJ told Woodward he had a potential conflict before Taveras testified to the grand jury in March, where he denied knowing about the attempt to delete surveillance video.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

The only way this representation would be so limited would be if Woodward did nothing to figure out what kind of legal exposure Taveras was facing in his March grand jury appearance.

Woodward continued to deny his representation of both Nauta and Taveras created a conflict even after DOJ gave Taveras a target letter — in part because he had advised Taveras that if he wanted to cooperate, he could get a different lawyer.

[T]he government provides no information to support their claim that [Taveras] has provided false testimony to the grand jury. While counsel does not preclude that the government may have provided more information to the Court ex parte, the government’s current representation that [Taveras] has clearly presented false or conflicting information to the grand jury is wholly unsupported by any information available to counsel. Further, even if [Taveras] did provide conflicting information to the grand jury such that could expose him to criminal charges, he has other recourse besides reaching a plea bargain with the government. Namely, he can go to trial with the presumption of innocence and fight the charges as against him. If [Taveras] wishes to become a cooperating government witness, he has already been advised he may do so at any time.

[snip]

Ultimately, [Taveras] has been advised by counsel that he may, at any time, seek new counsel, and that includes if he ultimately decided he wanted to cooperate with the government.

Woodward seems to suggest that Taveras has waived his privilege because he told prosecutors what advice Woodward had given him.

Because it appears that the Special Counsel’s Office well knows what was disclosed to defense counsel by Trump Employee 4, the Special Counsel’s Office cannot maintain its position that the revelation of the same is barred. Put differently, the assertion of the Special Counsel’s Office of a presumption of continuing privilege in this context, where the Special Counsel’s Office sought and obtained new counsel for Trump Employee 4 for the purpose of providing a means for Trump Employee 4’s testimony to change, and for his prior assertions to be explained by him—all of which was done not in the District where this case is pending, but in a faraway District, raising separate issues of grand jury misconduct—warrants development of the record at a hearing so as to ascertain to what extent any applicable privilege has been waived by Trump Employee 4’s disclosures to the Special Counsel’s Office. At a minimum, if the Special Counsel’s Office persists in asserting that privileged information remains, an evidentiary hearing is warranted as to what the Special Counsel’s Office is withholding regarding Trump Employee 4, his claims as to prior representation, and whether there has been any failure to disclose such matters to the Special Counsel’s Office.

Here, Woodward fashions privilege to consist only of confidentiality, not loyalty. And he suggests that because Taveras has shown some kind of disloyalty to him, he doesn’t owe any back.

In the filing, Woodward makes an oblique reference to Beryl Howell’s ruling finding Evan Corcoran’s advice to Trump to be crime-fraud excepted (though as he always does, he calls the underlying grand jury investigation in this very case a “faraway” District).

[I]t is noteworthy that in the United States District Court for the District of Columbia the Special Counsel’s Office has taken precisely the opposite position with respect to privileged communications. Specifically, in that District, the Special Counsel’s Office took the position that where a witness represented by counsel in a government compliance matter is not forthcoming with their counsel, a crime-fraud exception applies, voiding the attorney-client privilege. While Mr. Nauta vehemently opposes any application of the crime-fraud rulings made in a faraway District to this case, it is nevertheless impermissible for the Special Counsel’s Office to tailor the positions it takes before courts and/or grand juries in the various Districts where it seeks an advantage in its prosecution of former President Trump and his coconspirators.

This appears to be an attempt to liken Trump’s affirmative lies to Corcoran to Taveras’ own communications with him.

But, particularly with the demand for a hearing to find out what Taveras has told SCO about Woodward’s advice to him, it comes off as flopsweat about his, Woodward’s, own conduct.

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Release the Kraken: Sidney Powell Pleading Guilty

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Sidney Powell is pleading guilty to six counts of conspiring to interfere with election administration in Fulton County. These will be misdemeanors treated under the First Offender Act. She will be sentenced to six years of probation.

She is required to testify against any and all co-defendants in the case.

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Stan Woodward Reportedly Concedes a Duty of Loyalty But Doesn’t Want His Name Used at Trial

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In this post, I pointed out what all the coverage of the Garcia hearing last week missed: The prior briefing had been about whether to hold a Garcia hearing. It wasn’t about what to include in the briefing, which should all stem from ethical conflict rules.

On Monday, Judge Aileen Cannon (while blaming the Special Counsel’s Office) ordered that briefing.

In SCO’s submission in response, they clearly laid out not just that they had established the reason why Stan Woodward couldn’t cross-examine a former client, but that they had laid that out from their initial briefing — over two months ago, they observe — on the Garcia hearing: it arises from the Bar rules in both Florida and DC.

As the Government stated in its initial motion for a Garcia hearing, filed more than two months ago, “[a]n attorney’s cross-examination of a current or former client presents a conflict of interest.” ECF No. 97, at 6. Nor can Mr. Woodward otherwise seek to discredit Trump Employee 4 at trial, including in closing arguments.

And this time around they did what they should have been prepared to do at last week’s hearing: Cite 11th Circuit precedent.

Under the Florida ethics rules, “attorneys generally owe duties of confidentiality and loyalty to former clients.” Med. & Chiropractic Clinic, Inc. v. Oppenheim, 981 F.3d 983, 990 (11th Cir. 2020); see Fla. Bar R. Prof’l Conduct 4-1.9. These duties both come into play when, as here, a former client testifies at trial against a current client in a substantially related matter. During cross-examination, the attorney might “improperly” use the prior client’s confidential information or, alternatively, hold back from “intense probing” to avoid using those confidences. United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994). When the subject matters of the representations are substantially related, “the court will irrebutably presume that relevant confidential information was disclosed during the former period of representation.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999). And given the duty of loyalty, a lawyer cross-examining a client, including a former client, faces “an impossible choice: [the attorney] can either vigorously cross-examine the client-turned-witness and thereby violate his duty of loyalty to the client on the witness stand, or he can temper his cross-examination and risk violating his duty of loyalty to the client on trial.” United States v. Almeida, 341 F.3d 1318, 1323 & n.17 (11th Cir. 2003). [my emphasis]

In its filing, SCO accuses Woodward of denying his ethical obligations to a former client at the contentious hearing last week, then lays out Florida precedent establishing it.

At the hearing on October 12, 2023, Mr. Woodward disputed that he had a duty of loyalty to his former clients, referring to “my hypothetical duty of loyalty to a former client, which again we dispute that duty even exists.” 10/12/2023 Hearing Tr. at 19. Similarly, when the Government conferred with Mr. Woodward in connection with this filing on October 17, 2023, Mr. Woodward continued to question whether he owes an ongoing duty of loyalty to Trump Employee 4. There is no basis for dispute: “a duty of loyalty exists apart and distinct from the duty to maintain client confidences.” United States v. Culp, 934 F. Supp. 394, 398 (M.D. Fla. 1996). Indeed, although Mr. Woodward and Mr. Irving have agreed to have another attorney conduct the cross-examination of their clients, courts frequently disqualify attorneys even where the attorneys propose that another attorney will conduct the cross-examination of a former client. See, e.g., United States v. Cordoba, No. 12-CR-20157, 2013 WL 5741834, at *12 (S.D. Fla. Oct. 17, 2013); Delorme, 2009 WL 33836, at *7; United States v. Miranda, 936 F. Supp. 945, 952 (S.D. Fla. 1996); United States v. Perez, 694 F. Supp. 854, 858 (S.D. Fla. 1988). Consistent with these authorities, Mr. Woodward acknowledged today that his ethical obligations to Trump Employee 4 and Witness 1 may constrain his ability to discredit those clients at trial, including during closing arguments. [my emphasis]

Importantly, the full context — at the hearing — of Woodward’s suggestion that he does not owe Taveras any duty of loyalty pertained to moving to strike Taveras’ testimony.

I am not certainly prepared to advise Mr. Nauta if he is prepared to proceed with a trial in which he doesn’t know what role his principal choice of counsel can play because, again, in the case law cited by the Government this isn’t limited to summation. The Government used summation as an example, but would I also be precluded from filing a motion to strike Trump Employee 4’s testimony because that potentially implicates his credibility, or my hypothetical duty of loyalty to a former client, which again we dispute that that duty actually exists. [my emphasis]

Those citations SCO provided of instances where courts have disqualified attorneys entirely may be why — at least per SCO’s representation, though we shall see whether he actually says that in his own filing — Woodward conceded he may not be able to close on Taveras. He still seems committed to remaining in this impossible position, largely incapable of defending Nauta against a key charge.

But Woodard is still dug in on one topic: About whether his name can be used in conjunction with Taveras’ testimony.

It is all but certain that Trump Employee 4’s testimony before the grand jury (while represented by Mr. Woodward) and his subsequent retraction and disavowal of that testimony will be subjects of cross-examination and redirect. The questioning may also encompass the fact that Trump Employee 4 was represented by Mr. Woodward at the time of his grand jury testimony, that Mr. Woodward’s legal fees were paid by a PAC controlled by defendant Donald J. Trump, and that Trump Employee 4 procured new counsel and quickly retracted his prior grand jury testimony. All of these facts will be relevant to Trump Employee 4’s testimony and may come out at trial.1

1 When the Government conferred with Mr. Woodward in connection with this filing, he asserted that his name should not come up during examination of Trump Employee 4, but he agreed that the other information referenced above could be relevant. [my emphasis]

I suspect SCO was trying to avoid making all this plain. I also suspect they pulled a great many punches (though that may have arisen from page limits). According to earlier filings, SCO warned Woodward about this conflict in early 2023, and he did nothing about it.

Woodward will file his response today as well. I expect it to be quite contentious.

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Stan Woodward Contemplating His Former Client Might “Become Unavailable” for Testimony

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Last week, Judge Aileen Cannon had the much delayed Garcia vote to make sure that Trump’s co-defendants, Walt Nauta and Carlos De Oliveira, had knowingly waived any conflicts their attorneys had. The reporting on the hearing all focused on the scolding Cannon gave the Special Counsel’s Office, because they had brought up a possible risk — that Stan Woodward would impugn Yuscil Taveras during closing arguments — they hadn’t previously briefed.

I do want to admonish the Government for, frankly, wasting the Court’s time because, had you brought up these issues in an appropriate way, we could have done this without circling the wagons and creating confusion that was unnecessary. So, I am disappointed in that.

Immediately after the hearing, journalists presented conflicting stories about the hearing, some reporting that biggest flashpoint was an assertion by the government that Stan Woodward should be categorically excluded from cross-examining his former client Yuscil Taveras at trial, and others reporting the problem to be that SCO’s David Harbach suggested that Woodward should also be prevented from maligning the man he used to represent in closing arguments.

None of the coverage I saw got something very basic right: what the past briefing had been about.

The past briefing was about whether to have a Garcia hearing. It wasn’t about what to include in a Garcia hearing.

David Harbach, arguing for Special Counsel, even pointed that out in the morning session.

MR. HARBACH: Specifically it is our view that a lawyer who suffers under a conflict, that — in that situation the lawyer is precluded from — by his duty of loyalty to his [former] client, from arguing to the jury that his former client lacks credibility or attacking his former client’s character.

And those obligations flow from the lawyer’s duty of loyalty to his or her former client, and do not turn on whether specific confidential information was provided to the lawyer that might or might not facilitate better or worse cross-examination of the witness.

THE COURT: All right. So, did you make this argument about sort of weaker arguments to juries in your papers?

MR. HARBACH: Not in our papers suggesting that we needed to have a hearing because that wasn’t necessary for the Court’s obligation to conduct this hearing.

Harbach pointed out — rather meekly — that previously they had only been arguing that Cannon needed to hold a hearing. She never asked what to include in it.

Don’t believe me? Here’s the tell: After the hearing, Judge Cannon ordered just that briefing.

On or before October 17, 2023, the parties shall meaningfully confer to further clarify the nature, scope, and potential manifestations of the conflicts alleged by the OSC regarding Stanley Woodward’s former representation of Trump Employee 4 and current representation of Witness 1. 1 This conferral should include a comprehensive discussion of the ways in which the OSC believes that Mr. Woodward’s former representation of Trump Employee 4 and current representation of Witness 1 could adversely affect Mr. Woodward’s performance so as to render his assistance of Defendant Nauta ineffective, in violation of the Sixth Amendment.2 The OSC shall disclose to defense counsel all legal authorities in support of its position so that Mr. Woodward may adequately advise Defendant Nauta prior to the continued Garcia hearing.

Sure, she blamed Jack Smith’s team, pretending they brought up new stuff. They did! But they did so only because she had never considered the full scope of the conflict.

She still isn’t. She views the conflict exclusively in terms of Nauta’s rights; she’s ignoring Yuscil Taveras’ right to have his past attorney-client privilege respected.

None of the discussion at the hearing addressed the obligations under the Florida Bar, which SCO included in their original motion.

The Rules Regulating the Florida Bar reflect these concerns, providing that, absent informed consent, a lawyer “must not represent a client” if “there is a substantial risk” that the representation “will be materially limited by the lawyer’s responsibilities to another client” or “a former client.” Fla. Bar R. Prof’l Conduct 4-1.7(a).4 Informed consent requires, among other things, that “each affected client gives informed consent, confirmed in writing or clearly stated on the record at a hearing.” Fla. Bar R. Prof’l Conduct 4-1.7(b)(4). The Rules further provide that “[a] lawyer who has formerly represented a client in a matter must not” either “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent” or “use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known.” Fla. Bar R. Prof’l Conduct 4-1.9(a)-(b). The commentary to the Rule explains that “information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client without the former client’s consent.” Fla. Bar R. Prof’l Conduct 4-1.9 commentary. [my emphasis]

And because journalists were so focused on Cannon blaming prosecutors, forgetting that she has already blamed prosecutors for her own fuck-ups and manufactured problems, they missed two specific things that Woodward said.

First, as ABC noted, Woodward was angriest that he might be be prevented from cross-examining Taveras. As part of his argument, he suggested he didn’t have to address that eventuality because Taveras — still a Trump employee — might instead “become[] unavailable.”

MR. HARBACH: So, that is why we think in this case it is crystal clear that Mr. Nauta should be advised and should be well aware of the possibility, likelihood, eventuality, however your Honor would like to put it, that his lawyer would not be able to cross-examine Trump Employee 4 at trial. That much seems clear, and we don’t, frankly, understand how Mr. Woodward could think that he could cross-examine Mr. — Trump Employee 4 under these circumstances. We are at a loss.

[snip]

MR. WOODWARD: To presume that I am incapable of cross-examining him is a presumption that is unnecessary because, contrary to the Government’s position, we don’t know that he will testify in this trial. There is the potential that the Court could preclude him from testifying. There is the potential that he becomes unavailable.

Woodward’s solution to a conflict is to contemplate that Taveras might become unavailable for testimony. Woodward did this even while arguing that SCO was asking both too early and too late for a conflicts hearing.

Plus, most coverage missed Stanley Woodward’s past claims.

It is absolutely bullshit that cross-examination didn’t come up. In Woodward’s sur-reply, his last bid to prevent this conflict hearing, he stated that of course cross-examination wouldn’t be a problem, because another attorney (Sasha Dadan) was available.

11 The Special Counsel’s Office cites particularly inapt conflict cases which reveal the lack of a sound basis to request the hearing that the Office now seeks. See United States v. Braun, No. 19-80030-CR, 2019 WL 1893113, at *1 (S.D. Fla. Apr. 29, 2019) (hearing as to, ”two defense attorneys from [the same firm, jointly] representing two defendants in this case[.]”); United States v. Schneider, 322 F. Supp. 3d 1294, 1296-97 (S.D. Fla. 2018) (addressing representation of two co-defendants, where counsel represented first defendant in his role as a cooperating government witness, and then thereafter newly took on representation of the second defendant, the target of the cooperation, while still representing the first cooperating defendant). The case at bar – involving limited former representation, no ongoing joint representation, no indication of conflict resulting from the representation itself, no indication of attorney-client privileged information at issue, and no occasion for cross-examination by the counsel in question (as other counsel is available for same) – is entirely incompatible with these cases and demonstrates the insubstantiality of the Special Counsel’s Office’s present use of a conflict rationale. [my emphasis]

I wrote about Woodward’s comments in a post called, “Stan Woodward Thinks Aileen Cannon Is an Easy Mark.”

We will get SCO’s brief later today about the scope of what Cannon should be asking, with Woodward’s due tomorrow, and the follow-up hearing Friday.

But things are going to get testy. In her order, Cannon finally copped onto how testy they might get. She envisioned the possibility of considering a disqualification motion after the Garcia hearing.

2 To date, the OSC has not moved the Court to disqualify Mr. Woodward as counsel or to impose remedial measures on Mr. Woodward’s ability to perform as counsel for Defendant Nauta [ECF No. 97 p. 9]. Any consideration of disqualification or imposition of other remedial measures will be addressed following the Garcia hearing as part of the Court’s decision to accept or decline any proffered waiver.

Taveras has not waived privilege. It’s not clear how, under Florida Bar rules, Woodward can comment about the conflicting testimony Taveras gave while represented by the DC attorney.

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Douglass Mackey Sentenced to 7 Months for Conspiring to Violate 18 USC 241

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Douglass Mackey, the right wing troll prosecuted early this year for conspiring to trick Hillary voters into throwing away their votes, was just sentenced to 7 months in prison (the government had asked for 6-12 months).

Minute Entry for proceedings held before Judge Ann M. Donnelly: Sentencing held on 10/18/2023 for Douglass Mackey (1). Appearances by AUSA Erik Paulsen, AUSA Frank Turner Buford, and AUSA William Gullotta. Andrew Frisch counsel for defendant Mackey (present on bond). Probation Officer Erica Vest, present. Case called. Statement from defense counsel, and the government heard. The defendant is sentence on the sole count of the indictment to seven months imprisonment, two years supervised release, $100 special assessment, and a $15,000 fine. Defendant informed of right to appeal. For the reasons stated on the record the defendants request to stay sentencing pending appeal is denied. (Court Reporter Sophie Nolan.) (DG) (Entered: 10/18/2023)

Yesterday, Judge Ann Donnelly denied Mackey’s bid for acquittal or a new trial and today, she denied his request for a stay pending appeal. This post describes how Mackey and his co-conspirator Microchip set out to “infect everything” during the 2016 election.

This is charge, 18 USC 241, is the third charge with which Trump was charged in his January 6 indictment, so Donnelly’s ruling and any appeal Mackey makes may serve as important precedent in that case too.

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The Holding Pattern on the Non-Trump January 6 Charges

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There were two reports yesterday that relate to something I’ve been thinking about: The likelihood that most, if not all, of any more Trump-related January 6 charges will be delayed, at least until after his trial next year.

The first is a WaPo report that Jack Smith’s office withdrew a subpoena for records and testimony relating to Save America PAC — the fundraising Trump did off of false claims about voter fraud, which he has since used to pay lawyers and other things unrelated to the claims he made in raising the money.

The withdrawal of the subpoena earlier this month indicates Smith is scaling back at least part of his inquiry into the political fundraising work that fed and benefited from unfounded claims that the election was stolen, said the people, who spoke on the condition of anonymity to discuss an ongoing criminal investigation.

Save America was still working to gather all of the records sought in the subpoena when it was notified by Smith’s office that the demand for information had been withdrawn, two of the people familiar with the matter said.

[snip]

Broadly, the subpoenas and related interviews by Smith’s investigators sought information about the post-election, pro-Trump fundraising, and what people inside Save America and other groups knew about the veracity of the claims they were making to raise money, the people familiar with the matter said.

[snip]

While interviewing potential witnesses associated with Trump, Smith’s prosecutors have asked pointed questions about who is paying for their lawyers and why, people familiar with the questions have said. Trump advisers have said the Save America PAC, which raises most of its money through small-dollar contributions by Trump supporters across the country, is footing the legal bills for almost anyone drawn into the Trump investigations who requests help from the former president and his advisers.

[snip]

Four people with knowledge of the investigation said prosecutors had not asked questions about fundraising in recent months, after several subpoenas and witness interviews on that topic earlier in 2023.

Relatedly, while Jack Smith’s team had raised Stan Woodward’s payment arrangement when they first raised his conflicts with Chief Judge James Boasberg in June, it has not come up in the conflict review before Judge Cannon in Florida (the follow-up hearing to which is scheduled for Friday).

It’s certainly possible that something about the stage of the election has led DOJ to back off this focus. It’s equally possible DOJ has reviewed the advice given by Trump’s campaign finance lawyers, Jones Day, in 2020 and decided that advice of counsel would make charges unsustainable.

Then there’s this fascinating Bloomberg discussion, featuring abundant quotes from Zach Terwilliger, the son of George Terwilliger, Mark Meadows’ lawyer, about frustration among defense attorneys in the case regarding Smith’s uncertain instructions regarding whether witnesses are just that — witnesses — or also subjects of the investigation.

Three defense lawyers representing people sought for voluntary interviews say they’re frustrated that special counsel Jack Smith’s team insists on labeling their clients subjects without providing additional detail as to where they fit in the case or whether they could become a target. They’ve asked to remain anonymous to discuss sensitive matters.

Justice Department guidance doesn’t define what a witness is and prosecutors prefer the flexibility of the broad subject label, which covers anyone within the scope of a grand jury investigation.

Yet Smith’s search for corroborating witnesses aimed at proving the 2020 election case against the former president pressures prosecutors to incentivize people to talk, but without exposing themselves to counterattacks from defense lawyers and Trump supporters. How they navigate that balancing act could help shape the legal fate of Trump and his allies.

“It is an exercise in understandable murkiness. And it’s more complicated here,” said Jim Walden, a former federal prosecutor who’s now a criminal defense attorney. “Anyone in the Trump administration has at least potential liability if they helped him form strategy about his election loss.”

By sticking strictly to the subject designation, Smith’s team retains the ability to charge individuals who appear innocent but later turn out to have liability, while protecting itself from accusations they baited people into talking. At the same time, they’d risk undercutting their mission of expediting the Trump trial, as defense lawyers insist on negotiating drawn-out immunity deals before an interview. [my emphasis]

While the Bloomberg piece referes to a “mission of expediting the Trump trial,” neither of these articles mentions something that, to me at least, seems obvious: Whether or not a jury convicts Trump next spring, if Trump wins the presidential election, none of this may matter. The criminal exposure of Trump’s associates won’t matter, because any that remained loyal would just be pardoned, as Paul Manafort and Roger Stone and Mike Flynn and George Papadopoulos and Steve Bannon were pardoned during Trump’s first term.

While I could imagine DOJ charging a handful of people who linked the crime scene to Trump before the election, most everything else would simply expose parts of the investigation that would otherwise be better kept quiet.

Which adds yet another reason why we can’t expect to understand the steps Jack Smith may still be taking: because on top of all the other reasons prosecuting a former and potentially future President is unprecedented, the likelihood that he would just pardon himself out of any further mess is part of it.

No one seems to care anymore: but there are a good many Trump associates — not just his unindicted co-conspirators — who bear some responsibility for what happened on January 6, 2021. But DOJ may have decided it makes not sense to prosecute any of them until there’s certainty, at the very least, about Trump’s fate.

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Bret Baier’s False Claim, the Escort Service, and Former Fox News Pundit Keith Ablow

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Deep into one version of what is referred to as the “Hunter Biden” “laptop,” (according to reports done for Washington Examiner by Gus Dimitrelos*) there’s a picture of a check, dated November 14, 2018, for $3,400, paid to a woman with a Slavic name. The check bears a signature that matches others, attributed to Hunter Biden, from the “laptop” also attributed to him. Along with a line crossing out Hunter’s ex-spouse’s name on the check, the check was marked on the memo line: “Blue Water Wellness” along with a word that is illegible–possibly “Rehab.”

The check appears in a chat thread, dated November 26, 2018, apparently initiated to set up tryst with an escort in New York  City. Just over 12 hours after setting up that tryst, the Russian or Ukrainian woman who manages the escort service, Eva, wrote back, asking Hunter if he was in New York, because she had a problem with his check, that $3,400 check dated twelve days earlier. Hunter was effusively apologetic, and offered to pay the presumed sex worker via wire, because it’s the only way he could be 100% certain it would get to her. Shortly thereafter, he sent two transfers from his Wells Fargo account, $3,200 plus $30 fees, directly to the woman’s bank account, and $800 via Zelle drawn on Wells Fargo.

Those transfers from Hunter Biden’s Wells Fargo account to a presumed sex worker with a Slavic name took place between the day, October 31, 2018, when IRS Agent Joseph Ziegler, newly arrived on IRS’ international tax squad, launched an investigation into an international online sex business and the day, December 10, 2018, when Ziegler would piggyback off that sex business investigation to launch an investigation into Hunter Biden. The Hunter Biden investigation was initially based off a Suspicious Activity Report from Wells Fargo sent on September 21, 2018 and from there, quickly focused on Hunter’s ties to Burisma, precisely the investigation the then President was demanding.

Understand: The entire five year long investigation of Hunter Biden was based off payments involving Wells Fargo quite similar to this one, the check for $3,400 to a sex worker associated (in this case, at least) with what Dimitrelos describes as an escort service.

Research on the company yielded bank reports indicating that [Hunter Biden] made payments to a U.S. contractor, who also had received payments from that U.K. company.

Only, this particular payment — the need to wire the presumed sex worker money to cover the check — ties the escort service to one of the businesses of former Fox News pundit Keith Ablow: Blue Water Wellness, a float spa just a few blocks down the road from where Ablow’s psychiatric practice was before it got shut down amid allegations of sex abuse of patients and a DEA investigation. Emails obtained from a different version of the “laptop” show that on November 13, Blue Water Wellness sent Hunter an appointment reminder, albeit for an appointment on November 17, not November 14. That appointment reminder is the first of around nine appointment reminders at the spa during the period.

The tryst with the presumed sex worker with the Slavic name does appear to have happened overnight between November 13 and 14.  Between 1:58 and 6:33AM, there were two attempts to sign into Hunter’s Venmo account from a new device, five verification codes sent to his email, and two password resets, along with the addition of the presumed sex worker to his Zelle account at Wells Fargo, which he would use to send her money over a week later. All that makes it appear like they were together, but Hunter didn’t have his phone, the phone he could use to pay her and so tried to do so from a different device. Maybe, he gave up, and simply wrote her a check, from the same account on which that Zelle account drew.

None of which explains why he appears to have written “Blue Water Wellness” on a check to pay a presumed sex worker. Maybe he was trying to cover up what he was paying for. Maybe he understood there to be a tie. Or maybe it was the advertising Blue Water did at the time.

Deep in a different part of the laptop analyzed by Dimitrelos, though, a deleted invoice shows that Hunter met with former Fox News pundit Keith Ablow on the same day as Hunter apparently wrote that check to the presumed sex worker. The deleted invoice reflects two 60-minute sessions billed by Baystate Psychiatry, the office just blocks away from the float spa.

Emails obtained from a different version of the “Hunter Biden” “laptop” show that at some point on November 26, 2018, as Hunter first arranged a tryst in New York City and then, no longer in New York, sent a wire directly from Wells Fargo to the presumed sex worker, someone accessed Hunter’s Venmo account from a new device — successfully this time — one located in Newburyport, MA, where former Fox News pundit Keith Ablow’s businesses were.

There are a number of things you’d need to do to rule out the possibility of Russian involvement in the process by which a laptop purportedly belonging to Hunter Biden showed up at the Wilmington repair shop of John Paul Mac Isaac, from there to be shared with Rudy Giuliani, who then shared it with three different Murdoch outlets and a ton of other right wing propagandists, many of them members of Congress.

One of those would be to rule out that any of the sex workers tied to this escort service had a role in compromising Hunter Biden’s digital identity, thereby obtaining credential information that would make it easy to package up a laptop that would be especially useful to those trying to destroy the life of the son of Donald Trump’s opponent. There’s no evidence that any of the sex workers were involved, but throughout 2018, there are a number of device accesses involving Hunter’s Venmo account, the iCloud account packaged up on “the laptop,” and different Google accounts — including between the day on November 13 when Hunter appears to have met the woman with the Slavic name and the date on November 26 when he wired her money — that should at least raise concerns that his digital identity had been compromised. I’ve laid out just a fraction of them in this post and this post, both of which focus on the later period when Hunter was in the care of the former Fox News pundit.

If you wanted to compromise Hunter Biden, as certain Russian-backed agents in Ukraine explicitly did, doing so via the sex workers, drug dealers, and fellow junkies he consorted with in this period would be painfully easy. Indeed, in Hunter’s book, he even described other addicts walking off with his, “watch or jacket or iPad—happened all the time.” Every single one of those iPads that walked away might include the keys to Hunter’s digital life, and as such, would be worth a tremendous amount of money to those looking to score their next fix. To rule out Russian involvement, you’d have to ID every single one of them and rule out that they were used for ongoing compromise of Hunter or, barring that, you’d have to come up with explanations, such as the likelihood that Hunter was trying to pay a sex worker but didn’t have his phone with him and so used hers, for the huge number of accesses to his accounts, especially the iCloud account ultimately packaged up.

Of course, explaining how a laptop purportedly belonging to Hunter Biden showed up at Mac Isaac’s shop would also require explaining how a laptop definitely belonging to Hunter Biden came to be left in former Fox News pundit Keith Ablow’s possession during precisely the same period when (it appears) Hunter Biden’s digital life was getting packaged up, a laptop Ablow did nothing to return to its owner and so still had when the DEA seized it.

Bret Baier lied about the Hunter Biden laptop

Given the unanswered questions about the role of a former Fox News pundit in all this, you’d think that Fox personalities would scrupulously adhere to the truth about the matter, if for no other reason than to avoid being legally implicated in any conspiracies their former colleague might have been involved with, or to avoid kicking off another expensive defamation lawsuit.

Sadly, Bret Baier couldn’t manage to stick to the truth in his attempt to sandbag former CIA Director Leon Panetta on Friday. Baier debauched the gravity of an appearance purportedly focused on the Hamas attack and aftermath,  with what he must have thought was a clever gotcha question about a letter Leon Panetta signed in October 2020 stating the opinion that the emails being pitched by Murdoch outlet New York Post, “has all the classic earmarks of a Russian information operation.” The letter not only expressed an opinion, but it cited four specific data points and two observations about known Russian methods, all of which were and remain true to to this day.

And in the process, Bret Baier made a false claim.

Bret Baier made a false claim and all of Fox News’ watchers and all the other propagandists made the clip of Bret Baier making a false claim go viral, because they apparently either don’t know or don’t care that Baier couldn’t even get basic facts right. They are positively giddy that Baier used the tragedy of a terrorist attack to demonstrate his own ignorance or willful deceit about Fox’s favorite story, Hunter Biden’s dick pics.

From the get-go, Baier adopted a rhetorical move commonly used by Murdoch employees and frothy right wingers sustaining their blind faith in “the laptop:” He conflated “the laptop” with individual emails.

Baier: I’d be remiss if I didn’t ask you about that letter you signed onto from former intelligence officials saying that the laptop and the emails had all the classic earmarks of a Russian information operation. Obviously the New York Post and others saying the Hunter Biden letter was the real disinformation all along. Um, that letter was used in the debate, I haven’t asked you this. But do you have regrets about that, now looking back, knowing what you know now? [my emphasis]

The spooks’ letter Panetta signed addressed emails, not “the laptop.” The only use of the word “laptop” in the letter was in labeling this a potential “laptop op,” a way to package up emails meant to discredit Joe Biden. The letter even includes “the dumping of accurate information” among the methods used in Russian information operations.

Having conflated emails and “the laptop,” Baier then asked whether Panetta thinks “it,” now referring just to “the laptop,” not even the hard drives of copies from the laptop in question, was real.

Panetta: Well, you know, Bret, I was extremely concerned about Russian interference and misinformation. And we all know it. Intelligence agencies discovered that Russia had continued to push disinformation across the board. And my concern was to kind of alert the public to be aware that these disinformation efforts went on. And frankly, I haven’t seen any evidence from any intelligence that that was not the case.

Baier: You don’t think that it was real?

Having first conflated emails and the laptop, then substituted the laptop for the emails addressed in the letter, Baier then falsely claimed that, “Hunter Biden said it was his laptop.”

Panetta: I think that, I think that disinformation is involved here. I think Russian disinformation is part of what we’re seeing everywhere. I don’t trust the Russians. And that’s exactly why I was concerned that the public not trust the Russians either.

Baier: I don’t want to dwell on this because we have bigger things to talk about. Bigger urgency. But obviously, Hunter Biden said it was his laptop, and this investigation continues. [my emphasis]

I understand how frothy right wingers misunderstand what Hunter Biden has said about the data associated with “the laptop,” but Baier presents as a journalist, and you’d think he’d take the time to read the primary documents.

Hunter Biden admits some data is his, but denies knowledge of the “laptop”

The claim that Hunter Biden has said “the laptop” was his arises from three lawsuits: first, from Hunter Biden’s response and counterclaim to John Paul Mac Isaac’s lawsuit, then of Hunter’s lawsuit against Garrett Ziegler, and finally, the lawsuit against Rudy Giuliani.

Regarding the first of those filings, Hunter Biden based his countersuit against JPMI on an admission that JPMI came into possession of electronically stored data, at least some of which belonged to him. But he specifically did not admit that JPMI “possessed any particular laptop … belonging to Mr. Biden.”

5. In or before April 2019, Counterclaim Defendant Mac Isaac, by whatever means, came into possession of certain electronically stored data, at least some of which belonged to Counterclaim Plaintiff Biden.1

1 This is not an admission by Mr. Biden that Mac Isaac (or others) in fact possessed any particular laptop containing electronically stored data belonging to Mr. Biden. Rather, Mr. Biden simply acknowledges that at some point, Mac Isaac obtained electronically stored data, some of which belonged to Mr. Biden.

Regarding JPMI’s claims that Hunter dropped off the laptop,

169. HUNTER knowingly left his laptop with Plaintiff on April 12, 2019.

170. Soon thereafter HUNTER returned to Plaintiff’s shop to leave an external hard drive to which Plaintiff could transfer the data from HUNTER’s laptop.

171. HUNTER never returned to Plaintiff’s shop pick up his laptop

Hunter denied sufficient knowledge to answer all of them.

169. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 169.

170. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 170.

171. Mr. Biden admits that, if he ever had visited before, he did not return to Plaintiff’s shop.

In response to JPMI’s claim that Hunter knew of the phone call his lawyer, George Mesires, made to JPMI in October 2020 and the email follow-up that in any case doesn’t substantiate what JPMI claimed about the phone call,

31. On October 13, 2020, Plaintiff received a call from Mr. George Mesires,1 identifying himself as HUNTER’s attorney, asking if Plaintiff still had possession of his client’s laptop and following up thereafter with an email to the Plaintiff. Copy of email attached as EXHIBIT C.

[snip]

174. HUNTER’s attorney, George Mesires contacted Plaintiff on October 13, 2020 about the laptop.

Hunter admitted that Mesires was his attorney but denied knowing anything more.

31. Mr. Biden admits that Mr. George Mesires was his attorney. Mr. Biden is without knowledge sufficient to admit or deny the remaining allegations in paragraph 31.

[snip]

174. Mr. Biden admits that Mr. Mesires was his attorney. Mr. Biden is without knowledge sufficient to admit or deny the remaining allegations in paragraph 174.

In response to JPMI’s claim that Hunter Biden said something about the laptop without mentioning JPMI,

172. When asked about the laptop in a television interview broadcast around the world, HUNTER stated, “There could be a laptop out there that was stolen from me. It could be that I was hacked. It could be that it was the – that it was Russian intelligence. It could be that it was stolen from me. Or that there was a laptop stolen from me.” See https://edition.cnn.com/2021/04/02/politics/hunterbiden-laptop/index.html.

173. HUNTER knew it was his laptop.

Hunter Biden admitted he made the comment that didn’t mention JPMI — a comment on which JPMI based a $1.5M defamation claim!! — but again denied knowing whether or not the laptop was his.

172. Admitted and Mr. Biden further answers that the statement makes no mention of or even a reference to Plaintiff.

173. Mr. Biden is without knowledge sufficient to admit or deny the allegations in paragraph 173.

Of some interest, in response to JPMI’s claim that the information that appeared in the NYPost came from Hunter, who voluntarily left his laptop with JPMI,

67. The information contained in the NY POST exposé came from HUNTER who voluntarily left his laptop with the Plaintiff and failed to return to retrieve it.

Hunter outright denied the claim.

67. Denied.

Hunter Biden claimed that Rudy hacked Hunter’s data

That last claim — the outright denial that the data in the NYPost story came from Hunter — is of particular interest given something Denver Riggleman recently said. He described that the Hunter Biden team now has the data that JPMI shared with others — apparently thanks to this countersuit — and they’ve used it to compare with the data distributed forward from there.

Also, we know now, since the Hunter Biden team has the John Paul Mac Isaac data that was given to Rudy Giuliani and given to CBS, we also know that that data had no forensic chain of custody and it was not a forensic copy of any type of laptop, or even multiple devices that we can see. It was just a copy-paste of files, more or less.

[snip]

We know that there’s different data sets in different portions of the Internet attributed to Hunter’s data — or, to Hunter’s laptop.

[nip]

Now that we do have forensic data — Hunter Biden team has more foensic data than anybody else out there — we can actually start to compare and contrast. And that’s why you see the aggressiveness from the Hunter Biden legal team.

The lawsuit against Rudy and Costello claims that at some point, Rudy and Costello did things that amount to accessing Hunter’s data unlawfully. Hacking.

23. Following these communications, Mac Isaac apparently sent via FedEx a copy of the data he claimed to have obtained from Plaintiff to Defendant Costello’s personal residence in New York on an “external drive.” Once the data was received by Defendants, Defendants repeatedly “booted up” the drive; they repeatedly accessed Plaintiff’s account to gain access to the drive; and they proceeded to tamper with, manipulate, alter, damage and create “bootable copies” of Plaintiff’s data over a period of many months, if not years. 2

24. Plaintiff has discovered (and is continuing to discover) facts concerning Defendants’ hacking activities and the damages being caused by those activities through Defendants’ public statements in 2022 and 2023. During one interview, which was published on or about September 12, 2022, Defendant Costello demonstrated for a reporter precisely how Defendants had gone about illegally accessing, tampering with, manipulating and altering Plaintiff’s data:

“Sitting at a desk in the living room of his home in Manhasset, [Defendant Costello], who was dressed for golf, booted up his computer. ‘How do I do this again?’ he asked himself, as a login window popped up with [Plaintiff’s] username . . .”3

By booting up and logging into an “external drive” containing Plaintiff’s data and using Plaintiff’s username to gain access Plaintiff’s data, Defendant Costello unlawfully accessed, tampered with and manipulated Plaintiff’s data in violation of federal and state law. Plaintiff is informed and believes and thereon alleges that Defendants used similar means to unlawfully access Plaintiff’s data many times over many months and that their illegal hacking activities are continuing to this day.

[snip]

26. For example, Defendant Costello has stated publicly that, after initially accessing the data, he “scrolled through the laptop’s [i.e., hard drive’s] email inbox” containing Plaintiff’s data reflecting thousands of emails, bank statements and other financial documents. Defendant Costello also has admitted publicly that he accessed and reviewed Plaintiff’s data reflecting what he claimed to be “the laptop’s photo roll,” including personal photos that, according to Defendant Costello himself, “made [him] feel like a voyeur” when he accessed and reviewed them.

27. By way of further example, Defendant Costello has stated publicly that he intentionally tampered with, manipulated, and altered Plaintiff’s data by causing the data to be “cleaned up” from its original form (whatever this means) and by creating “a number of new [digital] folders, with titles like ‘Salacious Pics’ and ‘The Big Guy.’” Neither Mac Issac nor Defendants have ever claimed to use forensically sound methods for their hacking activities. Not surprisingly, forensic experts who have examined for themselves copies of data purportedly obtained from Plaintiff’s “laptop” (which data also appears to have been obtained at some point from Mac Isaac) have found that sloppy or intentional mishandling of the data damaged digital records, altered cryptographic featuresin the data, and reduced the forensic quality of data to “garbage.”

2 Plaintiff’s investigation indicates that the data Defendant Costello initially received from Mac Isaac was incomplete, was not forensically preserved, and that it had been altered and tampered with before Mac Issac delivered it to Defendant Costello; Defendant Costello then engaged in forensically unsound hacking activities of his own that caused further alterations and additional damage to the data he had received. Discovery is needed to determine exactly what data of Plaintiff Defendants received, when they received it, and the extent to which it was altered, manipulated and damaged both before and after receipt.

3 Andrew Rice & Olivia Nuzzi, The Sordid Saga of Hunter Biden’s Laptop, N.Y. MAG. (Sept. 12, 2022), https://nymag.com/intelligencer/article/hunter-biden-laptop- investigation.html.

I don’t think Hunter’s team would have compared the data Rudy shared with the NYPost before Hunter denied, outright, that “The information contained in the NY POST exposé came from HUNTER.” But based on what Riggleman claimed, they have since, and did compare it, before accusing Rudy and a prominent NY lawyer of hacking Hunter Biden’s data.

Hunter Biden’s team admits they don’t know the precise timing of this: “the precise timing and manner by which Defendants obtained Plaintiff’s data remains unknown to Plaintiff.” DDOSecrets points to several emails that suggest Rudy and Costello did more than simply review available data, however. For example, it points to this email created on September 2, 2020, just after the former President’s lawyer got the hard drive.

September 2, 2020: A variation of a Burisma email from 2016 is created and added to the cache. The email and file metadata both indicate it was created on September 2, 2020.

But the lawsuit, if proven, suggests the possibility that between the time JPMI shared the data with Rudy and the time Rudy shared it with NYPost, Rudy may have committed federal violations of the Computer Federal Fraud and Abuse Act — that is, Hunter alleges that between the time JPMI shared the data and the time NYPost published derivative data, Rudy may have hacked Hunter Biden’s data.

If he could prove that, it means the basis Twitter gave for throttling the NYPost story in October 2020 — they suspected the story included materials that violated Twitter’s then prohibition on publishing hacked data — would be entirely vindicated.

For example, on October 14th, 2020, the New York Post tweeted articles about Hunter Biden’s laptop with embedded images that look like they may have been obtained through hacking. In 2018, we had developed a policy intended to, to prevent Twitter from becoming a dumping ground for hacked materials. We applied this policy to the New York Post tweets and blocked links to the articles embedding those source materials. At no point did Twitter otherwise prevent tweeting, reporting, discussing or describing the contents of Mr. Biden’s laptop.

[snip]

My team and I exposed hundreds of thousands of these accounts from Russia, but also from Iran, China and beyond. It’s a concern with these foreign interference campaigns that informed Twitter’s approach to the Hunter Biden laptop story. In 2020, Twitter noticed activity related to the laptop that at first glance bore a lot of similarities to the 2016 Russian hack and leak operation targeting the dnc, and we had to decide what to do, and in that moment with limited information, Twitter made a mistake under the distribution of hacked material policy.

If Hunter can prove that — no matter what happened in the process of packaging up this data before it got to JPMI, whether it involved the compromise of Hunter’s digital identity before JPMI got the data, which itself would have been a hack that would also vindicate Twitter’s throttling of the story  — it would mean all the data that has been publicly released is downstream from hacking.

For Twitter, it wouldn’t matter whether the data was hacked by Russia or by Donald Trump’s personal lawyer, it would still violate the policy as it existed at the time.

Importantly, this remains a claim about data, not about a laptop. The lawsuit against Rudy and Costello repeats the claim made in the JPMI counterclaim: while JPMI had data, some of which belongs to Hunter, Hunter is not — contrary to Bret Baier’s false claim — admitting that, “Hunter Biden said it was his laptop.”

2. Defendants themselves admit that their purported possession of a “laptop” is in fact not a “laptop” at all. It is, according to their own public statements, an “external drive” that Defendants were told contained hundreds of gigabytes of Plaintiff’s personal data. At least some of the data that Defendants obtained, copied, and proceeded to hack into and tamper with belongs to Plaintiff.1

1 This is not an admission by Plaintiff that John Paul Mac Isaac (or others) in fact possessed any particular laptop containing electronically stored data belonging to Plaintiff. Rather, Plaintiff simply acknowledges that at some point, Mac Isaac obtained electronically stored data, some of which belonged to Plaintiff.

In two lawsuits, Hunter Biden explicitly said that he was not admitting what Baier falsely claimed he had.

I know this is Fox News, but Baier just blithely interrupted a sober discussion about a terrorist attack to make a false claim about “the laptop.”

Hunter Biden claims that Garrett Ziegler hacked Hunter’s iPhone

Hunter Biden’s approach is different in the Garrett Ziegler lawsuit, in which he notes over and over that Ziegler bragged about accessing something he claimed to be Hunter Biden’s laptop, but which was really, “a hard drive that Defendants claim to be of Plaintiff’s ‘laptop’ computer.” By the time things got so far downstream to Ziegler, there was no pretense this was actually a laptop, no matter what Baier interrupted a discussion about terrorism to falsely claim.

But that paragraph explicitly denying admission about this being a laptop is not in the Ziegler suit.

There’s a likely reason for that. The core part of the claim against Ziegler is that Ziegler unlawfully accessed a real back-up of Hunter Biden’s iPhone, which was stored in encrypted form in iTunes — just as I laid out had to have happened months before that lawsuit.

28. Plaintiff further is informed and believes and thereon alleges that at least some of the data that Defendants have accessed, tampered with, manipulated, damaged and copied without Plaintiff’s authorization or consent originally was stored on Plaintiff’s iPhone and backed-up to Plaintiff’s iCloud storage. On information and belief, Defendants gained their unlawful access to Plaintiff’s iPhone data by circumventing technical or code-based barriers that were specifically designed and intended to prevent such access.

29. In an interview that occurred in or around December 2022, Defendant Ziegler bragged that Defendants had hacked their way into data purportedly stored on or originating from Plaintiff’s iPhone: “And we actually got into [Plaintiff’s] iPhone backup, we were the first group to do it in June of 2022, we cracked the encrypted code that was stored on his laptop.” After “cracking the encrypted code that was stored on [Plaintiff’s] laptop,” Defendants illegally accessed the data from the iPhone backup, and then uploaded Plaintiff’s encrypted iPhone data to their website, where it remains accessible to this day. It appears that data that Defendants have uploaded to their website from Plaintiff’s encrypted “iPhone backup,” like data that Defendants have uploaded from their copy of the hard drive of the “Biden laptop,” has been manipulated, tampered with, altered and/or damaged by Defendants. The precise nature and extent of Defendants’ manipulation, tampering, alteration, damage and copying of Plaintiff’s data, either from their copy of the hard drive of the claimed “Biden laptop” or from Plaintiff’s encrypted “iPhone backup” (or from some other source), is unknown to Plaintiff due to Defendants’ continuing refusal to return the data to Plaintiff so that it can be analyzed or inspected. [my emphasis]

Hunter Biden’s team has backup for this assertion, thanks to the notes Gary Shapley took in an October 22, 2022 meeting about what was an actual laptop JPMI handed over to the FBI. On that laptop — which the FBI had confirmed was associated with Hunter Biden’s iCloud account and which it tied to data that could all be falsifiable to someone in possession of the laptop, which had means to intercept and redirect emails and calls to Hunter’s real devices, but which the FBI still had not validated 10 months after obtaining it — the iPhone content was encrypted.

Laptop — iphone messages were on the hard drive but encrypted they didn’t get those messages until they looked at laptop and found a business card with the password on it so they were able to get into the iphone messages [my emphasis]

Even the FBI needed to find a password to access the iPhone content that Ziegler has bragged about accessing. (Note: there have been four known accesses to this data, and every single one of them claims to have used a different means to break the encryption, which in my mind raises real questions about the nature of the business card). But the FBI had a warrant. Ziegler did not.

There are still a great deal of questions one would have to answer before entirely ruling out that Russians were involved in the process of packaging up Hunter Biden’s digital identity; the possible role of a Russian escort service is only one of at least three possible ways Russia might be involved. Yet Bret Baier is unwilling to pursue those questions — starting with the unanswered questions about the role that Baier’s former Fox News colleague played.

But with all those unanswered questions, Baier was nevertheless willing to interrupt a discussion about terrorism to make false claims about what is known.

Update: I’ve taken out that this was specifically a Russian escort service. Some outlets claim Eva is Ukrainian. Dimitrelos does claim that Hunter searched for “Russian escort service,” though.

Update: Added the Bluewater Wellness Intramuscular Injection ad from October 2018.

Update: Added the observation about a newly created email from DDOSecrets.

Update: I was reminded of Bret Baier’s opinion in the same days when Leon Panetta was expressing his doubts about this story.

During a panel on his Thursday evening show, Baier addressed the Post‘s story and the decision by both Twitter and Facebook to limit sharing of the story on their respective platforms because of concerns about spreading misinformation. The move elicited fierce pushback from conservatives and sparked a vote on a Congressional subpoena of Twitter CEO Jack Dorsey.

“The Biden campaign says the meeting never happened, it wasn’t on the schedules, they say,” Baier noted. “And the email itself says ‘set up’ for a meeting” instead of discussing an actual meeting.

Baier then played an audio clip from a SiriusXM radio interview of Giuliani, where he appeared to alter the original details of who dropped off the laptop from which the emails in question were purportedly obtained. The computer store owner who gave a copy of the laptop’s hard drive to Giuliani was also heard explaining how he is legally blind and couldn’t for certain identify just who delivered the computer to him.

” Let’s say, just not sugarcoat it. The whole thing is sketchy,” Baier acknowledged. “You couldn’t write this script in 19 days from an election, but we are digging into where this computer is and the emails and the authenticity of it.”

Featured image courtesy of Thomas Fine.

*As I have noted in the past, Dimitrelos prohibited me from republishing his reports unless I indemnify him for the privacy violations involved. I have chosen instead — and am still attempting — to get permission from Hunter Biden’s representatives to reproduce redacted parts of this report that strongly back Hunter’s claim of being hacked.

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Steve Scalise Calls Out Donald Trump

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Donald Trump and Steve Scalise on better days . . .

Some things age well, like fine wine, George Clooney, Halle Berry, and Robin Wright.

Some things do not.

Back on January 6, 2021, when certain GOP senators and representatives objected to the certification of the Arizona results and the two houses went into separate sessions, Steve Scalise was the first member recognized to speak in the House. Here is part of what he said, taken from the Congressional Record, after some preliminary remarks about the Founders. Note, please, the three parts I put in bold:

. . . We have to follow the constitutional process. Now, there might be reasons why some people don’t like the process laid out by a legislative body. Madam Speaker, I served on one of those legislative bodies when I was in the State legislature for 12 years. I served on the House and Governmental Affairs Committee, where we wrote the laws for our State’s elections. And I can tell you, when we had to make changes, those were extensively negotiated. We would have people on both sides come.

Republicans and Democrats, Madam Speaker, would get together to work through those changes, any minute change to how a precinct would function, to how a change would be made in the time of an election, signature requirements, all the many things that involve a clerk carrying out the duties in each parish, in our case.

You would see people come and give testimony, Madam Speaker. Both sides could come. Clerks of court were there in the hearing rooms.

It was an open process, by the way, not behind closed doors in a smoke-filled room where somebody might want to bully a secretary of state to get a different version that might benefit them or their party or their candidate. That is not what our Founding Fathers said is the process. Maybe it is how some people wanted to carry it out. But they laid out that process.

So when we would have to make those changes, they were in public view; they were heavily debated; and then, ultimately, those laws were changed in advance of the election so everybody knew what the rules were.

People on both sides knew how to play by the rules before the game started, not getting somewhere in the process and saying, well, you don’t think it is going to benefit you, so you try to go around the Constitution. That is not how our system works. It has gotten out of hand. So President Trump has called this out, and President Trump has stood up to it. So many of us have stood up to it.

[snip]

It is time we get back to what our Founding Fathers said is the process for selecting electors: that is the legislatures in public view, not behind closed doors, not smoke-filled rooms, not bullying somebody that might give you a better ruling. Let’s get back to rule of law and follow the Constitution, Madam Speaker.

[end of remarks]

[C-Span video of Scalise’s remarks here.]

Scalise is worried that “somebody might want to bully a secretary of state”? Horrors!

Scalise is concerned that “some people” want a different process that allows for bullying a secretary of state? Say it ain’t so!

Scalise is bothered by the notion that somebody might put pressure on an elections official so that they “might give you a better ruling”? Inconceivable!

. . . pause . . .

. . . deep breath . . .

. . . looking around nervously . . .

. . . checking the skies to see if lightning is about to strike . . .

Waiting for Donald Trump to come down *hard* on Scalise in three . . . two . . . one . . .

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Twenty-Five: The Trump Family Member and Other Attorney-Client Delusions

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On January 9, I did a post noting that at least 25 of the known witnesses or subjects of the January 6 investigation into Trump were attorneys.

In a filing yesterday, DOJ said the same thing: At least 25 witnesses, including one member of Trump’s family, withheld testimony or documents based on an attorney-client claim.

During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign. These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.

To be clear, we’re measuring two different things: for example, while the two Pats — Cipollone and Philbin — as well as Mike Pence’s counsel, Greg Jacob, withheld testimony in their first grand jury appearances, that was based at least partly on an Executive Privilege claim, one prosecutors ultimately overcame, not exclusively on their role as White House lawyers.

And I know I missed a bunch of people who invoked attorney-client privilege. For example, Bernie Kerik — who I didn’t count in my list — withheld documents until forced to share them in the Ruby Freeman lawsuit, based on a claim that his work as a researcher was attorney work product. The Georgia indictment alerted me that I had missed accused Trump co-conspirator Robert Cheeley — and there are probably attorneys in all the other swing states I missed too. I didn’t count the campaign itself. I sure as hell didn’t count any family member (I wonder if the big gap in the January 6 indictment where Ivanka should be is there based off a claim she was acting at the direction of Eric Herschmann, though Herschmann seems to have offered far more cooperation than Ivanka did).

However you count it, though, it’s a breathtaking number, one rarely taken into account by the TV lawyers wailing because it took so long to charge Trump.

And charge Trump alone.

That’s something I kept thinking about as I read this filing: Thus far, not even Trump’s alleged co-conspirators — all of whom might make an attorney-client claim (even Mike Roman might be that non-lawyer intermediary, though I think it more likely Boris Ephsteyn is CC6) have been charged.

The government’s argument itself makes a lot of sense. For example, it enumerates that Trump or his attorneys have claimed they’ll rely on an advice of counsel defense at least seven times.

1 Fox News, Aug. 1, 2023, at minute 3:03, available at https://www.foxnews.com/video/6332255292112.

2 CNN, Aug. 1, 2023, at minute 2:20, available at https://www.youtube.com/watch?v=GW7Bixvkpc0.

3 NPR All Things Considered, Aug. 2, 2023, available at https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.

4 Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.

5 Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.

6 CNN, Aug. 6, 2023, at minute 7:58, available at https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.

7 Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.

The government lays out precedent stating that Trump would have to waive privilege over and share communications that support his advice-of-counsel defense, but also communications over which he and the lawyer are currently shielding behind a privilege claim that would undermine it.

In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege on all communications concerning the defense. See White, 887 F.2d at 270; United States v. Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the defendant must disclose to the Government (1) all “communications or evidence” the defendant intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the defendant does “not intend to use at trial, but that are relevant to proving or undermining” it. Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22- cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is for “information defendant submitted to the attorney on which the attorney’s advice is based, the attorney’s advice relied on by the defendant, and any information that would undermine the defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This disclosure should include not only those documents which support [defendants’] defense, but also all documents (including attorney-client and attorney work product documents) that might impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y. Jan. 18, 2018) (quoting Hatfield).

Given that Trump would have to identify exhibits on which he would rely for an advice of counsel defense by December 18, the government argues, he should have to also identify the specifics of any advice of counsel defense by that date as well.

Given the potential number of attorneys and breadth of advice involved, the defendant’s notice should describe with particularity the following: (1) the identity of each attorney who provided advice; (2) the specific advice given, including whether the advice was oral or written; (3) the date on which the advice was given; and (4) the information the defendant communicated or caused to be communicated to the attorney concerning the subject matter of the advice, including the date and manner of the communication.

It makes this argument while also noting something that doesn’t, per se, support its case: that DOJ has already told Trump what these 25 people — and it invokes John Eastman, the person most often mentioned in Trump’s public claims of a advice of counsel defense, by caption — have identified in privilege logs.

In addition to having publicly advanced the defense, the defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”). [my emphasis]

Whatever else this motion is — and on its face it makes a lot of sense — it would also provide a means for DOJ to sort through some of the privilege logs it is looking at, and at least in the case of Eastman (if Trump indeed invoked his counsel as a defense) to breach those privilege claims and even obtain communications it does not yet have. Particularly given Clarence Thomas’ recusal on Eastman’s recently rejected cert petition, Eastman might have unidentified communications of particular interest.

Advance notice would also force Trump to rule out relying on the advice of others, like Rudy or Sidney Powell, as a defense, something that might make charges against them more viable.

I don’t imagine that DOJ would add any of Trump’s co-conspirators to his indictment so long as Trump’s trial happened before the election. They could always charge others separately, but so long as Trump had a chance of returning to the presidency, the only reason to do so would be if there were a legitimate hope of flipping the person or if it would make Trump’s alleged crimes more damaging politically. Trump has pardoned his way out of problems in the past and DOJ has to assume he would again, given the opportunity.

But in addition to making a solid case that Judge Chutkan should make Trump declare his intentions in December, this filing also admits that attorney-client privilege claims continue to blind DOJ to some of the universe of related communications pertaining to January 6.

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