Trump Changed the Lock in His Residence before Changing the Lock on the Storage Room

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In another motion for a Garcia hearing in the Trump stolen documents case, DOJ revealed that Trump changed a lock on a storage closet in his own residence on June 2, before changing the lock on the storage closet where his classified documents had been stored for months.

At issue is one of three clients of Carlos De Oliveira’s attorney, John Irving, that DOJ says may testify at trial.

Recall that Stan Woodward represents seven clients interviewed in this matter, and did represent Yuscil Taveras before he got a new lawyer and cooperated against Woodward client Walt Nauta. DOJ tried to describe those conflicts under seal, which Judge Aileen Cannon refused, which may be why DOJ has laid out these conflicts in an unsealed court filing.

The three witnesses whom Irving represents include a Trump Employee 3 — the person who told Nauta that Trump wanted to see him before Nauta flew to Mar-a-Lago and allegedly tried to delete surveillance video, a former Trump assistant (possibly Chamberlain Harris?) who knew of movements of boxes to Mar-a-Lago, and the head maintenance worker at MAL whom De Oliveira replaced, referred to as Witness 1 in the filing.

The most damning testimony the Witness 1 provided debunked the excuse De Oliveira made to explain why he was taking pictures of surveillance cameras at MAL.

Witness 1 was a maintenance worker at Mar-a-Lago who served as head of maintenance before De Oliveira took over that position in January 2022. Witness 1 has information demonstrating the falsity of statements De Oliveira has made to the Government. In addition to the false statements De Oliveira made to the FBI that are the basis for the false-statements charge in Count 42 of the superseding indictment, he also made false statements in an April 2023 interview with the FBI and members of the Special Counsel’s Office in Washington, D.C. In particular, when confronted with video footage appearing to show him photographing surveillance cameras in the tunnel at Mar-a-Lago near the storage room where the FBI recovered some of the classified records, De Oliveira claimed he was (1) looking for a shutoff valve because a water pipe had ruptured on the grounds of Mar-a-Lago, and (2) documenting a broken door below one of the cameras. Witness 1 has information about when the pipe broke and the door needed repairs that is inconsistent with De Oliveira’s statements.

But the more interesting testimony is that De Oliveira changed the lock on “a closet inside Trump’s residence … on June 2, 2022” after moving boxes with Walt Nauta.

Witness 1 also has information about De Oliveira’s loyalty to Trump and about De Oliveira’s involvement in the replacement of a lock—at the direction of Trump—on a closet inside Trump’s residence at Mar-a-Lago on June 2, 2022, the day Nauta and De Oliveira moved boxes as described in paragraphs 62-63 of the superseding indictment.

De Oliveira’s the guy who changed the lock on the storage room after Jay Bratt instructed Evan Corcoran to secure it, then gave away the key to some whose identity he claimed to forget when the FBI showed up on August 8 last year.

Agents had another concern: The lock on the door to the storage room was flimsy. The officials urged staff to put a better lock on the door, which De Oliveira did — using a hasp and a padlock to keep it secure, the people said. If there were still highly sensitive classified documents in the room, such a lock was far from sufficient, but it was better than nothing.

[snip]

When FBI agents arrived at Mar-a-Lago the morning of Aug. 8 with a court-issued search warrant, De Oliveira was one of the first people they turned to. They asked him to unlock a storage room where boxes of documents were kept, people familiar with what happened said. De Oliveira said he wasn’t sure where the key was, because he’d given it to either the Secret Service agents guarding the former president or staffers for Trump’s post-presidency office, the people said.

Frustrated, the agents simply cut the lock on the gold-colored door. The incident became part of what investigators would see as a troubling pattern with the answers De Oliveira gave them as they investigated Trump, the people said.

But apparently, sometime before that, De Oliveira added a lock to a closet within Trump’s residence, one that may have stored some subset of the roughly 35 boxes that didn’t get moved back into the storage closet so Corcoran could search them.

Perhaps that lock was designed to ensure that Evan Corcoran didn’t accidentally find the other 35 boxes full of classified documents.

The fact that he changed that lock makes his paltry efforts to secure the main storage closet all the more damning.

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Death by Tweet: “User Attribution Is Important”

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Before Dan Scavino told the grand jury that he wasn’t in the room when that tweet was sent, as he must have, DOJ would have needed a better idea whether Scavino sent the tweet, to know whether he was telling the truth once he did sit for a privilege waived interview.

But they were also asking for a very specific clue about the other part of that murder weapon: some way to identify the phone from which the potentially deadly tweet was sent. Identifying which phone was alone in the room with Donald Trump on January 6 would also identify which phone to go seize to learn who else Trump was communicating with when he was sitting alone in his dining room as he watched his supporters assault the Capitol. Identifying which phone was alone in the room with Donald Trump on January 6 would help to fill the gap in communications that the January 6 Committee never completely filled.

And not just that phone.

Obtaining the associations to Trump’s Twitter account would also help explain one of the most enduring mysteries about January 6: What happened between the time Sidney Powell left after a screaming meeting on December 18 and the time Trump announced the rally in the early hours of December 19, leading thousands of his most rabid followers to start planning to come to DC?

87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, “Big protest in D.C. on January 6th. Be there, will be wild!” Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

That December 19 tweet, and the phone it was sent from, was another kind of murder weapon, the shot that would set off the entire riot. And to figure out who was wielding it, the circumstances in which it went off, investigators would work backwards from where it was stored, on Twitter.

They would want to know, too, how Ali Alexander and Alex Jones copped on so quickly — whether any of the participants in the DM lists via which Stop the Steal was coordinated had a user who also had access to Trump’s Twitter account.

Even before Trump became President, his communication habits made it very difficult to pin down his actions. Roger Stone, for example, would call Trump during the 2016 election on Trump’s cell, his Trump Tower phone, two work phones, via three different assistants, and Keith Schiller. And Stone often used other people’s phones to call on.

Trump still has a habit of using other people’s phones. The stolen documents indictment reflects Molly Michael telling Walt Nauta that Trump had had her phone. Several of Trump’s aides were asked by J6C whether Trump ever used their phones; several probably didn’t tell the truth in response.

But much of execution of January 6 went through the single most stable means of communication Donald Trump had: his Twitter account. And to attribute any actions that happened using Trump’s Twitter account, DOJ needed as much data as possible about who else used it and in what circumstances.

User attribution is important. Especially with a guy who has the ability to murder by tweet.

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“Poor Mr. Zebley:” Both Xitter’s Lawyers and Journalists Responding to Boilerplate Need to re-Read Mueller

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I’ve stopped trying to convince Russian denialists on Xitter that they’re willfully ignorant of facts. At this point, denialists are just trolls exploiting Xitter’s algorithm to create scandal.

I try to focus my time, instead, on conspiracy theorists platformed by prominent schools of journalism.

But when others try to correct denialists on Xitter, they almost always say the denialists haven’t read the Mueller Report closely enough.

So I found it wildly ironic that Chief Judge Beryl Howell, during a period in February when Elon Musk was letting denialists like Matty Dick Pics Taibbi invade the privacy of then-Twitter’s users so he could spew conspiracy theories, Howell scolded Twitter’s lawyer George Varghese that he hadn’t read the Mueller Report closely enough.

THE COURT: You need to read the Mueller report a little bit more carefully.

The transcript of the court hearing and much of the rest of the back-up to Xitter’s attempt to stall compliance of the warrant was unsealed yesterday.

Mind you, Howell was trying to convey to Twitter’s team that there is precedent for investigating Donald J. Trump without giving him advance warning of every investigative step.

MR. VARGHESE: Yes, Your Honor. Our —- by

THE COURT: You think that for 230 orders, 2800 subpoenas, and 500 search and seizure warrants the Mueller team gave advance notice to the former President of what they were about?

MR. VARGHESE: I don’t know that, Your Honor.

THE COURT: You do not know that.

The hearing made it pretty clear that Howell is convinced that Trump will stop at nothing to obstruct criminal investigations into himself.

Howell, who knows what went into the Mueller Report as well as anyone outside the investigative team, does know that.

In fact, when she told Varghese he should have read the Mueller Report more closely, she had just pointed to private comms described in the Mueller Report — the ones where Trump told Mike Flynn to stay strong — where Trump had not gotten advance notice, as prosecutors were demanding he not get advance notice about a warrant to Twitter.

THE COURT: Because the Mueller report talks about the hundreds of Stored Communications Act — let me quote.

Let’s see.

The Mueller report states that: As part of its investigation, they issued more than 2800 subpoenas under the auspices of the grand jury in the District of Columbia.

They executed nearly 500 search and seizure warrants, obtained more than 230 orders for communications records under 18 U.S.C. Section 2703(d); and then it goes on and on and on for all of the other things they did.

And some of those communications included the former President’s private and public messages to General Flynn, encouraging him to “Stay strong,” and conveying that the President still cared about him, before he began to cooperate with the government.

So what makes Twitter think that, before the government obtained and reviewed those Trump-Flynn communications, the government provided prior notice to the former President so that he can assert executive privilege?

MR. VARGHESE: My understanding, Your Honor, is that the Mueller investigators were in contact with the White House counsel’s office about executive privilege concerns.

THE COURT: You quoted the one part that said that, and that was for testimony, testimony, where it was not covert.

Side note: Xitter’s lawyers may not have been entirely wrong about consultations with the White House counsel, even for materials obtained covertly.

This exchange happened on February 7. Two days later there was a follow-up hearing, and WilmerHale counsel Aaron Zebley — someone who knows better than Beryl Howell what happened to the materials for which Howell approved legal process after it got handed over but before they ended up in the Report itself — filed an appearance in this challenge. He never spoke though; he showed up late, if at all, and at one point, after Twitter had presented their opening argument, Howell asked someone to check whether “poor Mr. Zebley” was standing outside a locked door waiting to get in.

THE COURT: Okay. Well, let me just —

Mr. Windom, do you want to think about that or do you want to respond?

Do you think Mr. Zebley is standing outside the locked door?

MR. HOLTZBLATT: I think there is a chance.

THE COURT: Could you check? Poor Mr. Zebley.

MR. WINDOM: Should I wait, Your Honor, or proceed?

THE COURT: Proceed. In my chambers we wait for no man.

Twitter was trying to make an argument that someone had to attend to potential Executive Privilege claims. Howell and the prosecutors nodded several times to a filter protocol addressing privilege issues, of which Twitter was ignorant. And yet Twitter was refusing to comply unless they had the opportunity to tell Donald Trump about the warrant in advance.

Beryl Howell, who was years into her second investigation of Donald Trump at this point, might be forgiven for impatience with lawyers who don’t understand how many Executive Privilege disputes she had presided over between those two investigations. They might be forgiven for their ignorance of all the resolutions of Trump’s current challenges to Executive Privilege in the January 6 investigation.

That said, Twitter’s lawyers aren’t the only ones who should have read the Mueller Report more closely. So are the journalists reporting on this.

One after another journalist (CNN, NYT, Politico, all involving journalists who covered the Mueller investigation) has mistaken DOJ’s request for data — attachment B to the warrant — as some kind of statement of what DOJ was most interested in receiving. Based on that, their stories focus on the fact that DOJ asked for or obtained DMs involving the former President.

But that attachment looks to be largely boilerplate. It is not much different from warrants obtained five years ago, in the Mueller investigation, such as this one, also served on Twitter, apparently targeting Trump’s rat-fucker Roger Stone in an investigation into whether he was serving as a foreign agent of Russia, a warrant that also came with a gag, one Twitter did not contest. One main — telling — difference, is that the Trump request included standard subscription information, which Mueller’s investigators appear to have already requested; one of the items on which Twitter held up compliance, in fact, was Trump’s gender, a sure testament to obstruction within the company.

While Twitter’s services have changed significantly in the interim years, both ask for the same kind of information: DMs, drafts, deleted content, favorited content.

And for good reason!!! These warrants may well have been targeting the same kind of behavior, the kind of organized troll campaigns that exploit Twitter’s algorithms, in which users use a variety of means to obscure their identity. There is a significant likelihood these warrants were targeting precisely the same group of far right online activity, the very same people.

One of the most important Twitter users leading up to January 6, Ali Alexander, is the protégé of Roger Stone and the effort to drive attendance at January 6, Stop the Steal, was a continuation of the effort Stone started in 2016, an effort that may well have been covered by that 2018 warrant or one of the others targeting Stone’s Twitter activity.

To be sure: There are DMs in Trump’s account, though it’s not entirely clear when they date to. Without reading any of the DMs, Twitter checked to see whether the volume of data in Trump’s account indicated the presence of DMs.

MR. VARGHESE: So, Your Honor, we went back — because this was an important issue for us to compare, whether or not there were potentially confidential communications in the account, and we were able to confirm that.

THE COURT: How?

MR. VARGHESE: So, Your Honor, there was a way that we compared the size of what a storage would be for DMs empty versus the size of storage if there were DMs in the account. And we were able to determine that there was some volume in that for this account. So there are confidential communications. We don’t know the context of it, we don’t know —

THE COURT: They are direct messages. What makes you think — do you think that everything that a President  says, which is generically a presidential communication, is subject to the presidential communications privilege?

MR. VARGHESE: No, Your Honor.

But Twitter’s focus on DMs arose from their frivolous basis for delaying response to the warrant — their claim that some of these DMs might be subject to a claim of Executive Privilege.

Moreover, having DMs in the account is not the same thing as a prosecutor confirming that they ultimately obtained DMs, or that any DMs were relevant to the investigation, or that DMs were one of the things they were most interested in.

I don’t doubt that’s likely! But what prosecutors asked for and what was in the larger account is not the same thing as what DOJ ultimately received and used.

And the DMs — most of them, anyway — are something that were available elsewhere. At least as represented in the dispute, NARA already has Trump’s DMs from the period (DOJ chose not to go to NARA, in part, because they wanted to avoid notice that NARA has provided to Trump along the way).

There were three more things that DOJ showed perhaps more interest in, requiring Twitter to go beyond their normal warrant response tools to comply.

The first has to do with emails to Twitter about the account, of which prosecutor Thomas Windom was most interested in emails from people on behalf of Trump.

But this information about, you know, what it is that we say that we’re most specifically interested in, I did not represent that we were most interested in communications betueen government officials and Twitter regarding the account.

We did point out that — much as Your Honor did just now — it seemed beyond comprehension that there weren’t communications regarding the account when it was suspended and terminated, but that doesn’t mean government officials at least cabined to that. It can mean campaign officials. It can be anybody acting on behalf of the user of the account, or the user of the account himself.

THE COURT: So any person regarding the account is broader than what you just said, though, Mr. Windom.

“Any person regarding the account” is quite broad. It could be all the complaints of all of the Trump supporters out in the world saying: What are you doing, Twitter?

So I take it, from what you just said, that you are interested only in =- rather than “any person,” a person who was the subscriber or user of the account or on behalf of that person regarding the account?

MR. WINDOM: Yes, ma’am. An agent thereof.

When Twitter cut Trump off in 2021, they cut off active plans for follow-up attacks. And these emails might indicate awareness of how Trump was using Twitter as a tool to foment insurrection.

Another item on which Windom focused in the following hearing was associated accounts — other accounts the identifiers used with Trump’s accounts also use. Twitter claims they don’t have that — at least not in their law enforcement portal — and so had to collect it manually. But DOJ did ask them to produce it. (Note, the fact that Xitter doesn’t store this is one reason why they’re so bad at tracking information operation campaigns, because visibility on these kind of associations are how you discover them.)

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

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

[snip]

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

[snip]

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

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

As Windom explained, this information is critical to any attribution, but it’s also important to learning the network of people who would Tweet on Trump’s behalf, and any overlap between his account and their own (as Roger Stone’s showed in 2016).

Then there’s something that remains only partially explained. For some reason — even Twitter could not figure out why — there were two preservations of Trump’s account in January 2021, before the preservation associated with this warrant. One was on January 9. The other covered January 11 and 12. And when asked, the government of course wanted the latter preservation too — and it is in the possession of Twitter, and so covered by the warrant.

MR. HOLTZBLATT: At 5 p.m. on February 7th, I think that was our day, we produced all data in this category that was in the standard production tools of Twitter.

We communicated with the government on February 8th that there were prior preservations of the subject account that are not within Twitter’s standard production tools and that would, therefore, require engineering to obtain information. And we asked the government whether it wished us to undertake that effort, and the government confirmed that it did.

And we have since then — when we produced on February 7, we indicated to the government in our production letter that there was potentially deleted data that might exist, which is what would be found in prior preservations, but that it would require additional engineering efforts.

At 2 a.m. last night, or this morning, Twitter produced additional information from those prior preservations that falls within category 2A. There are —

THE COURT: When you say “prior preservations” what are you talking about?

Prior litigation holds of some kind or that you  had a stash or a cache of preserved data sitting in different places? What are you talking about?

MR. HOLTZBLATT: I am referring — with respect to this particular account, I am referring to preservations from two specific dates. There is a preservation that was made that includes the subject account covering January 3rd to 9th, 2021. There is a second preservation of this that includes this account that covers January 11 to 12, 2021.

Those are collections of data that — they are not — it’s not coterminous with the categories that would exist in the active account right now and — and that’s data that does not exist within a production environment. So it’s not data that you can just click — we have a system to just click a button and produce, which is why we indicated that further engineering efforts might be necessary.

We asked the government if they wished us to undertake those efforts. We had an engineer working through the night, after the government asked us to, to undertake those efforts. At 2 a.m. in the morning we produced additional information that came from those preservation.

There are two categories of information that — actually, I’m sorry, three categories of information that we are still working to produce because of the engineering challenges associated.

One of those categories is the list of — I am not sure this is from 2A. But I think, for purposes of coherence, it would be helpful for me to describe it now because it connects to this preservation; that is,  followers — a list of followers for this account that were contained within the January 11 through 12th prior preservation. We have segregated that information. It is a complicated and large set of information. And we are unable to deliver it in the manner that we normally deliver information to law enforcement, which is to send a token.

We believe right now it would require physical media to put that information on and to hand it over to the government.

[snip]

MR. HOLTZBLATT: As I mentioned, Your Honor, there were two prior preservations, and then there is the current production tools. In two of the three of those sets, the January 3 through 9 and the current one, we have produced the tweets and related tweet information for the account.

In the January 11 to 12th prior preservation, the way that the tweet and tweet-related information is stored, it goes all the way back to 2006. We don’t have a warrant — that is contents of user communications. He don’t nave a warrant that would permit us to produce the entirety of that information. So what we have is a tool 7 that — what we refer to as a redaction (sic) tool or trimming tool. Because this is not a production environment, a human being has to go in and manually trim the information to isolate the date range. That, I think Your Honor can understand, is a laborious process, including for this particular account, given the time frame; and we need to isolate it, I think, over a three-month, four-month period, I’m sorry, Your Honor. So we are undertaking it.

Unsurprisingly, DOJ wanted to be able to compare the accounts as they existed on January 8 and January 12, 2021, because Trump’s attack was still ongoing and because people were beginning to delete data.

Trump’s DMs, if he used them or even just received them in this period, would be critically important. But Twitter was one of Trump’s most important tools in sowing an insurrection. And the data showing how he used the account, and who also used it, is as important to understanding how the tool worked as the non-public content.

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Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

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The Georgia indictment and Trump’s federal indictment tell the same story. But those stories have some key differences, that will create an interesting prisoner’s dilemma for those involved. The different exposure of Sidney Powell in both and the different treatment of Ruby Freeman show how they’re different.

Sidney Powell’s lawsuits and alleged hacking

The last overt act described in the federal indictment against Donald Trump describes how, at 3:41AM, Mike Pence certified the election for Joe Biden.

123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.

But two of the charged conspiracies — the 18 USC 371 conspiracy to defraud the US and the 18 USC 241 conspiracy against rights — go through January 20. Since they are charged as conspiracies, anything Trump’s co-conspirators said and did after January 6 can also be used to prove the case against Trump.

That’s particularly notable for Trump’s Crazy Kraken Conspirator, Sidney Powell. As noted, the only overt act of hers described in Trump’s federal indictment has to do with her lawsuits targeting Dominion.

Those lawsuits don’t figure in the Georgia indictment at all — not even the November 25 one against Georgia explicitly described in the federal indictment. Instead, Powell’s primary criminal exposure in the Georgia indictment has to do with her conspiracy to get access to Dominion data from Coffee County, a conspiracy that — the Georgia indictment alleges — started on December 1, continued through their access of the data on January 7, after which the data continued to be exploited until at least April. Powell’s larger effort to exploit Dominion data, even that obtained in Michigan, plays a part in the RICO conspiracy.

In the federal case, Powell’s lawsuits serve both to justify backstopping of the electoral certification (meaning, you had to have lawsuits to justify having fake electors) and to prove that Trump was magnifying fraud claims from someone — Powell — everyone openly labeled as batshit. If and when Jack Smith ever adds charges — against Powell, Trump, or his PAC — for fraudulent fundraising, his embrace of claims sourced to Powell will be important to prove he knew he was lying in his fundraising.

In the Georgia case, by contrast, she is charged with outright conspiracy to illegally access computers and election fraud associated with accessing the Dominion data.

The overall arc of the conspiracies is the same; the criminal exposure is radically different.

Death threats and interstate entrapment efforts

Paragraph 26 of the federal indictment describes how Rudy Giuliani lied in a Georgia hearing, including but not limited to about Ruby Freeman and Shaye Moss, which resulted in death threats.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

Prosecutors are well aware of the import of Trump’s bullying — they made it part of their bid for a protective order. But, probably in an effort to stave off any real claim about charging First Amendment protected speech, such bullying is not charged, not even Trump’s targeting of Mike Pence.

The Georgia indictment, as Rick Hasen also notes, focuses much more on crimes targeting Freeman and Moss.

Rudy is charged for the lies he told on December 10 in Count 7. He and Ray Stallings are charged with soliciting Georgia Representatives to violate their oaths in Count 6.

But in addition to that, Lutheran minister Steve Lee is charged with two counts for trying to trick Freeman, once on December 14 and again on December 15, into confessing to voter fraud that didn’t happen. And he is charged along with Kanye’s publicist, Trevian Kutti, and Black Votes for Trump official Harrison Floyd with another attempt to get her to confess to voter fraud on January 4 and an attempt to get her to lie to the state.

These are alleged crimes that arise from Freeman’s status as a Fulton County election worker and as such are properly the concern of Fani Willis, not Jack Smith.

All of which is to say that even though both the RICO charge and Trump’s conspiracies map the same conduct, they tie to different crimes, with different kinds of exposure for different people.

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

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.

In other words, if people who are likely to be indicted by Jack Smith think the charges in Georgia are at all serious, they may flip sooner rather than later, which will likely lead them to cooperate in the DC case as well.

There’s a reason why prisoner’s dilemma is the basis for so much game theory. The way these two competing indictments intersect may rewrite that doctrine, something called Trump defendant dilemma.

Then consider the timing. Later this month — potentially on August 28, three days after all Willis defendants have to turn themselves in — Jack Smith’s prosecutors will fight for a January 2 trial date, which is ambitious. Last night, Fani Willis said she wanted to bring all 19 defendants to trial within 6 months, which would be late February or March.

Even if one or both of those dates would hold, it might require Alvin Bragg be willing to reschedule his own trial on the hush payment cover-up.

But if even just one of these trials goes forward on such an ambitious schedule, it would mean that this Trump defendant dilemma will be playing out even as GOP primary voters go to the polls.

The Bubble Three

One of the most interesting other ways the Georgia indictment and the federal one will interact is in how the three men on the bubble — Mike Roman, Boris Epshteyn, and Mark Meadows — respond. While we’re not yet sure whether Boris or Roman is CC6 in the federal indictment, there’s more support right now for it being Boris. Both men had their phones seized by DOJ in September. Both men sat (or said they’d sit) for proffers with Jack Smith’s team; neither has been (publicly) charged by DOJ yet.

Roman is charged in the Georgia indictment, both with the RICO charge and the Trump side of each of the fake elector charges. He’s the guy who was interacting directly with people in Georgia (and with CC4, Robert Sinners, who cooperated even with the January 6 Committee). If Roman actually did start cooperating with Jack Smith’s team, there’d be no down-side to doing so with Willis’ team, either.

Boris, by contrast, is almost certainly CC3; Act 109, describing a Chesebro email to Eastman and CC3 matches this passage from the January 6 Report.

By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that thereare two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”122

So Boris is not facing the charges that can’t be pardoned but may he facing the charges that can be.

Finally, there is Meadows. The slim exposure for Meadows in this indictment — he is charged in the RICO charge and the solicitation charge tied to the Raffensperger call — may explain why he was not listed as a co-conspirator, yet, for the Jack Smith indictment. The most damning acts attributed to him in the indictment were:

  • Sometime in December: Meeting with Johnny McEntee and asking him for a plan to throw out half the electoral votes in some states
  • December 22: Unsuccessfully attempting to enter the audit site in Georgia
  • December 27: Offering Trump campaign funds if it would help get signature verification done by January 6

Other than that, Meadows’ actions entail setting up phone calls on which Trump lied and solicited unlawful acts. Meadows has a superb lawyer and might try his luck with these charges.

If any of these men cooperated — if any already is (though I really think Meadows is not) — then it would provide both prosecutors a pivotal person in the conspiracies (and, in Boris’ case, the stolen documents conspiracy as well).

As I said above, the interaction of these two indictments, along with the uncertainty as Jack Smith continues to investigate, creates a fierce game of prisoner’s dilemma. And that’s before Smith charges any financial crimes tied to fraudulent fundraising.

Update: Meadows has moved to remove the charges against him to federal court — a move he may have more success doing than Trump.

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The Various Kinds of Georgia Crimes in the RICO Indictment

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There’s so much good reporting out of Georgia that I’m going to mostly leave close coverage of the Georgia case to them going forward.

But the Georgia prosecution will interact with Jack Smith’s ongoing investigation in interesting ways. To explain how, I want to first show that the indictment is, fundamentally, about protecting the integrity of Georgia’s government and elections. To see that, it helps to read counts 2 through 41 before reading the RICO charge, which is laid out in 70 pages describing 161 overt acts, many of which took place outside of Georgia.

Those counts fall into the following groups:

Lies to and solicitation of Georgia officials

Count 2 though Count 7: False claims and illegal requests made, many by Rudy Giuliani, before the fake electors scheme. These were lies told to official bodies of Georgia state government, and charging them is an attempt to prevent corruption in state government.

Count 23 through Count 26 charge Rudy, Ray Smith, and Robert Cheeley with false claims and solicitations on December 30 — similar in structure and purpose to Counts 2 through 7.

Count 28 charges both Trump and Mark Meadows for the January 2 call to Brad Raffensperger. Count 29 charges Trump for the lies he told during the call.

Counts 38 and 39 charge Trump with lies and solicitations of Brad Raffensperger on September 17, 2021.

Fake electors

Count 8 through Count 19: These are a series of six paired charges tied to various kinds of fraud involved with the fake electors. In each pair, the first count charges David Shafer, Shawn Still, and Cathleen Latham for doing the fraudulent thing, and the second count charges Trump, Rudy, John Eastman, Ken Chesebro, Ray Smith, Robert Cheeley, and Mike Roman with soliciting the fraudulent thing. They’re a near parallel to the Michigan charges against the fake electors, except that in Georgia only the three most culpable fake electors are charged, and there’s a mirror charge for Trump’s side of the conspiracy.

Attempts to entrap Ruby Freeman

Counts 20 and 21 and : These charge two efforts to defraud Ruby Freeman by offering her help when in fact they were an attempt to entrap her.

Count 30 and Count 31 charge aspects of a plot to get Kanye’s publicist to travel from Illinois to Georgia to entrap Ruby Freeman into making false claims.

Lies about Georgia

Count 22 charges Jeffrey Clark for his attempts to get DOJ to claim the Georgia election was fraudulent.

Count 27 charges Trump and Eastman with lying about Georgia’s results in a lawsuit.

Tampering with Coffee County tabulators

Count 32 through Count 37 charge Sidney Powell, Latham, and two others for tampering with the Coffee County vote tabulators. Again, this has a parallel in the Michigan charges against Matt DePerno and two others.

Lies during the investigation

Count 40 charges David Shafer with false statements told during the investigation.

Count 41 charges Robert Cheeley with perjury for false claims made during the investigation.

As I understand it, these are the charges on which the RICO conspiracy is built. The RICO conspiracy gives prosecutors additional tools and penalties with which to prosecute this (similar to the conspiracy law charged at the federal level). But ultimately it is built on a series of crimes charged to protect the integrity of Georgia’s government. They stand for the principle that you can’t simply come into Georgia and lie and defraud in an attempt to get state officials to violate their oaths of office.

Update: Corrected spelling of Cheeley’s last name.

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How James Comer’s Counsel, James Mandolfo, Conducts an Investigation

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Amid the excitement yesterday, the Oversight Committee released the transcript of the now-retired FBI Agent who would have interviewed Hunter Biden if a bunch of things had gone differently on December 8, 2020.

Because I appear to be the only one who read the Gary Shapley and Joseph Ziegler interviews closely, I wanted to make sure to describe this one — to describe how James Comer’s counsel, James Mandolfo, simply ended the interview when the witness started describing how the rules about lawyers, sensitive persons, and elections — the same rules that Republicans claimed to care about with Carter Page — would have required the FBI to adopt less intrusive methods than they might otherwise have done.

As to the topic that the Oversight Committee cared about, the agent admitted he was upset that the Biden Transition Team learned of the interview in advance (though as he described, he only heard that from Gary Shapley). He also revealed that he and Shapley had another person to interview that day.

A We waited a period of time.    You know, I will add, it was frustrating, and I know supervisor number two was very frustrated, and I understood that frustration, but I also ‐‐ we had other ‐‐ another interview to conduct.    So after a certain period of time, and I don’t exactly recall how long, we transitioned to make an attempt to interview another ‐‐ or a witness as part of the investigation.

Shapley didn’t describe that detail. When being questioned by Democrats, the agent described that he simply moved on after this, and said he personally had not witnessed any politicization.

When Mandolfo asked for more background on Shapley’s claim that the FBI agent had asked, in May 2022, why the IRS weren’t asking for a Special Counsel, the agent’s attorney advised him not to answer on deliberative privilege basis.

The agent retired just a month after that, after the normal 20-year career at the FBI.

When the Democrats questioned the witness, though, he provided answers that were less helpful to James Comer’s conspiracy theories. He described how careful the FBI has to be when investigating attorneys and that such an investigation might require using least intrusive investigative methods. He described addition approvals required for Sensitive Investigative Matters. He described the care required during an election.

Effectively, he described that the FBI applied the rules required by the FBI’s investigative manual, the same ones that protected Donald Trump’s during the 2016 election.

Things got weirder when the Democratic staffers asked about the leaks. They appeared to be doing the same thing, basically getting this witness to explain why the things Shapley and Ziegler complained about all had ready explanations. And ultimately, the FBI agent did concede that if leaks got really bad it might make sense to reassign a team.

But when asked if he had ever been part of an investigation from which there were leaks, he denied it.

Q Generally speaking, do you think it could be problematic for agents’ views in 4 any ongoing investigation to be publicly reported or released to news sources?

A Yes.

Q And it could create problems potentially for the integrity of an investigation?

A Yes.

Q In your career, have you ever worked on an investigation in which there were leaks?    And you don’t need to be specific, just yes or no.

Mr. Zink [the Agent’s attorney]. Leaks to the press?

[Dem staffer]: To the press.

[Retired FBI Agent] Sorry. My pause is I’m thinking back through my career.

[Dem staffer] No, that’s fine.

[Retired FBI Agent] Not that I recall.

Wrong answer!!

The Hunter Biden investigation had several major leaks, starting in 2020, and continuing through the period when he retired (he was also part of the Duke Cunningham investigation, though I don’t recall major leaks from that).

Having not recalled that this investigation had serial major leaks, his answer about what he would do if he learned of one was still weirder.

[Retired FBI Agent] Not being part of one previously, I’d ‐‐ I, you know, believe it would 10 go to our Internal Investigations Section.    Whether there was ‐‐ now, if you’re asking if it  was an unsubstantiated allegation versus something I did believe happened, you know, then maybe potential removal of ‐‐ of, you know, the agent in question from the case to protect the integrity of the investigation.    You know, I’d want those steps to be taken.

[Dem staffer to Dem staffer] do you have any other questions before we stop?

[Dem staffer] So the question my colleague was asking you is there’s ‐‐ there’s an ongoing investigation. There’s a concern that there is a leak coming from someone on the investigative team, but ‐‐

Mr. Zink.    You mean generally or ‐‐

[Dem staffer] Generally.

Mr. Zink. Okay.

[Dem staffer] and ‐‐ but there is no clear answer as to who on the investigative team it is.    Would it be reasonable for management to consider removing the entire investigative team in order to protect the integrity of the investigation?

Ultimately the agent, who claimed he would have told his supervisor if there were a leak as there had been on this case which he didn’t acknowledge had been riddled by leaks, conceded that you might ultimately remove people from the team.

The discussion then turned to details about the investigation when someone — possibly the agent himself — asked to go off the record.

And that was it.

Mandolfo came back and ended the interview.

Mr. Zink. Just want to confirm with counsel for majority and minority that the terms “target,” “subject,” and “witness” as they were used in today’s questioning modify and relate to the FBI and Department’s investigation, not the grand jury’s investigation. Just confirming that.

Mr. Mandolfo. Yes. And just based upon the narrow scope and agreement that was formed amongst counsel and the parties that this would be limited to a very limited set of facts, we are now going to conclude with speaking with [Retired FBI Agent] at this time.

It’s not clear whether Mandolfo ended the interview because the retired agent realized he had violated grand jury rules (thus the clarification from his lawyer), whether he realized answering the question about other agencies would do so, or whether the discussion of leaks had been so unhelpful that Mandolfo had to stop.

But the tactic was a fairly telling indicator of what would happen if there were a substantive review of the investigation into Hunter Biden.

Perhaps we’ll now see some of that in discovery.

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Indictments Ahead: Waiting on Fulton County GA [UPDATE-2]

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[NB: Check the byline, thanks. /~Rayne]

Because discussion of the anticipated announcement of indictments by Fulton County, Georgia district attorney’s office is bleeding into other dedicated threads, I’m publishing a post for this purpose.

The chatter began across the internet this past weekend when CNN reported the DA’s office had copies of texts implicating Team Trump — by which I mean people working directly with Trump to overturn the 2020 election — in efforts to breach voting equipment in Coffee County, Georgia.

After Fulton County accidentally released what appeared to be a copy of the charges against Donald Trump early Monday afternoon, clamor ramped up even after the copy was yanked from publication.

At this moment — shortly after 11:00 p.m. ET — we are waiting for an announcement from Fulton County DA’s office as the grand jury handed over indictments around 9:00 p.m. ET this evening.

~ ~ ~

UPDATE-1 — 11:50 P.M. —

The charging document has been filed and published on line in the last 20 minutes.

Donald J. Trump has been charged with the following:

Description

OCGA Statute

Level

Date
1 (Violation Of The Georgia RICO (Racketeer Influenced And Corrupt Organizations) Act

16-14-4

Serious Felony

11/04/2020
5 Solicitation of Violation of Oath by Public Officer

16-4-7(b)

Felony

12/07/2020
9 Conspiracy To Commit Impersonating a Public Officer

16-4-8

Felony

12/06/2020
11 Conspiracy To Commit Forgery in the First Degree

16-4-8

Felony

12/06/2020
13 Conspiracy To Commit False Statements and Writings

16-4-8

Felony

12/06/2020
15 Conspiracy To Commit Filing False Documents

16-4-8

Felony

12/06/2020
17 Conspiracy To Commit Forgery in the First Degree

16-4-8

Felony

12/06/2020
19 Conspiracy To Commit False Statements and Writings

16-4-8

Felony

12/06/2020
27 Filing False Documents

16-10-20.1(b)

Felony

12/31/2020
28 Solicitation of Violation of Oath by Public Officer

16-4-7(b)

Felony

01/02/2021
29 False Statements and Writings

16-10-20

Felony

01/02/2021
38 Solicitation of Violation of Oath by Public Officer

16-4-7(b)

Felony

09/17/2021
39 False Statements and Writings

16-10-20

Felony

09/17/2021

D.A. Fani Willis is expected to make a public statement yet this evening.

~ ~ ~

UPDATE-2 — 12:20 a.m. 15-AUG-2023 —

D.A. Willis held a presser, see: https://youtu.be/eRDNfE5GOqE

Willis said indictees Trump and the other 18 racketeering defendants are to surrender by noon August 25.

Georgia criminal defense attorney Josh Schiffer appeared on Atlanta First News to explain the indictment — see https://youtu.be/223pKFi4BHE

~ ~ ~

This post may be updated as events unfold with any updates to appear at the bottom of this post.

Bring all discussion of the Fulton County investigation and indictments to this thread.

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Alberto Gonzales Lectures Jack Goldsmith about Perception versus Reality in a Democracy

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I never, never imagined I’d see the day when Alberto Gonzales would school Jack Goldsmith on how to defend democracy.

Once upon a time, remember, it fell to Goldsmith to school Gonzales that the President (or Vice President) could not simply unilaterally authorize torture and surveillance programs that violate the law by engaging in cynical word games.

But now, Goldsmith is the one befuddled by word games and Gonzales is the one reminding that rule of law must operate in the realm of truth, not propaganda.

In a widely circulated NYT op-ed last week, Goldmith warned that democracy may suffer from the January 6 indictment of Donald Trump because of the perceived unfairness (Goldsmith doesn’t say, perceived by whom) of the treatment of Trump.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year [1] and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator [2], a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information [3], transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate [4] and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign. [5]

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation [6], though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge [7]. [my emphasis; numbers added]

Rather than parroting perceptions, in his op-ed, Gonzales corrects a core misperception by pointing out a key difference between Hillary’s treatment and Trump’s: Hillary cooperated.

I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.

I can understand the skepticism, but based on the known facts in each case, I do not share it.

[snip]

A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate.

By contrast, Goldsmith simply ignores the backstory to virtually every single perceived claim in his op-ed.

  1. Aside from a slew of other problems with the linked Carol Leonnig article, her claims of delay in the investigation do not account for the overt investigative steps taken against three of Trump’s co-conspirators in 2021, and nine months of any delay came from Trump’s own frivolous Executive Privilege claims
  2. Trump’s Deputy Attorney General chose to release Peter Strzok’s texts (which criticized Hillary and Bernie Sanders, in addition to Trump), but not those of agents who wrote pro-Trump texts on their FBI devices; that decision is currently the subject of a Privacy Act lawsuit
  3. After Trump used Jim Comey’s gross mistreatment of Hillary in actions that was among the most decisive acts of the 2016 election as his excuse to fire Comey, DOJ IG investigated Comey for publicly revealing the real reason Trump fired him
  4. No Justice Department officials were faulted for the Carter Page errors, and subsequent reports from DOJ IG revealed that the number of Woods file errors against Page were actually fewer than in other applications; note, too, that Page was a former associate of Trump’s, not a current one
  5. Investigations against both Hillary (two separate ones predicated on Clinton Cash) and Trump were predicated using oppo research, but perceptions about the Steele dossier ended up being more central because in significant part through the way Oleg Deripaska played both sides
  6. One of the IRS agents Goldsmith treats as credible refused to turn over his emails for discovery for eight months when asked and the other revealed that he thought concerns about Sixth Amendment problems with the case were merely a sign of “liberal” bias; both have ties to Chuck Grassley and one revealed that ten months after obtaining a laptop that appears to have been the result of hacking, DOJ had still never forensically validated the contents of it
  7. In the wake of that organized campaign against Hunter Biden, a Trump appointed US Attorney limited the scope of the plea which led to a Trump appointed judge refusing to accept it

For each instance of perceived unfairness Goldsmith cites — again, without explaining who is doing the perceiving — there’s a backstory of how that perception was constructed.

Which is the more important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

[A]s I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.

[snip]

While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.

Sadly, this has led on the right to a growing distrust of and rage against the Justice Department.

[snip]

We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.

Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence — no matter how damaging to our democracy and the rule of law. [my emphasis]

Trump’s false claims of grievance, his concerted, seven year effort to evade any accountability, are themselves the source of damage to democracy and rule of law, not the perception that arises from Trump’s propaganda.

Which beings me back to the question of who is perceiving this unfairness. By labeling these things “perceived” reality, Goldsmith abdicates any personal responsibility.

Goldsmith abdicates personal responsibility for debunking the more obvious false claims, such as that Hunter Biden, after five years of relentless attacks assisted by Bill Barr’s creation of a way to ingest known Russian disinformation about him without holding Rudy legally accountable for what he did to obtain it, after five years of dedicated investigation by an IRS group normally focused on far bigger graft, somehow got a sweetheart deal.

More troubling, from a law professor, Goldsmith abdicates personal responsibility for his own false claims about the legal novelty of the January 6 indictment against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.

One reason the investigation took so long — one likely reason why DOJ stopped well short of alleging Trump incited the violence on the Capitol and Mike Pence personally, in spite of all the evidence he did so deliberately and with malign intent — is to eliminate any First Amendment claim. One might repeat this claim if one had not read the indictment itself and instead simply repeated Trump’s lawyers claims or the reports of political journalists themselves parroting Trump’s claims, but not after a review of how the conspiracies are constructed.

As to the claim that all three statutes are novel applications? That’s an argument that says a conspiracy to submit documents to the federal government that were identified as illegal in advance is novel. Kenneth Chesbro wrote down in advance that the fake elector plot was legally suspect, then went ahead and implemented the plan anyway. John Eastman acknowledged repeatedly in advance that the requests they were making of Mike Pence were legally suspect, but then went ahead and told an armed, angry crowd otherwise.

The claim that all three charges are novel applications is especially obnoxious with regards to 18 USC 1512(c)(2) and (k), because the application has already been used more than 300 times (including with people who did not enter the Capitol). The DC Circuit has already approved the treatment of the vote certification as an official proceeding. And — as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters. And if SCOTUS were to overturn the application of obstruction to the vote certification — certainly within the realm of possibility from a court whose oldest member has a spouse who might similarly be charged — the response would already be baked in.

To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

American democracy, American rule of law, is no doubt in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.

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Pardoned Felon Bernie Kerik’s Three Stories

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Before I lay out the three different versions of Berie Kerik’s testimony with Jack Smith’s prosecutors last Monday, I want to make a separate observation. After turning a bunch of documents over to Jack Smith, Kerik’s stance regarding the privilege claims in the Ruby Freeman lawsuit changed.

Previously, he had said that the privilege was Trump’s and Trump had to decide.

But first on July 24 (three days after Kerik handed over documents to Jack Smith’s team) and then again in a status filing filed on Friday, August 4, he consented to let Beryl Howell review any that Freeman’s attorneys still contested, though Trump’s lawyers will get to challenge her decisions.

Following the Court’s order, on July, 23, Mr. Kerik produced a privilege log, (the “Revised Privilege Log”), see Exhibit 1, and 562 documents previously withheld as privileged (the “Previously Withheld Documents”) that were de-designated by the Trump Campaign. ECF. No. 83 at 2. On July 24, 2023, after meeting and conferring, Plaintiffs and Mr. Kerik filed the Joint Stipulation where the parties agreed that:

• should Plaintiff choose to challenge the privilege designation for any documents in the Revised Privilege Log, “Mr. Kerik takes no position and consents to their disclosure for in camera review by the Court;”

Freeman’s attorneys are asking Howell to review everything (unless Howell rules that Rudy has defaulted on the whole suit).

Plaintiffs have now reviewed the 562 Previously Withheld Documents and the Revised Privilege Log. It is Plaintiffs view, having completed this review and consistent with Plaintiffs’ predictions, that the vast majority (if not all) of the Previously Withheld Documents were not properly withheld as privileged. Apparently at the instruction of third parties, Mr. Kerik continues to withhold 318 documents based on both attorney-client and work product privilege. Plaintiffs have identified 97 documents that, on the face of the privilege log, appear not to be privileged, and also appear to be related to Plaintiffs’ claims. (See Ex. 2.) At minimum, Plaintiffs request that the Court should review these 97 documents in camera. However, because Plaintiffs’ assessment of what warrants further review is based on the descriptions in the Revised Privilege Log, and because Mr. Kerik previously logged documents which we not privileged, Plaintiffs respectfully submit that the more prudent course of action may be an in camera review of the full set of 318 documents. Mr. Kerik has previously stated that he has no opposition to this relief. See ECF No. 83 at 3.

It matters that Howell, who until March presided over the grand jury investigating Trump, would preside over that review.

Among the documents that Kerik is still withholding — at least from Freeman — is a document forwarding something from (!!!) 4Chan to both Kerik and Phil Waldron, alleging a Ukrainian role in Dominion Voting Systems.

Minutes after the 4Chan tip, Waldron and Kerik were also exchange claims that seem centrally pertinent to Freeman’s lawsuit.

Keep that in mind as you read the various stories that pardoned felon Bernie Kerik told the press about his testimony to Smith’s prosecutors.

The first version, from CNN, posted shortly after Kerik left the interview. Kerik’s lawyer, Tim Parlatore, claims that Kerik (who was receiving pitches from 4Chan) operated in good faith.

Kerik’s attorney Timothy Parlatore told CNN on Monday that Kerik told investigators about what Giuliani was doing in late 2020 to hunt down potential evidence of fraud that would show that Trump actually won a second term.

Kerik discussed “what the Giuliani team was doing” and “all the efforts they took at the time to take all the complaints of fraud, to see what they could do to chase them down,” Parlatore said. “Really kind of establishing that at that time, when they weren’t really able to necessarily establish proof, they had probable cause and they were pursuing investigation in good faith.”

Investigators also asked about the seven states that were the focus of Giuliani’s efforts, doing a deep dive on each state to understand the basis for making election fraud claims. Investigators went state by state, asking about each claim of fraud and what it was based on and who they talked to.

Monday marked first meeting with the special counsel team. Smith was not in the room during the closed-door interview, Parlatore said. The interview was conducted by three special counsel prosecutors and two FBI agents.

Parlatore scoffed at the idea Rudy would be charged, basing that claim on whether Rudy — who is trying to avoid further discovery in the Freeman suit by stipulating that the claims he made about Freeman tampering with the vote — knowingly lied about voter fraud, not if Rudy knowingly plotted with Ken Chesebro to set up fake electors.

Asked if he thinks Giuliani will be charged by the special counsel, Parlatore told CNN, “No, not a chance.”

“The idea that Rudy Giuliani was intentionally pushing claims he knew were false is not something supported by the evidence,” Paraltore said. In the 45-page Trump indictment, prosecutors say the co-conspirator that CNN has identified as Giuliani “was willing to spread knowingly false claims.”

CNN may have been the only outlet to note — in the very last paragraph — that Kerik was convicted of fraud and then pardoned by Trump.

Years before Trump became president, Kerik was federally indicted and pleaded guilty to tax fraud and related financial crimes. He served three years in prison, was released in 2013, and received a full pardon from Trump in 2020.

Contrast CNN’s acknowledgment that Kerik was convicted for fraud with NYT’s focus, instead, on his background as a cop.

The word “fraud” shows up seven times in the NYT story, because of its centrality to the charges against Trump. Never once does it mention Kerik’s past fraud.

Instead, NYT describes that if Save America PAC had paid Rudy’s team, their claims of fraud might actually have been vetted better. (Politico’s story also focuses on the financial aspect.)

Among the questions prosecutors asked Mr. Kerik were several related to Mr. Trump’s main postelection fund-raising entity, Save America PAC. The special counsel’s office has been drilling down for months into whether the political action committee raised millions of dollars on claims that there was widespread fraud in the election, but ultimately earmarked the money for things other than investigating those claims.

Mr. Kerik told prosecutors that the team Mr. Giuliani had assembled to look into the allegations of fraud received no money from Save America PAC, even though it was one of the chief groups assigned the task of hunting down evidence that the election had been marred by cheating, Mr. Kerik’s lawyer, Timothy Parlatore, said on Tuesday.

Mr. Kerik also told prosecutors that if Save America had provided money to Mr. Giuliani’s team, it might have more accurately vetted the claims of fraud, Mr. Parlatore said.

Remember: this was the topic of a subpoena sent to Rudy last year, how he got paid.

Friday, Rolling Stone put Kerik’s testimony at the center of a third story: how Trump’s associates are trying to make Sidney Powell the fall-gal for everything.

On Monday, Bernie Kerik — a longtime Rudy Giuliani associate and a Trump ally who worked on the Giuliani-led legal team challenging Trump’s 2020 defeat — sat with special counsel investigators for a roughly four-and-a-half-hour interview, according to his lawyer Tim Parlatore. (Parlatore previously served as a top attorney to Trump, advising the ex-president on Special Counsel Smith’s probes.)

“Based on the contents of their questions, and my understanding of criminal law, the main individual who was discussed who Mr. Kerik gave any information that could be incriminating would be Sidney,” Parlatore tells Rolling Stone on Thursday. Parlatore added that what Kerik told investigators included: “That there was no back-up for anything she said, that when she was asked to provide proof she didn’t produce anything, and when she was cut loose [from the official Trump legal team], how she kept trying to push her way in.”

[snip]

Kerik, a former New York police commissioner, is one of the individuals who recently described to federal investigators — among other topics — details regarding Powell’s private behavior as she aided Trump’s attempts to subvert the 2020 election outcome. According to Parlatore, the ex-commissioner did not mince words: “During Bernie Kerik’s interview with the special counsel’s office, the issue of a possible mental health break and change in her demeanor and personality was discussed,” the attorney says.

Parlatore adds that during the investigators’ multi-hour interview with his client, the word “lunatic” was indeed used to describe Powell.

[snip]

However, the intense nature of the recent line of federal questioning has led various witnesses, lawyers, and others intimately familiar with the situation to the conclusion that Powell likely has a heavy amount of legal exposure in the current stage of Smith’s probe.

Or, as one source who’s been in the room recently with federal investigators succinctly puts it: “Sidney’s fucked.”

Asked to comment on the source’s two-word characterization, Parlatore simply replied with his own two-word statement: “I agree.”

The focus seems to misunderstand how Sidney Powell functions in the indictment. The more Trump advisors say she was a lunatic, the more Trump’s reliance on her makes his conduct problematic.

NYT hit on this part of the story too. In its version, it said prosecutors had specifically asked about Waldron.

Prosecutors asked Mr. Kerik on what factual basis he believed Ms. Powell had filed her suits and he responded that he was unaware of one.

Prosecutors also asked Mr. Kerik about Phil Waldron, a former Army colonel from Texas who served as a kind of liaison between Ms. Powell and members of Mr. Giuliani’s team. Mr. Smith’s investigators wanted to know how seriously Mr. Kerik and others on the team had vetted Mr. Waldron’s claims that there were mathematical irregularities in the vote results in some key swing states that indicated fraud, Mr. Parlatore said.

These stories are not necessarily inconsistent. Over a four hour interview, prosecutors may well have hit on all these topics.

But I’m not sure they fit together the way that Kerik or Parlatore think.

Update: This story from CNN, tying Rudy and Kerik to the Coffee County voting software breach in GA, may explain why everyone is trying to pin all this on Sidney Powell, and may likewise explain the curious status of Powell in Trump’s own indictment.

Shortly after Election Day, Hampton – still serving as the top election official for Coffee County – warned during a state election board meeting that Dominion voting machines could “very easily” be manipulated to flip votes from one candidate to another. It’s a claim that has been repeatedly debunked.

But the Trump campaign officials took notice and reached out to Hampton that same day. “I would like to obtain as much information as possible,” a Trump campaign staffer emailed Hampton at the time, according to documents released as part of a public records request and first reported by the Washington Post.

In early December, Hampton then delayed certification of Joe Biden’s win in Georgia by refusing to validate the recount results by a key deadline. Coffee County was the only county in Georgia that failed to certify its election results due to issues raised by Hampton at the time.

Hampton also posted a video online claiming to expose problems with the county’s Dominion voting system. That video was used by Trump’s lawyers, including Giuliani, as part of their push to convince legislators from multiple states that there was evidence the 2020 election results were tainted by voting system issues.

Text messages and other documents obtained by CNN show Trump allies were seeking access to Coffee County’s voting system by mid-December amid increasing demands for proof of widespread election fraud.

Coffee County was specifically cited in draft executive orders for seizing voting machines that were presented to Trump on December 18, 2020, during a chaotic Oval Office meeting, CNN has reported. During that same meeting, Giuliani alluded to a plan to gain “voluntary access” to machines in Georgia, according to testimony from him and others before the House January 6 committee.

The only overt act of Powell in the indictment is including Dominion in lawsuits after Trump asked — and after Rudy distanced her from his team and after Trump pardoned Mike Flynn.

But Dominion plays a key role, because it — including this Coffee County allegation — served as the basis for Trump’s demands of Brad Raffensperger to find more votes.

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The Effort by Accused Mobsters to End Run the DC Circuit on “Corruptly”

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Now that Trump has been charged with it, legal commentators have finally discovered that DOJ has been applying obstruction — 18 USC 1512(c)(2) — to January 6.

For example, in a post yesterday, Jay Kuo noted that over the two and a half years that DOJ has been charging January 6 defendants with obstruction, its application to January 6 as an official proceeding has been affirmed and the meaning of “corruptly” is getting closer to definition.

Seen from a broad perspective, the over 1,000 January 6 cases filed by the Justice Department against the rioters, insurrectionists and seditious conspirators have now yielded important precedents that can be applied to the charges and the case against Donald J. Trump. Without this important groundwork, there would be considerably more legal risks in the application of two of the primary counts in the indictment: obstruction or attempted obstruction of an official proceeding, and conspiracy to obstruct an official proceeding.

Those legal risks would have certainly been targeted and appealed by Trump’s attorneys, putting a very big question mark over the finality of any conviction. As things stand, there remains some legal uncertainty—such as which jury instruction for “corruptly” to apply here—but they likely will be resolved, perhaps even by the Supreme Court, long before the jury meets to deliberate Trump’s guilt.

And for all that legwork by Garland and his Department of Justice, forging a clear legal path to prosecute Trump under the obstruction statute, I am both grateful and impressed.

Kuo correctly notes that the most likely place we’ll get such a definition is in Thomas Robertson’s appeal, which was heard on May 11. Given the hearing, it seems likely that the DC Circuit will adopt a standard on “corruptly” that would include, at least, either the “otherwise illegal” standard that Dabney Friedrich has adopted or the corrupt benefit that Justin Walker addressed in Fischer. Under either standard, obstruction should apply to Trump more neatly than it does many of the other January 6 defendants who’ve been charged under the statute.

But as Roger Parloff has noted, there is one other possibility.

Shortly after the other DC Circuit decision — captioned after Joseph Fischer, but including appeals from Jake Lang and Garret Miller, all of whom had had their obstruction charge rejected by Carl Nichols — Norm Pattis (who also represents Joe Biggs and Owen Shroyer and, if he ever gets charged, Alex Jones) and Steven Metcalf (who also represents Dominic Pezzola) filed an appeal for Lang. That appeal was not closely focused or in my NAL opinion, all that well crafted. It did not focus on the definition of “corruptly.”

Then, on August 1 — hours before Trump was charged with obstruction — Nick Smith (who largely crafted these challenges to 1512 and also represents Ethan Nordean) filed a cert petition for Miller.

Even though “corruptly” wasn’t the central holding in the Fischer decision, Smith included it as one of the questions presented here.

Whether § 1512(c)’s “corruptly” element requires proof that the defendant acted with the intent to obtain an unlawful benefit, or whether it merely requires proof that the defendant acted with an improper or wrongful purpose or through unlawful means.

And he cited NYT’s coverage of the use of obstruction as part of his explanation for the import of this appeal.

Elevating the national political salience of the issues raised here, it appears that the former president of the United States, and candidate in the 2024 presidential election, will be charged under the same Section 1512(c) (2) theory of liability that the government has filed against Petitioner and hundreds of others. Obstruction Law Cited by Prosecutors in Trump Case Has Drawn Challenges, N.Y.Times, July 20, 2023, available at: https:// www.nytimes.com/2023/07/20/us/politics/trump-jan-6- obstruction-charge.html.

He made no mention of the pending Robertson decision.

His justification for why Miller’s appeal provides little reason to consider the definition of “corruptly” when it is not ripe below — to say nothing of why a third defendant before Carl Nichols also accused of assault makes a sound vehicle for testing a statute that is more troubling with defendants who did not engage in violence on the day of the attack. Instead, Smith suggests that Miller’s guilty plea on the assault charges brackets that issue.

Miller’s case presents a clean vehicle to address the questions presented. Miller’s case is usefully contrasted with that of Petitioner Edward Lang (No. 23-32).

The government alleges that Lang entered the Capitol’s Lower West Terrace tunnel where, according to the government, “some of the most violent attacks on police officers occurred.” Dkt. 1958170 at 24. The government further alleges: “Until approximately 5 p.m., Lang pushed, kicked, and punched officers, at times using a bar or a stolen riot shield.” Id. In an interview on January 7, 2021, Lang described how he “had a gas mask on for the first two, three hours” as he was “fighting them face to face” as part of “a mission to have the Capitol building” and “stop this presidential election from being stolen.” Id. According to Lang: “It was war. This was no protest.” Id.

While Miller’s conduct in entering the Capitol and pushing on police lines was wrong, he has accepted responsibility for his actions by pleading guilty to every valid offense with which he was charged—except the charge under Section 1512(c)(2). The charges to which Milled pled guilty already perfectly encompass all his misconduct that day. Thus, Miller’s case captures the essential point that the novel obstruction charge does not penalize any unique criminal conduct or intent.

Ultimately, both these appeals are misleading, because they suggest these appeals are about protesting. None of the three can claim to be only protesting; all three are charged with — and Miller pled guilty to — assault (though Lang, who has not yet been found guilty, claims he was engaged in self defense).

But that doesn’t rule out that a SCOTUS dominated by right wingers like Clarence Thomas, for whom Nichols, the lone DC District holdout on this application of obstruction, once clerked, may choose to weigh in now rather than waiting for the DC Circuit’s decision to ripen the issue.

This is the kind of thing that legal commentators could be productively focused on, because it is designed to affect the case against Trump.

Update: Mistakenly referred to Lang as Alam.

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