The Immunity Brief: How We Got Here, Where We’re Going

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I want to take a step back and put the immunity briefing released yesterday in context.

On July 1, after SCOTUS released its immunity opinion on the last possible day, it remanded the case back to Judge Tanya Chutkan to assess what was immune under the newly rewritten Constitution.

As soon as she got the case back, Judge Chutkan ordered a status report for August 9 and a status hearing for August 16. But then on August 8, Jack Smith said, sorry, can we have more time? I correctly predicted then that Smith was superseding the indictment, which Smith did do on August 27 (for reasons I won’t yet explain, this filing makes me think we may see more charges after the election).

In a September 5 status hearing, prosecutors successfully persuaded Judge Chutkan to let them deal with the remand by first submitting a brief explaining how the new indictment complies with SCOTUS’ rewritten Constitution. During the hearing, Chutkan reiterated something she has said from the start: she’s not going to let the election stall this prosecution.

I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here.

This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.

Trump’s team ignored that warning, wailing about the election in a filing that was supposed to be about discovery. They wailed again in response to Jack Smith’s request to file a 180-page brief. In her order granting Smith’s request, Chutkan again swatted back at Trump’s election wails.

In response, defense counsel reframed the problem as an “election dispute,” insisting that “it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history.” Id. at 28–29. But Defendant’s concern with the political consequences of these proceedings does not bear on the pretrial schedule; “what needs to happen before or shouldn’t happen before the election is not relevant here.” Id. at 29.

When the prosecutors asked to file its brief in redacted form (which they had warned it would do, and which they noted complied with the protective order in the case), Judge Chutkan gave Trump a deadline of noon on Tuesday — a clear sign she didn’t want to dawdle over redaction fights. Nevertheless, in their reply, Trump’s lawyers accused Smith of “improper political considerations” again, rather than disputing any particular redaction. By choosing to offer no more than generalized complaints for more redactions (redactions that might have hidden, just as one example, how many times current Trump campaign advisor Jason Miller told Trump he had lost, lost, lost the election in 2020), Trump’s team sunk their chance to delay the redactions. I thought it might be quick, but didn’t expect it to come as soon as last night.

In her opinion ordering the motion to be unsealed, Judge Chutkan expressed increasing impatience with Trump’s claims of politicization. Trump already got his shot at a vindictive prosecution claim, Chutkan noted, which she rejected as soon as she got the case back in August.

In addition to the assertions discussed above, Defendant’s opposition brief repeatedly accuses the Government of bad-faith partisan bias. See Def.’s Opp’n at 2, 5–6. These accusations, for which Defendant provides no support, continue a pattern of defense filings focusing on political rhetoric rather than addressing the legal issues at hand. See Oversized Brief Order at 2–3 (identifying two recent instances of this pattern). Not only is that focus unresponsive and unhelpful to the court, but it is also unbefitting of experienced defense counsel and undermining of the judicial proceedings in this case. Defendant has had an opportunity to make his case that his prosecution is improperly motivated. See Def.’s Mot. to Dismiss for Selective and Vindictive Prosecution, ECF No. 116. Future filings should be directed to the issues before the court.

Best as I can tell, Chutkan issued her order around 3:30PM ET yesterday, and the Smith filing posted around 3:35PM.

At 8PM — so well after they should have read Chutkan’s order — Trump’s team requested permission to file for excess pages as well, the same 180-pages that Smith got. They also asked to get a sur-reply, the kind of request that you normally make after someone raises a new issue in a reply, albeit one she effectively invited at the status hearing last month.

But they also asked for an extension for their response until after the election, until November 21. Not only do they offer almost no excuse for the delay, aside from existing deadlines, one of which is for today and the other of which is for an attack on the Special Counsel appointment that conflicts with DC Circuit precedents. But they misrepresent the timing that has already occurred, suggesting that the time DOJ took to consult with others at DOJ and supersede the indictment was rather time they took to write the immunity brief.

[T]he Court granted the Special Counsel’s request for an additional three weeks to complete its drafting, setting a September 26, 2024, deadline.

[snip]

This resembles the 3-week extension the Court previously provided the Special Counsel, Aug. 9, 2024, Minute Order, which allowed the Special Counsel to work on its initial brief before the September status conference. In total, the requested extension would provide President Trump 8 weeks to file his Response, which approximates the 6 weeks the Court granted the Special Counsel (including a 3-week extension before the status conference, and an additional 3 weeks thereafter to finalize its brief and exhibits).

Trump’s lawyers offer no justification for the extension, at all, that arises from their own time constraints (for example, the Jewish high holy days, which have a habit of messing with many a criminal docket, or their other caseload). They simply want more time because, they falsely claim, Jack Smith got more time.

Jack Smith wrote a 180-page filing in three weeks.

And Judge Chutkan already knows that Trump’s team can work quickly. At the status hearing on September 5, when John Lauro similarly tried to stall, Thomas Windom pointed out that in July, Trump’s attorneys wrote a 52-page attack on the New York State hush payment case in nine days.

I want to point out just as a data point for your Honor, on July 10th of this year, the Defendant, in his New York State criminal case, the Defendant and two of the attorneys sitting at this table filed a 52-page motion to vacate his state criminal conviction on the grounds of a Supreme Court opinion that came out nine days before. Fifty-two pages covering an entire trial record in nine days.

The defense can move comprehensively, quickly and well. So can we. And the Court should consider that in setting its schedule. The final piece, your Honor —

THE COURT: Congratulations, Mr. Blanche.

That’s in the court record now: At a pace of 52 pages in nine days, Trump’s team should be able to file their 180 pages in a month.

But a month is longer than their current deadline, which is three weeks. So I wouldn’t be surprised if Chutkan did give them some relief. Even if she gives them one week, it’d bump right up against election day, which is transparently the point.

It is likely that Trump will not have to explain himself until after voters have already weighed in.

Back on August 31, I noted that Trump really didn’t want to have to justify almost getting Mike Pence killed on January 6.

In 2016, Donald Trump bragged, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?”

This election, Trump wants to hide from voters details of how he almost killed his Vice President, Mike Pence, and his claim that doing so was an official act protected by presidential immunity.

That’s the primary thing you need to know about the joint status report presented to Judge Tanya Chutkan in Trump’s January prosecution last night.

[snip]

There are a bunch of legal details in this status report. But given the near certainty that if Trump wins, the entire prosecution will go away, the only one that really matters is that, this election, Trump isn’t so sure that he would lose no votes if he shot someone on Fifth Avenue — or if voters learned why and how he almost had his Vice President assassinated in the US Capitol — as he was in 2016.

Trump doesn’t want to tell voters he thinks that as President, he could have Mike Pence shot on the Senate floor — shot as punishment because his Vice President refused an illegal order to steal an election — and be immune from any consequences for doing so.

But there must be more than that. After all, the allegation is out there, along with the new revelation that after Trump sent the tweet targeting Pence at 2:24PM, someone (probably Nick Luna) rushed into Trump’s dining room and told him Pence had been moved to a secure location. “So what?” Trump said as his Vice President was hearing chants of “hang Mike Pence” from Trump’s rioters.

Trump wants to boot this past not just the election, but also the aftermath.

Perhaps Trump just wants to leave open the possibility of never responding. If he wins, Judge Chutkan would have very few tools to enforce her deadlines, even in the two months before Trump was inaugurated.

Or perhaps Trump doesn’t want to address a coup strategy that he plans to reuse?

Update: I mean, how familiar does all this feel, citing how Trump laid the groundwork for his coup attempt?

  • In an interview on July 19, 2020, when asked repeatedly if he would accept the results of the election, the defendant said he would “have to see” and “it depends.”5
  • On July 30, despite having voted by mail himself earlier that year, the defendant suggested that widespread mail-in voting provided cause for delaying the election, tweeting, “With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???”6
  • In an interview on August 2, the defendant claimed, without any basis, that “[t]here is no way you can go through a mail-in vote without massive cheating.”7
  • At a campaign event in Wisconsin on August 17, the defendant told his supporters, “[t]he only way we’re going to lose this election is if the election is rigged, remember that. It’s the only way we’re going to lose this election, so we have to be very careful.”8
  • In his acceptance speech at the Republican National Convention on August 24, the defendant said that “[t]he only way they can take this election away from us is if this is a rigged election.”9
  • On October 27, during remarks regarding his campaign, the defendant said, “[i]t would be very, very proper and very nice if a winner were declared on November 3rd, instead of counting ballots for two weeks, which is totally inappropriate, and I don’t believe that that’s by our laws. I don’t believe that. So we’ll see what happens.”10 The defendant said this despite—or perhaps because—his private advisors had informed him that it was unlikely that the winner of the election would be declared on November 3.

Update: As I suspected she might, Judge Chutkan gave Trump more time — just enough to get beyond the election. But not all the time he requested.

MINUTE ORDER as to DONALD J. TRUMP: Defendant’s [253] “Motion to Extend Page Limits and Time to Respond to Government’s Motion for Immunity Determinations and for Leave to File a Sur-Reply” is hereby GRANTED in part and DENIED in part. The court’s [233] Order is MODIFIED as follows: Defendant’s combined Response and Renewed Motion to Dismiss Based on Presidential Immunity is due November 7, 2024 and may include up to 180 pages; the Government’s combined Reply and Opposition is due November 21, 2024; and Defendant may file a combined Reply and Sur-Reply by December 5, 2024. Signed by Judge Tanya S. Chutkan on 10/3/2024. (zcll)

John Roberts’ Sordid Legacy: 14 Pages of Mean Tweets

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“One of the ways Trump” disseminated false claims of election fraud, Jack Smith’s immunity briefing describes, “was by Tweet, day in and day out.”

I’m still wading through Jack Smith’s immunity briefing. Later today, I plan to explain how we got here and how Trump’s lawyers will try to bury it. Then I’ll show the substance of their argument, how prosecutors plan to convict Donald Trump for attempting to steal an election without using any evidence that Chief Justice John Roberts has deemed official and therefore immune.

But first I want to talk about an utterly remarkable passage in the filing: 14 pages examining Trump’s mean tweets.

As I’ll explain in more detail later, the filing first lays out, in Part I, what evidence prosecutors plan to rely on, then sets up a legal framework to conduct this analysis, and then explains, in Part III, why the evidence laid out in the first part is not immune.

In Part III, prosecutors go both by type of evidence (for example, conversations with Republican state officials and politicians) to explain why such conduct is not immune. The section looks like this:

  • Trump’s interactions with Pence
    • Trump’s interactions with Pence were official, but presumption of immunity is overcome
    • Trump’s interactions with Pence as a running mate were unofficial
  • Trump’s interactions with officials from swing states
    • The interactions were unofficial (followed by five instances)
    • Even if they were official, the government can rebut the presumption of immunity
  • Trump’s efforts to organize fake electors
    • The effort was unofficial
    • Even if it was official, the government can rebut the presumption of immunity
  • Trump’s public speeches and tweets as a candidate
    • The statements were unofficial
      • Speeches (with analysis of the two prosecutors want to use, one in Georgia and the January 6 one)
      • Tweets
      • Other public statements
    • Parts of Trump’s statements that are official can be excised
  • Trump’s interactions with White House staff (including Eric Herschmann, Dan Scavino, Molly Michaels, and two others)
    • The interactions were unofficial
    • The government could rebut any presumption of immunity
  • Other evidence of knowledge and intent
    • The evidence was unofficial
      • Federal officials (including Bill Barr and Chris Krebs)
      • Evidence about Trump’s use of Twitter
      • Trump’s post-Administration statements
    • Even if it were official, the government could rebut any presumption of immunity

This section takes up 75 pages of the brief.

Of that, 18 pages are dedicated to analysis about Trump’s Tweets (not including the additional pages describing how they plan to explain Trump’s Twitter habits). Fourteen of those pages go through Trump’s manic Tweets from the period, each time explaining why such Tweets should not be viewed as the official acts of the President of the United States.

The section describes six ways Trump’s Twitter habit served his coup attempt:

  • Casting doubt on election integrity
  • Making false claims of election fraud
  • Attacking Republicans who speak the truth about the election
    • Al Schmidt
    • Chris Krebs
    • Rusty Bowers and four Pennsylvania State GOP legislators
    • Wisconsin Supreme Court Justice Brian Hagedorn
    • Chris Carr
    • Governor Doug Ducey, Governor Brian Kemp, and Secretary of State Brad Raffensperger
  • Exhorting people to come to January 6
  • Pressuring Mike Pence
  • Almost getting Mike Pence killed

Prosecutors don’t include all the attacks Trump made on Twitter — for example, while Section I describes his attacks on Shaye Moss and Ruby Freeman, prosecutors don’t include them in the immunity analysis. The immunity analysis instead focuses only on the people with whom, Trump might argue, he was engaged in official business by ginning up death threats against them.

John Roberts not only rewrote the Constitution to protect Donald Trump. He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter.

This is what the Chief Justice wants to protect. This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans.

Who knows whether it will work? Who knows whether these right wing Justices will go that far — to argue that even the President’s mean Tweets targeting members of his own party must be protected from any accountability?

But prosecutors personalized it.

As noted above, the 14 pages analyzing mean Tweets follows the analysis of two rally speeches, in which prosecutors first show the January 4 Georgia speech was a campaign event, and then (among other things) lay out the similarity between that speech and Trump’s January 6 one.

Among the things Trump included in both speeches was an attack on the Supreme Court:

The defendant, who in his capacity as a candidate had suffered personal legal defeats in his private, election-related litigation at the Supreme Court, attacked it (Dalton at GA 1095; “I’m not happy with the Supreme Court. They are not stepping up to the plate. They’re not stepping up.” Ellipse at GA 1125: “I’m not happy with the Supreme Court. They love to rule against me.”).

Of course, the Justices can’t view that as an official act. It would be anathema to the very principles of separation of powers the Justices claim to be guarding. Plus (as noted here and elsewhere), Trump had specifically labeled his intervention in Ken Paxton’s lawsuit as done in his personal capacity. But building off how obviously unofficial this attack on John Roberts and his buddies is, it makes it all the more obvious that Donald Trump’s mean Tweets aren’t official acts either.

Though the inclusion of Trump’s attacks on them also might get these partisan hacks to think more seriously about the nearly identical exhortations Trump made on Truth Social before they decided to rewrite the Constitution in his favor.

Update: Fixed where I said that Trump intervened in Ken Paxton’s lawsuit in his official capacity–he specifically said he did so in his personal capacity as a candidate.

Jack Smith’s Immunity Argument

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Is here. I’ll write it up once I’ve read it.

Here’s the November 14, 2020 tweet IDing the following people.

CC1: Rudy

P10: Joe DiGenova

P11: Victoria Toensing

CC3: Sidney Powell

P12: Jenna Ellis

I’m about to go to bed. But the filing suggests that Trump was laughing with someone at Fox — possibly Tucker Carlson — about Sidney Powell.

That will make this evidence more comfortable for SCOTUS to reject.

 

The “Truth” about JD Vance

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Before the Vice Presidential debate last night, I tested a hypothesis.

Hypothesis: Like Trump, JD is a sociopath.

Unlike Trump, JD is not a narcissist.

It’s a lot harder to work that to your advantage in a debate.

By that I meant that JD lies as much as Trump does, but because his ego is not as fragile as Trump’s, he would bulldoze through the same lies Trump wanted to tell without getting distracted by his own ego.

That prediction held up. JD smoothly lied over and over again. This is a man who — by description — came naturally to pitching the Iraq invasion. Occasionally (such as when Walz noted that Trump built just 2% of his wall and Mexico didn’t pay for it), Vance seemed to visibly wince about how bad the product he’s selling is. But otherwise he smoothly pitched policies that only work when they come packaged in fear-mongering and hatred. He smoothly claimed that censorship by private companies was a bigger threat to democracy than Donald Trump siccing a mob on Mike Pence.

Earlier in the day before the Vice Presidential debate, I suggested one should read Amanda Marcotte and John Ganz’ columns of the day in tandem. The columns provide a useful background to the debate.

Marcotte observed that JD Vance routinely whines about press coverage not just because he’s thin-skinned, but because that whining is viewed as strength.

In the dull world of the extremely online right, where “cat lady” is forever the sickest of burns, it is also common to mistake throwing a tantrum for strength. “Free speech” is defined as “we speak, you listen — and faint in adoration.” Live in that space long enough and you start to think that yelling at a reporter for asking a question isn’t embarrassing behavior. No, in the online MAGA world, sputtering “How dare you!” at a journalist for doing their job is regarded as a feat of strength on par with storming the beach at Normandy. It’s tempting to see Vance whining yet again and assume that he’s sorely in need of therapy. That may be so, but it’s also true that his online space is a culture where whimpering like a spoiled child is mistaken for toughness, and he’s forgotten that most people are rightfully grossed out by it.

But in a piece explaining why there’s such a real risk Trump will still win, John Ganz raised another reason why, I think, JD whines so much about the media. Ganz noted that consensus media has collapsed in America — and Donald Trump has stepped into that void, cultivating rabid support from the fragmented world of disaffected conspiracy theorists left behind.

We are accustomed still to thinking of the country at its post-War self, dominated by mass media, mass politics, the mass movement, the struggle for political and cultural hegemony, that is to say, the struggle over the definition of common sense and what is “normal.” Prime Time. Must See TV. The water cooler. That’s all gone now. We should think of the United States today as being more like the country Gilbert Seldes portrays in his classic on 1800s America, The Stammering Century, where he documents not unified nation, but a patchwork of small movements lead by “fanatics, and radicals and mountebanks,” a country of “diet-faddists and the dealers in mail-order Personality; the play censors and the Fundamentalists; the free-lovers and eugenists; the cranks and possibly the saints…Sects, cults, manias, movements, fads, religious excitements…” Trump knows how to reach those people. Democrats today, much less so. Maybe they shouldn’t even try. I certainly think pandering to that tendency in American culture isn’t good. But maybe that’s not a tendency in American culture at all, it just is American culture.

Trump and Vance thrive on the fragmentation of America created by the collapse of the media. And so they treat the media as a performance of power.

Vance attacked experts and the media over and over in yesterday’s debate, appealing instead to “common sense.” He appealed to and encouraged distrust in government. His attack on what he falsely termed “censorship” was a defense of the crackpots Trump mobilized to attack the Capitol on January 6 (and he made two implicit defenses of Russian disinformation along the way).

The second most notable moment in the debate came when Vance complained that, “The rules were you weren’t going to fact check,” when he falsely claimed the Haitians in Springfield were undocumented. It was a tell. Vance and Trump need these false claims to sow division. They need these false claims to attack rationality.

Shortly before the debate, 60 Minutes announced that Trump was going to forgo their traditional pre-election interview. After 60 Minutes made the announcement, Trump’s bouncer-spox Steven Cheung tried to spin it in a way that didn’t amount to Trump chickening out again:

Here’s what Cheung said:

  1. Hunter Biden’s laptop
  2. Nothing was scheduled
  3. CBS was going to commit the “unprecedented” sin of fact-checking Trump

There’s a tiny bit more substance on the laptop comment than the normal invocation of “Hunter Biden’s laptop” as foundational moment in Trump’s cult than there normally is. Trump is complaining that he is owed an apology because Lesley Stahl refused to report on its contents in 2020 — ignoring the question of newsworthiness! — only after she could verify it.

Trump, 78, was referring to “60 Minutes” reporter Lesley Stahl admitting to him in a 2020 sitdown that she refused to cover The Post’s bombshell Hunter Biden laptop story in 2020 because “it can’t be verified.”

I learned that from NYPost, which didn’t wait to verify the hard drive of a laptop before it misrepresented what an email said, which used a copy of the hard drive copy that had at least one email added to it after it left John Paul Mac Isaac’s custody, and which itself was based on a copying process that resulted in 62% bigger copy (measured in page size — blame prosecutors for doing that!) than the underlying laptop.

Even as Xitter, Google, and Facebook censor the JD Vance dossier stolen from a Trump staffer far more aggressively than anyone ever throttled NYPost stories about the Hunter Biden hard drive (outlets besides Xitter are fairly invoking a policy against foreign malign influence campaigns; Xitter claims it’s about Vance’s privacy), Trump is claiming he was injured because news outlets didn’t chase a laptop copy to which they were not granted access by Trump’s own lawyer.

But the function of his invocation of a hard drive that even the FBI never validated serves as the same marker it always does: Four years later, four years in which media outlets have still never found anything more than dick pics and completely legal influence peddling, merely the invocation of the hard drive serves as the foundation of an object of faith for Trump’s mob. One must believe in it even if one cannot validate it. Goodness knows, that’s what got Hunter Biden convicted on gun crimes.

Relatedly, on Monday, Judge Robert Richardson finally ruled on John Paul Mac Isaac’s defamation claims: none of his defamation claims held up (partly because he was a limited public figure, partly because most of his defamation claims never even mentioned him. Hunter Biden’s counterclaim was dismissed on statute of limitation grounds. Along with Judge Rudy Contreras’ decision, last Friday, that the disgruntled IRS agents can’t intervene in Hunter’s lawsuit against the IRS, he can include their lawyers in his claims, but cannot sue for a Privacy Act violation, the rulings close off much of what we might learn from these lawsuits.

The Hunter Biden hard drive and its aftermath will continue to serve as an untethered article of faith among those who need to believe the Bidens are more corrupt than Trump and his son-in-law.

And in that same world of faith, neither Donald Trump nor JD Vance are going to willingly participate in a venue where their false narrative of fear might be disturbed by facts.

Most people treat debate as a draw. Virtually all agree that, like almost all VP debates, it won’t make an ounce of difference in the race, because they never do. Even after admitting the latter point, though, Bulwark’s Jonathan Last assessed JD’s success in smoothly delivering those lies differently.

Vance was so good that I wonder if this debate might become a case of catastrophic success. Because tomorrow a whole bunch of people in Conservatism Inc. are going to be talking about how Vance is the post-Trump savior they’ve been waiting for.

I wonder what Donald Trump will think about that?

That’s the question I kept coming back to, all night long.

[snip]

I doubt Vance did anything meaningful to help Trump’s electoral prospects. But he absolutely helped his own prospects for 2028, or 2032, or whenever Trump leaves the scene.

Or gets pushed.

Donald Trump created his own fictional character, the successful tycoon who gets things done by firing people and exacting revenge.

JD has no such persona. He has, instead, a flawless ingratiating ability to deliver lies credibly.

The debate is not going to affect the election.

But I think JD did what he needed, for his own wildly ambitious goals: He doubled down on undermining democracy, and ratcheted up the professionalism of Trump’s attack on truth.

Update: Added the ad that Harris did of the JD non-answer.

Donald Trump Didn’t Do the Homework Assignment

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There have been a flurry of filings in Donald Trump’s January 6 case today.

They are:

In general, Smith claims that Trump already has a lot of what he asked for. For example, because Smith adopted an expansive view on discovery from the start, Trump already has details about the payments for his January 6 rally and speech, which are newly relevant in the immunity context.

Trump asked for the texts of two people, claiming he only had four and ten texts from each. Smith says they already got far more (and can also look up texts in the warrant returns for others).

But I’m interested in this big redacted bit discussing … something about those text messages.

Finally, remember how several of Trump’s people (including Mark Meadows and Peter Navarro) used private email to plan their insurrection?

That’s going to be part of the immunity case.

With the exception of a handful of publicly available sources, the Government long ago produced this material to the defendant in discovery, even though much of it was arguably not discoverable. This includes material that goes to context and that the defendant incorrectly claims he does not already have— such as proof of the funding and organization of the Ellipse rally at which the defendant spoke on January 6; evidence about the defendant’s actions surrounding meetings and communications that the Government contends are unofficial; and other information indicating private, rather than official conduct, like Hatch Act warnings and use of private email accounts. The defendant’s assertion that he does not have such material appears based on the faulty assumption that the Government did not already produce it, as it did. See ECF No. 232 at 60 (counsel “assuming” there is discovery that has not been turned over “because the Government never had to really look at issues relating to immunity before”).

It would be hilarious if Trump’s failures to abide by the Presidential Records Act ends up biting him in the ass.

For now, because Trump didn’t engage with the redactions in the way Judge Tanya Chutkan ordered him to, it looks more likely we’ll get to see Smith’s substantive brief sooner rather than later.

In his response, Trump claimed there’s not much new there.

While the Presidential immunity filing contains few, if any, new allegations not already covered in other politically motivated and inaccurate lawfare efforts that President Trump’s opponents have improperly funded and disseminated, it is irresponsible for the prosecutors to so quickly abandon the safety and privacy interests that they previously assigned great weight in this case and in the Southern District of Florida. Accordingly, the Court should require the Office to make consistent redactions regarding identity-related information and to show cause why their proposed public disclosure of voluminous purportedly sensitive witness statements will not pose risks to potential witnesses and unfairly prejudice the adjudication of this case.

But he’s nevertheless trying to better hide the identities of the witnesses against him.

Why No One Went to Prison for Rudy Giuliani’s Hunter Biden Corruption

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Like many people, I’ve watched From Russia with Lev since it was released the other day.

The documentary tells a story I’ve covered here in real time: of how, with Lev Parnas’ help, Rudy Giuliani solicited dirt on Hunter (and Joe) Biden from foreigners, mobsters, and Russian spies, in hopes of helping Trump stay in office.

As told, with Lev’s spouse Svetlana serving as a key narrator, it’s a compelling, personal story.

I’ve also told — am one of the only people who has told — the story that many people are now asking: why no one went to prison for this caper. The documentary has led many people, understandably, to demand to know why no one (besides Lev, they sometimes say, inaccurately) went to prison for all this, which has, predictably, led to the same conspiratorial bashing of Merrick Garland we saw with the January 6 investigation.

The question is premised on certain choices the filmmakers made: focusing away from Dmitry Firtash and especially from Andrii Derkach (who got involved after Lev was done), crediting the spin of Lev’s attorney, Joseph Bondy, and simplifying the investigation of Hunter Biden. The film doesn’t fill in any of the gaps I noted in Lev’s book, and creates new ones. It creates the appearance that Lev was prosecuted solely to protect Trump from impeachment and that the investigation into Hunter arose solely out of Rudy’s efforts. Those choices make sense for narrative and legal reasons, but as a good story does, it simplifies the issue.

And I promise you, the film vastly understates the corruption that went on. Wildly understates it. One goal I have for Ball of Threads is to unpack what is currently known of that far deeper corruption, but that still just scratches the surface.

The quick explanation of why Rudy didn’t go to prison for this is that:

  • Bill Barr did wildly corrupt things to protect him, Donald Trump, and himself
  • By the time, shortly into the Biden administration, DOJ tried to pursue Rudy, Rudy’s phones were corrupted

Trying to hold Garland responsible for failing to prosecute the underlying crime amounts to doing Bill Barr’s propaganda work, because Barr worked relentlessly to protect Rudy.

You can, however, hold Garland responsible for one thing: the continued appointment as Special Counsel of David Weiss, who as a witness to Barr’s corruption, is conflicted in any investigation pursuing Alexander Smirnov’s attempts to criminally frame Joe Biden.

This post explains all that in more detail.

 

Lev didn’t go to prison for the Hunter Biden stuff

As I said, the film leaves the impression that Lev was arrested to protect Trump during impeachment by silencing the key witness.

But that’s not why Lev went to prison (as a news clip in the movie tacitly admits).

Lev and Igor Fruman (along with David Correia and Andrey Kukushkin) were first charged on October 9, 2019, via indictment that was (according to then US Attorney for SDNY Geoffrey Berman’s memoir) drafted quickly overnight in advance of Lev and Igor’s trip to meet Dmitry Firtash in Vienna. From Berman’s memoir, I’m not 100% sure whether he pushed it because he genuinely feared they were about to flee the country, felt he had to do so before Barr intervened … or for more nefarious reasons.

The charges were:

  • Conspiring to make a bunch of political donations in the name of Global Energy Producers
  • Lying to the Federal Election Commission
  • Falsifying a document to the FEC
  • Laundering donations from Russian Andrey Muraviev to pay pro-cannabis politicians

As Bondy described, the indictment implied that Lev and Igor’s political contributions to Pete Sessions were tied to an attempt to fire Marie Yovanovitch. But that was not charged as FARA.

On September 17, 2020, the indictment was superseded. Lev and Correia’s longterm Fraud Guarantee fraud was added and the charges tied to Muraviev (who was secretly indicted that same day) were bumped up. The paragraph describing a payment to Sessions took out the reference to an Ambassador, describing it instead as to “further their political goals.” There were still no FARA charges though.

Ultimately, Lev was convicted at trial in October 2021 of the GEP and Muraviev donations, and in March 2022, pled guilty to the fraud guarantee charges. He was never charged with FARA violations.

Bondy’s insinuation that SDNY took out the foreign agent aspect to protect Rudy is wholly inconsistent with the warrants (linked below) targeting Lev and Rudy unsealed last year.

They show that the investigation into Lev, which started based on a Campaign Legal Center complaint, initially focused on campaign finance crimes. In August 2019 — after the firing of Marie Yovanovitch but before the disclosure of the Perfect Phone Call — SDNY began to turn to Foreign Agent suspicions (though one of two warrants obtained in August 2019 was not executed). After the arrest, SDNY more aggressively turned to developing the Foreign Agent prong of the investigation. On November 4, 2019, SDNY obtained warrants targeting Rudy (which were not released last year). On December 10, 2019, the Foreign Agent prong continued.

That’s when Bill Barr intervened to kill that prong of the investigation, certainly as it pertained to Rudy, as I’ll lay out below.

After that point, SDNY focused on the Fraud Guarantee fraud.

It’s not that Lev went to prison for this but Rudy did not. On the contrary, Barr worked hard to ensure no one could go to prison on such charges.

While Barr was doing that, SDNY appears to have put that investigation on ice and attempted, without success, to resuscitate once Barr was out of office.

SDNY believed Lev was not fully forthcoming

The film makes it sound like SDNY refused Lev’s efforts to cooperate against Rudy and everyone else.

It’s more complicated than that.

SDNY has a rule: To enter into a cooperation agreement with them, one has to plead to all crimes. Geoffrey Berman described it this way in his memoir, explaining why SDNY didn’t give Michael Cohen a cooperation deal.

Cooperation in the Southern District means full cooperation—taking responsibility for all criminal actions, not just a select few. If any one area of a defendant’s life is off limits, we do not recommend leniency in sentencing. (Some districts are more transactional: you give a little, you get a little.)

When defendants agree to this and become cooperating witnesses against others, their testimony is more credible. Our prosecutors can tell juries that if the cooperator is caught lying, the agreement can be revoked and he or she will be prosecuted not only for the crimes covered at trial but for a host of others that the cooperator copped to as part of his agreement.

The SDNY rules also serve as a powerful investigative tool, because when you acquire absolute cooperation, your avenues for making other cases expand dramatically. We often learn of additional criminal activity—whole new threads of wrongdoing that in some instances we knew nothing about.

That’s one reason why SDNY didn’t give Lev a cooperation agreement. As SDNY explained in their sentencing memo for him, Lev’s attorney, Joseph Bondy, proffered information in the months after his arrest in October 2019. But Bondy provided details that were contradicted by the evidence (at the time, Lev may not have understood that FBI had obtained iCloud content he deleted). SDNY then did a reverse proffer on November 6, 2019 (two days after obtaining a warrant for Rudy’s comms), meaning they told Lev and Bondy all the evidence they had against Lev. After that, Bondy replied saying that Parnas was unwilling to plead guilty to the campaign finance crimes charged against him.

After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

That’s consistent with Parnas’ own memoir, in which he still attributes the campaign finance stuff as a lack of awareness of the law and of the Russian source of the money he was throwing around.

According to SDNY, that unwillingness to fully accept responsibility continued when Parnas did sit for a proffer on March 5, 2020.

In addition, SDNY was unable to corroborate some of the things Parnas claimed in that March proffer.

[T]he Government was ultimately unable to corroborate significant portions of what Parnas said.

This was during a period when Barr was aggressively trying to limit SDNY’s investigation, so it may not have been Lev’s fault they couldn’t corroborate this stuff.

Finally, DOJ generally has a rule: Cooperating witnesses who chat to the press are usually useless as witnesses. This makes sense for a lot of reasons, not least that it alerts criminal targets of what prosecutors do and don’t know. SDNY told Parnas this early on, in November 2019, and his early 2020 interviews would have only exacerbated this.

At the close of that [November 6, 2019] meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness.

Given Barr’s fuckery, I don’t know if Parnas could have pulled off cooperation in any case. But even without it, things he himself did made it virtually impossible he could get a deal from SDNY.

And honestly, it wouldn’t have served his purposes. He needed to come out publicly against Trump, but that was inconsistent with the ability to cooperate criminally. The impeachment was his one shot for accountability, and Congress blew that. (As I was writing this, I considered that, had Democrats made Lev’s testimony more central to impeachment, Republicans might have forced Hunter Biden to testify, as they were threatening at the time; I have long wondered whether Trump’s impeachment defense team had a copy of the laptop.)

Bill Barr insulated the impeachment review from the Hunter Biden caper

The film focuses closely on how, after Trump’s Perfect Phone Call with Volodymyr Zelenskyy was released, onetime Trump defense attorney John Dowd, speaking as a lawyer for Lev and Igor, first refused to cooperate with Congress. Their arrest, days later, put Parnas and Fruman at the mercy of lawyers arranged by Trump, until Parnas hired Bondy.

It is true that their arrest discredited them as witnesses.

But it wasn’t just their arrest that limited the investigation from impacting impeachment. DOJ also did some tactical things to prevent the Trump impeachment from merging with Lev’s prosecution.

When Lev and Igor were arrested, DOJ told the press that Barr had been briefed on the investigation from early in his tenure as Attorney General.

That seems inconsistent with a claim that Barr made in his memoir (which IMO is largely CYA about these matters). Barr claimed he had no awareness of Rudy’s efforts to investigate Biden, and only learned of it from news reports.

By the spring of 2019, I had noticed news stories stating that Giuliani was pushing the Ukrainians to investigate Biden’s role in Shokin’s dismissal. But other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities. During the spring, I expressed my concern about Giuliani with the President. As I was leaving an Oval Office meeting on another topic, I paused briefly to raise the matter.

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”

“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Even imagining that SDNY kept these details from Barr, by August 14, 2019, it is highly likely that the National Security Division had notice of the focus on Rudy. That’s when possible Foreign Agent charges (and a reference to Marie Yovanovitch) got added to the warrants targeting Lev and Igor.

NSD head John Demers was one of the first people at DOJ to review the Perfect Phone Call. He did so, on August 15, 2019, after SDNY had turned to FARA crimes normally overseen by NSD.

That may explain why DOJ did something that served to insulate the Public Integrity (PIN) review of the Perfect Phone call from the ongoing investigation of Rudy’s efforts with Lev and Igor: Demers and Criminal Division head Brian Benzkowski only had PIN review the transcript of the call, not the full whistleblower complaint. Had investigators done what investigators have been ordered to do since 9/11 with the full complaint, they would have searched on all the references in the complaint, including those in the OCCRP report on Lev and Igor referenced repeatedly in it. That, in turn, should have identified the SDNY investigation, which would have immediately implicated Trump in the investigation.

Effectively, by focusing solely on the transcript, someone at DOJ deliberately blinded that PIN review to an ongoing FARA investigation, thereby eliciting a clean bill of health for Trump.

There’s a lot more that Barr did as the scandal unfolded, as I’ve laid out here and here. But the first thing someone at DOJ did was to gin up a prosecution declination before anyone could tie Trump’s coercion of Zelenskyy with the existing investigation into Lev and Igor.

Bill Barr played a shell game to protect Rudy’s “collusion” with a known Russian spy

Barr was nowhere near done.

There seems have been an ongoing cat-and-mouse between SDNY and Barr.

When SDNY got the indictment, according to Berman, they got approval from two PIN prosecutors in the middle of the night, not NSD, which may be why only the campaign finance crimes were in the indictment and only the campaign finance crimes were on the warrants for the searches done the day of arrest (this would have served to hide that part of the investigation from Lev and Igor, too). That’s the biggest piece of evidence that SDNY did not arrest Lev and Igor as a favor for Barr, as he attempted to kill impeachment, but the reverse.

In October, SDNY got warrants to search everything for the FARA crimes. On November 4, 2019, SDNY got warrants targeting Rudy for FARA crimes.

On December 5, 2019, Rudy met, with Barr’s foreknowledge, known Russian asset Andrii Derkach.

And on December 10, 2019, SDNY got further warrants in that investigation.

DOJ had just let Rudy meet with a Russian spy while SDNY had an ongoing investigation into whether Rudy was working with foreign spies. It was insane to let that happen in any case. All the more so given the ongoing investigation from the Sovereign District of New York, as SDNYers like to call themselves.

So Barr had to gut SDNY’s sovereignty.

Barr did several things:

  • Assigned any investigation of Derkach, with whom Rudy had just met, to EDNY, not SDNY where it would be a natural follow-on.
  • Made EDNY US Attorney Richard Donoghue the gate-keeper for all Ukraine investigations, requiring SDNY to get permission from him before taking any investigative steps against Rudy or Lev.
  • Asked Pittsburgh US Attorney Scott Brady to play a role. Publicly, Barr and Brady claimed this was a vetting process of tips from Ukraine. But Brady’s congressional testimony revealed he did almost no functional vetting; he ignored evidence from the impeachment and some key public articles. Plus, he did more than vetting. Brady also checked in on investigations into all the oligarchs from whom Rudy had solicited dirt on Hunter Biden, with uncertain outcome; he tried to tell SDNY he knew better than they did about their investigation; he demanded details about the investigation into Hunter Biden. Most importantly, some yet unidentified person told Brady to seek out FBI informant Alexander Smirnov, who had made a reference to Hunter Biden in an informant report about Mykola Zlochevsky years earlier. By May 2020, Smirnov was allegedly attempting to frame Joe Biden with allegations of bribery, and Brady made that part of his work. Once again with Smirnov’s allegations, Brady did little functional vetting, falsely claiming that his travel schedule confirmed the claim, rather than debunked it.
  • Barred the FBI Agents working with SDNY from receiving certain information, including Rudy’s interview with Scott Brady.
  • Ordered David Weiss, whom DOJ had put in charge of an investigation into DC and CA resident Hunter Biden, to consult with Brady on his tips.

These efforts halted what should have been obvious next steps in the SDNY investigation, ensured Rudy could share information obtained from a known Russian spy with no legal risk, and ordered that some of Rudy’s information be used in an investigation of Joe Biden’s kid. DOJ was literally protecting a Russian influence operation, because it served the interest of the President.

The biggest reason why Rudy didn’t go to prison for this is that Barr protected this entire process, including the solicitation of dirt from a known Russian spy.

DOJ approved steps against Rudy on Lisa Monaco’s first day on the job

While Trump remained in office, SDNY tried several more times to get warrants targeting Rudy, but were denied.

On Lisa Monaco’s very first day on the job, April 21, 2021, SDNY finally obtained warrants targeting Rudy. Merrick Garland’s DOJ did precisely what everyone is wailing for: He immediately permitted prosecutors to advance this long-thwarted investigation.

Based on what we can see, there were at least two limitations on the investigation, however. First, the warrants targeting Rudy did not include the Trump lawyer’s January 29, 2020 interview with Scott Brady. That suggests Rudy’s effort to share dirt from Russian spies was still protected as cooperation rather than confession, even after Garland took over (indeed, that’s what Rudy pointed to to argue he couldn’t be searched at all, his “cooperation” with Barr). Just as importantly, while some of the 2019 warrant affidavits mentioned Donald Trump’s call to Volodymyr Zelenskyy, the 2021 warrants did not. I would be unsurprised if Barr got OLC to write a memo putting all that off limits before they left office.

Aside from that, DOJ’s approach to Rudy Giuliani remained remarkably aggressive, contrary to what virtually every news outlet will tell you. Importantly, SDNY did something no one else has reported: They installed a Special Master and got permission to review Rudy’s content — all Rudy’s post-2017 content — for privilege. Among other things, that freed up content, including at least one document the January 6 Committee did not get, for any other investigations.

Nevertheless, the delay (or possibly corrupt Rudy dead-enders in NY) appears to have killed any chance of pursuing Rudy for his role in soliciting dirt from Russian spies and others to attack Hunter Biden. On November 14, 2022, SDNY informed the court that the grand jury had concluded without filing charges (though Rudy’s lawyer and Hunter Biden laptop co-conspirator, Robert Costello, has never substantiated a declination letter). In a July 25, 2023 declaration in the Ruby Freeman lawsuit, Costello revealed one potential explanation: many of the devices seized from Rudy obtained in April 2021 were corrupted. Costello blamed the FBI’s contractor for making the phones unusable.

Not all the devices were corrupted, however. As noted, the privilege log from Freeman’s case shows a great deal of files pertaining to January 6 were successfully extracted, including a few identifiable files not obtained by the January 6 Committee.

DOJ also seized a phone from Victoria Toensing. But the value of that may have been limited by attorney-client privileged tied to Firtash, the same privilege which has, at times, led Lev (because he was a translator in that relationship) to limit his own comments about Firtash in all this. To fully unpack what happened, you’d need to know what promises Toensing made to Firtash and what Barr knew about them.

Attorneys General have vast discretion

In a just world, Bill Barr could be held accountable for the corruption he enabled. But that’s virtually impossible under the structures of impunity our system accords prosecutors and Attorneys General.

I’m neck-deep in a post on the three IG investigations pertaining to Bill Barr’s corrupt conduct.

All of them conclude that however nuts Bill Barr’s conduct was, the expansive authority of the Attorney General means that his actions, including his intervention into the sentencing for Trump’s rat-fucker and his decision to share details of minor infraction by someone whom Barr knew would never be charged for political gain, were within the discretion of the Attorney General.

DOJ IG has spent over four years investigating Barr’s corruption, and thus far, they have always concluded that as Attorney General, Barr’s discretion was so vast that he can break all of DOJ’s rules prohibiting its politicization.

There’s still at least one IG Report including Barr’s conduct outstanding (almost certainly, the ongoing investigation into DOJ getting the communications records of journalists for whom people like Jim Comey might have been a source). But of all the fuckery I know Barr to have committed, I can envision only a few details of his conduct might even remotely end up the focus of criminal investigation.

Even the most corrupt insinuations about Rudy’s efforts, in which Rudy allegedly offered Ihor Kolomoyskyi, Dmitry Firtash, and Mykola Zlochevsky relief from criminal investigations for dirt on Hunter Biden, would be included in this.

Lev explains why in his book: This was deliberately framed as the exact equivalent of Andrew Weissmann’s efforts to flip Firtash for information on Paul Manafort.

Andrew Weissman, who was lead prosecutor for the investigation of Russian collusion in the 2016 Election, had gotten there first. He offered a deal in which Firtash could avoid prison if he testified about the relationship between Trump and Russian President Vladimir Putin. The inclusion of Putin meant that Firtash would never take the deal. Nobody over there wants to make Putin angry.

Nobody else knew about the deal he was offered. Giuliani and Solomon wanted Firtash’s legal team to make it public. His Viennese lawyers were against it, so Firtash was reluctant. Soon, in a heated meeting in Vienna, an argument between some of Firtash’s legal team led to Victoria Toensing, who was on our team, confronting Dan Webb about it months later. Webb — who was connected with Weissmann, William Barr and other heavy hitters — admitted to the deal.

Still, we convinced Firtash that we — who were representing Trump’s interests — could help him with his extradition far more effectively than Weissman. The real goal for us was to get Firtash to use his contacts to pressure President Zelenskyy to announce an investigation of the Bidens. Our pitch was successful, Firtash agreed to hire Giuliani for $1 million. And $200,000 for me to be official translator and to be under the attorney-client privilege umbrella.

Prosecutors trade leniency for information on other crooks all the time. Here, however, it was the Attorney General, who had never served as a prosecutor himself, who would be making those deals, offering leniency to foreign oligarchs if they could offer dirt on Donald Trump’s likely opponent.

It’s unclear whether, and if so what, deals were made: an investigation into Zlochevsky was reportedly shut down in December 2019; investigations into Kolomoyskyi ratcheted up in 2020; and the prior investigation into Dmitry Firtash remains deadlocked on his extradition, as it has been for years.

But these kinds of deals would be consistent with an elaborate effort Barr makes in his book to spin Trump’s pursuit of dirt on the Bidens as a legitimate law enforcement pursuit, the logic of Trump’s impeachment defense taken to its logical conclusion.

It’s all transparent bullshit. But it would also be virtually impossible to debunk at trial, even if you could get beyond the vast discretion of an Attorney General.

David Weiss’ appointment threatens to limit further fallout

There’s one thing I do fault Merrick Garland for: For not removing David Weiss from the investigation into Alexander Smirnov.

By all appearances, Weiss asked to be appointed Special Counsel only after he renewed his focus on Smirnov in July 2023, after receiving, but blowing off, the allegation days before the 2020 election, on October 23, 2020.

Investigating Smirnov’s allegation that Joe Biden accepted a bribe from Burisma was the first thing that focused the investigation onto Biden, after the original prosecutor, Lesley Wolf had successfully avoided that focus for years. It was the first thing that created a real conflict with working for Joe Biden.

And Weiss bases his authority to prosecute Smirnov for lying when he started chasing that hoax on his Special Counsel authority. He could only do so if he were legitimately chasing that hoax as witness testimony.

Here’s the problem with that: David Weiss is a witness in what should be a broader investigation into how a side channel set up by Bill Barr ended up discovering an informant who once met Mykola Zlochevsky and then not vetting the false claims he made. At the very least, there should be an investigation into who — everyone swears it was not Rudy, and Smirnov has at least three other links to people close to Trump — alerted Brady that Smirnov might offer up such claims.

Bill Barr’s deputy ordered David Weiss to accept briefing on this hoax. He ordered him to let Scott Brady snoop on Weiss’ investigation of Joe Biden’s kid. That makes Weiss a witness. Once Smirnov became a subject rather than a witness, that created a conflict that should disqualify Weiss from overseeing an investigation into the former informant and the circumstances that allowed him to make allegedly false allegations against Joe Biden.

Merrick Garland should (at a minimum, though I could argue more broadly) move the primary team prosecuting Smirnov under supervision without such conflicts. A system set up by Bill Barr criminally framed Joe Biden, and a guy who worked with Bill Barr on that case continues to supervise the aftermath.

The complicity of the press

There’s one more party that demands accountability: The press.

Much of what I wrote in this post is public. It requires diligent reading, but not great access to Donald Trump or anyone else.

Not only has this entire story not been reported by mainstream outlets. Not only did NYT affirmatively obscure Rudy’s role in all this (and therefore Trump’s) in their one attempt to cover it. But one after another journalist — especially at NYT — writes stories that disappear the Hunter Biden pursuit from all of Trump’s abuse of DOJ. Indeed, some outlets, including Rachel Maddow’s parent company, seem to treat Hunter Biden as a gossip rag to drive clicks, rather than the locus of unprecedented corruption. Rather than chasing this story, or even asking Bill Barr direct questions about it, one after another TV star invites him on as if he’s a critic of Trump’s corruption, rather than a key player in it. WaPo’s Will Lewis pointed to a badly conflicted Hunter Biden piece as his antidote against accusations of lefty bias.

Want to know how Rudy Giuliani was allowed to solicit dirt from Russian spies to help Trump get elected, without accountability? Want to know why Barr is considered a critic of Trump rather than his most corrupt enabler? Ask the journalists who lost interest in that story as soon as Rudy released a laptop full of Hunter Biden’s dick pics.

From Russia with Lev begins to reverse all that. But as infuriating as it is, it barely scratches the surface.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing. This document compares the Foreign Agent focus of the three warrants bolded below.

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

May 15, 2019: Marie Yovanovitch firing public

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

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

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

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

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

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

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

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

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

June 20, 2020: Barr fires Geoffrey Berman

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

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

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

April 21, 2021: Lisa Monaco sworn in

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

Trump Will Stage an Emergency to Ban Jack Smith’s Book Report

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I expect, on top of everything else this week, Trump’s lawyers are going to claim an emergency to try to ban Jack Smith’s book report, currently due Thursday.

As you’ll recall, after Judge Tanya Chutkan finally got the Trump January 6 case back, she agreed with Jack Smith’s proposed path forward: They would submit a brief explaining how the superseding indictment complies with the Supreme Court’s immunity opinion. Chutkan set a deadline of September 26, Thursday, for that brief.

Trump seems certain that if voters see that brief, he will lose the election.

Last Thursday, Trump’s lawyers submitted what was supposed to be a discovery filing, in which they basically said, “NOOOOOOO!!!!! No briefing before the election.”

Dismissal is required to protect the integrity of the Presidency and the upcoming election, as well as the Constitutional rights of President Trump and the American people.

Judge Chutkan does not have to rule on those issues before determining the immunity question, though, so the filing was better read as, “Help me Sammy Alito!!!! Help me John Roberts!!!! You’re my only hope!!!”

Yesterday, Jack Smith submitted a request to file excess pages, 180 pages instead of 45. In it, he disclosed that Trump objected and wanted a chance to respond, with the deadline set for Tuesday, September 24.

Defense counsel opposes the Government’s motion at this time, and requests that the Court set a deadline of September 24, 2024, 5:00 PM ET for the defense’s response.

Judge Chutkan ordered Trump’s team to file their opposition one day earlier, Monday September 23 (note: Trump’s team filed their last filing after 5PM, after which Judge Chutkan made it clear she’ll permit no more of that).

Defendant shall file any opposition to the Government’s [237] Motion for Leave to File Oversized Motion by September 23, 2024 at 5:00 PM ET.

Trump will oppose not just the excess pages, 180 instead of 45, but the entire filing. Now he’s got one less day to make that argument.

Which is what you need to understand the other things in the Jack Smith request. Trump is going to stage an emergency to get this question elevated to SCOTUS to prevent the filing this week. He will try to take things SCOTUS ordered Chutkan to do out of her hands, to put them back before SCOTUS.

Anticipating that, Smith starts his request by laying out that he is just trying to do what Chutkan ordered, to show that SCOTUS ordered precisely this briefing.

In Trump v. United States, 144 S. Ct. 2312, 2340 (2024), the Supreme Court emphasized the “necessarily factbound” nature of any presidential immunity analysis. See id. at 2339 (“Determining whose characterization may be correct, and with respect to which conduct, requires a close analysis of the indictment’s extensive and interrelated allegations.”); id. at 2340 (“The analysis therefore must be fact specific and may prove to be challenging.”); id. (“Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.”). The Supreme Court remanded to this Court “to determine in the first instance—with the benefit of briefing we lack—whether [the defendant’s] conduct in this area qualifies as official or unofficial.” Id. at 2339.

A few paragraphs later, he describes that because this review will be what SCOTUS reviews on appeal, the record must be comprehensive. Thus the need for 180 pages.

The Court has been directed to conduct a detailed, factbound, and thorough analysis of the Government’s case to make appropriate immunity determinations. Because the Court will make determinations “in the first instance” that will be subject to exacting appellate review, it is essential that the Court ensure that the record in support of its determinations is complete. The Government believes that a comprehensive brief by the Government will be of great assistance to the Court in creating that robust record, and the Government thus seeks leave to exceed the typical limit for a single motion. See Local Crim. R. 47(e) (limiting opening motions and oppositions to 45 pages and replies to 25 pages).

Smith goes into detail about the breakdown of those 180 pages: half is narrative, thirty pages are footnotes, a bunch are exhibits. Those details will only matter if we ever get to see it.

Remember: Trump is looking for some basis to cause an emergency that will allow him to get back to SCOTUS. So Jack Smith will (and probably would have, in any case) submit the filing under seal, and only afterwards work on unsealing it for the voting public.

For the Court’s awareness, the opening brief and its exhibits contain a substantial amount of Sensitive Material, as defined by the Protective Order. Consistent with the Protective Order, the Government intends to file a motion for leave to file under seal that attaches an unredacted copy of the motion and appendix and proposed redacted versions to be filed later on the public docket at the Court’s direction. See ECF No. 28 ¶¶ 11-12. Because of the extensive and time-consuming logistics involved in finalizing the brief, appendix, and proposed redacted public versions of the same, the Government respectfully requests the Court’s decision on this motion as soon as practicable.

Voila, no emergency.

But without creating such an emergency, then Chutkan will get a look at the argument.

I honestly have no idea how it’ll end up. I’ve been wracking my brain for what procedural reason Trump’s team could use to declare an emergency.

But with this SCOTUS, it doesn’t have to be all that plausible.

Kamala Harris Is Not Goading Journalists to Publish Emails Iran Stole from Roger Stone

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As I’ve alluded to a few times, I was sent what I believe to be three of the files Iran puportedly stole from Trump’s team. I received them after I explained why I thought this hack-and-leak was different than the Hillary one in ways that should influence considerations about publishing:

  • Trump doesn’t compartment his campaign from his crimes, meaning Iran could be — could have been trying, could have succeeded in — stealing information about the Iran-related documents Trump took when he left the White House. The report that Susie Wiles was the intended target of the hack confirms that risk. In addition to running Trump’s campaign, Wiles decided who would be provided defense attorneys paid by the campaign. Aside from the classified information Trump shared with her, she should never have had anything implicating classified discovery and the classified discovery itself should never have left the SCIFs in which it was provided to defense attorneys. But she is likely to know some of what — for example — witnesses like Kash Patel said about classified information.
  • In addition to the hack, Iran allegedly was also trying to solicit a hit squad to kill Trump (indeed, the alleged recruiter, Asif Merchant, was just indicted on Wednesday). That makes the possibility of Iran exploiting internal information from Trump’s campaign (such as travel details) far more dangerous.

I had decided it wasn’t worth participating. And then I got sent files I believe to be those vetting files.

In the last few days, Google has slapped a phishing warning on the files I got sent.

Even though I offered that explanation a month ago, I still get questions from people about why I, and why other outlets, haven’t published the documents.

Don’t get me wrong, other outlets are, without a doubt, exercising a double standard in choosing not to publish these documents, or at least reviewing whether the JD Vance vetting document includes some of the really damning videos surfaced since Trump picked him. It’s not just the Hillary emails in 2016. Every single outlet known to have received these files has also chased the Hunter Biden laptop, even though they never succeeded in implicating Joe Biden in anything found in the laptop. The dick pics were enough to sustain many outlets for a year (and longer, in the case of the NYPost).

But there’s one other big, big difference — one that I think explains the entire difference.

As far as I know, no one in the Kamala Harris campaign is goading journalists to post the documents.

Compare that to 2016, where Trump’s top people were strategizing how to maximize attention on John Podesta’s risotto recipe. Somebody who may be Don Jr was getting all his trolls to push hashtags so “liberal news forced to cover it.” Or 2020, when Trump’s personal lawyer flew around the world, even meeting with known Russian spies, looking for dirt on Joe Biden’s kid. And when a laptop of dick pics dropped in Rudy Giuliani’s lap, like magic, the far right demanded that private social media companies let those dick pics disseminate like wild, because — they claimed — the dissemination of distractions about Hunter Biden was absolutely crucial to Trump’s election strategy.

If I’m right that Kamala Harris has never encouraged journalists to post these documents, there would be a very good reason why not, even beyond the considerable national security risks of encouraging hack-and-leak operations from hostile intelligence services.

Kamala has just 107 days to win an election. And she has a story that she is very very busy telling.

Hack-and-leak operations are about attention, about distraction. If she focused on these stolen documents, she would distract from her own campaign, from the story she is busy telling.

In 2016, Trump used the documents Russia stole to suck up media attention, which served to distract from his own corruption. That’s what he tried in 2020, too. And media outlets have, quite literally, argued that they could avoid accusations of liberal bias by printing error-riddled stories about Hunter Biden, still sucking on that dick pic, three years later.

Hack-and-leak operations help someone like Donald Trump, because too much scrutiny of his own actions might sink his campaign.

But Harris is doing something different than Trump. She’s trying to convince voters that government can improve their lives. She’s trying to convince voters that she cares about their issues and plans to [try to] address them. She needs to sustain their attention long enough to tell that story.

She doesn’t have the time to chase distraction with documents stolen from Trump.

Besides, the press has barely scratched the surface of the corruption or right wing extremism of Trump and his running mate, just sitting in plain sight, such as JD’s claim that we’re still fighting the Civil War and he’s fighting on the side of the south, or Trump rolling out another effort to cash in on his campaign, just weeks before the election.

There’s no shortage of dirt on Donald Trump. Nothing Iran has offered, thus far, at all compares to the stuff sitting out in plain sight.

There is, however, a shortage of time. And wasting time on stolen emails would squander what little time there is.

John Lauro’s Mike Pence Gateway Drug

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As I laid out last week, Trump’s lawyers want to make the entire immunity discussion about his January 6 indictment about Mike Pence; they had wanted to do so after the election. They argued in their status report that Jack Smith will be unable to rebut the presumption invented by John Roberts that discussions with Mike Pence are immune from prosecution.

[I]n Trump, the Supreme Court held that President Trump is “at least presumptively immune from prosecution for” all alleged efforts “to pressure the Vice President to take particular acts in connection with his role at the certification proceeding.” Trump v. United States, 144 S. Ct. 2312, 2336 (2024). These same allegations are foundational to the Superseding Indictment and each of its four counts. See Doc. 226 at ¶¶ 5, 9(b), 11(c)-(d), 14, 51(b), 55, 67–90, 99–100. If the Court determines, as it should, that the Special Counsel cannot rebut the presumption that these acts are immune, binding law requires that the entire indictment be dismissed because the grand jury considered immunized evidence. Trump, 144 S. Ct. 2312, 2340 (2024) (“Presidents . . . cannot be indicted based on conduct for which they are immune from prosecution.”).

The Special Counsel’s inability to rebut the presumption as to Pence is dispositive to this case. The special counsel will be unable to do so as a matter of law, thus rendering the remainder of the case moot. Trump, 144 S. Ct. 2312, 2337 (2024) (“We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”). [emphasis original]

As it became clear at last Thursday’s hearing that Judge Tanya Chutkan wasn’t going to let Trump delay until after the election, Trump’s attorney, John Lauro, made a number of desperate bids to — first — limit the entire immunity discussion to Mike Pence, and then limit that discussion to legal issues, not evidentiary ones. This seems to be an effort to prevent actual facts, including previously undisclosed ones, from being disclosed before the election.

Here’s how Lauro described it. All sides agree that the immunity decision treated conversations between the President and the Vice President as presumptively immune (though Judge Chutkan stumbled on this once). Lauro asserted that the standard the Supreme Court set on whether prosecutors could rebut this presumptive immunity was whether using conversations between the President and his Vice President would intrude on important presidential functions. If it would, those conversations would have to be immunized and, because the grand jury was exposed to them in the process of superseding the indictment, the entire indictment would have to be thrown out.

MR. LAURO: That’s what I’ve said, that that’s an official act.

So as a matter of — as an initial matter, the issue before the Court is whether or not the Government can overcome the presumption, whether or not they can show that there’s no way, no possible way, that the lack of immunity would result in an intrusion on an important presidential function.

They can’t show that. And if, in fact, the communications with Vice President Pence, which are all over this indictment, if, in fact, those are immune, then that entire indictment is improper and illegitimate. And that’s a gateway issue that your Honor needs to decide right away.

That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

A bit later in the hearing, Lauro argued that Judge Chutkan could first rule on the legal issues — the ones the Supreme Court already did rule on — and only then turn to the evidence.

MR. LAURO:  [T]he issues here, your Honor, at least initially, can be decided on a legal basis. Obviously, there’s some room for your Honor’s determination as to the timing. But the structure, the sequencing, makes perfect sense in terms of the way we proposed it.

That’s when he raised the election.

MR. LAURO: These important issues, which the Supreme Court has said are of great magnitude to the country, should not be decided by an asymmetrical proffer from the Government without President Trump’s ability under due process, the Fifth Amendment and the Sixth Amendment, to meet these witnesses and cross-examine them. That would be an inherently unfair and inequitable process.

THE COURT: It’s not unfair in the sense that you don’t get an opportunity to address the issues. You’re just doing it in a different sequence. There’s nothing inherently violative of due process by the Government filing an open brief and your getting an advance look at their arguments, have a chance to respond and address them. The Government replies. And if you want to file a sur-reply, you can ask for leave to file a sur-reply. But there’s nothing inherently unfair in that. It’s just a matter of who goes first.

MR. LAURO: Well, it’s incredibly unfair in the sense that they’re able to put in the public record at this very sensitive time in our nation’s history —

THE COURT: Ah.

Judge Chutkan dismissed the notion that any of this should be delayed in light of the election because it — Trump’s past action — is not a dispute about this election.

THE COURT: Let’s just — let’s just discuss what the sensitive time is. I understand there is an election impending, and I’ve said before and I say again that the electoral process and the timing of the election and what needs to happen before or shouldn’t happen before the election is not relevant here. This Court is not concerned with the electoral schedule. Yes, there’s an election coming. But the sensitive time that you’re talking about, if you’re talking about the timing of legal issues and the timing of evidentiary issues in relation to when the election is, that’s not — that’s nothing I’m going to consider.

MR. LAURO: I’m not asking you to consider it. But the courts have routinely said that courts should not be drawn into election disputes. And there is an inherent unfairness in the legal process —

THE COURT: Oh, I am definitely not getting drawn into an election dispute.

MR. LAURO: Right. And what I’m saying is that this process is inherently unfair, particularly during this sensitive time that we’re in.

Then, after Lauro raised issues of discovery and grand jury testimony, he doubled and tripled down on his bid to keep this evidence out of the public view before the election, leading to this crescendo, before Judge Chutkan cut him off.

But for them to selectively decide how they want to portray their case before we move to dismiss is completely contrary to the Rules of Criminal Procedure. It shows fundamental unfairness never before seen in a district court.

And it’s exactly the kind of proceeding that the Supreme Court said should never take place, and it’s the reason that the Supreme Court, I believe, in part ruled as it did, that these issues are very important. They need to be developed with some legal care in a very transparent and careful way.

This is not behind-the-envelope — or back-of-the-envelope jurisprudence. This has to be done in a very, very deliberative way.

What we’re suggesting is your Honor deal with the legal issues first in accordance with the Supreme Court ruling and then turn to the merits of the evidentiary issues that need to be developed. That way, it’s structured. If your Honor decides — and your Honor may very well decide — that the information relating to Vice President Pence is not only presumptively immune, but immune, then that indictment has to be dismissed.

Why do we go through merits arguments on presidential immunity when as an initial matter the Court can dismiss this case right away? And that’s exactly what the Supreme Court said you should look at. Let’s deal with the gateway issues first. And that’s the way the Court structured the opinion.

THE COURT: Well, when the Supreme Court considered this case, Mr. Lauro, they had the original indictment in front of them, which set forth all the communications with the former vice president that are — that you’re talking about.

They could have ruled then that the indictment was so permeated with those kinds of contacts that it should be — that it couldn’t hold up. They didn’t. They sent it back to me to make certain findings, not just with regard to those communications, but with regard to all the allegations in the indictment.

So I’m not sure that I agree with you that as a matter of law I could just dismiss the indictment based on the Supreme Court’s — dismiss the superseding indictment based on the Supreme Court’s decision at all.

MR. LAURO: Of course you can. Because the Supreme Court — and the ruling is clear, crystal clear — has already decided that the communications with Vice President Pence are official acts within the outer perimeter of the presidential responsibility. That is the case law of this case right now.

The only issue with respect to Vice President Pence is whether or not they can overcome the presumption of immunity, which is an incredibly high bar. They have to show that under no circumstances, under no circumstances is there any intrusion with respect to the authority and responsibility of the presidency in light of those communications.

That’s an incredibly high bar. Your Honor can decide that as a legal issue guided by counsel. We can make whatever proffers are necessary.

If your Honor decides that that is immune, then the whole indictment craters. It goes away. Because the Supreme Court decision made very clear you can’t use immunized testimony with respect to an indictment or otherwise at trial.

So this is a logical way for the Court to deal with these issues. What they’re suggesting — and I don’t think your Honor is suggesting it, but asking questions about it — is that we leapfrog over the legal issues. We get —

THE COURT: That’s not what I’m suggesting.

MR. LAURO: No. I’m not suggesting you’re suggesting it. I’m suggesting that’s what they’re suggesting.

THE COURT: I actually don’t think that’s what they’re suggesting.

MR. LAURO: Well, they are in this respect: They’re suggesting they leapfrog into merits-based argument over all the official acts. Right? They’re going to do their big proffer.

All of that is wasted time if your Honor decides initially that the Pence communications are immune and they didn’t overcome the presumption.

We can avoid months and months of briefing by your Honor dealing with the gateway issue first. That’s exactly what the Supreme Court said you should be doing.

THE COURT: All right. I think I’ve — you’ve made your argument on that point.

There’s nothing legal available to Judge Chutkan that wasn’t already available to the Justices. There’s no conceivable way SCOTUS could have imagined Chutkan could carry out this inquiry without looking at the facts. And Lauro is misrepresenting SCOTUS’ concern with a jury seeing such immunized communications and a judge seeing them — after all, judges routinely weigh in on whether things like Speech and Debate communications are immunized, most recently in Scott Perry’s challenge to a warrant for his phone.

Now, Lauro may not be wrong that when SCOTUS reviews this after the election, they’ll agree that the bar is as “incredibly high” as Lauro suggests. We all thought he was batshit when he said the President would have this kind of immunity the first time, but he ended up rightly predicting that the Republican members of SCOTUS were that corrupt.

Here’s what the immunity decision actually said.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. Art. II, §1, cl. 3; Amdt. 12; 3 U. S. C. §15. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

But there are three underlying tensions here.

First, quite early on, in the first time Lauro presented this argument to Judge Chutkan, she described that she wouldn’t be doing what SCOTUS told her to do if she didn’t conduct a fact-based analysis. She noted, as she would later, that the Supreme Court had everything Lauro claimed she could rely on — the indictment — but they didn’t make the legal decisions he said she could make without reviewing the evidence.

But when she made that argument the first time, she noted that she could be reversed (this would include the DC Circuit) if she didn’t conduct this fact-bound analysis.

Then Judge Chutkan, whose original opinion seemingly stated basic facts inherent to the Constitution was reversed by a decision that dramatically rewrote the Constitution, repeated, again, that she could be reversed no matter what.

MR. LAURO: That can be decided without an evidentiary hearing. That could be decided as a matter of law guided by counsel, which is exactly what the Supreme Court suggested.

THE COURT: I actually don’t think so, Mr. Lauro. The Supreme Court had the indictment before it. They decided — they ruled on these three categories. And certainly conversations with an existing vice president may be subject to the presumptive immunity that you talk about. But one of the things I have to decide is whether, based on facts presented to me by the Government, those conversations, those contacts, are somehow outside of his official duties.

MR. LAURO: I —

THE COURT: And I don’t think I can decide that as a matter of law. I think I would be — I would be risking reversal if I tried to decide that as a matter of law.

MR. LAURO: I would ask your Honor to reconsider —

THE COURT: I’m risking reversal no matter what I do.

Given the Calvinball the Supreme Court is playing with the Constitution, there’s literally no way she can avoid reversal by someone. So Lauro’s procedural complaint rings especially hollow. She’s likely to be reversed by somebody before this is over. I do agree she’s doing what SCOTUS told her, but even if she weren’t, all the normal incentives would be gone.

Plus, my guess is that Jack Smith will start from a different point, one Lauro never considered. The Supreme Court’s opinion assumed everything the President did was in the persona of the President. But the Blassingame decision that they pointedly did not address, at least, imagines that as candidate-for-President, nothing Trump did was an official act. When the President asks the Vice President to cast a tie-breaking vote to confirm a judge, he’s doing so as President. But when a candidate asks his running-mate to throw out 81 million votes, he’s doing so as a candidate, not a President.

And that’s something that Chutkan missed when she reminded Lauro, twice, that. “the original indictment in front of [SCOTUS …] set forth all the communications with the former vice president that are.” Not all the communications with Pence from the original indictment are in there. The superseding indictment took out several references Trump made, in conversations with Pence, to the Justice Department.

On December 29, as reflected in the Vice President’s contemporaneous notes, the Defendant falsely told the Vice President that the “Justice Dept [was] finding major infractions.”

[snip]

76. During the meeting, as reflected in the Vice President’s contemporaneous notes, the
Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?”

That’s important for two reasons. First, because it provides even further reason for Chutkan to conduct a fact-bound analysis.

But it also raises the question: What happens when Trump tries to reintroduce these references to DOJ? If he tries to use them to prove that Trump was speaking in his role as President, does that amount to a waiver of the immunity that Trump has worked so hard to get?

John Lauro worked hard to insist that everything involving Pence be excluded without closer review. But unless he invents a procedural reason to forestall DOJ’s memo on September 26, DOJ will get one (or two, with the reply) chances to lay out — before the election — how Trump tried to use his incumbency, and Mike Pence’s role as President of the Senate, to steal an election against from Joe Biden and the woman who currently is the President of the Senate.

The September 26 Brief We’ll Get in the Trump January 6 Case

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As I laid out in this thread, Judge Tanya Chutkan has set a deadline of September 26 for Jack Smith’s team to write a brief explaining how the superseding indictment against Trump consists exclusively of private conduct. From news coverage (Anna Bower and Roger Parloff did a typically good write-up of the hearing), it wasn’t entirely clear to me what that brief would entail.

Here’s how Thomas Windom described it in Thursday’s hearing:

MR. WINDOM: So what would our brief and what would our approach look like? What we anticipate filing in an opening brief is a comprehensive discussion and description of both pled and unpled facts. What this would do would be to set the stage so that all parties and the Court know the issues that the Court needs to consider in order to make its fact-bound determinations that the Supreme Court has required.

THE COURT: Your proposal mentions the Government’s briefing would include a proffer about unpled categories of evidence. You just mentioned that. Can you be a little more specific — or is that what you’re getting to? — about what that would look like? I mean, are you talking about not just — not the evidence itself, obviously, but the form it would take, proffered by — in written form? What are we talking about?

MR. WINDOM: Sure. So our initial view on it is this. We didn’t want to get ahead of the Court to lay anything specifically out.

But here’s what we are — what we were thinking and what we wanted to discuss with the Court: We were thinking a comprehensive brief where we would set forth the facts. What we would — that part of the brief would include things that are both in and outside the indictment. We anticipate that the brief would have a substantial number of exhibits. Those exhibits would come in the form of either grand jury transcripts, interview transcripts, 302s, documentary exhibits, things of that nature, things that would allow the Court to consider both the circumstances and the content, form and context, all in the words of the Supreme Court, that the Court needs to have in order to make its determinations.

We also in that brief, in addition to the facts, we would set forth for the Court why we believe that the conduct that is in the brief is private in nature and is not subject to immunity; and then with respect to the allegations in the superseding indictment involving the vice president, that the Supreme Court specifically talked about with respect to a presumption of immunity, why we believe that that presumption of immunity is rebutted.

We would — the benefit of us going first, which is what we are asking for, is that we would have everything in one place. The defense would know what the landscape looks like, as would the Court. And then we think that that would create a cleaner docket both for your determinations and also for any appellate court to review your determinations.

THE COURT: All right. So at this point, you wouldn’t anticipate proffering any actual evidence. It would be written submissions. And then, should I feel that I need further evidence, we would discuss that. Is that what you’re talking about?

MR. WINDOM: That’s right, your Honor.

Particularly given Windom’s reference to grand jury transcripts, that raised the question of how much of these “substantial number of exhibits” we’d get to see. The answer, per Windom, is that the existing protective order would govern.

THE COURT: How much of that information do you anticipate is going to be under seal?

MR. WINDOM: So that’s a good question. We don’t know the specific answer to that.

But I do know this: A year ago, we spent a considerable amount of time going through a protective order and making sure it could stand time. Paragraphs 11 and 12 specifically deal with this situation the defense counsel has raised. It is the Court that will decide what is unsealed from the sensitive discovery. It is not the defense or the Government that will do that.

We anticipate, consistent with the protective order, that any filing of sensitive material would occur first with a motion for leave to file under seal. The parties and the Court can determine thereafter what gets released into the public record in redacted form.

Here’s the operative language from the Protective Order.

11. The parties may include designated Sensitive Materials in any public filing or use designated Sensitive Materials during any hearing or the trial of this matter without leave of court if all sensitive information is redacted, and the parties have previously conferred and agreed to the redactions. No party shall disclose unredacted Sensitive Materials in open court or public filings without prior authorization by the court (except if the defendant chooses to include in a public document Sensitive Materials relating solely and directly to the defendant’s personally identifying information). If a party includes unredacted Sensitive Materials in any filing with the court, they shall be submitted under seal.

12. Any filing under seal must be accompanied by a motion for leave to file under seal as required by Local Rule of Criminal Procedure 49(f)(6)(i), as well as a redacted copy of any included Sensitive Materials for the Clerk of the Court to file on the public docket if the court were to grant the motion for leave to file under seal.

Effectively, then, Windom imagines that many of the exhibits would be submitted under seal, and there would be a fight about what gets released publicly, perhaps not unlike the process that has unfolded before Judge Cannon.

But Judge Chutkan would have the final say.