Witnessing the Proud Boys

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As I laid out here, defense attorneys in the Proud Boy leaders case have recently claimed that the government is pressuring potential defense witnesses to dissuade them from testifying.

Proud Boy defense attorneys are alleging that prosecutors are pressuring their defense witnesses with threats of prosecution. One person about whom their making the claim — about MPD lieutenant Shane Lamond, who has been suspended since last February under investigation that he helped the Proud Boys — their complaints are not credible. About others — including a female witness who might either be journalist Amy Harris, who spent a lot of time with Tarrio after he was released and to whom he said a lot of obvious self-exonerating statements, or Eryka Gemma, the woman who gave Tarrio a plan about The Winter Palace — defense attorneys claim they can provide sworn statements that prosecutors interviewed a witness without her attorney present. (I don’t trust either side in this case, so we shall see what actually gets filed.)

That is, as with the Oath Keeper trial, defendants are claiming that prosecutors are making witnesses unavailable with threats of prosecution (and as with the Oath Keeper trial, only some of those claims are credible).

The original complaint was aired in Enrique Tarrio’s bid to get his indictment thrown out unless DOJ immunizes Lieutenant Shane Lamond, an MPD cop whom Tarrio would alert to Proud Boy plans in advance. Tarrio submitted an updated motion to dismiss after the contentious December 2 hearing where this was aired, in which he argued that because the discovery he got didn’t show evidence of Lamond committing a crime, the government’s recent warning to Lamond that he’s at risk for an obstruction charge must be no more than an attempt to dissuade him from testifying in Tarrio’s defense.

During the past two years, the investigation, including the production of millions of pages of discovery, countless phone records and data dumps, thousands of hours of videos, and imbedded CHS informants, there has been no clear evidence of Lamond engaging in any illegal activity. The government was informed by the defense months ago of their intention to call Lamond to testify. At no point was Lamond in danger of being prosecuted, until now. On the eve of trial, the government contacted counsel for Lamond and informed him that Lamond’s actions might be considered obstruction of justice into Tarrio’s investigation and he may be prosecuted. Waiting until now is a tactical decision by the government to prevent Tarrio from exercising his constitutional right to present a defense. Knowing that Lamond’s testimony would exonerate Tarrio at trial and depriving Tarrio of his constitutional right is impermissible.

Preventing Lamond from testifying by holding an ostensible continuing investigation over his head violates Tarrio’s Sixth Amendment right to compulsory process of witnesses who would testify in his defense. If the government declines to immunize Lt Lamond, then the indictment against Tarrio should be dismissed.

But even in Tarrio’s description of his contacts with Lamond, the exchange sounds as much like a cover story as anything else.

Tarrio informed Lamond of the Proud Boys January 6 plans; to wit: they would not be wearing colors to protect themselves from being attacked and stabbed by Antifa as they had been on two previous occasions; they planned to be present to watch Trump’s speech; Tarrio planned to speak at the rally; they planned to protest the results of the election, and later that night they planned to party with plenty of beer and babes.

The Proud Boys eschewed colors to blend in, not for protection. There’s no evidence they ever planned to attend Trump’s speech (indeed, their choice to skip it is one detail that undermines all their excuses).

This particular challenge is highly unlikely to work. Lamond was suspended in February (not coincidentally shortly after FBI fully exploited Tarrio’s phone and even before Tarrio himself was charged), which wouldn’t have happened without fairly damning evidence. And back when the suspension was first disclosed, Tarrio made light of the contacts.

But Tarrio also said that during marches, Lamond would tell him the location of counterdemonstrators. Tarrio said that was so his group could avoid conflict, though after one violent night of demonstrations, police accused the Proud Boys of roaming the city looking for and instigating fights, targeting people they believed identified as antifa, or antifascists.

“He was just a liaison officer for when we held rallies,” Tarrio said of Lamond. He denied their relationship extended beyond that and said he is not a confidential informant for anyone on the D.C. police force.

“They’re just trying to get anybody at this point,” Tarrio said of investigators. “I only told him, ‘We’re coming into town and we’re going to hold this protest.’ That’s as far as the relationship went.”

Tarrio has been pursuing this line of defense since August, with little traction. Nothing is new about this scrutiny of Lamond, so the claim DOJ only recently floated some legal jeopardy doesn’t hold up.

Nevertheless, there have been several additional filings explaining the basis for the claims that the government was trying to make defense witnesses unavailable. In response to prosecutors’ observation at the hearing that Nordean was making allegations without backup, for example, Nordean’s attorneys submitted a “notice” of witness intimidation that provided few new details (though did submit the 302 for that specific witness to Judge Tim Kelly).

On December 2, counsel added there was evidence that after one such witness informed the government that she did not agree with the government’s claim that Nordean and others had conspired to attack the Capitol or use violence on January 6, a government prosecutor only then announced—in the same November 2021 interview—that the witness would be prosecuted for an offense. Shortly thereafter, counsel continued, an agent called this witness to advise that the prosecutor’s charging threat was inflated. In response, AUSA Erik Kenerson stated in the December 2 hearing that the notion that the “[g]overnment has somehow pressured witnesses, threatened witnesses, gone to witnesses when they were represented by counsel without counsel present, all of that is just categorically false.” The government added, “there has been nothing that the Government — that — has done that would warrant putting John Does on a witness list.”

The filing provided an excuse to reveal the identity of and submit a declaration from the witness, Adrienna DiCioccio, which would otherwise be sealed. She described how, in a November 2021, she told FBI Agents and prosecutors that she didn’t think Nordean and others were planning for violence on January 5.

During this second interview, the agents and prosecutors asked for my recollections about the evening of January 5 in the Airbnb residence where Ethan and others were gathered. I do not recall the specific words I used, but I informed the interviewers generally that I disagreed with the suggestion that Ethan and the others in his group were planning violence or an attack on the Capitol on January 6. I generally informed the agents and prosecutors that, as someone involved in planning peaceful events with the Proud Boys in the past, I disagreed with their suggestion that Ethan and others in the Airbnb were planning violence the following day in D.C.

But as to the substance of Nordean’s complaint — that the government was trying to pressure her not to testify by hanging criminal prosecution over her head — even DiCioccio’s filing undermined that, to say nothing of details provided in the government’s response. Most importantly, a transcript excerpt from an earlier interview shows she was warned of potential criminal exposure in a September 2021 interview, before she provided the testimony that — Nordean claims — led prosecutors to raise the specter of prosecution.

Ms. DiCioccio was interviewed twice: once in September 2021, and once in November 2021. It is the second interview that Nordean references and that is largely the subject of Ms. DiCioccio’s declaration. The transcript of Ms. DiCioccio’s first interview, which was produced to the defense in June 2022, belies any claim that the government only informed her of her potential criminal liability after “she did not agree with the government’s claim that Nordean and others had conspired to attack the Capitol or use violence on January 6,” as Nordean contends. Id. The below quote is from page 202 of the transcript of the first interview:

MS. DiCIOCCIO: Okay, because you guys were mentioning, you know, earlier, the other person cooperated very well with everything. You know, turned themselves in. I know you guys have things to go over, but, what am I looking at, at the moment? Should I be really scared? Should I be –

[AUSA]2 : The investigation is ongoing. Decisions are still being made. I mean, there are criminal charges that are out there, potentially, and maybe even likely. But it all depends on what we’re looking at (indiscernible).

MS. DiCIOCCIO: Okay.

[AUSA]: Again, I would say, let’s keep the lines of communication open.

MS. DiCIOCCIO: Yeah.

[AUSA]: So that we can have those types of conversations when it’s time to pull those types of triggers.

MS. DiCIOCCIO: Okay.

In other words, Ms. DiCioccio was informed in September 2021, well before the interview during which Nordean claims she was threatened with charges for refusing to tell the government what it wanted to hear, that she “potentially, maybe even likely” faced criminal charges. This was not news to her: video evidence of her offense conduct captures her saying, “Are we all gonna get arrested?” as she entered the Capitol building. After the first interview, Ms. DiCioccio agreed to voluntarily meet with prosecutors and agents again in November. As noted above, Ms. DiCioccio’s declaration is inaccurate, and the government submits that the FD-302 submitted by counsel describes an unremarkable interaction between prosecutors, FBI agents, and a potential cooperating witness.

2 The AUSA who participated in this interview was not any government counsel of record in this case.

The government response also shows that, not only did Nordean’s attorneys not submit anything to substantiate the allegation that the government met with DiCioccio without her retained counsel present, they provided her with information on how to get one.

Ms. DiCioccio’s declaration does not substantiate Nordean’s inflammatory accusations. For example, contrary to counsel for Nordean’s representations at the December 2, 2022, hearing, Ms. DiCioccio does not assert in her declaration that she had counsel who was not present during the interview. See Dec. 2, 2022, Hr’g Tr. at 58; 579-1. Nor does she say, as defense counsel asserts, that she had an attorney at the time of the interview. The FD-302 instead memorialized that the prosecutor suggested Ms. DiCioccio seek counsel and went so far as to provide her with a form to help her obtain a court-appointed one. In other words, rather than seeking to circumvent Ms. DiCioccio’s access to counsel (as Nordean wrongly asserted), the government affirmatively facilitated it.

There’s nothing all that compelling about the fact that a witness who breached the Capitol might be at legal exposure herself. While snide, the government suggests that DiCioccio was just upset because of her own criminal exposure (criminal exposure that, over a year later, has yet to be charged).

It is not surprising that the subject of a criminal investigation may be upset after being questioned about her conduct that led to that investigation. But any unease on Ms. DiCioccio’s part was not caused by impropriety by the government. It was instead caused by her own criminal conduct on January 6, 2021, and the fact that she may have to reckon with that conduct.

And again, all this happened long before any talk of trial witnesses.

One part of Zach Rehl’s parallel complaint might have more merit though (or is, at a minimum, of some interest procedurally).

It was filed — as was Nordean’s “notice” — on December 9, a week after the contentious hearing. But that would also put it more than a week after Rehl co-traveler Isaiah Giddings’ plea deal, in which he described that he didn’t even know the vote certification was happening on January 6 but he followed Rehl along obediently. There were a number of things in Giddings’ statement of offense that implicate Rehl, including that Rehl believed “someone had to do something” about the purportedly stolen election and that Rehl tried to find some bear spray in the middle of the riot. But as Rehl attorney Carmen Hernandez notes in the filing, Giddings did not admit to a plan to obstruct the vote certification.

Despite an inordinately lengthy Statement of Offense for a misdemeanor and multiple mentions of Mr. Rehl, there is no assertion that Mr. Rehl had a plan to interfere with Congress by force or corruptly.

Much of the rest of Hernandez’ filing requests either that Kelly immunize Giddings’ two co-defendants, Brian Healion and Freedom Vy (whom she doesn’t name), or sever Rehl from his own co-defendants and delay trial until after Healion and Vy’s case is resolved, making them available as witnesses.

At this level, this is just tactical. DOJ seems to be delaying a bunch of the Proud Boy cases until after the Proud Boy leader trial, but for reasons that arise from managing a larger conspiracy. Healion and Vy are only differently situated from DiCioccio in that they’ve already been charged, but they’re both genuinely implicated themselves.

Of more interest is Hernandez’ complaint about Jeff Finley (again, she doesn’t name him), the last co-traveler with Rehl the day of the attack. As she describes, Finley pled guilty last April, but his July sentencing was continued until February, putting it, like the Philly area Rehl co-travelers, after the trial.

One of the witnesses noted above entered a guilty plea to a misdemeanor on April 6, 2022.3 The statement of facts entered in the case shows that the witness does not implicate Mr. Rehl in any attempt to interfere with Congress by force or corruptly. Sentencing in the case was originally 4 scheduled for July 19, 2022. At the request of AUSA Jason McCullough, the July sentencing was vacated. Sentencing is now to be scheduled on February, 13, 2023 or a later date, after Mr. Rehl’s 5 trial is completed. Because a defendant retains a right to assert a claim to remain silent under the 6 Fifth Amendment until after sentencing isimposed, Mitchell v. United States, 526 U.S. 314 (1999), that witness is now unavailable to Mr. Rehl. By delaying the sentencing of this witness until after Mr. Rehl’s trial has concluded, the government has placed that witness outside Mr. Rehl’s Sixth Amendment right to compulsory process and has impeded Mr. Rehl’s right to present a complete defense.

As with Giddings’ statement of offense, Hernandez judges that Finley’s doesn’t support the charges against Rehl, though it does incriminate him. Plus, there is at least one additional Finley proffer that was provided to the Proud Boy leaders by last May. But given other discovery deadlines, Hernandez should know by now if such a proffer was expected to result in trial testimony (in which case, she would have no problem obtaining his testimony as a government witness).

This, too, is tactical (and an effort to preserve all this for appeal). But I find it curious that Finley also objected to testifying under subpoena.

Undersigned counsel has spoken to counsel for each of the three witnesses. All three have 2 indicated that if subpoenaed to testify, their clients would assert their Fifth Amendment rights to remain silent in light of the posture of their own cases. The delays that have made these witnesses unavailable are attributable to government conduct.

That doesn’t seem to accord with being a voluntary, cooperative witness for DOJ. It would suggest that he may still face vulnerability even in spite of his plea agreement, such as if DOJ discovered something he said in a proffer was not true.

The Proud Boys, far more even than the Oath Keepers, had ties to a great number of people who have their own exposure for January 6. And unlike the Oath Keepers, rather than flipping their way up to the leaders, DOJ seems to be starting with this leader conspiracy, with the likelihood of follow-on charges for others after the fact (in fact, Stewart Rhodes’ very good attorneys, James Bright and Phil Linder, just replaced John Pierce as Joe Biggs’ co-traveler Paul Rae’s defense attorneys). That’s an unusual way of prosecuting a complex conspiracy (though as I’ve written, the Proud Boy leaders may also be a necessary step before prosecuting those between them and Trump). But at least partly as a result, that means there are a great number of Proud Boys and associates out there, potentially friendly witnesses, but also defendants themselves.

And that, the Proud Boy leaders claim, amounts to an unconstitutional deprivation of defense witnesses

Update: Here’s the government response to Rehl (it cites another complaint from Nordean). In the section on Finley, DOJ says sometimes the government finds inculpatory video after someone pleads guilty.

The government notes – without suggesting that this is true in Mr. Finley’s case – that the January 6 investigation is replete with instances where a defendant has entered a plea of guilty only to have the government or counsel identify additional instances of criminal conduct by the defendant through diligent review of videos. Thus for many defendants, even those who have been sentenced, it is possible that defense counsel may believe that their client continues to have a legitimate Fifth Amendment privilege.

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Follow the Money: Merrick Garland Told You So

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My favorite thing about this CNN story providing new details on the Trump investigations that Jack Smith will oversee is the quote from TV lawyer Elie Honing, commenting about how much evidence Smith already had.

“Mueller was starting virtually from scratch, whereas Jack Smith is seemingly integrating on the fly into an active, fast-moving investigation,” said Elie Honig, a former federal prosecutor and senior CNN legal analyst.

Honig, of course, was long one of the worst kind of TV lawyers, who kept insisting there was no investigation into Trump because he hadn’t seen evidence of it (and he also because he hadn’t looked).

Effectively, this CNN article amounts to Honig admitting that he was wrong.

Among the details CNN provides are that there’s not just one prosecutor — Thomas Windom — on the Trump team, there are twenty.

A team of 20 prosecutors investigating January 6 and the effort to overturn the 2020 election are in the process of moving to work under Smith, according to multiple people familiar with the team.

Prosecutors on the Trump side of the January 6 investigation have had the green light to go after Trump for a year, not after Cassidy Hutchinson’s testimony as some liked to suggest.

[T]he other investigative team, looking at efforts to block the transfer of power from Trump to President Joe Biden after the 2020 election, had even a year ago been given the greenlight by the Justice Department to take a case all the way up to Trump, if the evidence leads them there, according to the sources.

CNN reveals an investigation into the finances of the attack, led by JP Cooney, that has also been going on at least a year.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

The thing is, we long had reason to know that there was a financial component to the investigation. Merrick Garland implied to Sheldon Whitehouse as much on October 28, 2021.

Garland: Senator, I’m very limited as to what I can say–

Whitehouse: I understand that.

Garland: –Because I have a criminal investigation going forward.

Whitehouse: Please tell me it has not been constrained only to be people in the Capitol.

Garland: The investigation is being conducted by the prosecutors in the US Attorney’s Office and by the FBI field office. We have not constrained them in any way.

Whitehouse: Great. And the old doctrine of “follow the money,” which is a well-established principle of prosecution, is alive and well?

Garland: It’s fair to say that all investigative techniques of which you’re familiar and some, maybe, that you’re not familiar with because they post-date your time are all being pursued in this matter.

He said so even more explicitly on January 5.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

And now CNN reveals something else that TV lawyers were sure they’d know if it happened: “DOJ investigators enlisted cooperators months after the 2021 riot.”

Update: I’ve started to have some discussion about financial questions of interest, so thought I’d lay out some that likely have come up:

  • Nick Fuentes got a huge cryptocurrency donation just before the attack; did the donor (who killed himself) know that it’d be used to bring Nazis to the Capitol?
  • Patrick Byrne paid to fly some of the participants in the Big Lie and the December 12 rally from place to place; how closely was this tied to the overall plan to steal the election?
  • Alex Jones had a role in arranging Publix heir Julie Jenkins Fancelli’s funding for much of the rally. Did he do this with knowledge of plans to assault the Capitol?
  • A financial investigation into Sidney Powell has long been public. Even after that, she funded the defense of key witnesses. What were the legal circumstances of this money flow?
  • As the January 6 Committee made clear, Trump was raising money on promises of voting integrity long after he knew he had lost the election. Was that fraud, and did any money raised fraudulently go to pay for the attack on the Capitol?
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Judge Aileen Cannon Dismisses Donald Trump’s Documents Challenge

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Judge Ailenn Cannon has just dismissed Trump’s document challenge for lack of jurisdiction.

After 98 days, DOJ can finally use the unclassified documents seized with a lawful warrant in the investigation of Donald Trump’s stolen documents.

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DOJ Moves for Contempt as Injunction Finally Lifted

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I’m in transit and Google Fi is being useless so won’t say much about the two developing stories in the stolen document case.

But as WaPo and CNN are reporting, DOJ has asked Beryl Howell to hold Trump’s office in contempt for refusing to certify their searches for classified documents.

I guess my instinct that yesterday’s serial disclosures about additional stolen documents was just a cover story turned out to be correct.

Meanwhile, the 11th Circuit’s order vacating the Special Master order will now go into place and over the next day, DOJ will finally get the ability to question Trumpsters about the unclassified documents interspersed with classified documents.

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The Rules Against Keeping Classified Documents in an Unsecure RV Parked alongside Jeremy Brown’s Home

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Several days into the trial of Oath Keeper Jeremy Brown, it continues to provide useful lessons for the case of that other disgruntled former Federal employee who took classified documents home to Florida with him.

In a motion in limine submitted yesterday, the government sought to preclude Brown from taking the stand and explaining why he took one of the classified documents he is accused of storing in his RV.

Count 10 charges the Defendant with violating 18 U.S.C. § 793(e) in connection with his willful retention of the Classified Trip Report. The parties have agreed that in order to prove the Defendant guilty of this offense, the government must establish that (1) the Defendant possessed the Classified Trip Report without authorization, (2) the Classified Trip Report relates to the national defense, and (3) the Defendant willfully retained the Classified Trip Report and failed to deliver it to an officer of the United States entitled to receive it. See Dkt. 230-1 at 19 (joint jury instruction setting forth elements of 18 U.S.C. § 793(e)).

Notably absent from these elements is any requirement that the Defendant intended to harm the United States. Nor does the government need to prove that the Defendant even knew or had reason to know that his conduct would harm the United States. Consequently, evidence of the Defendant’s motive, rationale, or justification for possessing the Classified Trip Report is irrelevant to the elements of this offense—unless he is contending that he was authorized to possess the Report (which he has never and cannot credibly argue).

Such evidence is also not relevant to establishing that the Defendant “willfully” retained the Classified Trip Report. The Defendant either acted willfully—i.e., he knew that his conduct was generally unlawful—or he did not. His reasons or motive for so acting are irrelevant. Here, the Defendant knew that the Trip Report was classified and he knew that it was against the rules to keep classified [sic] in an unsecure RV parked alongside his home. Indeed, he placed the classified markings on the document himself, and chose to include particularly sensitive information in the Report that could jeopardize U.S. national security. The Defendant’s subjective preference that some of the information in the document should have been at a different classification level – as pointed out to the jury during cross-examination of Special Agent Koundarakis – is similarly irrelevant. On these facts, the Defendant acted willfully. The Defendant’s subjective belief that he had good intentions, or his preferred classification level for the information in the document, is entirely immaterial to that analysis.

This is the kind of motive argument that many people accused of 18 USC 793(e) want to argue. Trump (or Kash Patel) himself has argued a form of it by arguing that he should have been able to take the documents about the Russian investigation to prove he was unfairly targeted.

In this case, the government is arguing that doing so (Brown already did so in opening arguments) amounts to jury nullification.

“[T]he potential for jury nullification is no basis for admitting otherwise irrelevant evidence.” Funchesi, 135 F.3d at 1409. The defendant does not have a due process right to present evidence “the only relevance of which is to inspire a jury to exercise its power of nullification.” Id. at 1408. Rather, “[j]ury nullification verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.” Id. at 1409.

If and when Brown’s fellow Floridian is ever charged with 793(e), I expect to see a much more extended version of this argument: That’s it’s okay to bring home classified documents and store them in your RV or leatherbound box of trophies because you had a good motive.

But there will be a whole bunch of precedent ruling such arguments about — possibly even from Brown’s own case! And since the 11th Circuit ruled that Trump isn’t special, I don’t expect any attempt to argue motive will work

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Another Late September Russian Influence Peddler Indictment

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EDNY just rolled out an indictment against Andrii Derkach — the Russian-backed Ukrainian who was pitching Hunter Biden dirt to Rudy Giuliani in December 2020 — on charges of money laundering to hide his ownership of some Condos in CA, which are being seized.

Both the EDNY …

“The conduct of this Kremlin asset, who was sanctioned for trying to poison our democracy, has shown he is ready, willing, and capable of exploiting our banking system in order to advance his illicit goals. The U.S. will not be a safe haven where criminals, oligarchs or sanctioned entities can hide their ill-gotten gains or influence our elections,” stated United States Attorney Peace. “This Office, together with our law enforcement partners, will use every tool available to prosecute those who evade sanctions and abuse the U.S. financial system, and we will identify, freeze and seize criminal proceeds whenever and wherever possible.”

“Kremlin-backed Ukrainian politician and oligarch, Andrii Derkach, was sanctioned for his efforts to influence the 2020 U.S. Presidential election on behalf of the Russian Intelligence Services. While participating in a scripted Russian disinformation campaign seeking to undermine U.S. institutions, Derkach simultaneously conspired to fraudulently benefit from a Western lifestyle for himself and his family in the United States. The FBI will continue to use all the tools at its disposal to identify Russian intelligence operations, disrupt Russian information laundering networks, and bring to justice those who seek to engage in criminal conspiracies to undermine the integrity of U.S elections and evade U.S. sanctions,” stated Assistant Director-in-Charge Driscoll. [my emphasis]

And DOJ press releases …

In conducting that travel to, and spending time in, the United States, Derkach was actively involved in deceiving U.S. law enforcement and border authorities even prior to his SDN designation. For example, in December 2019 and February 2020, Derkach was in the United States to meet with U.S. persons and conduct media appearances. To obtain a U.S. visa, and to ostensibly attend meetings and conferences related to human rights issues in Ukraine, Derkach retained the services of a U.S.-based consulting firm (Firm-1). The written contract purported to be between Firm-l and a Ukrainian shipping company and did not refer to Derkach, notwithstanding Derkach’s direct involvement in the provision of services that the contract purported to reflect. In or about and between July 2018 and December 2018, Derkach paid Firm-l approximately $100,000. In a July 2018 email communication with Firm-l, Derkach’s representative expressed concern that, “given the fact that my client [Derkach] is a politically exposed person, as well as the statements he made concerning Ukraine’s interference into U.S. elections and the insider information we have in our possession,” the visa application process could be potentially complicated for Derkach. [my emphasis]

… Mention things that involve the former President’s personal lawyer. But even the indictment, which gets a bit more explicit about his trips to meet with Rudy, don’t name him.

The most interesting detail, for now, is that the actual indictment date was September 26, putting it in the same week when DOJ was prioritizing all the charges against Oleg Derpiaska and his associates. The delay appears to have involved filing the forfeiture against Derkach’s CA property.

But I suspect we’ll see more delayed disclosures from late September.

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Two Inconsistent Stories on Additional Searches of Trump’s Property

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WaPo and CNN both have stories about searches by a professional firm on additional Trump properties, looking for stolen classified documents.

In addition to at least three paragraphs that are affirmatively misleading (one that does not push back on a bullshit quote about how cooperative Trump has been, one that described Trump’s outright obstruction as a “breakdown … in trust,” and one that claims Trump is trying to avoid another high profile search when the further search was ordered by Chief Judge Beryl Howell) WaPo describes only searches of Bedminster and, later, Trump Tower.

Trump’s legal team hired an outside firm to carry out the search of his golf club in Bedminster, N.J., and, more recently, Trump Tower in New York, according to the people, who spoke on the condition of anonymity to discuss sensitive information.

In one paragraph, it describes that Trump’s lawyers told DOJ they did not turn up more documents, but in a follow-up, WaPo describes an attestation that may or may not apply to just Bedminster.

Trump’s lawyers have told the Justice Department that the outside team did not turn up any new classified information during their search, according to people familiar with the process, and have said they utilized a firm that had expertise in searching for documents.

[snip]

The group first conducted a search of Bedminster, and Trump’s attorneys have now attested to the Justice Department that no further materials were found, two people familiar with the matter said.

CNN’s story, however, describes searches of four properties.

Lawyers for former President Donald Trump recently hired a team to search four of his properties for any potentially remaining classified materials, according to a source familiar the matter.

The team of two searched Trump Tower in New York, the Bedminster golf club and two other properties amid lingering concerns from the Justice Department that not all documents had been returned to the federal government.

And while CNN’s single source would not reveal what Trump’s lawyers told DOJ about the results, it specifically said that “they” did not make an attestation.

The source would not detail what they have told the Justice Department about the search, but did say they have not attested to the Justice Department that no new material was found during the search.

That double negative — have not attested that no new material was found — might either suggest the lawyers or those doing the search have their own questions. Or it might suggest additional documents were found.

If more documents were found, it would change DOJ’s options on venue for charges, making Southern District of New York, New Jersey, or possibly even Northern Virginia, depending on where any additional documents were found.

Update: WaPo has updated their story to reflect that classified documents were found in a storage facility in Florida. Which might explain a good deal of the discrepancy.

People familiar with the matter said the storage unit had a mix of boxes, gifts, suits and clothes, among other things. “It was suits and swords and wrestling belts and all sorts of things,” this person said. “To my knowledge, he has never even been to that storage unit. I don’t think anyone in Trump world could tell you what’s in that storage unit.”

There was no cataloguing of what was put in the storage unit, Trump advisers said — just as there was no cataloguing of what classified documents were taken to a room underneath Mar-a-Lago.

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A Counter Perspective: On the House January 6 Committee’s Impending Referrals

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[NB: it’s an absolute must to check this byline, thanks. /~Rayne]

We don’t all agree here at emptywheel all the time. Our reactions to the news about the House January 6 Committee’s intent to issue criminal referrals is one of those occasions.

You can read bmaz’s take at this link. If you’ve been reading the site’s comment threads since the first posts here about the January 6 Committee’s work, you already had a pretty good idea what bmaz’s sentiments have been as he’s been quite clear.

In essence bmaz found Tuesday’s news about the Committee’s expected criminal referrals

– attention seeking (“media whores,” “preening,” “infomercial”);
– the referrals an activity which “means absolutely nothing” because the Department of Justice will prosecute on their own.

One point of contention between us has been the nature of the Committee’s work. bmaz has called it political, referring to the committee negatively as a “political body” and the criminal referrals “useless and meaningless political gestures.”

Yes, it is political. That’s how governance happens, through politics.

From Merriam-Webster dictionary:

1 a: the art or science of government
b: the art or science concerned with guiding or influencing governmental policy
c: the art or science concerned with winning and holding control over a government

2: political actions, practices, or policies

3 a: political affairs or business
especially: competition between competing interest groups or individuals for power and leadership (as in a government)
b: political life especially as a principal activity or profession
c: political activities characterized by artful and often dishonest practices

From Cambridge Dictionary:

the activities of the government, members of law-making organizations, or people who try to influence the way a country is governed

From Macmillan Dictionary:

the activities and affairs involved in managing a state or a government

the profession devoted to governing and to political affairs

social relations involving intrigue to gain authority or power

the opinion you hold with respect to political questions

the study of government of states and other political units

In the simplest, bluntest terms, politics is how shit gets done by groups who are not all of the same mind at the same time. Governance in a democracy is politics, it is political activity.

Congress is inherently a political body, its activities are political, and the government it legislates to execute laws is a function of politics at work.

~ ~ ~

There is nothing wrong with politics except when it denies the rights of individuals to exist, stripping them of agency and autonomy for the purposes of an exercise in partisan ideology and/or autocratic power, and/or personal venality rather than to achieve the aims of our shared social contract, the Constitution.

It is particularly egregious when the persons aiding and abetting an attack on the Constitution are those who have not only participated in politics for the purposes of serving as an elected representative and then sworn an oath to defend the Constitution and its aims:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

What happened on January 6, 2021 at the U.S. Capitol Building in Washington D.C. was the furthest thing from a more perfect Union. The acts of thousands sought to undermine the domestic tranquility of millions to the personal benefit of one man.

This was not politics but its antithesis, an attempted smash-and-grab intended to deny liberty and justice obtained through political activities, by obstructing government operations in the transition and transfer of a democracy’s leadership.

~ ~ ~

The Constitution to Article I, Section 1 confers upon Congress “All legislative Powers” – this is the legitimization of a political body to effect the nation’s governance.

Congress’s Powers under Article I, Section 8 include:

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

as well as

To make Rules for the Government…

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;-And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[bold mine]

Without exercising these powers Congress cannot assure its obligations under the Constitution are completed.

In the specific case of January 6, Congress was attacked in its own seat of power, its election-related proceedings obstructed by domestic terrorists engaged in seditious conspiracy. Americans died, both attackers and defenders. Public property was destroyed.

Response by law enforcement and other security forces like its militia — the National Guard — was not satisfactory leading up to and during the January 6 attack. The risk of domestic terror remained high even after that date.

The person who stood to benefit most from the terror and the obstruction wrought was the head of the executive branch, whose function as executive is subject to legislation and oversight by Congress. That same person may have abused his office to further his personal interests.

It is wholly natural to expect the House to investigate the terror attack on Congress’s offices and its proceedings; it’s part of Congress’s job.

The attack aimed to stop the activities essential to the republic. To that end the House established the January 6 Committee and the mission which the committee was to fulfill.

The mission included releasing a final report of findings to the public, with interim reports as necessary, with the ultimate goal specification of corrective measures to remedy failings and improve the security posture of the Capitol and the nation, without regard to the political party helming either house of Congress or the executive branch.

All of that is politics. All of that is political. That is the nature of government in a democracy.

~ ~ ~

With regard to the complaint the January 6 Committee acted like “media whores,” this site’s comments certainly didn’t reflect that.

The number of comments published every week about when the public would hear or see something from the Committee in the way of action whether subpoenas or hearings or reports or referrals could be annoying – as annoying and frustrating as the complaints about when the Department of Justice was going to do something, anything.

The number of tweets the Committee has published to date are 627, its press releases which may duplicate tweet content amount to less than 90 over 14 months time — hardly an attention seeking volume.

Marcy wrote a number of posts about the DOJ doing something right under everyone’s noses while pundits complained on television and in social media nothing was being done.

While the DOJ was crunching away on the largest investigation it has every conducted, the J6 Committee did likewise while trying to avoid further obstruction by members of Congress as well as persons who continued to support Trump and his Big Lie.

If anything the American public didn’t hear enough about what the Committee was doing. As of late October, the Committee had issued at least 100 subpoenas; the media reported in any detail only on the most intransigent subjects like former Trump advisor Steve Bannon.

If the Committee had been media whoring, we would have had every jot and tittle crammed in our faces daily and weekly about the subpoenas and consequent testimony – but we saw very little, save for nine hearings taking less than 40 hours time.

What we did see was distilled for a contemporary audience flooded with other media, an audience which wouldn’t have the patience to deal with thousands of hours of testimony and evidence.

It’s quite possible the opposite is true, that the Committee didn’t do enough to share its work in progress with media. Had it done more earlier to release testimony and evidence, perhaps the GOP would have had to counter these reports instead of sowing manufactured fear, uncertainty, and doubt about inflation and the economy’s direction during the mid-term elections.

Perhaps control of the House might not have gone to the GOP if the Committee had been more open about the partisan nature of the attack on the Capitol.

You can be certain had the shoe been on the other foot, with the GOP leading an investigation, it would have been another pointless circus like the Benghazi hearings which GOP congresspersons admitted were purely partisan stunts intended to suppress approval of Hillary Clinton ahead of the 2016 election.

The Benghazi hearings were politics without governance, not one passed bill as a result of all the hot air.

That 2015 committee’s work “means absolutely nothing” even seven years later, except as a cautionary tale about partisan hackery in lieu of governance.

~ ~ ~

Again, not all the team here at emptywheel will agree about the J6 Committee’s work, particularly the anticipated criminal referrals.

Marcy mentioned in comments,

… If it’s a referral on 1512 grounds for Trump, I’m not all that interested. If it’s a means to refer the witness tampering for specific witnesses that would not have been replicated before DOJ, by all means refer.

By “1512” she means Title 18 U.S. Code 1512 – Tampering with a witness, victim, or an informant – I’m not certain which subsection(s) she means.

The Committee will likely refer whatever it found, though, without regard to the DOJ’s progress so far. (The Committee should not know much about the DOJ’s investigative efforts.)

If there is to be corrective action recommended and corresponding legislation drafted, submitted, debated, and passed, there must be a documented need for the change.

We should expect to see some duplication between J6 Committee and DOJ for this reason: they have different objectives.

Because of the Constitution’s Article I, Section 6 Rights and Disabilities, the Committee has more power and latitude to question and demand accountability of its own members within its own chambers, should its investigation have uncovered evidence of criminal behavior by congresspersons who supported Trump’s Big Lie efforts.

Further, the J6 Committee has an obligation to history and not just its legislative duties. It needs to document what crimes it found had been committed against it, the political body which acts as the representative of the people in its creation of laws to create a more perfect Union.

It’s not enough to report a crime has been committed against the people’s representatives. The people must demand with criminal referrals that the highest law enforcement body investigate and prosecute who attacked our democratic republic, even if DOJ has already begun this effort.

As Ben Franklin said in 1787 in response when asked what form of government the Constitution Convention had established: “A republic, if you can keep it.”

The J6 Committee’s “political gestures” are some of the means to do so.

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Special Counsel Jack Smith Taught DOJ How to Alphabetize by Last Name! A Tale of Two Subpoenas, and Other Self-Mockery

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In the wake of the appointment of Jack Smith, journalists (including yours truly) and TV lawyers everywhere are overreading everything that happens in Prettyman Courthouse, when the reality is that the visible signs of investigation into Donald Trump are largely logical next steps from prior known steps before Smith was appointed. What we’re seeing, thus far, is almost certainly in reality the expected flurry of activity after the election pause ended.

So to make fun of myself and others, let me overread.

BREAKING: Jack Smith has taught DOJ how to alphabetize by last name!

I base that claim on two subpoenas from the same investigation: This subpoena, to some Arizona Republicans, first reported by WaPo in July. And this subpoena, to Milwaukee County Clerk, also reported by the WaPo, today.

Both are from grand jury 22-5, which earlier this year was focusing on the fake elector plot. Both include the same FBI agent, Daniel Mehochko, as the recipient.

But the first subpoena was sent in June, under Matthew Graves (it was signed by AUSA Thomas Windom). The second subpoena was sent on stationary naming Jack Smith (it was signed by AUSA Matthew Burke).

So, in my self-mocking overreading, the difference between the two closely related subpoenas must reflect the passage in time and new rules we’ll ascribe, with no basis, to Jack Smith (but which are almost certainly due to some other thing).

On that logic, one key difference is that in the new subpoena — the one sent under stationary with Smith’s name on it — is that a fairly standard list of names of top Trump associates is alphabetized by last name, whereas the same list in June was alphabetized by first name. (The number after the names in the left column reflect where they showed up in that earlier list.)

There are other differences, too. The newer subpoena covers an earlier but shorter timeframe, from June 1, 2020 to January 20, 2021 than the older one, which covers October 1, 2020 to then present, June 2022. The older subpoena asks for communications with “any member, employee, or agent” of the Executive or Legislative branches, but only asks for comms with agents of Donald J. Trump. The newer one doesn’t ask for comms with Congress (though that may be because members of Congress weren’t involved as they were with the fake electors). But it does ask for comms involving Donald J. Trump, the man, not just the campaign.

Perhaps the most interesting difference — one that may reflect a change of real rather than self-mocking import — is that Joshua Findlay (background here) and Mike Roman (background here) are not on the newer list. Roman had his phone seized in September.

Here are some other events that have happened since Jack Smith was appointed that are probably just the steps that prosecutors already had planned, including some who are probably not on Smith’s team:

  • November 18: A DC prosecutor who has focused on important assault cases, Robert Juman, issued a subpoena to Alex Holder, the documentary film maker who tracked Trump and his family. That was first reported by Politico.
  • November 29 and December 6: Stephen Miller makes two appearances before the grand jury.
  • December 1: Dan Scavino, William Russell, and William Harrison testify before the grand jury.
  • December 2: The two Pats — Cipollone and Philbin — testify for a combined ten hours to the grand jury.

Update: As noted in the comments, the earlier list was also alpha order, just by first name. I’ve attempted to mock myself some more above accordingly.

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Trump Is a Mob Boss Whose Omertà Has Started to Fail

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In the opening paragraph of Ruth Marcus’ latest column about Donald Trump, she admits that on July 21, 2015, she assured readers, “Do not worry about Donald Trump becoming president.”

It’s only fair, I guess, for me to start a response to Marcus’ column by noting that on July 30, 2015, I told people to worry.

[S]o long as the base continues to eat up Trump’s schtick –the Republicans are going to be stuck with him, because they have few means of controlling him and even fewer to limit any damage he might do if provoked.

[snip]

If all proceeds as things appear to be proceeding — although, yes, it is far too early to say for certain that it will — Republicans will ultimately be applauding the prospect of President Trump.

Marcus’ 2015 column wasn’t all embarrassingly wrong. She correctly noted that slightly over half of Republicans still recognized that Trump did not ideologically match the Republican party, then observed that Trump provided one to replace Republican ideology: Trumpism.

56 percent of all those surveyed, and 54 percent of Republicans, said Trump does not reflect the “core values” of the Republican Party.

[snip]

Trump’s appeal will, hopefully, be fleeting, but it feels different from the flavor-of-the-month parade of GOP front-runners — Michele Bachmann, Herman Cain, Rick Santorum — four years ago. His prominence cannot be attributed to simple celebrity and name recognition.

More than any of those predecessors, it taps into a fundamental anger among a portion of the electorate. Trump is the un-Reagan — unsmiling and unmoored to any ideology other than Trumpism — but his surly message matches the times.

In this week’s column, Marcus cited several other of her columns about Trump. A December 2020 one in response to a long video sowing the Big Lie that would, a month later, incite an attack on the nation’s Capitol, observed that Trump will say what he needs to, even while Marcus hoped that Trump would just melt away.

He will say whatever he needs at the time he needs to say it.

Deluded or evil — in the end, it makes little difference. What matters is the impact of Trump’s words. Perhaps we are in the final, most florid throes of Trump and Trumpism. No doubt it will be far harder to play the bully without the bully pulpit. I have always thought of the Republican Party — Republican elected officials, especially — under the thumb of Trump like the flying monkeys under the Wicked Witch of the West. Once Dorothy throws water on the witch and she melts, the monkeys rejoice in her demise — and their liberation.

What’s worrisome is that Trump isn’t melting — not fast enough, anyway.

An August 2022 one, which doesn’t mention the January 6er who, weeks earlier, had responded to Trump’s incitement and tried to breach the Cincinnati FBI office before dying in a standoff with cops, describes that Trump and Lindsey Graham were promising violence if Trump were charged.

Donald Trump and his defenders are using a version of that gambit to deter the Justice Department from prosecuting the former president, arguing that going after Trump would dangerously incite his already angry followers.

From there, Marcus engages in a factual analysis of the differences between Hillary’s use of a private server and Trump’s theft of highly classified documents, as if that would dissuade anyone from political violence.

This most recent column spends a lot of time reflecting on her — Ruth Marcus’ — thought process when deciding whether to write about Trump. Before July 2015, it was beneath her dignity.

There was a time, in the naive spring and summer of 2015, when I deemed Donald Trump beneath my notice and refused to write about him:

Then she tried calling him out for a while.

There was a time, in the increasingly appalling months and years that followed, that I deemed Trump too dangerous to disregard and I could not stop calling out his never-ending, ever-escalating outrages against American democracy.

Then, until he started riling up mobs in December 2020, she got bored and ignored him.

[D]uring his final stretch in office, and in the years since, I mostly averted my gaze.

As to this particular column, written over six years after telling us not to worry, Marcus says that, even though, “no minds will be changed,” Trump’s latest embrace of authoritarianism must be denounced. Passive voice.

But I mostly thought: Why bother? Shaming targets and convincing readers are the columnist’s goals. With Trump, no minds will be changed, and neither will his behavior.

And yet, there are times when attention must be paid — if only to lay down a marker, if only (grandiose as this may sound) so historians will understand: This went too far. This cannot be allowed to stand without being denounced.

Having decided Donald Trump will be denounced, Ruth Marcus then quotes him.

In full.

The entire Tweet that Marcus found required denouncing, she reproduces in full, and only then starts scolding: “deranged,” “hijacked,” “megalomania,” “bluster,” with each scold reinforcing the tribalism that Trump has always deployed when he’s at risk. In so doing, she has voluntarily become a bit player in Trump’s reality TV show, reinforcement to the mob that Trump retains the power to earn Ruth Marcus’ scolds.

Like Marcus, I don’t think Trump’s desperate wails should be ignored. But I think there is an alternative to “giv[ing] him oxygen.” There’s certainly an alternative to disseminating his screed, which always reinforces the tribalism that Trump uses to survive. Disseminating Trump’s words unbroken, I’m convinced, only serves to signal to his supporters where the dividing lines lay, while heightening the import of that tribalism and Trump’s role in it. Trump is powerful because the liberals he has trained people to despise say he is by disseminating Trump’s words for him.

I prefer to talk about why Trump continues to ratchet up his screeds, with each new week, using increasingly violent rhetoric to ensure he’ll go viral on Twitter. He has to. Or rather, as Marcus herself recognized, “He will say whatever he needs at the time he needs to say it.”

He’s contractually stuck on his loser social media platform, which means the quickest way to get attention is to invite the scolding of people like Marcus. He’s well aware that others — Elmo, Ron DeSantis, even Kanye West — have easier means to command people’s attention. Indeed, at this point, Trump was a mere prop in the reality show that Kanye’s handlers orchestrated.

And most importantly, Trump can no longer promise to wield the tools that led others to believe they could respond to Trump’s calls with impunity — the power to corrupt the FBI and DOJ, the increasing stranglehold on the Republican party, perhaps most importantly, the power of clemency. Trump’s latest wails came on a day when, after having been smacked down by two of his own Appellate appointees, even his most reckless and ill-suited attorneys were probably explaining to Trump that he has almost no options left but to try to minimize the consequences for stealing classified documents. His wails came on a day when the two Pats, Cipollone and Philbin, men who know how he used pardons to pay off coup-conspirators and how he incited a mob to assassinate his Vice President and how he refused to use the power of the Presidency to protect Mike Pence, testified for a combined ten hours to one or more grand juries. Stephen Miller, Dan Scavino, and two others of Trump’s close aides also testified against their former boss last week. Trump even interspersed his calls for a coup with feeble attempts to discount any verdict a jury might soon — today, perhaps! — deliver against his eponymous corporate person.

Trump’s a mob boss whose omertà has started to fail.

Don’t get me wrong. Trump is dangerous as hell, and his mob will continue to pursue political violence whether or not Trump faces accountability. Trump will not melt away and even if he did those liberated from his control may prove to be more dangerous without even something as squalid as Trump to believe in.

But he is also, at this moment, as vulnerable as he has been in at least a decade.

And to a significant extent, his increasingly shrill wails are an attempt to hide that.

Yes, they are also an attempt to mobilize political violence to reverse that vulnerability. But we would do far better to describe all the ways he can no longer deliver his part of the bargain — impunity — than to willfully serve as content mules for his words of incitement.

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