John Eastman’s Blank Documents

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I wrote about the substance of Judge David Carter’s ruling that it was more likely than not that Trump obstructed the vote certification on January 6 here.

The opinion is as interesting for what it says about the documents John Eastman attempted to withhold from the January 6 Committee as his decision that Trump is more likely than not a criminal.

At issue were the 111 documents he had dated January 4 through 7 involving January 6 over which he claimed some kind of privilege. I’ve summarized Carter’s decision making process in this table.

Carter’s overall findings were that:

Only the last category — documents prepared in anticipation of legislation — were really considered for a privilege claim. Of those, two were issued by a state court, so were excluded from Carter’s review, and privilege over two had been waived (one was the Electoral Count Act plan Eastman had already published).

That left just 11 documents for review. Of those, nine actually were part of ongoing litigation, and one was sent during the riot (but not in furtherance of it). So while Judge Carter ruled that Eastman and Trump probably conspired to defraud the US, just one document was liberated by that decision. I’ll return to that document.

What I’m most struck by is the frivolity of some of the other documents Eastman went to court (and included in a privilege log) to try to protect. One category — connecting third parties — included a number of resumes of people offering to help. Another consisted of news releases (two of which reflect comment on coverage of the riot). Much of the Electoral Count Act involved academic discussion.

It’s this category, though, I’m most fascinated by:

To begin, the Court excludes ten of the 111 documents because they are entirely nonsubstantive.130 Seven of these documents are only images of logos attached to email signatures, including Facebook, LinkedIn, and Twitter.131 One document is a blank page132 and two are blank emails.133 These ten documents do not contain any information protected by the work product doctrine and the Court ORDERS that they must be disclosed.134

John Eastman took the January 6 Committee to court to withhold a blank page and two blank emails.

That might reflect the substance of his own scholarship.

Or it’s possible Eastman was triggering others by sending nothing.

Judge David Carter Confirms Trump Could Be Prosecuted for [A Lower Standard of] Obstruction

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As you’ve no doubt heard, Judge David Carter issued an order releasing 91 documents from the days before and the day of the insurrection to the January 6 Committee. Chapman University professor John Eastman had attempted to withhold them from the 6 Committee under privilege claims. Judge Carter allowed Eastman to withhold just ten documents, most pertaining to then-ongoing lawsuits.

The headline finding from his opinion is that Judge Carter found it more likely than not that Trump committed the crime hundreds of other insurrectionists have been charged with — obstruction of an official proceeding — and Eastman and Trump (and others) entered into a conspiracy to do so.

On August 19, I laid out that if Trump were to be prosecuted, it would be for conspiring to obstruct the vote count. At the the time, TV lawyers ignored me, thinking they knew better. In December, after Liz Cheney argued that Trump had obstructed an official proceeding, those same TV lawyers started adopting the theory as if they had come up with it. Now a judge has agreed that it is likely that Trump did commit that crime that I laid out back in August.

Sometimes I hate to say I told the TV lawyers so. This is not one of those times.

Especially since, of the three kinds of overt acts that Carter cites to substantiate his decision, two — Trump’s pressure on Mike Pence and his mobilization of his mob to march on the Capitol — are Trump actions about which DOJ has been accumulating piles of evidence. In my opinion, by including the mobilization of the mob in his opinion, Carter showed a better understanding of Trump’s legal exposure than the Committee.

There are five elements Carter needed to establish to make his finding. First, to find Trump may have obstructed a vote count, Carter pointed to:

  • Proof the vote certification was an official proceeding
  • The actions Trump took to obstruct that official proceeding
  • Proof of Trump’s corrupt intent

Then, to show that Trump and Eastman (and others) entered into a conspiracy to obstruct the vote count, he pointed to:

  • An agreement to defraud the US
  • Eastman’s own dishonest actions

Carter didn’t spend much time on the official proceeding prong. Instead he relied on the ten existing DC rulings on the issue finding the vote certification was an official proceeding cited in the committee brief (there are now at least 13 opinions finding it to be an official proceeding, though Carter did not address the issue on which Judge Carl Nichols had differed from his colleagues, whether obstruction required destroying of documents).

Carter pointed to three kinds of acts that amounted to Trump’s effort to obstruct the election: two meetings before January 6 where they discussed pressuring Pence, several appeals on the morning of January 6 to Pence (including on Twitter), and “galvanizing the crowed to join him in enacting the plan,” by walking to the Capitol.

President Trump facilitated two meetings in the days before January 6 that were explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office with Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short.209 At that meeting, Dr. Eastman presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.210 When Vice President Pence was unpersuaded, President Trump sent Dr. Eastman to review the plan in depth with the Vice President’s counsel on January 5.211 Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.212

On the morning of January 6, President Trump made several last-minute “revised appeal[s] to the Vice President” to pressure him into carrying out the plan.213 At 1:00 am, President Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!”214 At 8:17 am, President Trump tweeted: “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”215 Shortly after, President Trump rang Vice President Pence and once again urged him “to make the call” and enact the plan.216 Just before the Joint Session of Congress began, President Trump gave a speech to a large crowd on the Ellipse in which he warned, “[a]nd Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.”217 President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

Together, these actions more likely than not constitute attempts to obstruct an official proceeding. [my emphasis]

It is public that DOJ has spent months focusing on the second (pressure on Pence) and third (mobilizing his mob) actions. Indeed, as I have shown, DOJ has laid out proof that many of the conspiracies had the specific goal of pressuring Pence.

To show that this met obstruction’s requirement of corrupt intent, Carter relied on a Ninth Circuit precedent that, for where he is in California, adopts a lower threshold for corrupt intent than the one adopted by the DC District judges so far.

The Ninth Circuit has not defined “corruptly” for purposes of this statute.222 However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,”223 meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

There is no such precedent in DC and, as I’ve argued, Judge Dabney Friedrich’s adopted standard is actually higher than this, finding corrupt intent in the commission of otherwise illegal actions. So Carter’s opinion, on top of meeting a lower standard than DOJ would need to charge, dodged two legal issues already before the DC District judges, whether obstruction required the destruction of evidence and whether it required otherwise illegal actions. It’s not clear that the actions that he lays out would, by themselves, meet Friedrich’s standard.

Carter pointed to two kinds of proof that Trump knew the plan to obstruct the vote count was wrong. He pointed to the 60 court losses as proof that their claims of voter fraud were false. He also pointed to Trump’s demand from Brad Raffensperger for exactly the number of votes he needed to win, which Carter presented as proof that Trump cared about winning, not voter fraud (As I have repeated over and over, this is one Trump action that is otherwise illegal).

President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent,224 the Select Committee points to numerous executive branch officials who publicly stated225 and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence,227 noting that they made “strained legal arguments without merit and speculative accusations”228 and that “there is no evidence to support accusations of voter fraud.”229 President Trump’s repeated pleas230 for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”231 Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

Carter then points to the two meetings (bolded above) as the moment when Eastman and Trump — and others — entered into a conspiracy to obstruct the vote count. Notably, this may put everyone else who was in that meeting on the hook for the conspiracy as well, members of an enormous conspiracy already charged against sixty people, including some seditionists.

He then pointed to Eastman’s awareness that his theories were bullshit and Pence’s repetitive insistence they were to find Eastman acted dishonestly.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.”232 The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.”233 In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.234

[snip]

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

So on top of getting some documents, this opinion lays out a framework that envisions Trump being charged for the same crimes that DOJ has been working towards charging him and others on for over a year.

In several ways, though (the standard of proof and two legal standards he adopted on obstruction), Carter has only found Trump may have obstructed the vote count at a much lower standard than DOJ would need.

Whinger Verbs: To Investigate … To Prosecute … To Indict

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Because Alvin Bragg chose not to prosecute Donald Trump, the whingers are out again complaining about Merrick Garland, who last I checked was an entirely different person.

I’ve copied the “Key January 6 posts” from my post showing what reporting on the January 6 investigation — rather than simply fear-mongering to rile up CNN viewers or your Patreon readers — really looks like below.

But for now I’d like to talk about the language the whingers — those complaining that Merrick Garland hasn’t shown people who aren’t looking what DOJ is doing. It’s telling.

Take this post from David Atkins that opines, accurately, that “Refusing to Prosecute Trump Is a Political Act,” but which stumbles in its sub-head — “The evidence is clear. It’s time to prosecute the former president, and Merrick Garland shouldn’t wait.” — and then completely collapses when it asserts that there are just two possible reasons why Merrick Garland has not “prosecuted” Trump.

But there is a deeper question as to why Attorney General Merrick Garland and the DOJ have not prosecuted Trump. No one at the department is talking on the record, but there are only two possible answers—neither of which is satisfactory.

It is possible that prosecutors do not believe there is enough evidence against Trump to convince a jury of his guilt. I’m not a lawyer, but this seems somewhat difficult to believe.

[snip]

The second possibility is that the Department of Justice hasn’t prosecuted Trump because of political pressure. Again, this is speculation. But if Garland is succumbing to either internal or external pressure to avoid charging Trump out of fears of civil conflict, or the appearance of political motivation, that would be a grave error—not prosecutorial discretion but prosecutorial dereliction. Allowing fears of violent reprisals to derail a prosecution would be a grave injustice.

Atkins is wrong about the reasons. I wrote here about why the ten acts of obstruction Mueller identified are almost universally misrepresented by whingers, in part because Billy Barr did real damage to those charges (as he did to other ongoing investigations), and in part because the ten acts that existed in March 2019 are not the acts of obstruction that exist today.

We know part of why Trump hasn’t been charged for political crimes: because Trump ensured the FEC remained dysfunctional and Republicans have voted not to pursue them (something that whingers might more productively spend their time pursuing).

It seems nutty to suggest that Trump should be “prosecuted” already for taking classified documents to Mar-a-Lago when that was referred just weeks ago. It’s also worth considering whether it would be easier to prosecute Trump for obstruction for these actions, tied to one of his other malfeasance, and then consider where investigations related to that malfeasance already exist.

Bizarrely, Atkins doesn’t consider it a possibility that it would take Merrick Garland’s DOJ more than 380 days to prosecute the former President. It took months to just wade through Stewart Rhodes’ Signal texts. It has taken 11 months, so far, to conduct a privilege review of Rudy’s phones (for which DOJ obtained a warrant on Lisa Monaco’s first day on the job). DOJ has six known cooperators in the Oath Keeper case (at least four with direct ties to Roger Stone) and one known cooperator in the Proud Boys case (and likely a bunch more we don’t know about). Particularly in the Oath Keeper investigation, DOJ has been rolling people up serially. But that process has taken longer because of COVID, discovery challenges, and the novelty of the crime.

But that goes to Atkins’ curious choice of the word “prosecute” here. I generally use the verb to refer to what happens after an indictment — the years long process of rebuffing frivolous legal challenges, but for an organized crime network, “prosecute” might also mean working your way up from people like militia members guarding your rat-fucker to the militia leaders planning with your rat-fucker to the rat-fucker to the crime boss.

I think what Atkins actually means, though, is “indict,” or “charge.” But his entire post betrays a fantasy where one can simply arrest a white collar criminal in the act after he has committed the act.

What whingers often say, though, is they want Garland to “investigate” Trump. Then they list a bunch of things — like cooperating witnesses or grand jury leaks or raids or indictments — that we’ve already seen, and insist we would see those things if there were an investigation but take from that that there’s not an investigation even though we see the things that they say we would see if there were an investigation.

Whinger brain confuses me sometimes.

The point, though, is that the language whingers use to describe what they imagine is Garland’s inaction or cowardice (none of these people have done the work to figure out whether that’s really the case), is designed to be impossible. That makes it necessarily an expression of helplessness, because their demand is actually that Trump be disappeared from the political scene tomorrow, and that’s hasn’t happened with multiple investigations implicating him, it sure as hell won’t happen if and when he is indicted, and it wouldn’t happen during a hypothetical extended period during which Trump is prosecuted.

Indeed, I’ve lost count of the number of people who tell me Bannon hasn’t been indicted, even though Bannon has been indicted. It’s just that he’s entitled to due process and in many ways being indicted provides him a way to play the victim.

There are multiple investigations implicating close Trump associates and the January 6 investigation is absolutely designed to incorporate Trump, if DOJ manages to continue building from the crime scene backwards. But that’s not actually what people want. None of these verbs — to investigate, to indict, to prosecute — are the ones that whingers are really hoping to see.

And the verbs they’re hoping to see — perhaps “neutralize” or “disappear” — are not ones that happen as part of due process.

And none of the due process verbs — “investigate,” “indict,” “prosecute” — are likely to work unless people at the same time think of things like “discredit.”

Key January 6 posts

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

The Eight Trump Associates Whom DOJ Is Investigating

January 6 Is Unknowable

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

How a Trump Prosecution for January 6 Would Work

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

Clarence Thomas’ Non-Recusal Might Have Also Hidden the Missing Mark Meadows Texts

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As folks were discussing in comments, yesterday WaPo and CBS revealed damning details about communications between Ginni Thomas and Mark Meadows leading up to the insurrection. About 1% of the texts Meadows turned over to the January 6 Committee involved Ms. Thomas.

The messages, which do not directly reference Justice Thomas or the Supreme Court, show for the first time how Ginni Thomas used her access to Trump’s inner circle to promote and seek to guide the president’s strategy to overturn the election results — and how receptive and grateful Meadows said he was to receive her advice. Among Thomas’s stated goals in the messages was for lawyer Sidney Powell, who promoted incendiary and unsupported claims about the election, to be “the lead and the face” of Trump’s legal team.

The text messages were among 2,320 that Meadows provided to the House select committee investigating the Jan. 6 attack on the U.S. Capitol. The content of messages between Thomas and Meadows — 21 sent by her, eight by him – has not previously been reported. They were reviewed by The Post and CBS News and then confirmed by five people who have seen the committee’s documents.

[snip]

It is unknown whether Ginni Thomas and Meadows exchanged additional messages between the election and Biden’s inauguration beyond the 29 received by the committee. Shortly after providing the 2,320 messages, Meadows ceased cooperating with the committee, arguing that any further engagement could violate Trump’s claims of executive privilege. Committee members and aides said they believe the messages may be just a portion of the pair’s total exchanges.

As WaPo notes, after November 24, there are no more texts provided to the Committee until after the riot.

The text exchanges with Thomas that Meadows provided to the House select committee pause after Nov. 24, 2020, with an unexplained gap in correspondence. The committee received one additional message sent by Thomas to Meadows, on Jan. 10, four days after the “Stop the Steal” rally Thomas said she attended and the deadly attack on the Capitol.

You can click through to read what a nutjob Ms. Thomas is. But for this post, I’m interested in the how the texts that got turned over or did not relate to Justice Thomas’ decision, on January 19, not just not to recuse from the decision on whether Trump’s invocation of privilege over materials at the Archives, but to cast the single vote to uphold Trump’s privilege claim. Thomas’ participation in that decision may have had the effect of making a decision that would have — if four other Justices agreed with him — had the effect of shielding damning communications involving his spouse.

This table is just a sketch, but one I hope helps the discussion among those who know the law and the details of the various requests better than I. This table shows that had Thomas’ decision been successful, it probably would have prevented damning texts from his spouse from being shared with the Committee (or, ultimately, DOJ’s criminal investigators), but just as importantly would have hidden the absence and possible destruction of some records that would be covered both by the Presidential Records Act (marked as PRA in the table) and relevant to the by-then ongoing grand jury investigation (marked as obstruction).

Several factors affect the legal status of any texts that should have been covered by Justice Thomas’ participation:

  • Trump’s claims of privilege were absurdly broad, covering things like visitor logs that under other Presidents are routinely released
  • While Mark Meadows’ claims of privilege were not as absurd as (say) Steve Bannon’s, it seems likely he, too, took an expansive approach to privilege claims
  • All of Trump’s flunkies (including Meadows and Bannon) were using Trump’s claims of privilege to justify withholding purportedly privileged in their own possession
  • Anything Meadows claimed was covered by privilege would be covered by the Presidential Records Act and so should have been — but in Meadows’ case, because he did White House business on his personal email and phone, often were not — shared with the Archives
  • Mark Meadows replaced his phone after the time multiple grand juries had started an investigation into January 6; replacing his phone had the likely effect of destroying any communications not otherwise stored in or backed up to the cloud; the risk he destroyed Signal texts is particularly high

Justice Thomas’ decision would have covered everything in the first line: privileged comms that were properly archived, privileged stuff that Meadows didn’t archive, and privileged stuff that got destroyed. The scenario I’m seeing a lot of people address is just box (A), with the logic being, what if there were comms that were actually archived involving Ginni that were deemed privileged, what if those comms were especially damning?

But the decision that such comms are not privileged means the Committee and DOJ can now address stuff in Meadows’ possession and/or that have been destroyed. As it happened, the Committee has been able to identify Meadows comms in box (E) and possibly even in box (F) via his production: things that should have been archived but were not (this post and this post address the kinds of communications described in Meadows’ contempt referral are in box (E)). It is virtually certain there are a bunch of comms in box (B): stuff Meadows treated as privileged that were not properly archived. Now both the Committee and DOJ can claim those are covered by his contempt. In the process, the Committee or, more likely, DOJ may discover communications involving the former President that should have been archived, proof not just that Meadows is in contempt, but also that he violated the PRA.

The real risk to Meadows, though — and the place where Justice Thomas’ ethical violations could turn into something else — comes in box (C): with comms that, because of the broadness of the original privilege claims, would be treated under Trump’s now defeated privilege claim, but comms that, because Meadows replaced his phone during an ongoing grand jury investigation, the destruction of which might amount to obstruction of that investigation.

What DOJ is doing with other criminal subjects in the January 6 investigation is identifying Signal and Telegram texts that got destroyed on one phone by seizing the phones of others who did not destroy their side of the communication. In the case of Meadows, for example, we’ve already identified a Signal text that seems to remain in Jim Jordan’s custody but that Meadows may no longer have.

Justice Thomas’ failed attempt to uphold Trump’s (and therefore Meadows’) insanely broad privilege claims might have had the effect of making it clear that Meadows had destroyed privileged communications that would be covered by the ongoing January 6 grand jury investigation.

It’s not just embarrassing texts involving his spouse that Justice Thomas could have covered up with his participation in that decision. It is also potential criminal obstruction exposure because Meadows replaced his phone.

Particularly given the big gap in texts in what Meadows turned over between November 24 and January 10, those might be far more important than the crazypants things Ginni said.

Jeffrey Rosen Targeted Project Veritas’ Office Manager Long before Merrick Garland Targeted James O’Keefe

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According to a recent NYT story, Project Veritas paid $50,000 to a former Mike Pence lawyer and House staffer, Mark Paoletta, to get members of Congress to push back against the criminal investigation into the rat-fucking organization.

After the criminal investigation into Project Veritas became public last fall, a prominent Republican lawyer who was lobbying on behalf of the organization and Mr. O’Keefe briefed a group of congressional Republicans on the case, to urge them to try to persuade the Justice Department to back off the investigation because the group did nothing wrong, according to a person briefed on the matter.

[snip]

Lobbying filings show that Mr. Paoletta was paid $50,000 during the last two months of last year to inform members of Congress about the F.B.I. raid on Mr. O’Keefe.

That’s really telling. After Project Veritas won a fight to get a Special Master appointed to review records seized in a raid on James O’Keefe and others last year, they balked at DOJ’s effort to make them foot the entire bill, telling a tale about their gritty “upstart journalism.”

The government argues that an upstart journalism organization with a current annual budget that recently hovers around $22 million is better suited to fund Special Master proceedings than a goliath arm of the U.S. government featuring a long-standing bloated budget, currently at $31.1 billion.2 The government’s demand that a press entity bear considerable financial burdens to defend against the government’s unconstitutional attack on a free press is corrosive to the First Amendment. The exercise of First Amendment rights is a guaranteed right, not a luxury subject to taxation at the government’s whim. Imposing daunting costs during the pendency of an investigation meant to resolve important First Amendment questions inflicts its own kind of abridgement. When exorbitant costs may be levied against the media simply for acting in accord with settled First Amendment precedent, the process becomes the punishment.

[snip]

For Project Veritas, an upstart journalism organization, each dollar spent on Special Master fees and expenses is a dollar not spent publishing news stories or investigating leads.

They won that fight and thus far, Special Master Barbara Jones has billed almost $40,000, which will be split 50-50.

It turns out, though, that PV’s claim that they would spend every cent saved on Special Master fees on what they euphemistically call “news stories,” was false. Instead, they were spending it to get Chuck Grassley (whose former top staffer Barbara Ledeen used to have close ties to PV), Jim Jordan, and other of the most corrupt Republicans to write letters to Merrick Garland complaining about “brazen and inconsistent standards” and “partisan or other improper motive.” (As we’ll see, it turns out they should have been complaining to Jeffrey Rosen.)

What’s interesting is those letters that Barbara Ledeen’s former boss and Jim Jordan and Ron Johnson signed all suggest they took their understanding of PV’s actions entirely from the public record. They cite news articles.

Congress was told that Don Jr was involved before the stupidest Republicans wrote to complain

Not so, as reported by the NYT. Paoletta apparently knew — and shared — details that had not yet been reported by the press. Paoletta knew of a September 6, 2020 fundraiser held by Elizabeth Fago and attended by Don Jr where Ashley Biden’s diary — allegedly stolen — was passed around.

In August, Ms. Harris reached out to Robert Kurlander, a friend who had been sentenced to 40 months in prison in the 1990s on a federal fraud charge and had expressed anti-Biden sentiments online, to say she had found the diary. The two believed they could sell it, allowing Ms. Harris to help pay for the lawyers representing her in the custody dispute.

New details from interviews and documents have further fleshed out what happened next. Mr. Kurlander contacted Elizabeth Fago, the Trump donor who would host the fund-raiser attended by Donald Trump Jr. When first told of the diary, Ms. Fago said she thought it would help Mr. Trump’s chances of winning the election, according to two people familiar with the matter.

Richard G. Lubin, a lawyer for Ms. Fago, declined to comment.

On Sept. 3, Ms. Fago’s daughter alerted Project Veritas about the diary through its tip line.

Three days later, Ms. Harris and Mr. Kurlander — with the diary in hand — attended the fund-raiser attended by Donald Trump Jr. at Ms. Fago’s house in Jupiter, Fla., to see whether the president’s re-election campaign might be interested in it. While there, Mr. Kurlander showed others the diary. It is unclear who saw it.

It appears that Paoletta had originally been told — and told members of Congress — that Don Jr advocated calling the FBI, only to follow up to express uncertainty about that point.

The lawyer, Mark Paoletta, said that upon learning about the diary at the fund-raiser, Donald Trump Jr. showed no interest in it and said that whoever was in possession of it should report it to the F.B.I. But shortly thereafter Mr. Paoletta, who had served as Vice President Mike Pence’s top lawyer in the White House, called back the congressional Republicans to say he was unsure whether the account about Donald Trump Jr.’s reaction was accurate.

We know from past history, Don Jr doesn’t call the FBI when offered dirt on an opponent. Instead, he says “If it’s what you say, I love it, especially closer to the election.”

Project Veritas was willing to pay $50,000 to tell members of Congress that this crime might impact powerful fundraisers (Fago was named on the PV warrants) and the former President’s son, but didn’t want to foot the full bill for a Special Master.

SDNY always gets emails before they do an overt search

The fact that PV told members of Congress that this involved the former President’s son explains why PV is so pissed upon discovering what has been obvious to me from the start: That before obtaining warrants to seize James O’Keefe’s phones, DOJ had first obtained emails that provided the evidence to get the warrants for his phones.

The Government disclosed many of its covert investigative steps in the ex parte context of the Affidavit, including each email search warrant it had obtained pursuant to the SCA in this investigation.

This is precisely what SDNY did with Michael Cohen and Rudy Giuliani, and it’s what Magistrate Judge Sarah Cave was talking about when she referred to the “considerable detail” in the affidavit.

Third, the Court has reviewed the Materials in camera and observes that they contain considerable detail about individuals who may have already provided information to the Government—voluntarily or involuntarily—such that unsealing of the Materials “could subject [them] to witness tampering, harassment, or retaliation.”

PV revealed that in a motion asking Judge Analisa Torres to claw back this information.

The government apparently disdains the free press, and candor to the Court and opposing counsel. In light of the government’s violations of Project Veritas’s First Amendment, journalistic, and attorney-client privileges, as well as the government’s attendant failure to disclose these matters before or during the litigation of our motion for appointment of a Special Master, Project Veritas requests that this Court, pursuant to its supervisory powers, inherent authority, and Fed. R. Crim. P. 41(g), enter an Order requiring the government to:

(1) immediately halt access, review, and investigative use of Project Veritas materials that the government obtained from Microsoft (cf. November 12, 2021 Order acknowledging pause in government extraction and review of James O’Keefe’s mobile devices);

(2) inform this Court and counsel whether the government used a filter team to conduct a review of the data it seized from Microsoft on the basis of both attorney-client and journalistic privileges;

(3) inform this Court and counsel of the identities of any prosecutors, agents, or other members of the investigative team who have reviewed any data seized from Microsoft, what data they reviewed, and when they reviewed it; and

(4) disclose to the Court and counsel the identity of any other third party to which the government issued demands for Project Veritas data under the Electronic Communications Privacy Act (“ECPA”) with or without a non-disclosure order.

This interim relief is necessary to avoid compounding the harm to Project Veritas caused by the government’s violations of law and principles of candor and to enable Project Veritas to seek appropriate further relief.

I’ve put the dates of these warrants below; those dates and targets totally undermine everything PV has been complaining about.

PV has been complaining about “journalists” when DOJ first found evidence of a crime from their office manager

That’s because the first person targeted at PV was their “human resources” manager; that may be a reference to Jennifer Kiyak, who is named in the warrant targeting O’Keefe but listed on Project Veritas Exposed as PV’s Office Manager.

An office manager would have been the one to arrange payment of $40,000, and by getting her emails and — given that the FBI first targeted her in a subscriber record, may have been traced backwards from contacts with Ms. Biden — DOJ probably obtained plenty of evidence that the “journalists” had done far more than journalism.

Moreover, the first warrant to get “journalists'” emails was obtained while Jeffrey Rosen was Acting Attorney General, and all but one of these warrants for email (the one against O’Keefe) were obtained before Merrick Garland was confirmed. All of these email warrants were obtained before Garland imposed his new media guidelines, guidelines that Billy Barr’s DOJ never adhered to.

In other words, PV has been complaining for months that Merrick Garland targeted “journalists” when in fact they should be complaining that Jeffrey Rosen targeted someone who would, in no way, under any administration, be covered by media guidelines.

DOJ tells PV to hold their complaints until they are indicted

DOJ’s response to PV’s wails (which I wrote up in more detail here) is genuinely hysterical. They say, over and over, that PV can wait until they’re indicted to challenge these warrants.

Movants can raise these issues if there is an indictment filed charging them in connection with the investigation,

[snip]

The materials referenced by the Movants were obtained pursuant to duly authorized legal process that are not subject to challenge by the Movants in this pre-indictment stage.

[snip]

Second, the Movants seek pre-indictment discovery regarding the process used to review the materials referenced by the Movants, the identities of those who participated in that process, and the identities of third parties on which other legal process may have been served in the course of the investigation.

[snip]

To the extent the Movants may potentially be entitled at some point to the disclosures that they seek, any such entitlement would only be triggered, if at all, by the filing of an indictment charging them in connection with the investigation, and not before.2 In the event of a criminal proceeding, as Judge Oetken noted, they would have the opportunity to litigate any privilege or suppression issues, but they cannot do so during the pre-indictment phase of an ongoing grand jury investigation.

They acknowledge that PV would love to know who or what else has been investigated.

Of course, the Movants, like any subjects of a federal grand jury investigation, would like to know about every investigative step the Government is taking during the course of a criminal investigation, but that is not the law, for good reason.

No doubt so would Don Jr.

It also suggested there are other aspects of this investigation that DOJ is keeping secret.

The Government refrained from publicly disclosing details of the investigation, and continues to do so, for the same reasons that this Court denied production to the Movants of the affidavit (the “Affidavit”) submitted in support of the issuance of the search warrant dated November 5, 2021 that is the focus of this Part I matter and that Judge Cave ruled should remain sealed: to protect the ongoing grand jury investigation.

Keep in mind, there are necessarily other warrants out there that list other crimes, such as ones involving Harris and Kurlander that would name theft itself. In fact, the first order targeting PV mentions 18 USC 873 — blackmail.

Which means we can’t rule out that the nomination of Fago to the National Cancer Advisory Board a month after the election might be under investigation too.

These events are covered by three SDNY dockets: 21-mc-813 for James O’Keefe, 21-mc-819 for Eric Cochran, and 21-mc-825 for Spencer Meads.

2020

June: Ashley Biden moves to Philadelphia.

July: Aimee Harris moves into space formerly occupied by Ms. Biden.

August: Harris reaches out to fraudster Robert Kurlander, who contacts Elizabeth Fago.

September 3: Stephanie Walczak offers diary to PV.

September 6: Diary is shared at a fundraiser attended by Jr.

Mid-September: Kurlander and Harris fly to NY with the diary.  Spencer Meads travels to Florida and Harris shows more of Ms. Biden’s belongings.

Early October: A PV operative calls Ms. Biden and claims he wants to return the diary; PV takes her agreement as confirmation the diary is hers.

October 12: O’Keefe sends email, not mentioning Ms. Biden by name (but clearly referring to her) explaining his decision not to publish “Sting Ray” Story.

October 16: PV calls Joe Biden to extort an interview.

Late October: PV pays $40,000 for the diary.

October 25: National File publishes pages from Ashely Biden’s diary, linking parallel New York Post campaign targeting Hunter. It explains the provenance of the diary this way:

National File also knows the reported precise location of the physical diary, and has been told by a whistleblower that there exists an audio recording of Ashley Biden admitting this is her diary.

[snip]

National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish this potential critical story in the final 10 days before the 2020 presidential election. National File’s whistleblower also has a recording of Ashley Biden admitting the diary is hers, and employed a handwriting expert who verified the pages were all written by Ashley. National File has in its posession a recording of this whistleblower detailing the work his media outlet did in preparation of releasing these documents. In the recording, the whistleblower explains that the media organization he works for chose not to release the documents after receiving pressure from a competing media organization.

November 3: PV provides the diary to local law enforcement in FL.

November 22: DOJ uses subpoena for subscriber information of PV’s Human Resources Manager.

November 24: DOJ obtains 2703(d) order for HR manager’s email headers from 9/1/2020 to present.

December 8: Fago appointed to National Cancer Advisory Board.

2021

January 14: DOJ obtains warrant for emails of Eric Cochran, Spencer Meads, and HR manager from 1/1/20 through present.

January 26: DOJ obtains warrant for emails from another PV “journalist” from 1/1/20 through present.

March 5: DOJ obtains warrant for emails of three other PV “journalists” from 1/1/20 through 12/1/20.

March 9: DOJ obtains email headers for additional PV “journalist” from 9/1/20 through 12/1/20.

April 9: DOJ obtains warrant for O’Keefe’s emails from 9/1/20 through 12/1/20.

October 26: Paul Calli call DOJ, asks for AUSA Mitzi Steiner, and asked to speak about the PV investigation; Steiner asked how Calli had obtained her name, what else he had obtained, and declined to speak with Calli.

October 27: Lawyers for Project Veritas inform the DOJ that they will accept service for a subpoena relating to the investigation

November 3, 3:49 PM: Search warrants for Eric Cochran and Spencer Meads approved.

November 4, AM: FBI executes search warrants on former PV employees, Cochran and Spencer Meads.

November 4: PV lawyers accept service of subpoena.

November 4, one hour after the search: Mike Schmidt reaches out to Cochran and O’Keefe for comment about the investigation.

November 5, 11:18 AM: Warrant for O’Keefe authorized

November 5: NYT publishes story on investigation including language that PV would later baseless claim had to have come from the FBI.

November 6: FBI executes a search warrant on James O’Keefe

November 6: Schmidt contacts O’Keefe for comment.

November 6: Lawyers for Project Veritas ask the FBI to sequester material from the phone.

November 7: DOJ declines PV’s request and states the FBI has complied with all media guidelines.

November 8, 6:11PM: DOJ emails PV and tells them the extraction may start as soon as the next day.

November 8: After PV says it’ll file a legal challenge, FBI says it’ll only stop extraction after PV files such a challenge.

November 10: On behalf of PV, Calli Law moves to appoint a Special Master.

November 11, 12:51-12:53AM: Calli asks for confirmation that DOJ stopped extraction and review on O’Keefe’s phone on November 8.

November 11, 7:57AM: DOJ responds that the substantive review of O’Keefe’s phone was paused upon filing of motion on November 10.

November 11; 2:13PM: Judge Analisa Torres sets initial briefing schedule; in response to Torres order, DOJ stops extraction of O’Keefe phone.

November 12: In response to DOJ request, Torres extends briefing schedule.

November 12: Greenberg Traurig lawyer Adam Hoffinger, representing Eric Cochran, asks for Special Master to apply to materials seized from him, as well.

November 12: Letter signed by FL attorney Brian Dickerson but apparently docketed by NY lawyer Eric Franz asks for Special Master to apply to Spencer Meads

November 12, 3:49PM: Calli asks for clarification on review and extraction.

November 12, 3:59PM: DOJ responds that, “upon the filing of your motion, the Government paused the review of all material obtained from the search of your  client’s residence.”

November 14: Calli submits clarification letter regarding extraction and review.

November 15: Torres sets schedule in Cochran docket.

November 15: DOJ requests permission to reply to PV on November 19.

November 15: Calli requests inquiry into government leaks to NYT.

November 16: Torres grants permission to respond on November 19.

November 16: Ian H. Marcus Amelkin asks to delete initials of PV source, A.H., from docket.

November 17: Torres denies Amelkin request without prejudice.

November 17: Cochran motion to appoint Special Master.

November 18: For Meads, Dickerson formally moves for Special Master (and also complains that FBI seized dated devices).

November 19: Calli requests extension on response deadline for PV subpoena.

November 19: Government files opposition to request for Special Master and inquiry into purported leaks.

November 19: DOJ requests permission to respond to motion for extension on subpoena. Torres grants request.

November 21: DOJ opposition to extend subpoena deadline.

November 21: Government motion to oppose unsealing affidavits.

November 22: Torres denies motion for extension on subpoena.

November 22: PV reply to government opposition to Special Master.

November 23: Torres denies motion (including from RCFP) to unseal affidavits.

November 23: Cochran reply to government opposition to unseal affidavits.

November 24: Meads reply to refusal to unseal affidavits, including letters from House and Senate complaining to DOJ.

Trevor McFadden Rewards a White Lady for Endorsing a Revolution and Bragging about Violence against Cops

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Yesterday, Trevor McFadden blew off DOJ’s request that Jenny Cudd be sentenced to jail time as well as DOJ’s request for a continuance of Cudd’s sentence so DOJ can determine what to do given that Cudd reneged on her statement of offense. Instead, the Trump appointee sentenced Cudd to two months of probation and a $5000 fine. Given the other sentences for January 6 defendants and even McFadden’s other sentencing decisions, it’s hard to view this sentence as anything else but a reward to Cudd for endorsing a revolution and refusing to fully cooperate with the government.

I could not listen in on the sentencing hearing. It was held in person, and McFadden — perhaps because he would like to hide his naked partisanship from the public — doesn’t turn on his public line for in-person hearings. At least forty other people besides me tried to call into this hearing.

But according to Jordan Fischer, the entire hearing was about whether those — like Cudd — who participated in a violent attempt to interfere with the peaceful transfer of power are being treated differently than Portland protestors arrested blocks away from Federal property. Cudd even publicly stated that she wished the effort to interfere with the vote certification had succeeded, basically a public boast that she wanted to obstruct the an official proceeding, the original crime with which she was charged.

Cudd’s attorney, Marina Medvin, accused the DOJ of “gamesmanship” and suggested prosecutors were recommending jail time not because of her individual actions, but because of her political views. She dismissed Cudd’s social media statements as “drunken tirades” and repeatedly drew comparisons to how federal prosecutors have charged, or not charged, protestors in Portland and during the confirmation hearings for Supreme Court Justice Brett Kavanaugh. McFadden was the right audience for those arguments, having repeatedly made the same comparisons himself during other hearings in Capitol riot cases.

Before delivering his sentence, McFadden said he didn’t believe in “aggregate justice” and that he found the DOJ’s sentencing recommendation for Cudd “disproportionate” from others with similar conduct.

“It does feel like the government had had two different standards here, and I can’t abide by that,” he said.

Cudd herself delivered a short statement promising to continue to fight for “free, fair and transparent elections” and saying she’d suffered financial and social consequences from her arrest, including threats against her and her business. She also expressed regret — that the challenge to certification of electoral votes on Jan. 6 was disrupted.

“I believe we would have a very different country if that debate process had not been interrupted that day,” Cudd said.

The reason we can be absolutely certain that McFadden rewarded Cudd because she doubled down on the glee with which she interfered with the vote certification (aside from his repeated explicit promises to sentence January 6 defendants lightly) is because we can compare her sentence with that of her co-defendant Eliel Rosa, who is different from Cudd in five ways: Rosa is an immigrant from Brazil, he pled guilty to a less serious misdemeanor than Cudd (parading versus entering restricted grounds), he not only fully cooperated with the investigation but actually turned himself in, unlike Cudd he was not in communication with the Proud Boys, and unlike Cudd, he is not known to have endorsed revolution the night before the riot.

McFadden sentenced Rosa to a longer period of probation than he did Cudd.

As the government has repeatedly described, after Cudd went to the rally on January 5, she came back to her hotel room at the Willard Hotel and endorsed a revolution.

On January 5, 2021, Cudd posted a video to social media in which she said, “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it . . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and, unfortunately, it appears that they have forgotten that, quite a lot. So if a revolution is what it takes then so be it. I don’t know if that is going to kick off tomorrow or not. We shall see what the powers that be choose to do with their power, and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So either way I think that either our side or the other side is going to start a revolution.” [my emphasis]

The next day, as she was marching to the Capitol in a bulletproof sweatshirt (reflecting pre-planning for violence), she stated that she planned to convene with the Proud Boys who were — at that moment — kicking off a violent attack on the Capitol.

The following day, on January 6, 2021, Cudd posted about marching toward the Capitol. According to a newspaper in Texas, at approximately 12:30 p.m., Cudd posted a live video to social media in which she stated that she was about 3 miles from the Capitol, that she intended to convene with the Proud Boys2 at the Capitol, and that she was wearing a bulletproof sweatshirt.

2 Cudd appears to have been communicating with a member of the Proud Boys on and around January 6; however, the government is not aware of any additional connection Cudd has to the group.

The government even cited Cudd’s boasts about the violence used against cops.

“So we get to the Capitol and some of the patriots had already broken down all of the barricades, and they had literally ripped out the fence . . . Pushing and pushing and pushing. And we got the police to back off. So we get up there and the scaffolding that they had put up for the inauguration, there were people that were starting to climb it. We had to scale a wall to get there. There were people that were starting to climb the scaffolding. And we just pushed and pushed and pushed and pushed and yelled ‘go’ and yelled ‘charge’ and on and on and on. We just pushed and pushed and pushed, okay? And we got in. We got up the top of the Capitol. There was a door that was open. We went through the door. And we were inside

In October, McFadden sentenced Rosa to twelve months of probation (he did not fine Rosa, if I recall correctly, because Rosa already lost his job as a result of his role in the insurrection).

Yesterday, Trevor McFadden rewarded Rosa’s co-defendant by giving her just two months of probation, as compared to Rosa’s year of probation.

With that sentence, then, McFadden rewarded a white lady for attacking democracy.

Update: On Twitter, Cudd claimed that my factual observation about the way McFadden coddled her arises out of white guilt.

Paul Manafort Prevented from Flying to Dubai

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As Knewz first reported and AP has now matched, Paul Manafort was pulled from a flight to Dubai on Sunday because his passport was revoked.

Former Trump adviser Paul Manafort was removed from a plane at Miami International Airport before it took off for Dubai because he carried a revoked passport, officials said Wednesday.

Miami-Dade Police Detective Alvaro Zabaleta confirmed that Manafort was removed from the Emirates Airline flight without incident Sunday night but directed further questions to U.S. Border and Customs Protection. That agency did not immediately respond to an email Wednesday seeking comment.

A lawyer who has represented Manafort did not immediately return a call and email seeking comment Wednesday.

As a reminder, Manafort’s pardon did not include his actions in an August 2, 2016 meeting with alleged Russian spy Konstanin Kilimnik, at which he seemingly traded his strategy to win the election for $19 million in financial benefit and a commitment to help carve up Ukraine.

Nor was Manafort pardoned for his efforts, which continued at least until he was arrested, to help Kilimnik carve up Ukraine to Russia’s liking.

Nor was Manafort pardoned for his role in all the influence-peddling that Rudy Giuliani was involved with in Ukraine through 2020.

This was three days ago. The fact that Sean Hannity has not been wailing about the poor treatment of Manafort since suggests either that there’s not a good way to spin it, or that Manafort has some reason to want to keep this quiet.

Update: NBC’s Tom Winter says that, contrary to other reports, he was simply not permitted to board and that he can apply for a new passport. It’s not clear why he speaks of a “new investigation.”

Imagine if DOJ Used the Hunter Biden Inquiry to Get Testimony against Rudy Giuliani…

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I’m going to return to my argument that The Laptop is functionally equivalent to the Steele dossier. But until I do, I want to return to the parallels between the Ukrainian influence peddling investigation of Hunter Biden and that of Rudy Giuliani.

First, take a look at this passage from the Ken Vogel-bylined NYT story that inflated new life in The Laptop story.

People familiar with the investigation said prosecutors had examined emails between Mr. Biden, Mr. Archer and others about Burisma and other foreign business activity. Those emails were obtained by The New York Times from a cache of files that appears to have come from a laptop abandoned by Mr. Biden in a Delaware repair shop. The email and others in the cache were authenticated by people familiar with them and with the investigation.

Elsewhere, the NYT story reports that the investigation into Hunter Biden turned to his influence peddling in 2018, well before the laptops in question were purportedly dropped off at a blind computer repairman’s shop.

The investigation, which began as a tax inquiry under the Obama administration, widened in 2018 to include possible criminal violations of tax laws, as well as foreign lobbying and money laundering rules, according to the people familiar with the inquiry.

The contents on The Laptop were iCloud content, which the FBI could have and would have preferred to obtain with a warrant. We know the emails in question weren’t deleted by all parties because sources for stories describe still having them.

In other words, it’s unlikely that The Laptop played a critical role in the FBI investigation into the President’s son, because the FBI had other, better ways to obtain the same content and because the FBI had already turned to these matters well before the laptop got shared with the FBI on December 9, 2019.

So let’s go back to the way that Vogel-bylined NYT article reflated The Laptop story. The passage I quoted says three things:

  1. Prosecutors have looked at emails in question.
  2. NYT had obtained emails from what it credulously calls The Laptop.
  3. The “Laptop” emails were authenticated by “people familiar with them and with the investigation.”

The source for the first claim is likely someone who was a witness in the DE investigation (and we know that witnesses who have offered up their testimony have been part of the recent Murdoch-driven campaign to reflate it). The second claim is simply NYT’s ham-handed effort to make it clear the emails they received were part of the same campaign as the original NY Post story.

The third claim, however, is interesting. Written as it is, it suggests there are people who are familiar with both the investigation and the email cache. That would seem to suggest that some of the very limited universe of people involved with The Laptop — Rudy Giuliani, Steve Bannon, Robert Costello, and Mac Isaac — believe they know something about the Hunter Biden investigation.

Let’s focus on Robert Costello for the moment: He loves to be a cut-out. And when Billy Barr set up a special back channel to ingest Ukrainian-provided Russian dirt on Hunter Biden, Costello was that back channel. In other words, the lawyer that Rudy and Steve Bannon share is one possible source for that third claim, but if he were, it would suggest investigators in Delaware had spoken with him as a witness because he knew of the process by which he came to be in possession of a sketchy laptop.

Whatever testimony the source of that third claim offered could be shared with SDNY, which is investigating Rudy’s own influence-peddling scandal with Ukraine.

With all that mind, take a look at this passage of Philip Bump’s excellent summary of all the ways that laptop story is sketchy.

Giuliani was central to that effort. In late 2018, he began exploring the idea that Biden, as vice president several years before, had improperly tried to influence Ukraine to block an investigation of Burisma, a company for which Hunter Biden served as a board member. This story, promoted by an investigator targeted for termination by the U.S. government, was later debunked, but it seemed a promising line of attack. On April 1, 2019, a writer linked to Giuliani named John Solomon wrote the first of several stories about the allegations.

On April 12, the laptops were dropped off at Mac Isaac’s repair shop. Mac Isaac is legally blind and was not able to identify Hunter Biden by sight. One of the laptops, though, bore a sticker for the Beau Biden Foundation, an organization dedicated to Hunter’s late brother.

At some point in the middle of this month, Hunter Biden left Burisma’s board. Presumably he was by that point aware that questions were being asked about his role. If not, it became very clear on May 1, when the Times elevated the Burisma question in its coverage.

In the meantime, Volodymyr Zelensky had been elected president of Ukraine, and efforts to pressure him to announce an investigation into Biden began. In early May 2019, Giuliani planned a trip to Ukraine to dig up information that might damage Biden — a plan that was covered in the press. After broad outcry, he scrapped the trip. But the signal was sent: Giuliani was seeking information deleterious to Biden.

Later that month, someone in Kyiv was approached about buying Hunter Biden’s emails. This was not reported until Oct. 21, 2020, a week after the Post’s story about the laptop.

This time period — December 2018 until May 2019 — is precisely the time period that prosecutors asked Special Master Barbara Jones to prioritize for her privilege review of the last set of Rudy’s phones (as well as the one phone from Victoria Toensing).

In the initial incarnation of this investigation — the one charged in 2019, before Lev Parnas started running his mouth — the focus of this investigation was exclusively on how Rudy got Marie Yovanovitch fired.  But in September 2020, that part of the investigation was put on hold to await Rudy.

Yovanovitch’s name doesn’t appear in Bump’s summary at all. Yet it happened in the same month — May 2019, the culmination of this effort — when Rudy was going to go to Kyiv to dig up dirt on Hunter Biden, and when someone was wandering around Kyiv offering to sell what looks like what ended up packaged as The Laptop.

Whether or not Rudy’s effort to solicit what ended up being dirt that looked just like The Laptop was originally the focus of the investigation, DOJ has now obtained a privilege review of Rudy’s comms from that time period when he was soliciting it.

“The Laptop” Is the Functional Equivalent of The Steele Dossier, 1: Rudy Is the Real Scandal

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I’m going to explain how The Laptop that Rudy Giuliani floated just before the election is the functional equivalent of the Steele dossier.

Before I do, let me make a fairly obvious (if counterintuitive) point: Of the three people that powerful Ukrainians attempted to cultivate for their ties to the Vice President or President — Paul Manafort, Hunter Biden, and Rudy Giuliani — just one provably affected US policy through the Vice President or President: Rudy.

Contrary to what you may have read, for example, Manafort actually wasn’t the one who prevented the GOP platform from being strengthened to support Ukraine, JD Gordon was (though Trump’s do-not-recall answer about his own involvement can’t rule that out). Mueller’s decision not to prosecute Gordon as an agent of Russia was only recently made public (thanks to the relentless work of Jason Leopold and his lawyer).

And while there’s a lot of circumstantial evidence that Manafort entered into a quid pro quo on August 2, 2016, trading campaign strategy for a commitment to help carve up Ukraine to Russia’s liking along with $19 million a financial benefit for Manafort personally, because the investigation into Manafort became public in 2016, his ongoing efforts to push that Russian plan to dismember Ukraine never (as far as has been made public) had the involvement of Trump. It’s possible Trump was involved or Manafort got certain commitments in 2016, but Manafort’s own cover-up prevented DOJ from determining whether or not that was true.

According to the NYT story that has renewed the frenzy around the laptop Rudy Giuliani released just before the election, Federal prosecutors still haven’t determined whether Hunter Biden’s treatment of Chinese, Kazakh, and Ukrainian influence efforts amounted to a crime. But they do have evidence that Hunter Biden tried to be explicit that he could not influence his father to help Burisma.

In one email to Mr. Archer in April 2014, Mr. Biden outlined his vision for working with Burisma. In the email, Hunter Biden indicated that the forthcoming announcement of a trip to Ukraine by Vice President Biden — who is referred to in the email as “my guy,” but not by name — should “be characterized as part of our advice and thinking — but what he will say and do is out of our hands.”

The announcement “could be a really good thing or it could end up creating too great an expectation. We need to temper expectations regarding that visit,” Hunter Biden wrote.

Vice President Biden traveled to Kyiv, the Ukrainian capital, about a week after the email.

In the same April 2014 email, Hunter Biden indicated that Burisma’s officials “need to know in no uncertain terms that we will not and cannot intervene directly with domestic policymakers, and that we need to abide by FARA and any other U.S. laws in the strictest sense across the board.”

He suggested enlisting the law firm where he worked at the time, Boies Schiller Flexner, to help Burisma through “direct discussions at state, energy and NSC,” referring to two cabinet departments and the National Security Council at the White House.

The firm “can devise a media plan and arrange for legal protections and mitigate U.S. domestic negative press regarding the current leadership if need be,” Mr. Biden wrote in the email.

And sworn testimony from experts in both parties say Hunter did not dissuade his father from taking steps to crack down on corruption.

Of these three well-connected Americans being cultivated by powerful and corrupt Ukrainians — some but not all of them known Russian agents — only Rudy Giuliani is known to have had a direct effect on policy. Among other things, Rudy got Marie Yovanovitch fired. In only Rudy’s case, then, do we have clearcut proof that a Ukrainian influence operation had the desired effect of  changing American policy. Though even there, it’s not yet clear whether Rudy’s unregistered influence peddling was criminal.

(Obviously, Manafort pled guilty to being an unregistered Ukrainian agent during the earlier period, and he got paid orders of magnitude more than Hunter Biden did, too.)

So as we fight about The Laptop again, based on a reference to verified emails in a NYT article bylined by serial Rudy mouthpiece Ken Vogel, the first thing we should keep in mind is that there’s far more evidence that Rudy Giuliani successfully influenced the President or Vice President as a secret agent of Ukraine than Hunter Biden.

The Lesson Marina Ovsyannikova Offers to Chuck Todd and Lester Holt

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Yesterday, an editor at Russia’s official Channel One news, Marina Ovsyannikova, came onto a live broadcast and held up a sign condemning Russia’s war on Ukraine.

Predictably, she was quickly detained; thus far, her attorneys have been unable to locate her (though one outlet has said she’ll be charged under Russia’s new crackdown law).

Shortly after her detention, a pre-recorded video was released, in which she explained her actions. She spoke of the shame she feels about her past involvement in Putin’s lies.

What is happening right now in Ukraine is a crime and Russia is the aggressor. And the responsibility for this aggression lies on the conscience of only one person. This man is Vladimir Putin. My father is Ukrainian. My mother is Russian. And they were never enemies. And this necklace on my neck is a symbol of the fact that Russia must immediately stop the fratricidal war and then our brotherly peoples will still be able to reconcile.

Unfortunately, in recent years I have been working on Channel One, working for Kremlin’s propaganda. And I am very ashamed of it. I am ashamed that I was letting them tell those lies from the screen. I’m ashamed that I allowed to “zombify” the Russian people.

We kept silent in 2014, when all this was just in the beginning. We didn’t go to rallies when the Kremlin poisoned Navalny. We just silently watched this inhumane regime.

And now the whole world has turned away from us, and even 10 generations of our descendants will not be enough to wash away the shame of this fratricidal war. We are Russian people — thoughtful and smart. It’s up to us to stop this madness. Come out to rallies. Don’t be afraid of anything. They can’t imprison all of us.

It was an incredibly brave — and because she planned her actions in advance — well-executed protest.

But make no mistake. Ovsyannikova is not, like another brave journalist who spoke up this week, Yevgenia Albats, someone who has criticized the regime in the past, someone whose witness now is a continuation of years of brave reporting.

Rather, Ovsyannikova is someone who, a profile describes, “was a cog in a big machine of Channel One’s news production.” She was part of the the production of official truth. And as she describes, hers is the lesson of regret for that complicity, someone who will forever own a part of Putin’s crimes because she took the comfortable route of contributing to and participating in Putin’s exercise of power. She will almost certainly pay a stiff price for her speech, but she is also someone who did nothing, up till now, as Putin kept raising the price of speaking freely.

While Ovsyannikova’s protest will likely resonate for some time, I would hope that complicit journalists in countries where it’s not too late to defend democracy reflect seriously on Ovsyannikova’s shame. Even as Russia rains bombs down on Ukraine, journalists like Chuck Todd and Lester Holt invited Bill Barr onto their TV to tell lies about Russia’s attack on democracy in the United States, to tell lies about Trump’s extortion of Ukraine, to tell lies about his role in an attack on democracy. Like Ovsyannikova, Todd and Holt sit, comfortable, polished, and complicit, as Barr told lies that were a direct attack on democracy and rule of law.

And like Ovsyannikova, they are doing nothing to rebut the lies of authoritarianism before it’s too late.

Update: Ovsyannikova has surfaced and is thus far facing only administrative crimes, so days, not years, in jail.

Update: Ovsyannikova was fined 30,000 rubles and released, but that apparently only covers the social media video, not the protest on TV.