As Xitter’s Lawyer Stalled DOJ, Elon Musk Met with Jim Jordan (Twice!) and Kevin McCarthy
Elon Musk has been eerily quiet about being held in contempt by Beryl Howell since the DC Circuit opinion was first released on August 9.
It’s not like him to pass up the opportunity to make an obnoxious comment.
Which is why I’m interested in what Musk was doing during the period when Xitter’s counsel was stalling on the DOJ request — including a visit to Kevin McCarthy on January 26.
Beryl Howell approved the warrant on January 17. After several failed attempts, the government served it to the official portal on January 19. But then Xitter’s senior-most legal person stalled for 12 days, until she told DOJ that Xitter was going to make a First Amendment challenge so Trump could invoke executive privilege.
The government’s initial service attempts on Twitter filed twice, with the government’s receipt both times of an automated message indicating that Twitter’s “page [was] down.” Gov’t’s Mot. at 2 (alteration in original). On January 19, 2023, the government was finally able to serve Twitter through the company’s Legal Requests Submissions site. Id
Twitter, however, somehow did not know of the existence of the Warrant until January 25, 2023—two days before the Warrant returns were due. That day, the government contacted Twitter about the status of the company’s compliance with the Warrant, and Twitter’s Senior Director of Legal, JN [redacted], indicated she was not aware of the Warrant but would consider it a priority.” Id; see also Decl. of [redacted], Senior Director of Legal for Twitter (“[redacted] Decl”) 2 (SEALED), ECF No. 9-1. The government indicated that they were looking for an on time production in two days time” to which [J redacted] responded, “without knowing more or taking any position that would be a very tight turn around for us.” [Jl Decl. ¶ 2. The government sent the six pages of the Warrant and the NDO directly to [J redacted] later that evening Meanwhile, [J redacted] directed Twitter’s personnel to preserve data available in its production environment associated with the Target Account, and “have confirmed that the available data was preserved.” Id. ¶ 4.
Twitter notified the government in the evening of January 26, 2023, that the company “would not comply with the Warrant by the next day, “Id. 5, and responded to the government’s request for more specific compliance information, by indicating that “the company was prioritizing the matter and taking it very seriously” but that [redactedl had the Warrant and NDO only “for two days,” id. ¶ 8, even though the government had tried to submit the Warrant and NDO through Twitter’s Legal Requests Submissions site nine days earlier. The Warrants deadline for compliance makes no exception for the provider’s failure to have a fully operational and functioning system for the timely processing of court orders.
On January 31, 2023, Twitter indicated for the first time that the company would not comply with the Warrant without changes to the NDO, stressing as “essential to Twitter’ business model including [its] commitment to privacy, transparency, and neutrality) that [Twitter] communicate with users about law enforcement efforts to access their data.” 1d. 10.
The Legal Director’s declaration is more obnoxious than that. She made no mention of DOJ’s attempts to serve the warrant before she got involved and makes much of a claim that it took the AUSA two efforts to email a separate copy to her. Her assurances that everything was preserved — made as of January 25 — don’t rule out any deletions before that.
It wasn’t until February 1 that WilmerHale was officially involved.
And in the meantime, Elon Musk had made a widely covered trip to DC. He met with Jim Jordan on Thursday January 26, Kevin McCarthy that evening, and then Jordan (again) with James Comer the next day (Axios, NYT, CNN)
As of now, at least, Jordan and McCarthy are two of the just 51 people that Trump follows, who could have sent him DMs.
The next week, Comer formally announced his dick pics hearing, which (as Allison Gill observed yesterday) took place the day between two hearings on the warrant, as contempt fees started piling up. In that hearing, Republicans spun Musk’s willful violation of the consent decree against Xitter as an assault on the First Amendment.
As it was happening, Musk posted a tweet with nothing more but a period.
This was happening in the period when Xitter was doing more intensive searches to get — for example — the second preservation of Trump’s account from January 12, 2021 and all other accounts associated, via common device, cookie, or IP, with Trump’s own.
In the February 7 hearing, then-Chief Judge Beryl Howell questioned whether Xitter was stalling on this production because Musk “wants to cozy up with the former President, and that’s why you are here?”
But it may be more than that.
Musk is solidly part of the far right culture that might have been involved in any DM lists organizing the insurrection. One of the main reasons he started considering buying Xitter is because of the efforts Xitter took in the aftermath to crack down on violence.
And in the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller, who had been interviewed by Jack Smith’s prosecutors in November, before he was interviewed in a privilege-waived interview in April — texted Musk personally to raise the sensitivities of restoring Trump to Xitter.
And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.
“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.
The anonymous texter then offers up a suggestion for “someone who has a savvy cultural/political view to be the VP of actual enforcement.” That suggestion: “A Blake Masters type.”
Any delays and obstruction may not just be an effort to protect Trump.
It could be Musk’s effort to protect his own network — and people in DC like Jim Jordan.
“It could be Musk’s effort to protect his own network — and people in DC like Jim Jordan.”
It’s a near certainty.
The origins of the nazi bar. I feel compelled to go back and read Rayne’s post again. Gotta remember what month that was posted here.
It was last December.
From: https://www.emptywheel.net/2023/04/12/all-around-the-chancery-court-elmo-chased-to-weasel/
It’s possible the move to dissolve Twitter, Inc. and reconstitute it under X corp is merely consolidation of Musk-helmed businesses in Nevada where parent organization X Holdings is already incorporated. Twitter was already a subset of a Special Purpose Acquisition Company (SPAC) under the April 25, 2022 terms of sale.
The dissolution of Twitter as a Delaware corporation is merely the next step of the acquisition process.
However it’s an open question why Musk moved the entire corporation to Nevada instead of leaving Twitter in Delaware as Tesla, Inc. remains.
Could it be that Elmo is so afraid of Delaware’s Chancery Court and discovery should a lawsuit be filed against Twitter that he chose to weasel the corporation into Nevada to avoid it?
Here’s a list of advantages to incorporating a business in Nevada as compared to other states:
• Nevada law protects both directors and officers from individual liability for any acts committed by or on behalf of the business (with the exception of fraud).
• Jurisdiction for legal suits is in the state where the business incorporated.
• Nevada has significant privacy rights and doesn’t share any company information with the IRS. Therefore, no one will know the owner’s name of the corporation.
• You don’t have to identify the shareholders of the corporation.
• Unlimited stock is allowed.
• Nominee shareholders are allowed.
Could it be that Elmo is so concerned about his own personal liability that he moved the corporation to Nevada to avail himself of protections for owners/principals?
No, none of that really holds water as an explanation. The third bullet is about to be superseded by federal law (soon, most business entities will have to report beneficial ownership to FinCEN – not quite the IRS, but neither a reason to prefer Nevada to Delaware). AFAIK, the final three bullets are the same between DE and NV.
The second bullet is true as far as it goes, and E-Mu may not care to avail himself of the Delaware courts following his (self-inflicted) humiliation at their hands.
There’s some daylight between the DE approach and the NV approach on the first bullet, but hardly enough to win the day (imo).
In any event, shareholders in pretty much every state enjoy similar protections from personal liability, and that’s probably not a consideration that moves the needle between NV and DE. Somewhat different story for directors, but in the Twitter/X context, most of the exposure there is from shareholders, of which E-Mu and his cronies are 100%.
So, imho, I don’t think this is a fruitful path for theorizing.
[Welcome back to emptywheel. Please use the same username and email address each time you comment so that community members get to know you. “Corporate Lawyer” is inadequately unique, please use a different username which is at least 8 letters in length. Thanks. /~Rayne]
I’m not sure why Elon moved to Nevada. A friendlier corporate law is great, but Twitter (iirc) is a close corporation, held by Elon and his friends. Corporate law is designed to protect shareholders. Non-shareholders have no standing. I can’t imagine a Saudi prince suing Elon, so I can’t see how the corporate law advantages matter. I suppose that general jurisdiction moves from DE to NV, but since Twitter is SF-based, a non-shareholder plaintiff is very likely to be able to sue in CA.
** Fixed original comment by Fancy Chicken to which this was a reply. Move to Trash. /~Rayne **
“ In a 2019 report Politico noted that Scavino, who “met Trump as a 16-year-old golf caddie and has spent much of his adult life by his side,” monitors r/The_Donald closely:
Asked directly whether Scavino helps write his tweets, Trump said, “Generally, I’ll do my tweets myself,” but he allowed that his aide helps shape his missives “on occasion.”
…
Scavino — who regularly monitors Reddit, with a particular focus on the pro-Trump /r/The_Donald channel — has helped craft some of Trump’s most memorable social media moments.
…
Even so, Scavino has developed a following among tech-savvy Trump supporters online, especially in the pro-Trump corners of Reddit, where his tweets and videos often catch fire.”
I didn’t know Scavino was a Trump henchman for such a long time. Trump seems to like his lackeys plucked from obscurity like Nauta to help induce fealty.
I have been wondering whether any of Trump’s congressional co-conspirators would get pulled into Jack Smith’s investigation (Jordan, Gaetz, MTG), but I had not dared to hope that Musk might join them.
I understand and agree with Smith’s streamlined indictment to get the ball rolling on a trial for Trump before the election. But what I most look forward to is the kind of broad networked conspiracy charges akin to the Georgia indictment. I really want to better understand the actions taken by Trump’s conspirators based out of DC (and now perhaps, Silicon Valley).
Thanks for continuing to be on the leading edge of reporting on all of this EW!
It’s a REALLY high bar to get beyond Speech and Debate.
I know, but as I understand it the “crime fraud exception” (I think it’s called) provides a way to investigate lawyers complicit in criminal conduct with their clients. Is there anything similar for members of Congress? I have a hard time understanding how speech and debate protects them against criminal prosecution for crimes not part of legislative debate.
For example, if they helped plan the Jan. 6th insurrection and gave tours to insurrectionists to help them navigate once they broke in on the 6th, how can that possibly be protected by speech and debate?
I’m not disagreeing with you, but just trying to understand the limits of speech and debate protections. It’s one thing to argue something potentially criminal on the floor of the House or Senate as part of open debate. It’s another to participate in activities outside of those chambers to overthrow our democracy. In my opinion anyway ; )
I just REALLY want people to have no expectation that no MoCs, not even Perry, will be charged.
If they are, it’ll be a second Christmas. But please just presume that won’t happen.
Fair enough : )
Indicting them may be beyond reach, but I hope sufficient detail comes out at some point that public learns what they did…
MT Wheel, what about the 14th amendment clause prohibiting legislators from serving if they have been found to have participated in trying to overthrow the government?
Not a lawyer nor the person you directed your question to, but given that Section 3 of the 14th Amendment, which provides for disqualification, has only been used once since Reconstruction, it seems like an almost-impossible bar, ahem, to barring anyone from elected office. The one “successful” use, the blocking of Victor L. Berger of Wisconsin from Congress, was made moot by Berger vs. United States (1921), wherein the Supreme Court overturned his conviction for… wait for it… the Espionage Act!
At minimum, this would have to be the sense of the legislative body they were in. So far, there seems to be little to no movement within Congress to boot Perry et al for their alleged seditious behavior. Another route might be through the Federal Courts. Yet another might be through state courts, etc. Generally though, this will require a ruling by one of those legal bodies that Perry did support insurrection/rebellion against the Constitution before Perry can be barred for life. That’s going to be incredibly tough if he can’t be questioned for what he will claim was protected speech within the scope of his Congressional duties.
Agreed, with one caveat. I also do not expect charges against MoCs, absent any blockbuster new evidence or testimony, and yes, that would be a second Christmas. But let’s also not presume that an MoC who shouts “Speech and Debate Clause” has an automatic get-out-of-jail-free card.
Lindsey Graham was subpoenaed to provide grand jury testimony in Georgia, and he appealed it all the way to SCOTUS, which declined to squash the subpoena and required him to provide testimony.
Let’s be clear: a subpoena requiring testimony is not an indictment alleging criminal behavior, and it is far from a conviction for a crime. Even so, this is one example of where cries of “Speech and Debate Clause! Speech and Debate Clause!” did not work out as the member of Congress had hoped.
I was REALLY hoping Lindsey was lurking in the unindicted co-conspirators, because I don’t see how the Speech and Debate covers his backside when he is oozing his Southern charm on members of government in another state regarding their handling of their own electors.
Tommy Tuberville, Chuck Grassley and a few others have their sticky little fingerprints on Jan 6 as well. I want them to answer for their behavior.
Phred, I think we non-lawyers tend to latch on to the crime/fraud exception when we learn about because it seems like such a perfect end run. In reality, it is so rare that when it happens (as with Eastman in California court), it is big news in legal circles.
We can fantasize about it, but up against the Speech and Debate clause it is just a teeny mouse of a possibility waiting to be stomped by mighty (if stupid) elephants.
In situations like this, I find it useful to ask myself if the law or procedure I’m focused on (or the changes I’m envisioning) could be abused by the opposing party when they’re in power. (Or in my mom’s words, ‘How would you like it if somebody did that to you?!’, taking into account that ‘somebody’ could be using the law/procedure/power corruptly.) Imagine what would happen to non-right-wing congresspeople if the Speech and Debate protections were weakened and the hard-right held Congress and the Presidency. Doesn’t even require any stretch of the imagination, given recent history.
Offering this because it helps me keep perspective, and might help someone else.
I’m surprised that Trump never took them up on the idea of making him Speaker of the House to cash in on some of that sweet S&D. Question: if it’s permitted to elect someone from outside of the House of Representatives as Speaker, is there anything in the Constitution that would prevent a member of the executive branch (like POTUS) from serving in that role? Since they were ready to exploit the “send it back to the states” loophole, who knows what’s next.
You can’t serve in the executive and the legislative branch simultaneously — it’s why Mark Meadows resigned his seat in the House to become WH Chief of Staff.
There is no rule that an ex-President can’t serve in the legislative branch. IIRC the only one who has done it was John Quincy Adams.
Trump could run for Congress or the Senate. He could even theoretically replace CJotUS Roberts who would likely have tears in his eyes if it happened.
The only former president who served in the legislative branch was John Quincy Adams; he served as a Massachusetts congressman (1831 to 1848) after he lost reelection in 1828.
And rounding it out to the other branch, former president Taft (1909 – 1913) later served on SCOTUS as the Chief Justice of the US (1921 to 1930).
In America, anything is possible!
Adams was indeed the only former president to serve in the House, but Andrew Johnson was elected to the Senate by the TN legislature in 1875. He was sworn in but died less than five months into his term.
Thanks for that tidbit.
If I recall correctly, Robert Byrd was supposed to be the expert in using S & D to get out of any legal questions (even speeding tickets).
He was just testing those very expensive and empty highways built across WVa with Federal money to make sure they were to his liking.
EW continues “to be on the leading edge of reporting on all this.” Right said, Phred!
“All this” being not just TFG-related legal issues and the corresponding cast of characters with each, but also EW’s coverage of the strange doings in the Hunter Biden investigation, all while keeping abreast of Russia, Russia, Russia!
If I weren’t retired I’d have to quit my day job just to keep up with EW’s posts from the past week alone (of course, reading all the comments as well is a must!).
If you don’t already support EW and the great mods of this site, please consider doing so. If you already do, consider increasing it. I did yesterday cuz I was getting too much for too little.
Hear hear! Support EW by sending a little love to her tip jar : ) I wholeheartedly endorse this. I did recently, but will again when I’m home again from various travels hither and yon…
I have a post in moderation but I’m unsure where I erred. My apologies for screwing up. Thanks mods.
[Moderator’s note: I assume your 10:02 a.m. comment was the one stuck in moderation. It has cleared and published; it may have contained a keyword triggering moderation as a preemptive measure to deter trolls spamming the account. Please keep in mind it may take hours for comments to clear depending on volume of moderation and availability of volunteer moderators. Your patience is appreciated. /~Rayne]
“Which is why I’m interested in what Musk was doing during the period when Xitter’s counsel was stalling on the DOJ request — including a visit to Kevin McCarthy on January 26.”
Your observation above got my brain thinking about curious Timeline Questions which were further stirred when you noted:
“And in the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller, who had been interviewed by Jack Smith’s prosecutors in November, before he was interviewed in a privilege-waived interview in April — texted Musk personally to raise the sensitivities of restoring Trump to Xitter.”
November stands out. So that interview happened on Nov 30 if my research is correct. CNN’s Katelyn Polantz and Hannah Rabinowitz scoop aired on the 30th.
IANAL. Asking timeline questions because the following dates have curious alignment:
– In October, Justice Dept was considering selecting a Special Council for Trump that news got reported on November 3 by the NYT’s and other outlets.
https://www.seattletimes.com/nation-world/nation-politics/justice-dept-weighs-special-counsel-for-trump-inquiries-if-he-runs/?
-Nov 19th Jack Smith was announced. Any chance Jack Smith’s SC selection was leaked before Nov. 19?
-Elon reversed course on buying Twitter in early October.
-Oct 28th He announced final Twitter purchase decision.
-Nov 3 “Teams of employees at Twitter who were responsible for monitoring the upcoming midterm elections on the platform have been decimated as part of mass layoffs implemented today by new owner Elon Musk. Those that remain say they do not have access to critical tools used for certain content moderation decisions, sources in a position to know told Forbes.”
-Elon’s “hardcore climate” announcement that further reduced the workforce by 75%.
-By mid Jan 2023 the Twitter workforce is reduced by 80%.
https://www.cnbc.com/amp/2023/01/20/twitter-is-down-to-fewer-than-550-full-time-engineers.html
While Musk was facing court deadlines for buying Twitter in October, the overlap of the Twitter buy and Special Council decision of Jack Smith is interesting to ponder when looking at the above dates. The further decisions for breaking Twitter overlayed with the Special Council actions is eye opening. While it may be tin foil hat or just cowinkydinky, I’m wondering with this overlay of timelines the following questions:
1. Did Elon intend to buy Twitter to dismantle because he knew what was there evidence-wise?
2. Was his buy more obstruction based than business based but his business history gave him cover?
As you noted:
It could be Musk’s effort to protect his own network — and people in DC like Jim Jordan.
This extended timeline needs some digging.
About as coinky-dinky as Elmo chatting with a few right wing members of Congress before Xitter responded to the DoJ, Congress being such a sieve, I wonder if Trump got wind of the search warant before Xitter complied with it.
Musk’s network – and the billionaire right wingers who back him, and who value Xitter’s utility to Fascists more than they value the tens of billions of dollars Musk has worked hard to throw away in order to make Xitter feel like their home.
Take a closer look at the “billionaire right wingers who back him,” because apart from the Saudi and Qatar money, many of the financing entities are really just Musk through another corporate entity — like Aliya Capital Partners, DFJ Growth IV Partners, Sequoia Capitaal, and VyCapital.
It’s long past time for the US Government and their various intelligence agencies to investigate Elon Musk, both of his parents and his South African paternal grandparents for any and all connections to South African intelligence agencies and certain other nation state intelligence agencies in Europe and the ME going back to 1948 when South Africa voted to become an apartheid state.
Today, there are too many international organized crime syndicates masquerading as nation states. Putin in Russia, Xi in China, Un in North Korea, the Saudi Royal Family and several other authoritarian dictators covet working with authoritarian leaning spies and business persons.
It’s well documented that authoritarian dictators who head organized crime syndicates pay millions in cash and credit to individuals they perceive as being sympathetic or malleable to their cause, goals and objectives.
Maybe MI6 should get right on that, “Sussex Trafalgar”…
M-16 has its hands full trying to rid their organization of the piles of money Putin’s oligarchs have been using to compromise agents. Of course, the USA FBI just had one of their former agents receive his sentence for accepting money from one of Putin’s oligarchs who handles the USA for Putin.
Sorry for minor nitpick, but Un is just the second syllable of Mr. Kim’s given name. Would be like calling Mr Xi “Ping”. In both Koreas, like in China, last name comes first.
Kim Jong Un = 김정은.
Why would anybody care?
You sure have a point re:the current person sitting on the hereditary throne of that sad country. I wrote for the benefit of readers who just might encounter some friendlier person from North East Asia.
Xitter was a large, reasonably sophisticated company, whose business involved processing billions of communications a day. But it had no working protocol for accepting and responding to what would have been inevitable and frequent legal demands? Pull the other one, Elmo. Whatever it was doing, it was working harder Not to respond than it was to process a routine and legally required response.
Yep. We’re to believe that ONLY with a warrant for the former President did Xitter prove utterly unable to respond.
I mentioned this yesterday, but this is such a trivial query in modern observability platforms that I could find the answer in 30 seconds.
Splunk:
https://community.splunk.com/t5/Splunk-Search/query-to-return-multiple-user-login-attempts-from-same-IP/m-p/86412
New Relic:
https://forum.newrelic.com/s/hubtopic/aAX8W0000008biVWAQ/detect-repeated-requests-at-the-same-time
Data Dog (this is sorting by CIDR block but it’s largely the same problem)
https://www.datadoghq.com/blog/cidr-queries-datadog-log-management/
A Xitter user can delete their own copies of their own DMs, and the user on the other end can separately delete their copies. But per the documentation I find online, deleted tweets and DMs can be still normally be recovered from one’s “Twitter Archive.”
Do we know if DOJ’s subpoena asked for the “Twitter Archive” or something equivalent? I doubt Elon would be able to tamper with a user’s Twitter archive without substantial help from engineers and probably still leaving a discoverable trail. Production systems have logs and are regularly backed up.
If Elon merely warned McCarthy and/or Jordan that DOJ would be getting their DMs, I assume that would have violated DOJ’s non-disclosure order?
As alluded to in the “surveillance tapes” at MaL, most software vendors these days don’t actually remove anything when you delete, just flag it as deleted and don’t show it. Then you have a job running to remove items that are more than X months old. There’s too much time lost in helping users recover items they didn’t want to delete otherwise.
If he told a MoC, he might argue that the matter was still being litigated and the NDA not yet binding. I think that improperly reverses the burden. He would also argue mootness, which might be more effective. But admissible evidence would be bloody hard to get.
I think if Musk or a Member of Congress were going to be a part of the proceedings, they would have been unindicteds in the J6 case.
I agree with the Dr., there would have to be a literal smoking gun for a Congress person to get indicted.
Also, get a load of that posting time…1:03 am. Apparently rust, and the Dr. never sleep.
I’m having a hard time believing that Trump was sending DM’s via Twitter.
Why would a 75 yr old guy who was too paranoid to send emails or texts and was supposedly seen tearing up and EATING documents after a meeting, decide he could trust Twitter?
Maybe he used DMs as a way of compromising persons he was communicating with?
As I’ve noted in comments here this week, folks have forgotten there were Saudis employed by Twitter who were charged with spying. Were they the only spies working at Twitter? Were the ones prosecuted only spying for KSA?
Were Trump’s DMs part of the content these spies monitored?
Musk met with Jim Jordan twice and McCarthy once. Glad I wasn’t at that gathering. Was the room large enough for the egos?
Perhaps Musk wants to get into politics. Well we’ve all seen some of the “bright” lights of the Republican Party such as the likes of Jordan, MTG, McCarthy, DeSantos, etc. What a cabal. Couldn’t imagine those three running the U.S.A., well I can but at that point Canada may have to build a wall, not to keep the regular American citizen out, just those crazies in the Republican Party.
Another amazing breakdown here.
I have put together detailed timelines of various scandals. 2 of which are Elon/Twitter/Tesla and Hunter Biden/Burisma/laptop. With the connection through Comer’s weaponizing a Congressional Committee and the special counsel subpoena of Trump’s Twitter data, it looks like these timelines are merging. Good lord, my mind is blown.
Shady
Pranks all the time sure have driven me
The memories are not hard to find
And now I play dumb
For that sweet quid pro quo
That’s something I can’t say out loud
I’m once, twice,
three times so shady
I’m out of view
Yes, I’m once, twice,
three times so shady,
I’m out of view
Birds of a feather
Are owned and nightmarish
With each deceit on our part
To smudge you, to scold you,
Misdeal you, mislead you,
Our malice is quite off the chart
Once, twice, three times so shady
And out of view, out of view
https://www.youtube.com/watch?v=TyGQhKvCzy4
“Commodores – Three Times A Lady – Original Sound Instrumental Remastered”
“Smudge” is interesting lyrical turn!