“That’s How … You End Up as a Defendant in a Court Room:” Some Days in the Life of a Named-and-Shamed Former GRU Hacker, Ivan Ermakov

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In early 2018, Ivan [Y]Ermakov,* one of the hackers alleged to have stolen John Podesta’s emails two years earlier, was living it up.

For his April 10 birthday that year, he went on a stunning heli-ski trip with his future co-conspirator, Vladislav Klyushin (Ermakov is on the left in this picture, Klyushin, on the right and in the Featured Image picture).

In summer 2018, they were enjoying the Sochi World Cup together, too.

Just days after this trip to Sochi, however, on July 13, 2018, Robert Mueller would indict Ermakov, along with eleven of his former GRU colleagues, for hacking the DNC, DCCC, Hillary Clinton, election vendors, and registration websites, as well as orchestrating the release of the stolen files.

By the time of that first indictment against him — the first of three known indictments against the Russian hacker so far — Ermakov had already made one of the fatal slip-ups that would form part of the proof against Klyushin at trial, this time for a hack-and-trade scam. On May 9, 2018, Yermakov received three updates from his Apple iTunes account to the IP address 119.204.194.11. Just four minutes later, someone using that IP address downloaded an SEC filing using credentials stolen from a Donnelly Financial employee named Julie Soma. That download occurred hours before the report would be publicly filed with the SEC, one of dozens of such thefts of SEC filings that formed the basis of the hacking and securities fraud charges against the men.

So months before Mueller’s indictment alerted Ermakov that the FBI had discovered who he was and that they believed he was one of the hackers behind the 2016 hack, he had already left proof in US-based servers that would tie to him to a follow-up crime, the hack-and-insider trading conspiracy for which Klyushin was convicted in February.

Klyushin has challenged the verdict, largely based on a technical challenge to the venue of the charges in Massachusetts.

Per trial testimony, Ermakov left those tell-tale forensic tracks four months before Klyushin would first get involved in the hack-and-trade scheme, in August 2018. The scheme was doomed from the start — at least, it would be doomed if any of the identified co-conspirators traveled to a jurisdiction that would extradite to the US, as Klyushin did in March 2021.

In fact, there’s something curious about that.

One thing submitted as evidence at trial was a picture of a May 22, 2017 Reuters article reporting the US sentence for Ukrainian hacker Vadym Iermolovych, one of ten people prosecuted for a hack-and-trade conspiracy similar to the one for which Klyushin was convicted.

According to the FBI agent who introduced the exhibit, the picture itself was taken in August 2018. Someone printed out the article and packaged it up in a plastic folder over a year after the fact. That suggests Klyushin was in discussion with a very well-connected friend about the possibility of such charges in the same month that Klyushin first got involved in the scheme.

The possibility of prosecution hung over the conspiracy from the start.

Thanks to Klyushin’s promiscuous storage of damning evidence in his iCloud account, from which many of the pictures and chats in this post were obtained by the FBI, the Klyushin case offers an unprecedented public glimpse into the effect that US indictments against nation-state hackers like Ermakov might have on one of the target’s lives. In Ermakov’s case, it didn’t stop him from hacking US targets. Indeed, it’s possible that others used the indictments to pressure Ermakov to use his hacking skills for them.

Since 2014, DOJ has been indicting nation-state hackers in what have always been assumed to be name-and-shame documents, indictments that would never lead to trial. Indeed, that’s what the two earlier indictments of Ermakov have always been assumed to be: a public accusation that would never lead to Ermakov’s imprisonment. The wisdom of indicting nation-state hackers has never been obvious. Yevgeniy Prigozhin’s exploitation of his own name-and-shame indictment has revealed the potential perils of the policy. And Russian denialists brush off the July 2018 indictment charging Ermakov and others with the election year hack (as Matt Taibbi did in his recent congressional testimony), arguing that since the indictment will never be tested at trial, it could be mere government propaganda.

At least in the case of the 2016 Russian operation, the indictment has done little to persuade denialists, who simply refuse to read about the many places where the hackers left evidence.

In a follow-up, I’ll show how DOJ proved their case against Klyushin using the same kind of evidence they used in the earlier indictments against Ermakov and his colleagues, largely metadata and content obtained from US-based and a few foreign servers. DOJ may never get a chance to prove the first two indictments against Ermakov, but using the same investigative techniques, they did prove the case against Ermakov’s co-conspirator, Klyushin.

This case, where a sealed complaint ultimately led to the trial of one co-conspirator of a hacker previously charged, also provides a glimpse of what happened after one nation-state hacker got name-and-shamed in the US.

It’s not clear from the trial record when Ermakov left the GRU or who his formal employer was before he joined Klyushin’s M-13, an information services company with ties to Putin’s office that offered, among its services, pen testing.

The FBI found a contact card for Igor Sladkov, with whom Ermakov may have started the hack-and-trade scheme at least as early as October 2017, in Ermakov’s own iCloud account, one of the only interesting pieces of evidence they found there. It was dated November 16, 2016, just over a week after Donald Trump got elected with Ermakov’s help. Sladkov — whose iCloud OpSec was just as shoddy as Klyushin’s — had a bunch of photos of Ermakov in his iCloud account, including the hacker’s passport, a 2016 picture of Ermakov sitting before an enormous plate of some animal flesh, and a picture from Ermakov’s 2018 ski trip, as well as a picture of Klyushin’s yacht that Ermakov had shared.

Before trial, Klyushin’s team argued that Ermakov never worked for Klyushin’s company, bolstering the claim with a chat from May 2019 in which Ermakov bitched about his job to Klyushin and a certificate from the Russian tax service claiming that [Y]Ermakov never worked at M-13.

But days after that chat, per another pre-trial filing, Ermakov spoke longingly of being able to travel like Klyushin could. Klyushin responded that he would get Ermakov new identity papers so the two could travel to Europe together, but not — Klyushin conceded — London or America. Klyushin seemingly used that discussion as background to press Ermakov to get back to work, with the implication being he should get back to the hack-and-trade scheme.

That is, Ermakov appears to have included Klyushin in the hack-and-trade scheme while still working for someone else. And Klyushin seems to have used his promise to help Ermakov mitigate the risks created by those earlier indictments to pressure Ermakov to keep hacking. If that’s right, the vulnerability created by the earlier indictments gave Klyushin leverage to get Ermakov to keep hacking.

But Ermakov did eventually join M-13, at least informally. The government introduced an M-13 employee list reflecting Ermakov’s participation in specific project at trial. And they submitted a picture, from December 2019, showing Ermakov with an M-13 sticker, within days of the time when a staging server similar to the one used in the 2016 hack of the Democrats was set up.

Klyushin may have even incorporated Sladkov into M-13. The FBI found a proposal for a data analysis service, dated September 4, 2019, which M-13 would introduce on October 28, 2020, as well as encrypted communications from an M-13 chat application, in Sladkov’s iCloud account.

Klyushin fought hard to exclude one of the most telling pieces of evidence that the hacking scheme came to be tied to M-13 — the four Porsches that, Klyushin bragged to an investor, he had bought for himself, Ermakov, and one other co-conspirator with the proceeds of the insider trading.

But this currency — expensive gifts — seems to have been at least part of the way Erkamov was compensated for his role in the scheme.

Ermakov did not engage in any trading himself. Instead, two men in St. Petersburg, two associated with M-13 (including Klyushin himself), and three clients of M-13, profited off documents [Y]Ermakov seems to have stolen.

But in addition to the Porsche, on August 17, 2020, ten days before the delivery of the Porsches, Ermakov took possession of a Moscow house worth millions, the loan agreement for which Klyushin reportedly ripped up. Months earlier, Klyushin had tied paying for the house with continued hacking — which, Klyushin joked, amounted to just turning on the computer and thinking about making money.

Ermakov was effectively printing money for Klyushin, and his reward was that house.

In September 2020, the hack-and-trade scheme would be shut down for good.

Throughout the time it was going, however, those co-conspirators knew of the indictment against Ermakov. Sladkov downloaded Ermakov’s wanted poster from the FBI website on October 5, 2018, just a day after Ermakov was charged in the 2016 hack-and-leak of anti-doping agencies while Ermakov was still a GRU officer.

And on October 4, 2020, Klyushin took a screencap of Ermakov’s wanted poster from the FBI website.

By the time Klyushin took this screencap, the victim filing agencies had finally shut down Ermakov’s access to the site, after eight months of trying. Perhaps Klyushin was contemplating what that would mean or how it had happened? According to trial evidence, DOJ didn’t identify the hack-and-trade scheme by tracking what Ermakov was doing. Rather, the investigation started when the SEC started tracking some large-scale trading by a bunch of Russians together, then asked the filing agencies if they had been hacked. At least according to the public record, the involvement of Ermakov was disclosed only after working backwards from the forensic evidence. But in October 2020, Klyushin may have considered the risks of entering into a hack-and-trade scheme with a hacker whose habits were already known within the FBI.

By then it was too late. Indeed, Ermakov had already warned his boss about his shoddy OpSec. On July 18, 2019, Kluyshin asked Ermakov and the other M-13 co-conspirator Nikolai Rumiantcev how the hack-and-trade was going. He included pictures of two of the M-13 investors. In response, Ermakov warned his boss that that kind of OpSec is the kind of thing that would land him as a defendant in a courtroom.

Q. Okay, thank you. And now can we move to 3980, please. And this date is?

A. This is July 18 of 2019.

Q. Would you begin with 3980.

A. “Vladislav Klyushin: So what did we earn today?”

Q. And then there’s an attachment?

A. Correct.

Q. And then he says what?

A. Ermakov responds: “About 350 and another 350 in the mind. Sasha the most among the rest. “Klyushin: Our comrades are wondering.”

MR. FRANK: Could we stop right there, and I realize it’s hard, Ms. Lewis, because we’re in the Excel, but could you please display Exhibits 52 and Exhibit 50.

Q. Those are the attachments, Special Agent. Have you had an opportunity to review those?

A. Yes.

Q. Who’s depicted in Exhibits 52 and 50?

A. On the left, 52 is Sergey Uryadov. On the right is Boris Varshavksiy in Exhibit 50.

MR. FRANK: I offer 52 and 50. (Exhibits 50 and 52 received in evidence.)

Q. Okay. So those are the two attachments Mr. Klyushin has just transmitted in the chat?

A. Yes.

Q. Can we go back to the chat and pick up where we left off. So Mr. Klyushin says, “What did we earn today? Our comrades are wondering.” Could you continue, please, at 3987.

A. After sending those pictures we just looked at, Ermakov replies: “Vlad, you are exposing our organization. This is bad.” Nikolai Rumiantcev: Vlad, stop sending to Threema.” Klyushin replies, “So sorry.” “Ermakov: And that’s how they get you and you end up as a defendant in a courtroom.”

Q. How does Mr. Klyushin respond?

A. Klyushin responds, “Removed. Open a chat with us already. “Ermakov: Go ahead and create. It was a bad move now. “Klyushin: Sorry. Did a dumb thing. “Rumiantcev: I suggest to recreate the chat with the deletion of attachments in Threema, or switch to ours if ready. “Klyushin: I will delete this one on my end.”

Klyushin did delete this chat. Rumiantcev left it in his iCloud account, where the FBI found it.

At the time, the men appear to have been shifting their trading discussions to the encrypted M-13 chat application found in all their iCloud accounts, finally taking measures to cover their tracks going forward, over eighteen months into the hack-and-trade conspiracy. Going forward, those working with Ermakov might not exhibit the kind of abysmal OpSec that produced abundant trial evidence against his co-conspirator. Maybe they learned their lesson, and they’ll be able to exploit Ermakov’s skill more safely going forward.

It remains to be seen whether the prosecution of Klyushin, with his ties to high even higher ranking Russians, does more than hold him accountable for millions in fraudulent trades. But that may have little effect on the life of John Podesta’s suspected hacker.

* The government has used two different transliterations for [Y]Ermakov’s last name. In 2018, they used the one that aids in pronunciation. In 2021, they used the direct transliteration from the Cyrillic. Because evidence submitted at Klyushin’s trial uses the initials “IE” to refer to Ermakov, I’ll adopt that spelling here.

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On Joshua Schulte’s Alleged Substantial Amount of CSAM … and Other Contraband

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Yesterday, Judge Jesse Furman docketed a letter, impossibly dated March 23, updating him on the investigation into the Child Sexual Abuse Material allegedly found on WikiLeaks Vault 7 source, Josh Schulte’s discovery computer, six months ago (see this post for an explanation).

It described more about the CSAM material found on Schulte’s computer: The FBI had found “at least approximately 2,400 files on the laptop … likely containing CSAM.”

With respect to assertions that Joshua Schulte, the defendant, has made about the discovery laptop—that the laptop does not contain CSAM, that any CSAM appears only in thumbnails, or that the CSAM was maliciously or inadvertently loaded onto the laptop by the Government. See, e.g., D.E. 998 at 3 (pro se letter to the Court dated Dec. 21, 2022), 5 (pro se letter to the Court dated Jan. 5, 2023)—the Government is able to confirm the following: at least approximately 2,400 files on the laptop have been identified to date as likely containing CSAM. Those files include full images, and are not limited to thumbnail images. Moreover, the Government did not copy discovery materials onto the defendant’s laptop. In 2021, former defense counsel copied discovery and trial materials onto the laptop, which was then reviewed by personnel from the U.S. Attorney’s Office for security compliance before making a file index and providing the laptop to the Metropolitan Correctional Center (“MCC”), where the defendant was then in custody. The CSAM on the laptop was not provided by the Government or the result of Government action.

That, by itself, doesn’t tell us a lot more than we learned in an October filing, which explained that the FBI had found, “a substantial amount” of suspected CSAM.

Indeed, the letter focuses on debunking two counterarguments Schulte has made since, which is one of the reasons Furman docketed it after DOJ submitted it ex parte: “[T]his letter responds directly to assertions by Mr. Schulte,” Furman observed.

The government was debunking a claim made by Schulte that the government had caused the CSAM — but only thumbnails — to be loaded onto his discovery computer by “connect[ing] a child pornography drive to the laptop during setup.”

Schulte repeated and expanded — at great, great length — that theory in a set of filings dated March 1 but just loaded to the docket today.

The government response, effectively, was that they made an index of the files as the computer existed when it was turned over to MCC in 2021, calling Schulte on his claim that he was framed with CSAM.

Ultimately both sides will be able to present their claims to a jury.

But there are several other reasons I’m interested in the letter and related issues.

The government’s working theory when they first revealed this last fall, was that Schulte got a thumb drive into the SCIF and from that accessed the CSAM allegedly found on his home computer six years ago, presumably just to have it in his cell for his own further exploitation of children.

there is reason to believe that the defendant may have misused his access to the SCIF, including by connecting one or more unauthorized devices to the laptop used by the defendant to access the CSAM previously produced.

That’s because in August, they found a thumb drive attached to the SCIF laptop.

On or about August 26, 2022, Schulte was produced to the Courthouse SCIF and, during that visit, asked to view the hard drive containing the Home CSAM Files from the Home Desktop. The hard drive was provided to Schulte and afterwards re-secured in the dedicated safe in the SCIF. The FBI advised the undersigned that, while securing the hard drive containing the Home CSAM Files, they observed that an unauthorized thumb drive (the “Thumb Drive”) was connected to the SCIF laptop used by Schulte and his counsel to review that hard drive containing the Home CSAM Files. On or about September 8, 2022, at the Government’s request, the CISO retrieved the hard drive containing materials from the Home Desktop from the SCIF and returned it to the FBI so that it could be handled pursuant to the normal procedures applicable to child sexual abuse materials. The CISO inquired about what should be done with the Thumb Drive, which remained in the dedicated SCIF safe.

But in a little noticed development, during the period when FBI has been investigating how a defendant held under SAMs managed to get (we’re now told) 2,400 CSAM files onto his discovery computer, CNN reported that the network of FBI’s NY Field Office focused on CSAM had been targeted in a hacking attempt.

The FBI has been investigating and working to contain a malicious cyber incident on part of its computer network in recent days, according to people briefed on the matter.

FBI officials believe the incident involved an FBI computer system used in investigations of images of child sexual exploitation, two sources briefed on the matter told CNN.

“The FBI is aware of the incident and is working to gain additional information,” the bureau said in a statement to CNN. “This is an isolated incident that has been contained. As this is an ongoing investigation the FBI does not have further comment to provide at this time.”

FBI officials have worked to isolate the malicious cyber activity, which two of the sources said involved the FBI New York Field Office — one of the bureau’s biggest and highest profile offices. The origin of the hacking incident is still being investigated, according to one source.

DOJ still insists that former CIA hacker Josh Schulte found a way to access a whole bunch of CSAM. And in the same period, reportedly, the servers involved with CSAM investigation in the NYFO were hacked.

And while the letter released yesterday doesn’t tell us — much — that’s new about what Schulte allegedly had on his laptop, it does tell us, by elimination, which of the sealed filings in his docket are not related to the CSAM investigation.

Since the October update on the investigation into Schulte, sealed documents have been filed in Schulte’s docket on the following days:

  • December 15: Sealed document
  • January 19: Ex parte update on CSAM investigation
  • January 26: Sealed document
  • March 9: Sealed document
  • March 13: Sealed document

Only the January 19 letter — along with yesterday’s letter — have been unsealed. That, plus the flurry of filings in September and October, are it for the CSAM investigation. There’s something else going on in this docket, four sealed documents worth.

Indeed, in those very long set of filings mentioned above, both dated February and finalized March 1, both docketed today, Schulte alluded to something beyond CSAM.

Judge Furman has begun claiming that there are other vague misuses or misbehavior on the laptop.

He must not have read the September and October letters very closely, because they describe there was a warrant that preceded the discovery of the CSAM.

The warrants that we know of include the following:

Since late September, this investigation was about the “substantive” amounts of CSAM found on a computer possessed by Schulte.

But before that it was based on suspicions of contraband.

That stems, in significant part, from a search of the computer DOJ did in June, when Schulte turned it over claiming it had been dropped.

It hadn’t been dropped. It needed to be charged. Indeed, in the interminable motions filed today, Schulte treated plugging in a laptop as some kind of due process violation.

Plugging in a laptop should in no way compromise the privacy of a laptop. But it did raise real questions about the excuse Schulte offered in an attempt to get a second laptop (one he effectively got once trial started anyway).

Needless to say, his description of what happened with the BIOS password differs from the government’s, as provided last June.

First, with respect to the defendant’s discovery laptop, which he reported to be inoperable as of June 1, 2022 (D.E. 838), the laptop was operational and returned to Mr. Schulte by the end of the day on June 3, 2022. Mr. Schulte brought the laptop to the courthouse on the morning of June 3 and it was provided to the U.S. Attorney’s Office information technology staff in the early afternoon. It appears that the laptop’s charger was not working and, after being charged with one of the Office’s power cords, the laptop could be turned on and booted. IT staff discovered, however, that the user login for the laptop BIOS1 had been changed. IT staff was able to log in to the laptop using an administrator BIOS account and a Windows login password provided by the defendant. IT staff also discovery an encrypted 15-gigabyte partition on the defendant’s hard drive. The laptop was returned to Mr. Schulte, who confirmed that he was able to log in to the laptop and access his files, along with a replacement power cord. Mr. Schulte was admonished about electronic security requirements, that he is not permitted to enable or use any wireless capabilities on the laptop, and that attempting to do so may result in the laptop being confiscated and other consequences. Mr. Schulte returned to the MDC with the laptop. [my emphasis]

Here’s more background on all the funky things that happened with this laptop that led me to suspect something was going on last summer.

Anyway, the government claims it found a whole bunch of CSAM on Schulte’s computer. But there’s also something else going on.

We may find out reasonably soon. The impossibly dated filing from this week promised an update in a week, which (if the impossibly dated filing was actually dated March 21) might be Tuesday.

The Government expects to provide the Court with a supplemental status letter in approximately one week.

At the same time that CIA hacker Josh Schulte was allegedly finding a way to load CSAM onto his discovery laptop, the local FBI office’s CSAM servers were hacked.

That might be a crazy coincidence.

Update: DOJ filed an ex parte update today, which may or may not have to do with the CSAM investigation.

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Remember: DOJ May Still Suspect Trump Is Hoarding Classified Documents

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When I wrote up initial reports of Christina Bobb’s first interview with investigators in the stolen documents case, I noted,

Bobb’s testimony will clarify for DOJ, I guess, about how broadly they need to get Beryl Howell to scope the crime-fraud exception.

Here we are five months later, and Beryl Howell has indeed, very predictably, scoped out the crime-fraud exception for Evan Corcoran’s testimony and the DC Circuit has refused Trump’s request of a stay to fight that ruling.

In fact, ABC reported a list of the things that Judge Howell ruled Evan Corcoran must share with Jack Smith’s prosecutors, the scope I predicted she’d draw up five months ago.

As you read it, keep in mind that DOJ likely suspects that Trump still is hoarding classified documents. I say keep that in mind, because these questions will help to pinpoint the extent to which Trump or Boris Epshteyn masterminded efforts last June to hide classified documents, which may help DOJ to understand whether someone has masterminded efforts to hide remaining classified documents since.

The six things Corcoran has been ordered to testify about, per ABC, are:

  1. “[T]he steps [Corcoran] took to determine where documents responsive to DOJ’s May subpoena may have been located”
  2. Why Corcoran “believed all documents with classification markings were held in Mar-a-Lago’s storage room”
  3. “[T]he people involved in choosing Bobb as the designated custodian of records for documents that Trump took with him after leaving the White House, and any communications he exchanged with Bobb in connection with her selection”
  4. “[W]hether Trump or anyone else in his employ was aware of the signed certification that was drafted by Corcoran and signed by Trump attorney Christina Bobb then submitted in response to the May 11 subpoena from the DOJ seeking all remaining documents with classified markings in Trump’s possession”
  5. “[W]hether Trump was aware of the statements in the certification, which claimed a “diligent search” of Mar-a-Lago had been conducted, and if Trump approved of it being provided to the government”
  6. What Corcoran “discussed with Trump in a June 24 phone call on the same day that the Trump Organization received a second grand jury subpoena demanding surveillance footage from Mar-a-Lago that would show whether anyone moved boxes in and out of the storage room

Questions 1 and 2 are a test of whether Corcoran wrote the declaration that Christina Bobb signed on June 3 in good faith. Given the fact that boxes were moved out of the storage room, it’s quite plausible that Corcoran did do a good faith search of the remaining boxes. So the answer to question 2 — why did he think all the classified documents were in that room? — will help pinpoint who has criminal liability for that obstructive act. Someone told him only to search the storage room and he took Jay Bratt to that storage room on June 3 and falsely (but likely unwittingly) told them that’s where all the classified documents would have been stored. Who told him that was true?

Questions 4 and 5 go to Trump’s awareness of the attempt to mislead DOJ on June 3. Did he know about the signed certification, and if so was Trump aware that Corcoran and Bobb had, between them, claimed the search of a storage room out of which boxes had been moved amounted to a diligent search? Since he reportedly ordered Walt Nauta to move boxes out of there, does that mean he knew the declaration was false?

Question 3 is more interesting though: The fact that Corcoran wouldn’t sign the certification himself is testament that he had doubts about the search he did himself or, at least, that someone knew enough to protect him. Per reporting from after she spoke to investigators the first time (see this post), Boris Epshteyn contacted Bobb the night before the search to serve the role she played.

She told them that another Trump lawyer, Boris Epshteyn, contacted her the night before she signed the attestation and connected her with Mr. Corcoran. Ms. Bobb, who was living in Florida, was told that she needed to go to Mar-a-Lago the next day to deal with an unspecified legal matter for Mr. Trump.

When she showed up the next day, Bobb complained that she didn’t know Corcoran, which is one of the reasons she wisely caveated the document before signing it.

“Wait a minute — I don’t know you,” Ms. Bobb replied to Mr. Corcoran’s request, according to a person to whom she later recounted the episode. She later complained that she did not have a full grasp of what was going on around her when she signed the document, according to two people who have heard her account.

And Bobb wasn’t the custodian of records. Someone decided to have someone unaffiliated with the Office of the Former President sign as custodian of records, thereby protecting Trump’s legal entity — the one served with the subpoena — from liability for the inadequate response.

She was, however, someone who — like Boris Epshteyn — likely has significant exposure for January 6, and even (per her testimony to January 6 Committee) witnessed Trump’s call to Brad Raffensperger.

But either Corcoran knew or suspected his own search was inadequate, or someone built in plausible deniability for him. DOJ may find out which it was on Friday.

As noted, this may help DOJ understand what has happened since Bobb’s initial testimony. Reports of her testimony came in the same days as initial reports that DOJ had told Trump they believed he still had classified records. Both Bloomberg and NYT described the tensions that arose among Trump’s lawyers as a result, with some objecting to any further certification.

Christopher M. Kise, who suggested hiring a forensic firm to search for additional documents, according to the people briefed on the matter.

But other lawyers in Mr. Trump’s circle — who have argued for taking a more adversarial posture in dealing with the Justice Department — disagreed with Mr. Kise’s approach. They talked Mr. Trump out of the idea and have encouraged him to maintain an aggressive stance toward the authorities, according to a person familiar with the matter.

That was in October. In November, Merrick Garland appointed Jack Smith. In late November, Trump hired Tim Parlatore to do the search Kise had recommended over a month earlier. The search found, and returned to DOJ, two documents with classification markings found in a separate storage facility.

But even as Trump lawyers were dribbling out details of the result of that search, they were hiding at least two more details: that a Trump aide had been carting around — and had uploaded via the cloud — White House schedules that included once-classified information. And, Parlatore’s searchers had discovered, there was another empty classified folder on Trump’s bedside table that hadn’t been discovered in the August search. Whether willful or not, both likely show that additional documents with classification markers were brought back to Mar-a-Lago after the August search.

Since the time in December DOJ tried to hold Trump in contempt for refusing to comply with the May subpoena, they have chased down the box of schedules and the computer to which they were uploaded and subpoenaed the extra empty classified folder. They have interviewed the people who did the search, as well as the lawyers that Boris Epshteyn was giving orders. Significantly, they also interviewed Alina Habba, whose own search of Mar-a-Lago for documents responsive to Tish James’ subpoena had obvious gaps, most notably the storage closet full of documents where a bunch of classified documents were being stored. And finally, after five months, they will answer the questions first made obvious after Bobb’s initial interview in October: what Trump told Corcoran to get him to do an inadequate search.

Which brings me to Question 6: What Trump said to Corcoran after he received a subpoena for security footage that Trump knew — but Corcoran may not have known — showed Walt Nauta moving boxes that would thereby be excluded from the search Corcoran had done in May and June. Since this was a call, it may well be one of the things about which Corcoran took notes or even a recording that he later transcribed. Also recall that there was a discrepancy as to the date of the subpoena (as well as whether Trump greeted Jay Bratt and others when they were at MAL) when the search was originally revealed last year, a discrepancy that led me to suspect DOJ first served a subpoena on Trump’s office and only then served a subpoena on Trump Organization. June 24 may have been the first date that Corcoran became aware that his representations about the search for documents was incomplete.

Here’s the point, though. Trump played a shell game in advance of the search that Corcoran did last summer. Alina Habba’s declaration, on its face, reflects a shell game. There’s reason to believe — given the box containing additional documents marked classified and the empty classified folder — that Trump played another shell game when Parlatore’s investigators searched in November and December. And Howell reportedly also approved a crime-fraud waiver for Jennifer Little, a lawyer representing Trump in conjunction with the Georgia investigation.

If Corcoran does testify tomorrow, it may crystalize DOJ’s understanding of that shell game, at least. Not only will that help DOJ understand if another shell game, one involving Parlatore, managed to hide still more documents in November and December. But it may help to understand any other shell games Trump engaged in in NY and GA.

It may also finally provide the basis to hold Trump in contempt for withholding further documents.

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Just for Perspective: Investigations Take Longer When Presidents Don’t Wiretap Themselves

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A few weeks ago, Peter Baker marked the day that the January 6 investigation has taken as long as the time between the burglary to Nixon’s resignation.

I reacted poorly to Baker’s claim to offer perspective; even on past presidential investigations, he has been overly credulous. And there’s really no comparison between Watergate and January 6, particularly if one compares — as Baker does — time-to-resignation under a still-sane Republican party with time-to-indictment in the MAGAt era. The comparison offers no perspective.

But I thought I’d take Baker up on the challenge, because the Watergate investigation offers a worthwhile way to demonstrate several of the reasons why the January 6 investigation is so much harder. (I plan to make running updates of this post because I expect feedback, particularly from people who know the Watergate investigation better than me, will help me fine tune this explanation.)

Same day arrests

In Watergate, the burglars were arrested in the act of breaking into the DNC headquarters.

On January 6, the cops tried to (and in a relative handful of cases, did) arrest people onsite. But this is the challenge they faced when they tried: Every attempted arrest required multiple officers to focus on one individual rather than the mob of thousands poised to invade the Capitol; every arrest was a diversion from the effort to defend the Capitol, Mike Pence, and members of Congress, with a woefully inadequate force.

In the case pictured above, the cops made a tactical decision to let Garret Miller go. After assuring the cops he only wanted to go home, just 33 minutes later, Miller burst through the East door with the rest of the mob.

There wasn’t a great delay in arrests of January 6 rioters, though. Nicholas Ochs, the first Proud Boy arrested, was arrested on January 7 when his flight home from DC landed in Hawaii.

Q-Shaman Jacob Chansley was arrested on January 8. The first person who would be convicted of a felony by a jury, Guy Reffitt, was arrested on January 15 (his son had tipped the FBI about him before the attack). The first person known to later enter into a cooperation agreement, Jon Schaffer, was arrested on January 17. Miller, pictured above, was rearrested January 20. VIP Stop the Steal associates Brandon Straka and Anthime “Baked Alaska” Gionet — the former of whom did provide and the latter of whom likely provided useful information on organizers to earn misdeamenor pleas — were arrested on January 25 and January 17, respectively. Joe Biggs — now on trial for sedition and an utterly critical pivot between the crime scene and those who coordinated with Trump — was arrested January 20, the same day that Joe Biden would, under tight security, be sworn in as President, the same day Steve Bannon’s last minute pardon was announced.

Kelly Meggs, the Oath keeper who facilitated cooperation among three militias who was convicted with Stewart Rhodes of sedition last November, was arrested on an already growing conspiracy indictment on February 19.

In the first month then, DOJ had already taken steps in an investigation implicating those who worked with Trump. The table below includes the arrests of some of the witnesses who will have an impact on an eventual Trump prosecution. There are others that I suspect are really important, but their role is not yet public.

Trial delays

The Watergate burglars didn’t go to trial right away. They were first indicted on September 15, 1972, 90 days after their arrest. Those who didn’t plead out went on trial January 8, 1973, 205 days after their arrest. Steps that John Sirica took during that trial — most notably, refusing to let the burglars take the fall and reading James McCord’s confession publicly — led directly to the possibility of further investigation. Nixon wouldn’t even commit his key crimes for over two months, in March.

That’s an important reminder, though: the Watergate investigation would have gone nowhere without that trial. That’s unsurprising. That’s how complex investigations in the US work.

Many people don’t understand, though, that there were two major delays before anyone could be brought to trial for January 6. First, COVID protocols had created a backlog of trials for people who were already in pretrial detention and for about 18 months, would limit the number of juries that could be seated. Efforts to keep grand jury members safe created similar backlogs, sometimes for months. In one conspiracy case I followed, prosecutors were ready to supersede several defendants into a conspiracy in April 2021, but did not get grand jury time to do so until September.

To make that bottleneck far, far worse, the nature of the attack and the sheer volume of media evidence about the event led DOJ to decide — in an effort to avoid missing exculpatory evidence that would undermine prosecutions — to make “global production” to all defendants. That required entering into several contracts, finding ways to package up media that started out in a range of different formats, getting special protective orders so one defendant wouldn’t expose personal details of another (though one defendant is or was under investigation for doing just that), then working with the public defenders’ office to effectively create a mirror of this system so prosecutors would have no access to defense filings. It was an incredibly complex process necessitated by the thing — the sheer amount of evidence from the crime scene — that has made it possible to prosecute so many of the crime scene culprits.

Here’s one of the memos DOJ issued to update the status of this process, one of the last global updates. Even at that point over a year after the attack, DOJ was just starting to move forward in a few limited cases by filling in what remained of discovery.

The first felony trial coming out of January 6 was that of Guy Reffitt, which started on March 3, 2022, a full 420 days after the event. Bringing him to trial that was made easier — possible even — because Reffitt never went into the Capitol itself, so didn’t have to wait until all global discovery was complete, and because there were several witnesses against him, including his own son.

The delays in discovery resulted in delays in plea deals too, as most defense attorneys believed they needed to wait until they had seen all of the discovery to make sure they advised their client appropriately.

Lots of people thought this process was unnecessary. But the decision to do it was utterly vindicated the other day, as DOJ started responding to defendants claiming that Tucker Carlson had found video that somehow proved their innocence. As I noted, prosecutors were able to point to the video shown by Tucker Carlson that he said vindicated Jacob Chansley and describe specifically when an unrelated defendant, Dominic Pezzola, had gotten what was effectively Chansley’s discovery.

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases.3 With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

While discovery in this case is voluminous, the government has provided defense counsel with the necessary tools to readily identify relevant cameras within the CCTV to determine whether footage was produced or not. Accordingly, the volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures.

You may think the thirteen month delay for discovery was a waste of time. But it just prevented Tucker Carlson from being able to upend hundreds of prosecutions.

Obviously, most of the trials that have occurred in the last year won’t directly lead to Trump. Some will. I’ve said for 22 months that I think the Proud Boy trial is critical — and that won’t go to the jury for another two or three weeks yet. There are a number of steps that, I suspect, DOJ has been holding on pending the results of that trial, because so much else rides on it.

The Stewart Rhodes trial was likely helpful. I’ve suggested DOJ may use Danny Rodriguez as a way to tie Trump and Rudy Giuliani to the near-murder of Michael Fanone on an aid-and-abet theory. And there are a few more sleeper cases that seem to have greater significance than what went on at the Capitol that day.

Update: On May 4, 2023, a jury found four of the five Proud Boy leaders guilty of sedition. This trial was an important precursor for other investigative steps.

The legal uncertainty

In the Nixon case, there were fairly well established crimes: burglary, and obstruction of a criminal investigation.

I won’t say too much on this point, because I already have. But in this case, prosecutors were (and undoubtedly still are) trying to apply existing statute to an unprecedented event. One law they’ve used with a lot of the rioters — civil disorder — was already being appealed elsewhere in the country when prosecutors started applying to the January 6. Since then its legal certainty has been all-but solidified.

Far more importantly, the way prosecutors have applied obstruction of an official proceeding, 18 USC 1512(c)(2), has been challenged (starting with Garret Miller–the guy in the aborted arrest photo above) for over a year. That’s precisely the crime with which the January 6 Committee believes Trump should be charged (I advocated the same before their investigation even started in earnest); but I’m not sure whether Jack Smith will wait until the appeals on the law get resolved.

Still, DOJ has spent a great deal of time already trying to defend the legal approach they’ve used with the investigation.

Update: On April 7, the DC Circuit reversed Carl Nichols, holding that 18 USC 1512(c)(2) does not require a documentary component. That opinion raised new questions about the meaning of “corrupt purpose” under the statute. The Circuit rejected Fischer’s request for a rehearing, clearing the possibility of an appeal to SCOTUS. On May 11, the DC Circuit heard Thomas Robertson’s challenge to the same statute. Its decision in that case will almost certainly be the first DC Circuit ruling on “corrupt purpose” under the statute.

The insider scoop

For all the delays in setting up the January 6 Committee, it (and an earlier Senate Judiciary Committee inquiry into Jeffrey Clark’s efforts to undermine the vote) got started more quickly than Sam Ervin’s committee, which first started 11 months after the burglary.

Yet it only took Ervin’s Senate investigators about two months to discover their important insider, whose testimony would provide critical to both Congressional and criminal investigators. On July 13, 1973, Alexander Butterfield first revealed the existence of the White House taping system.

For all the January 6 Committee’s great work, it wasn’t until her third interview, on May 17, 2022, before Cassidy Hutchinson began to reveal more details of Trump’s unwillingness to take steps against his supporters chanting “Hang Mike Pence.” Even Hutchinson’s remarkable public testimony on June 28, 2022, when she described Trump demanding that his supporters be allowed to enter the Ellipse rally with the weapons Secret Service knew them to be carrying, is not known to have provided the kind of Rosetta stone to the conspiracy that disclosure of Nixon’s White House taping system did. In later testimony, Hutchinson provided key details about a cover-up. And her testimony provided leverage for first J6C and then, in at least two appearances, grand jury testimony from Pat Philbin and Pat Cipollone, the latter appearance of which came with an Executive Privilege waiver on December 2, 2022, 23 months after the attack.

Cell-xploitation

This brings us to the biggest difference in the timeline. Once the Senate and prosecutors learned that Nixon had effectively wiretapped himself, it turned the investigation into a fight over access to those materials.

The parts of the draft Nixon indictment that have been released describe a fairly narrow conspiracy. The proof against Nixon would have comprised, in significant part:

  • The report John Dean did disclaiming a tie to the break-in
  • Proof of payments to Howard Hunt
  • White House recordings, primarily from several days in March 1973, proving that Nixon had the payments arranged

That is, in addition to the James McCord confession and John Dean’s cooperation, any charges against Nixon relied on recordings Nixon himself had made, the import of which were made all the more salient with the disclosure of the 18-minute gap.

One thing likely made the January 6 prosecution easier: The sheer amount of data available to prosecutors using subpoenas. We have yet to see any of that with regards to organizers (though we know that Denver Riggelman, with far weaker subpoena power, was able to do a detailed map of ties between Trump, organizers, and mobsters).

There will undoubtedly be a great deal of evidence obtained from cloud companies. The only hint of this process we know about yet involves the emails from Jeffrey Clark, Ken Klukowski, John Eastman, and one other person, who is not a lawyer. DOJ had obtained emails from them with a warrant by last May. They have undoubtedly done the same for dozens of other subjects (beyond those arrested from the crime scene, where they have done so as well), but we won’t know about it until we see it in indictments.

But even that is not always easy. DOJ has spent seven months so far getting Peter Navarro to turn over emails from his Proton Mail account covered by the Presidential Records Act. Judge Colleen Kollar-Kotelly just issued an order requiring him to turn the emails over, but it’s not clear whether he’ll further obstruct this effort to simply enforce his normal record-keeping obligations.

But one challenge that didn’t exist fifty years ago makes prosecutors jobs much harder: the need to obtain and exploit individual cell phones to obtain encrypted communications — things like Signal and Telegram chats — not otherwise available. In Enrique Tarrio’s case, simply breaking into the phone took most of a year. In Rudy Giuliani’s case (his phones were first obtained in the Ukraine investigation starting on Lisa Monaco’s first day on the job, but the results would be available with a separate warrant here), it took a nine month Special Master review. In Scott Perry’s case, his speech and debate claims will be appealed to SCOTUS. The table below shows whose phones we know to have been obtained, including how long it took to exploit the phones to the extent that became public (It does not show known cloud content obtained; much of that remains secret.)

The point being, even for the Proud Boys and Oath Keeper cases, you had to get one phone, use it to get probable cause on the next guy, then get his phone to use it to get probable cause on the next guy. This process is very obviously at the stage where both Alex Jones and Roger Stone would be in prosecutors’ sights, as well as much of the fake elector plot. But that’s still several steps away from people like Mark Meadows, who would necessarily be involved in any Trump prosecution.

Privilege

When DOJ subpoenaed the two Pats last summer, multiple media outlets reported that subpoenaing the White House counsels was particularly “aggressive.”

Two top lawyers who worked in the White House under former President Donald Trump have been subpoenaed to appear before a federal grand jury investigating the events leading up to the Jan. 6, 2021, attack on the Capitol, people familiar with the matter said, in the latest sign that the Justice Department’s probe is entering a more aggressive phase.

Mr. Trump’s White House counsel Pat Cipollone and his deputy Pat Philbin received subpoenas in recent days seeking documents and testimony, the people said. [my emphasis]

But as coverage of, first, Mike Pence’s two aides and, then, the two Pats being compelled to testify about topics Trump had claim was privileged noted, it’s not actually a new or particularly aggressive thing to ask White House counsels to testify. Indeed, John Dean’s cooperation — the most important part of holding Nixon accountable — arose after he had gotten himself deeper and deeper into Nixon’s cover-up.

And in spite of the Nixon precedent that said there were limits to Executive Privilege, and in spite of the DC Circuit ruling that the import of investigation January 6 overcame Trump’s Executive Privilege claims, even with Congress, Trump has used — and DOJ has been obligated to navigate — a series of privilege claims to delay the investigation.

As I’ve noted, there are close to thirty key witnesses or subjects whose attorney-client claims have to be carefully addressed to avoid blowing both that case and those of any downstream investigation.

In the case of Scott Perry, DOJ has spent six months trying to get into his phone. That delay is not a sign of lassitude. On the contrary, it’s a sign they’re including subjects who very rarely get investigated in the investigation.

Update: On April 21 and 22, seven-plus months after DOJ seized his phone (which is often how long exploitation takes), Boris Epshteyn spent two days interviewing with Jack Smith’s prosecutors though not — at least by description — appearing before the grand jury. He played a key role in both January 6 and the stolen documents case.

Cooperating witnesses

According to this timeline, John Dean started cooperating on April 6, 1973, almost ten months after the arrest of the burglars, though just a few weeks after the day of Nixon’s crimes as alleged in the draft indictment.

As noted on this table, there were people who entered into cooperation agreements more quickly than that, but it’s not clear who of them will help prosecute those closer to Trump. As I keep noting, I’m really dubious of the value of Brandon Straka’s cooperation.

There are maybe 30 to 35 known known cooperators in January 6, but most only cooperated against their buddies, and most of those prosecutions didn’t much build prosecutions related to Trump.

This table only includes a few of the cooperating witnesses — the first (Schaffer, the nature of whose cooperation is still totally obscure), the dubious cooperation of Straka and, potentially, Gionet, the most important of at least five Proud Boy cooperators, Jeremy Bertino, and the most important of at least eight Oath Keeper cooperators, Joshua James.

James, along with a few of the other Oath Keeper cooperators, might help prosecute Roger Stone. But there is no one on this list who has the goods on Trump, like John Dean did. No one even close.

That said, we wouldn’t necessarily know if someone closer to Trump were cooperating. Even some people who are secondary cooperators remain entirely obscure, both that they are cooperating, and the extent of their knowledge. I suspect several people are cooperating — I even have specific people in mind, based on other details. But we won’t know anytime soon if someone has flipped on Donald Trump.

And given the ferociousness of his supporters and the aggressiveness of Trump’s obstruction that’s a good thing.

Update, May 26: I’ve updated the table below to reflect the Oath Keeper sentences and the Proud Boy verdict.

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KT McFarland Likened Trump’s Transition Interventions to the Iran October Surprise

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In an FBI interview on September 14, 2017, KT McFarland likened Mike Flynn’s transition period interference with Obama policy to Richard Nixon’s Chennault Affair and what she called Reagan’s “purported dealings with Iran to free American hostages.”

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during their transitions as precedent for proactive foreign policy engagements by an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she head what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

To be clear: She was only talking about Flynn’s request of Russia, on December 22, to help stave off a UN vote condemning Israeli illegal settlements. At that point in September 2017, she was still claiming not to remember the calls Flynn made on December 29 to undermine Obama’s sanctions on Russia itself. She wouldn’t unforget those calls until after Flynn pled guilty a month and a half later.

But to the extent that she was happy to acknowledge that Trump’s National Security Advisor — her boss — was undermining US policy, she rationalized it by comparing it to Nixon and Reagan’s efforts to undermine US policy for political gain.

Only, it wasn’t just Flynn involved in undermining Obama’s foreign policy. Records from Mueller’s investigation show the following sequence on December 22:

  • 6:02AM: A “senior advisor to a Republican Senator” writes McFarland, cc’ing Flynn and others, warning that the UNSC was “voting to condemn Israeli settlements at 10a.m.” yet Obama was silent
  • 8:46AM: Flynn and Kushner speak for four minutes
  • 8:53AM: Flynn calls Sergei Kislyak, then calls a representative of the Egyptian government and speaks to him for four minutes
  • 8:59AM Flynn speaks to Kislyak for three minutes
  • Flynn had “several additional” calls with the representative of the Egyptian government
  • Egypt delayed the vote

When the President’s son-in-law read a draft statement from Egypt noting that Abdel Fattah El-Sisi had spoken with Trump that day and had “agreed to lay the groundwork … to drive the establishment of a true peace between the Arabs and the Israelis,” Kushner asked whether they could alter the statement. “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede?” He then falsely claimed, on an email with others like Reince Priebus that, “This happens to be the true fact pattern and better for this to be out there.”

Only it wasn’t the true fact pattern. Flynn had reached out. Not Sisi.

Indeed, this incident was probably the start of Kushner’s Abraham Accords, which in turn probably relates to why the Saudis paid Kushner $2 billion after he left the White House.

And it wasn’t just Flynn involved. Flynn made all these calls from Mar-a-Lago. After Egypt delayed the vote, McFarland bragged that Flynn, “had worked it all day with trump from Mara lago.” [my emphasis]

Trump was involved too.

That December 22 transcript was withheld from those released in 2020. But on a later call with Kislyak — the one where he asked Kislyak to hold off on sanctions — analysts suggested “he may be using a speaker phone.” Had Flynn used a speaker phone on December 22, when he was in Mar-a-Lago with Trump, Trump would have been on that call as well.

The next day, McFarland bragged still some more. She suggested Flynn should leak to the press about,

the crucial role [he] played in working your contacts built up over the decades to get administration ambush Israel headed off. You worked the phones with Japanese Russians Egyptians Spanish etc and reversed a sure defeat for Israel by kerry/Obama/susan rice/samantha power cabal.

In 2016, McFarland wanted Flynn to get credit in the press that he had undermined US policy to help Israel. In 2017, she rationalized doing so because Nixon and Reagan had done similar things in their day.

I raise all this not just because I wonder whether Bill Barr killed the investigation into whether Egypt kept Trump’s campaign alive in September 2016 with a $10 million donation.

I raise all this because NYT, on the verge of Jimmy Carter’s death, has finally revealed who reached out to Iran to get them to hold Americans hostage longer to help Reagan win the White House.

It was former Texas Governor John Connolly.

It was 1980 and Jimmy Carter was in the White House, bedeviled by a hostage crisis in Iran that had paralyzed his presidency and hampered his effort to win a second term. Mr. Carter’s best chance for victory was to free the 52 Americans held captive before Election Day. That was something that Mr. Barnes said his mentor was determined to prevent.

His mentor was John B. Connally Jr., a titan of American politics and former Texas governor who had served three presidents and just lost his own bid for the White House. A former Democrat, Mr. Connally had sought the Republican nomination in 1980 only to be swamped by former Gov. Ronald Reagan of California. Now Mr. Connally resolved to help Mr. Reagan beat Mr. Carter and in the process, Mr. Barnes said, make his own case for becoming secretary of state or defense in a new administration.

What happened next Mr. Barnes has largely kept secret for nearly 43 years. Mr. Connally, he said, took him to one Middle Eastern capital after another that summer, meeting with a host of regional leaders to deliver a blunt message to be passed to Iran: Don’t release the hostages before the election. Mr. Reagan will win and give you a better deal.

Then shortly after returning home, Mr. Barnes said, Mr. Connally reported to William J. Casey, the chairman of Mr. Reagan’s campaign and later director of the Central Intelligence Agency, briefing him about the trip in an airport lounge.

At that moment of history, when Reagan won a victory in part thanks to Connally’s sacrifice of Americans’ freedom, KT McFarland was at the height of her credibility on foreign policy, fresh off going ABD in a PhD program. With the new Republican regime, she worked first for Texas Senator John Tower on the Senate Armed Services Committee, then for Cap Weinberger at DOD.

KT McFarland, who derives any foreign policy credibility to that moment created by an effort to harm US policy for political gain, likened what Trump did to what Reagan had done before.

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Beryl Howell’s Biggest Secret: Whether Bill Barr Killed the Egyptian Bank Investigation

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As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

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Tucker’s Putin Envy

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There was a part of the Global Threats Report presented to both the Senate and House Intelligence Committees last week that deserves more attention. In the middle of the section on Russia’s influence operations, the report predicted that Russia will “try to strengthen ties to U.S. persons in the media and politics in hopes of developing vectors for future influence operations.”

It is the judgment of the intelligence community, per the report, that Russia is trying to cultivate “US persons in the media and politics” as part of its foundation for future influence operations.

Russia presents one of the most serious foreign influence threats to the United States, because it uses its intelligence services, proxies, and wide-ranging influence tools to try to divide Western alliances and increase its sway around the world, while attempting to undermine U.S. global standing, sow discord inside the United States, and influence U.S. voters and decisionmaking. Moscow probably will build on these approaches to try to undermine the United States as opportunities arise. Russia and its influence actors are adept at capitalizing on current events in the United States to push Moscow-friendly positions to Western audiences. Russian officials, including Putin himself, and influence actors routinely inject themselves into contentious U.S. issues, even if that causes the Kremlin to take a public stand on U.S. domestic political matters.

  • Moscow views U.S. elections as opportunities for malign influence as part of its larger foreign policy strategy. Moscow has conducted influence operations against U.S. elections for decades, including as recently as the U.S. midterm elections in 2022. It will try to strengthen ties to U.S. persons in the media and politics in hopes of developing vectors for future influence operations.
  • Russia’s influence actors have adapted their efforts to increasingly hide their hand, laundering their preferred messaging through a vast ecosystem of Russian proxy websites, individuals, and organizations that appear to be independent news sources. Moscow seeds original stories or amplifies preexisting popular or divisive discourse using a network of state media, proxy, and social media influence actors and then intensifies that content to further penetrate the Western information environment. These activities can include disseminating false content and amplifying information perceived as beneficial to Russian influence efforts or conspiracy theories. [italicized bold original, underline my emphasis]

This is not new news. Obviously Russia has been cultivating both journalists and politicians in recent years, often by inviting them for big shindigs in Russia, after which, over the course of years, they come to spout more and more Russian propaganda uncritically.

It’s is noteworthy that the IC stuck this detail amid discussions about election interference and Ukraine mobilization, because Russia has had renewed success of late getting entertainers and politicians to magnify inflammatory and often false claims about Ukraine.

The judgement came out the same week that Tucker Carlson (whose Ukraine invasion anniversary special was breathtaking even by his standards of propaganda) provided more details of the time, in summer 2021, he was informed that the NSA had discovered his back channel contacts to Putin.

The story starts when Tucker squeals that he’s envious of the podcasters because they got to go to Russia, but he might be arrested if he went. Throughout the show, his interviewers operate on the assumption that Russia is the threat to Tucker, but he suggests State or FBI is.

Tucker: Now I’m envious.

[snip]

Full Send: But everyone told us not to go obviously, but. We knew we were with good people. So after that, it was all good, but.

Tucker: Oh, I want to go. I’ve never been there!

Full Send: You feel it though, it is real scary. There’s like military checkpoints.

Tucker: Oh yeah!

Full Send: It’s … it’s serious shit.

Full Send 2: Would you have gone with him or no?

Tucker: I can’t go to Russia. I honestly think I would be arrested.

Full Send: Yeah, they get you.

Tucker: Which is outrageous because, I’m a journalist, and I’ve been all over the world. I feel like I’ve been everywhere except Russia. And Russia is a combatant in a war that’s changing the world, and like I should go see it. And I was planning it and then I got stopped by the US government from doing it.

Full Send: Oh, you were gonna go? What were going to do?

Tucker: Interview Putin. Why wouldn’t I?

Full Send: You had it set up? Damn!

Tucker: I was working on it and then they broke into my text messages — the NSA broke into my Signal account, which I didn’t know they could do —

Full Send: Oh so Signal’s not even safe!

Tucker: Signal is not safe. It’s not safe. Signal’s not safe.

Full Send: I know people think WhatsApp’s safe.

Tucker: WhatsApp?!?! WhatsApp is not — you know what’s safe? And ask any mafia Don. Park your car in front of the liquor store. Leave your phone in the vehicle, in your Caprice Classic, and walk out behind the liquor store, in the vacant lot back there with the WINOs, to talk to the person you want to talk to.

Full Send 2: How many times have you done that?

Tucker: Zero. Cause I’m like lazy. I’m like whoa! And I’m — actually I always say to myself, I’m not hiding anything. I don’t have a secret life. I’m pretty upfront. And some people like it and some people don’t. Of course, but, I’m not hiding anything. But I was definitely hiding my plan to go interview Putin, just because it’s an interview. It’s no one’s business.

Full Send 2: So how did that happen? How do you know the NSA broke into your Signal?

Tucker: Because they admitted it.

Full Send: Really?

Tucker: Oh yeah!

Full Send: Can you tell us about it? Like how did you find out?

Tucker: I got a call from somebody in Washington who’s — who would know. Just trust me. So I went up there for another reason. But this person said, you know, you going to come to Washington anytime soon? This was a year and a half ago, and I was like, yeah, actually I’m going to be up in a week. He’s like, meet me Sunday morning. So weird. Like, who does that? Just text me, you know what I mean? Just text me. No. So I go and this person’s like — and this is someone who would know — Um, are you planning a trip to go see Putin? This was the summer before the war started. I was like, how would you know that? I haven’t told anybody that, I mean, anybody. Not my brother, not my wife, nobody. Just because, you know, it’s one of a million things you’re working on, but that was one of them. I want to go interview Putin. Why wouldn’t I want to go interview Putin?

Full Send 2: Of course.

Tucker: I want to interview Xi, I want to interview everybody. Right? That’s kind of my job.

Full Send: We want to get Kim Jong Un on here one day.

Tucker: Of course! Of course! We met him.

Full Send: You did? We gotta talk about that. Holy shit.

Tucker: Yup. Super interesting. But anyway, um, how would you know that? Because NSA pulled your texts with this other person you were texting. How did you know that? And so I immediately, I was intimidated, I’m embarrassed to admit, but I was, I was completely freaked out by it. I called a US Senator, who I know — not that well, but it seems like a trustworthy person, and I told him the story, I just want to tell you this, and then I went on TV on Monday and I’m like this happened. And so they had — Congress asked NSA and NSA’s like, yes we did this, but for good reason. What would be a good reason to read my — you know, what? But the head of NSA, it’s fine, cause everyone’s in on it, Republicans and Democrats are all in on it. And by it I mean the assumption that there’s no privacy whatsoever, that they have a right to know everything you’re saying and thinking,

Full Send: That shit’s scary.

Tucker: And that’s just not a right as far as I’m concerned. By the way, if you have no privacy you have no freedom. [my emphasis]

Parts of Tucker’s commentary provides more detail on the incident than previous reporting did, which I covered here and here. As Jonathan Swan reported, the IC collected communications showing a back channel effort to set up a meeting with Putin.

Tucker Carlson was talking to U.S.-based Kremlin intermediaries about setting up an interview with Vladimir Putin shortly before the Fox News host accused the National Security Agency of spying on him, sources familiar with the conversations tell Axios.

[snip]

The intrigue: Two sources familiar with Carlson’s communications said his two Kremlin intermediaries live in the United States, but the sources could not confirm whether both are American citizens or whether both were on U.S. soil at the time they communicated with Carlson.

  • This is relevant because if one of them was a foreign national and on foreign soil during the communications, the U.S. government wouldn’t necessarily have had to seek approval to monitor their communications.

On Maria Bartiromo’s show in 2021, Tucker pointed to what was undoubtedly reporting done in the wake of his initial story — quite likely Swan’s own story (indeed, Tucker could well be one of Swan’s two sources) — and claimed it was proof the NSA was leaking information about him.

In the Bartiromo appearance, Tucker spoke in terms of a single email arranging an imminent trip to Russia.

In last week’s podcast, in addition to reiterating that Tucker is not trying to hide anything but oh yeah he was trying to hide his back channel to Putin, even from his spouse, Tucker adds two details: After he learned about it, he reached out to a (male) Senator to look into it, and the communications obtained include Signal texts, not just a single email.

In the past, I had suggested that Tucker’s tipster might be a member of Congress — a Gang of Eight member like Devin Nunes or Kevin McCarthy — or someone close to them (like Kash Patel). The fact that Tucker called a Senator in response (then Chair of the Senate Intelligence Committee Marco Rubio would make sense given the details he provides), and not someone he was closer to like Nunes, makes it more likely his initial tipster had a tie to the House. The focus on the Senate response may suggest this came up again in the Global Threats hearing, during the closed session.

The detail that, per Tucker, in addition to the email he sent about arranging a then-imminent trip to Russia, they also got Signal texts is more interesting, but it doesn’t mean he was the target or that they broke into his phone.

It does suggest that there could have been two different tracks going on: the discussion, over email, about a trip to Russia, one his producer knew about, and another more sensitive discussion going on via Signal.

We do know, however, that Tucker hasn’t hidden past interview preparation. Indeed, his outreach to Viktor Orbán was quite overt and gleeful. So his explanations about why he would want to hide preparation for a Putin interview don’t hold up.

Remember: When Tucker sent his now former investigative producer to try to FOIA this information from NSA (via a FOIA that was guaranteed to fail), he asked for 30 months of data, going back to January 1, 2019. That’s more than a single email to set up a meeting with Putin.

Rather than taking this as a tip that the back channels via which he was (at least) trying to set up a meeting with Putin are considered — even by Republican Senators — legitimate intelligence targets, possibly Russian spies, Tucker has instead spun up conspiracy theories. And that has, in turn, led him to suggest he faces a bigger threat from the US State Department than he would from Russian military checkpoints.

Update: On Twitter, MD suggested that Rand Paul may have been the Senator Tucker approached, given that he wrote a letter to General Nakasone. It’s an interesting possibility, especially given Russia’s cultivation of Rand and his father as well as the suggestion that whatever Senator he approached was ultimately satisfied with the explanation.

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Conclusion To Series On The Dawn Of Everything

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Posts on The Dawn Of Everything: Link

The Dawn Of Everything by David Graeber and David Wengrow has 525 pages of text. I’ve discussed 10 of the 12 chapters in the last 14 months, and it’s time to move on. I’ll conclude this series with a few ideas triggered by the book.

1. The authors show that human societies didn’t follow any particular pattern of change. We didn’t move from foraging to agriculture to industrialization along a single track. We didn’t grow from bands to tribes to clans to small hamlets to towns to cities to nation-states. We didn’t move from one form of social organization to another in any particular order. Instead, the crucial factor is human agency. Agency is the antithesis of the mindlessness of Darwin-style evolution. People make choices. Genes don’t.

2. Greaber and Wengrow are clear about their biases. Among other things they think the current state of society is based on social inequality, and that this is bad. One of the principle themes of the book is laid out as a section heading at p. 111: Why The Real Question Is Not “What Are The Origins Of Social Inequality’ But ‘How Did We Get Stuck?’ They don’t answer the question directly, but it’s likely they think one of the central problems is domination.

In Chapter 10 they say that societies are held together by domination, which can take three forms, sovereignty (control of violence), control of knowledge, and charisma, which operates through virtues approved by the group, such as strength or rhetoric. Each of these can be used to achieve and perpetuate social inequality.

3. The authors think that societies have a shared mental component that links members and separates them from other groups. In ancient societies people shared creation myths or other cosmogonies, rituals, cultic practices, totems, and social practices. We moderns do too. In this post I suggested that

… we Americans share a sort of secular religion based on the founding myths of our country and a weak allegiance to what Jefferson called “Laws of Nature and Nature’s God” in the Declaration of Independence. The latter is a formulation that originally meant Natural Law but I think now includes a science-based mental stance and values based on a vaguely Christian moral sense. The founding myths include our commitment to freedom, as “all men are created equal”; a government of laws, not of men; a form of capitalism; and representative democracy.

By “vaguely Christian moral sense”, I meant something like the Golden Rule, and that this Rule was given to us from something greater than our mortal selves. Each of us has many more beliefs, some fully supported by fact and reason, many less so, and some perfectly arbitrary, such as a preference between forks and chopsticks, or certainty that the end times are upon us.

One important mental component that holds citizens of the US together is a shared commitment to the idea that this is a nation of laws, not of men. We had a general agreement that we would select our leaders, and adhere to the laws and rules they enacted. There’s still some truth there even in these days of Republican treachery.

4. Control of knowledge is a powerful tool. In Chapter 10 the authors describe an ongoing problem in pre-dynastic Egypt, around 3500 BCE: whether the dead require food and drink, and if so, what. The answer turns out to be they need leavened bread and wheat beer. There is no known explanation for this. Skeptics might suggest the priests who gave this answer really liked leavened bread and wheat beer. In any event, this answer required a vast increase in the amount of wheat to satisfy the needs of all of the dead people. That led to vast increases in agriculture, away from the fertile floodplains of the Nile, increased need for irrigation, additional labor, accounting bureaucracies, and debt peonage. The baseless idea of feeding the dead changed the course of human history.

Many of the societies described in the book believed that their gods demand sacrifices of animals, food, or even human beings. We see this among the Aztecs, and in Gen. 4:3 and Gen. 22:2, for example. These ideas don’t ever really disappear. For example, the idea of helping one’s dead ancestors shows up in Chinese use of joss paper.

These ideas seem strange to me, even for the ancients. That’s because they are perfectly abstract. There is no way to verify them, or to justify them other than stories. And yet human beings have always acted on stories, and those actions shape whole societies.

5. At present, it seems to me that our mutual commitment to the rule of law is threatened by a drive to dominate and control knowledge. In most advanced societies knowledge was largely generated and vetted in and through an academic culture. Because of this commitment, no one cared that I read existentialist and surreal texts in college in the 60s, and no one cared that my history class was heavy on criticism of Gilded Age capitalism. Everyone assumed that it was important that as we got older we replace our child’s version of philosophy and of our history with a more adult ideas. Universities were thought to be the training grounds for leadership. Why would you want ignorant leaders, trained on a bunch of Young Adult stories?

But now intellectual pursuits, such fields of study as Critical Race Theory, deconstruction, the history of Reconstruction in the US, and gender studies are the subject of political hostility. For at least the last 50 years private interests have been trying to take control of information. Think of tobacco companies and their scientists lying about their cancer-causing products. Exxon and its scientists concealed the dangers of climate breakdown while fighting changes in energy policy. Someone found a bunch of doctors to attack vaccines. The right-wing media dumps lies into the minds of its audience. Now politicians are reaching directly into the intellectual formation of college students, hoping to hide people and histories they don’t like and that don’t fit the Potemkin World they’ve created.

That Potemkin World is the endpoint sought by the reactionaries who have dumped billions into the project of knowledge control. They’re motivated by their desire to protect and extend their wealth, and defuse any opposition to their control. I see an obvious analogy to the priests of Egypt who divined that the dead needed wheat beer.

Graeber and Wengrow say “As soon as we were human we started doing human things.” P. 82. And apparently we keep doing them even when they make as little sense as feeding the dead with expensive wheat products or risking the future of the earth to make a few bucks.

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Trophy Documents: The Entire Point Was to Make FBI Obedient

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Those who didn’t follow John Durham’s trials closely undoubtedly missed the parade of scarred FBI personnel whose post-Crossfire Hurricane vulnerability Durham attempted to exploit to support his invented claims of a Clinton conspiracy.

Sure, lots of people wrote about Jim Baker’s inability to provide credible answers about the meeting he had with Michael Sussmann in September 2016. Fewer wrote about the credible case that Sussmann’s attorneys made that a prior Durham-led investigation into Baker — for sharing arguably classified information with a reporter in an attempt to forestall publication of a story — made Baker especially quick to cooperate with Durham in 2020. Fewer wrote about Baker’s description of the stress of Jim Jordan’s congressional witch hunts.

It sucked because the experience itself, sitting in the room being questioned the way that I was questioned, was, as a citizen of the United States, upsetting and appalling, to see members of Congress behaving the way that they were behaving. It was very upsetting to me.

[snip]

It sucked because my friends had been pilloried in public, my friends and colleagues had been pilloried in public, improperly in my view; that we were accused of being traitors and coup plotters. All of this was totally false and wrong.

Such a circus was the kind of thing that might lead someone like Baker to prefer the “order” of a prosecutor chasing conspiracy theories, someone whose memory was seared by the firing of Jim Comey.

[Sean Berkowitz]. And this is a pretty terrible experience as well. Right?

A. It’s more orderly.

Q. (Gestured with hand to ear.)

A. This is more orderly. It’s terrible but orderly.

Q. And you’re doing the best you can. Right, sir?

A. Yes, sir.

Q. But it’s hard to remember events from a long time ago, 1snre sez

A. It depends on what the event is. I remember Jim Comey being fired, for example. That’s a long time ago and I have a clear recollection of that. So it depends on what you’re talking about.

But Baker wasn’t the only one who discussed the years of scrutiny. Counterintelligence Special Agent Ryan Gaynor, who worked in DC on the Russian investigations during 2016, described how in October 2020, after he revealed to Durham’s team that he knew a DNC lawyer had brought in the Alfa Bank tip, Durham’s team told him they were no longer treating him as a witness, but as a subject of the investigation.

A. Yeah. There were two thoughts. The first one was that I felt like I had woefully ill prepared for the meeting, because I didn’t know what the meeting was honestly going to be about with this investigation.

The second thought was that I was in significant peril, and it was very concerning as a DOJ employee to be told that now the Department of Justice is interested in looking at you as a subject instead of a witness.

Sussmann lawyer Michael Bosworth got Gaynor to explain that after he told a story more to Durham’s liking, he was moved back to the status of witness.

During his testimony, Curtis Heide (who played a key role in the George Papadopoulos investigation) explained how the FBI Inspection Division investigation into Crossfire Hurricane Agents, including him, remained pending, 6 years after the events in question. He noted that, three years after the DOJ IG Report, he was still being investigated even though he, “didn’t author any of the affidavits or any of the materials related to the applications in question.”

The same was true in the Danchenko case. Brian Auten, a key intelligence analyst on Crossfire Hurricane, described how, after having met with agents from DOJ IG four times, having done a long report for FBI’s Internal Affairs Division, and having met with the Senate Judiciary Committee — all with no concerns raised about his own conduct — the first time he met with Durham’s team, he was told he was a subject of the investigation. After Auten gave testimony that confirmed Danchenko’s reliability — seriously damaging his case — Durham himself raised investigations that undermined his own witness’ testimony.

Q. Do you recall that there was a reporter that the OIG had written concerning the Carter Page FISAs?

A. Yes.

Q. And how would you characterize that report?

A. The report was quite extensive and it discussed characterizing a number of errors and omissions.

Q. And with respect to the errors and omissions, were they tick-tacky kinds of omissions or were they significant omissions and errors that had been committed?

A. I believe the OIG described them as significant.

Q. And then with respect to the investigation done by the OIG, separate and apart from that, would it be a fair statement that you and your colleagues were under investigation by the inspection division by the FBI?

A. Yes.

Q. And would it be a fair statement that your conduct in connection with that is, you, yourself, based on the investigation done by the inspection division of the FBI, have some issues, correct?

A. I — be a little bit more specific. I’m sorry. I don’t — I have issues?

Q. Isn’t it, in fact, true that you’ve been recommended for suspension as the result of the conduct?

A. It is currently under appeal.

That line of testimony immediately preceded a hilarious failed attempt from Durham to get Auten to agree that George Papadopoulos was simply a young man with no contact to Trump who was only investigated for his suspect Israeli ties, not for his Russian ties. But it was a palpable example of the way that Trump’s minions used criminalizing FBI investigations into Trump as a way to create a makebelieve world that negates real evidence of Trump’s corruption.

About the only two FBI agents who weren’t portrayed as somehow tainted by the events of 2016 in Durham’s two failed prosecutions were two agents who fucked up investigations: Scott Hellman, who correctly told a junior agent that she would face zero repercussions of she botched the Alfa Bank investigation, and Ryan James, an FBI agent who started his career in Connecticut, who nevertheless failed to pull the evidence necessary to test Sergei Millian’s claims.

Durham rewarded the incompetence that served his purpose and attempted to criminalize what he considered the wrong answers or at least to use the threat of adverse consequences to invent a false record exonerating Trump.

And Durham came in after Jim Comey, Peter Strzok, Andrew McCabe, and Bruce Ohr had already been fired, and Lisa Page, with Strzok, deliberately humiliated on a global stage serially. He came in and exploited the uncertain status — the Inspection Division review left pending while Durham worked — of everyone involved. Such efforts didn’t end with the conclusive acquittals debunking Durham’s theories of conspiracy. Since then, Jim Baker has been dragged back through the mud — publicly and in Congress — as part of Twitter Files, Chuck Grassley passed on “whistleblower” complaints about Auten identifying Russian disinformation as such, and Timothy Thibault was publicly berated because some of the same so-called whistleblowers feeding Jim Jordan shit had complained to Chuck Grassley he was discouraging GOP conspiracy theories about Hunter Biden.

It was never just Strzok and McCabe. The entire Republican Party has relentlessly focused on punishing anyone involved in the Trump investigation, using both unofficial and official channels. When Trump promised “retribution” the other day at CPAC, this kind of relentless effort to criminalize any check on Trump’s behavior is what he was talking about.

That kind of background really helps to understand the WaPo story that described Washington Field Office FBI agents quaking at the prospect of searching Donald Trump’s beach resort.

[P]rosecutors learned FBI agents were still loath to conduct a surprise search. They also heard from top FBIofficials that some agents were simply afraid: They worried takingaggressive steps investigatingTrump could blemish or even end their careers, according to somepeople with knowledge of the discussions. One official dubbed it “the hangover of Crossfire Hurricane,” a reference to the FBI investigation of Russia’s interference in the 2016 presidential election and possible connections to the Trump campaign, the people said. As president, Trump repeatedly targeted some FBI officials involved in the Russiacase.

[snip]

FBI agents on the case worried the prosecutors were being overly aggressive. They found it worrisome, too, that Bratt did not seem to think it mattered whether Trump was the official subject of the probe. They feared any of these features might not stand up to scrutiny if an inspector general or congressional committee chose to retrace the investigators’ steps, according to the people.

Since I wrote my piece wondering whether the FBI hesitation gave Trump the chance to steal 47 documents, Strzok himself, Joyce Vance, and Jennifer Rubin have weighed in.

Rubin, I think, adopts the position of someone who hasn’t followed the plight of all the people not named Strzok who were targeted for investigating Donald Trump. She attributes the reluctance to investigate Trump (and the intelligence failures leading up to January 6, which I’ll return to) to Wray.

After a debacle of this magnitude, that sort of passivity should alarm all Americans. Imagine if, after the terrorist attacks of Sept. 11, 2001, the national security community did not evaluate how it missed the telltale signs of an imminent attack. The failure of leadership in the Jan. 6 case is inexcusable. Yet Wray has never been held to account for this delinquency.

[snip]

[O]ne is left wondering why the FBI seems disinclined to stand up to right-wing authoritarian movements and figures. Whatever the reason, the pattern reveals an unmistakable lack of effective leadership. And that in turn raises the question:Why is Wray still there?

It is absolutely the case that Wray did far too little to protect FBI agents in the face of Trump’s attacks. Wray created the opportunity for pro-Trump FBI agents and Durham to criminalize investigating Trump. I think Wray attempted to avoid rocking the boat at all times, which led the FBI to fail in other areas (including the investigation of Brett Kavanaugh). Though I’m also cognizant that if Wray had been fired during the Trump administration, he might have been replaced by someone like Kash Patel, and having a Trump appointee in charge right now may provide cover for the ongoing investigations into Trump.

But you could fire Wray tomorrow and not eliminate the effects of this bureaucratic discipline, the five year process to teach everyone in the FBI that investigating Trump can only lead to career disaster, if not criminal charges.

Also under Wray, though, the Bureau had already increased its focus on domestic terrorism, with key successes both before and after January 6. Steven D’Antuono, the chief voice of reluctance to search Mar-a-Lago, presided over the really troubled but ultimately successful effort to prevent a kidnapping attempt targeting Gretchen Whitmer, a plot that arose out of anti-lockdown protests stoked by Trump (though unusually, D’Antuono let a subordinate take credit for the arrests).

I think the specific failures in advance of January 6 lay elsewhere. Wray has not done enough in the aftermath to understand the FBI’s failures, but FBI has also been overwhelmed with the case load created by the attack. But, as I hope to return to, I think the specific failure in advance of January 6 lies elsewhere.

Whatever the merit in blaming Wray for FBI’s failure to prepare for January 6, there’s a bigger problem with Rubin’s attempt to blame him on the MAL search. Strzok sketched out in great detail something I had seen, too. The dispute about searching Trump’s house wasn’t between the FBI and DOJ. It wasn’t just what Vance and Strzok both describe as a fairly normal dispute between the FBI and DOJ with the former pushing the latter to be more aggressive.

It was between the WFO on one side and DOJ and FBI HQ on the other.

[A] careful reading of the Post’s reporting (insofar as the reporting is complete) reveals this was not so much a conflict between DOJ and the FBI as much as a conflict between DOJ and FBI headquarters, on the one hand, and the management of the FBI’s Washington Field Office, on the other.

Indeed, a key part of the drama surrounding the pre-August search meeting described by the WaPo involved the conflict between FBI General Counsel Jason Jones — whom WaPo makes a point of IDing as a Wray confidant, thereby marking him as Wray’s surrogate in this fight — and WFO Assistant Director Steven D’Antuono.

Jason Jones, the FBI’s general counsel who isconsidered a confidant of FBI Director Christopher A.Wray, agreed the team had sufficient probable cause to justify a searchwarrant.

[snip]

Jones, the FBI’s general counsel, said he planned to recommend to Deputy FBI Director Paul Abbate that the FBI seek a warrant for the search, the people said. D’Antuono replied that he would recommend that they not.

This, then, was partly a fight within FBI, one in which Wray’s surrogate sided with prosecutors.

Strzok makes a compelling argument that this story may have come from pushback necessitated by people at WFO floating bullshit claims, not dissimilar from — Strzok doesn’t say this, but I will — the leak by right wing agents to Devlin Barrett about the Clinton Foundation investigation in advance of the 2016 election, which led Andrew McCabe to respond in a way that ultimately gave Trump the excuse he wanted to fire him.

Indeed, Strzok’s post includes a well-deserved dig on the WaPo’s claim about, “the fact that mistakes in prior probes of Hillary Clinton … had proved damaging to the FBI,” an unsubstantiated claim I also called out.

[E]ven journalists can be imprecise or inaccurate. The Post’s article isn’t, for example, the type of comprehensive accounting you’d get in a report produced by an Inspector General, who can compile the statements of everyone involved and review and compare those statements to the written record in all its various forms.

Strzok right suggests that DOJ IG’s Report disproved WaPo’s claim about the Hillary investigation, but he seems to have forgotten that the DOJ IG Report into McCabe’s response on the Clinton Foundation didn’t fully air the FBI spox’s exculpatory testimony.

All of which is to say that, in the same way that WFO agents have an understandable visceral concern about getting involved in an investigation targeting Trump, people at HQ might have an equally visceral concern about stories seeded to Devlin Barrett alleging internal conflict that might create some flimsy excuse for firing.

But there’s something still unexplained about the WaPo story. Vance notes, as I did, that D’Antuono may have given Trump the opportunity to steal 47 documents.

[T]he delay couldn’t be undone. We still don’t know whether that resulted in the permanent loss of classified material. It did result in a delay in the timeline for making prosecutive decisions, ultimately extending the investigation into the period where Trump announced his 2024 candidacy, leading to the appointment of a special counsel to continue the investigation and determine whether to prosecute.

But Vance still accepts WaPo’s specious claim about timing, the claim that the delay (from June to August) in searching Trump’s resort led the investigation to bump up against a Trump campaign announcement that would surely have happened earlier had Trump not gotten an injunction. There’s nothing to support that temporal argument, and the public record on the injunction (which, again, lasted until almost a month after Jack Smith’s appointment) disproves it.

The timing issue is one of many reasons why I keep thinking about this earlier Devlin Barrett story, one that did bump up against the appointment of a Special Counsel. On November 14, the day before Trump formalized his 2024 run and so four days before the appointment of Jack Smith, Barrett and WaPo’s Mar-a-Lago Trump whisperer, Josh Dawsey, published a story suggesting that maybe Trump shouldn’t be charged because he just stole a bunch of highly classified documents to keep as trophies.

Federal agents and prosecutors have come to believe former president Donald Trump’s motive for allegedly taking and keeping classified documents was largely his ego and a desire to hold on to the materials as trophies or mementos, according to people familiar with the matter.

As part of the investigation, federal authorities reviewed the classified documents that were recovered from Trump’s Mar-a-Lago home and private club, looking to see if the types of information contained in them pointed to any kind of pattern or similarities, according to these people, who spoke on the condition of anonymity to discuss an ongoing investigation.

That review has not found any apparent business advantage to the types of classified information in Trump’s possession, these people said. FBI interviews with witnesses so far, they said, also do not point to any nefarious effort by Trump to leverage, sell or use the government secrets. Instead, the former president seemed motivated by a more basic desire not to give up what he believed was his property, these people said.

[snip]

The analysis of Trump’s likely motive in allegedly keeping the documents is not, strictly speaking, an element of determining whether he or anyone around him committed a crime or should be charged with one. Justice Department policy dictates that prosecutors file criminal charges in cases in which they believe a crime was committed and the evidence is strong enough to lead to a conviction that will hold up on appeal. But as a practical matter, motive is an important part of how prosecutors assess cases and decide whether to file criminal charges.

As I showed, that story, like this one, simply ignored stuff in the public record, including:

  • Trump’s efforts, orchestrated in part by investigation witness Kash Patel, to release documents about the Russian investigation specifically to serve a political objective
  • The report, from multiple outlets, that Jay Bratt told Trump’s lawyers that DOJ believes Trump still has classified documents
  • Details about classified documents interspersed with a Roger Stone grant of clemency and messages — dated after Trump left the White House — from a pollster, a book author, and a religious leader; both sets of interspersed classified documents were found in Trump’s office
  • The way Trump’s legal exposure would expand if people like Boris Epshteyn conspired to help him hoard the documents or others like Molly Michael accessed the classified records

Since then, other details have become clear. Not only was that story written after DOJ told Trump they believed he still had some classified documents, but it was written in the period between the time Trump considered letting the FBI do a consensual search and the time he hired people to do the search for him, a debate inside the Trump camp that parallels the earlier investigative fight between WFO and DOJ. Indeed, when DOJ alerted Trump’s lawyers in October that they believed Trump still had classified documents, that may have reflected WFO winning the debate they had lost before the August search: to let Trump voluntarily comply.

That’s important background to where we are now. Trump’s team has misrepresented to the press how cooperative they have been since. First, Trump’s people misleadingly claimed that Beryl Howell had decided not to hold Trump in contempt (rather than just deferred the decision) and Trump lied to the press for several months, hiding the box with documents marked classified and the additional empty classified folder. Those public lies should only make investigators wonder what Trump continues to hide.

We know Trump blew off the subpoena that WFO agents were sure would work in June, and there’s good reason to believe DOJ finds Trump’s more recent claims of cooperation to be suspect as well.

So let’s go back to that earlier Devlin story. As I noted at the time, I don’t dispute that the most classified documents have the appearance of trophies, but that’s because of the Time Magazine covers they were stored with, not because of any halfway serious scrutiny of Trump’s potential financial goals. Particularly given the presence of 43 empty classified folders in the leatherbound box along with the most sensitive documents, no thorough investigator could rule out Trump already monetizing certain documents, particularly given Trump and Jared Kushner’s financial windfalls from the Saudi government, particularly given the way that Trump’s Bedminster departure coincided with Evan Corcoran’s turnover of classified documents, particularly given that the woman who carted a box including some marked classified around various offices had been in Bedminster with Trump during the summer. I don’t dispute that’s still a likely explanation for some — but in no way all — of the documents, but no competent investigator could have made that conclusion by November 14, when Devlin published the story.

Unless Devlin’s sources — perhaps the same or similar to the sources who know that WFO agents were cowed by the treatment of Crossfire Hurricane agents — were working hard to avoid investigating those potential financial ties.

Unless the timing of the story reflected an attempt to win that dispute, only to be preempted by the appointment of Jack Smith. The earlier dispute could not have been impacted by the appointment of Jack Smith. If there was a later dispute about how to make sure Trump wasn’t still hoarding classified documents, though, it almost certainly was.

Someone decided to leak a story to Devlin Barrett suggesting that investigators had already reached a conclusion about Trump’s motive, even though as the story acknowledged, “even the nonclassified documents” — better described as documents without classification marks that not only hadn’t been reviewed yet, which could have included unmarked classified information — “taken in the search may include relevant evidence.” (Note, these are the same unclassified documents that, the recent story  describes D’Antuono, insanely from an investigative standpoint, scoffing at collecting because, “We are not the presidential records police.”) Devlin’s sources decided to leak that story at a time when DOJ was trying to figure out how to get the remaining documents from Trump, and yet his sources presented a working conclusion that it didn’t matter if DOJ got the remaining documents: it had already been decided, Devlin’s sources told him, that Trump was just a narcissist fighting to keep his trophies from time as President and probably that shouldn’t be prosecuted anyway.

The story of the earlier dispute is alarming because it confirms that WFO agents remain cowed in the face of the prospect of investigating Trump, as some did even six years ago. The later story, though, is alarming because leaks to Devlin have a habit of creating political firestorms that are convenient for Trump. But it is alarming because it suggests even after the August search proved the WFO agents’ efforts to draw premature conclusions wrong, someone still decided to make — and force, by leaking to Devlin Barrett — some premature conclusions in November, an effort that genuinely was thwarted by the appointment of Jack Smith.

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Release the Kraken: Fox News’ Revolving Sidney Powell Conspiracy Theory Door

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It does Dominion Systems no good, in their defamation lawsuit against Fox News and Fox Corporation, to prove that Sidney Powell was a long-time Fox News commentator. They are suing Fox for defamation based on Fox’ platforming of Sidney Powell after the time the Murdoch outlet had internally recognized her as a bullshit artist, not during the time when she routinely showed up to lie about another topic — Mike Flynn’s innocence.

That explains why that prehistory, the long period when Powell was just another personality on Fox News, doesn’t appear in Dominion’s motion for summary judgement or its response to Fox’s MSJ.

What appears, instead, are two inflammatory claims which — taken together — may be as important as the billion dollar lawsuit and the sordid truth about Fox that Dominion has aired as part of it.

First, as Dominion lays out in response to Fox’s attempt to blame Trump for all the outrageous false claims about Dominion, Fox started it,

Fox went beyond the claims that Rudy Giuliani made in court, and Fox aired Sidney Powell’s false claims before she made those claims in court (which is one reason why, Dominion argues, Fox can’t simply claim they were covering newsworthy lawsuits).

Dominion lays out a timeline showing that Powell didn’t make any of the allegedly defamatory claims again Dominion in court until November 25, after Fox had floated them in 12 of the claimed instances of defamation.

As Giuliani himself told the court in one Pennsylvania lawsuit brought by the campaign, the lawsuit is not a fraud case. See Donald J. Trump for President,Inc.v.Sec’y ofPennsylvania,830 Fed.Appx. 377,382 ( Cir. 2020). Or to quote the headline of a November 23,2020 Wall Street Journal article: “Trump Cries Voter Fraud. In Court, His Lawyers Don’t.” Ex.702. Only Powell’s lawsuits, the earliest of which was filed on November 25 (after she had been disavowed by the Trump campaign), made allegations along the lines of the defamatory statements accused in this case allegations that Fox had been broadcasting for weeks before Powell’slawsuits were filed.9

The facts about the cases Fox focuses on are as follows:

November 7: The Trump campaign files an Arizona election challenge alleging defects in the ballots and poll worker deviation from protocols, not a technological failure of vote tabulation machines. See generally Ex.C1. Dominion is not mentioned.

November 11: The Trump campaign files a challenge to results in Antrim County. The gravamen of the complaint is interference with Republican election observers, disputes about voter eligibility, and ballots being run through tabulating machines multiple times–not mechanical tabulation errors. See Ex.C227-60. The complaint concedes that the Secretary of State found that the Antrim error was a result of the failure of a county clerk to properly update media drives, and does not allege any intentional misconduct by Dominion. See id. 60-62.

November 13: Lin Wood files a Georgia election contest, challenging certain changes in Georgia’s election laws. See Ex.C425-50. The lawsuit was not filed on behalf of the President or his campaign, nor does it make any misconduct allegations against Dominion or even mention Dominion by name.

November 17: Lin Wood files an affidavit in his Georgia lawsuit alleging certain misconduct by Smartmatic (not Dominion). The affidavit was irrelevant to the subject matter of the underlying suit, and was never filed in any case brought by the Trump campaign. Ex.C5.

November 25: More than two weeks after Fox first gave her a platform to promote her conspiracy theories, and days after the campaign expressly disavowed her, Powell files lawsuits in Georgia and Michigan. These lawsuits parrot the lies amplified by Powell and others on Fox. Exs.C8-C9.

December 1& 2: Powell files two more lawsuits in Wisconsin and Arizona–repeating the false allegations against Dominion. Exs.C11-C12. [italics my emphasis]

More importantly, Dominion lays out that Fox had Powell on to float these allegedly defamatory claims before Trump embraced them. Dominion suggests that having Trump embrace them was part of luring Trump back to the network.

It is also belied by the record for at least four reasons :(1) President Trump followed lead, making the same allegations against Dominion only after Fox had made them; (2) Sidney Powell was not on the President’s legal team when she started making the Dominion allegations and was disavowed after being associated with that team for at most 8 days; (3)Powell received some of her information via Fox hosts,who then laundered the lies by hosting her on their shows; and (4) neither Trump nor his campaign ever filed a lawsuit alleging the at-issue statements.

First, Fox’s own recitation of the timeline of Trump tweets establishes that Fox went first, Trump went second. On November 7, 2020, President Trump retweeted a report of Georgia using the same machines as Antrim County. Ex.G6. Notably Trump did not name Dominion, and certainly did not accuse Dominion of participating in an election-rigging conspiracy. The Trump campaign then filed a lawsuit on November 11 regarding the events in Antrim County that merely asserted there had been a “glitch” in the Dominion software. Ex.C2 . It was not until November 12 that Trump first made any allegations about Dominion intentionally switching votes, which he did via a tweet crediting OAN’s reporting. See Ex.G6 p.3. Though this tweet refers to OAN, it demonstrated Trump could be pulled back to Fox–provided the network broadcast what he wanted to hear. Indeed, later that same day, Trump tweeted his approval of Fox hosts attacking Dominion, telling his followers that they “[m]ust see @seanhannity takedown of the horrible, inaccurate and anything but secure Dominion Voting System which is used in States where tens of thousands of votes were stolen from us and given to Biden. Likewise, the great @LouDobbs has a confirming and powerful piece!” Ex.683. From here on out, Trump had Dominion in his sights.

Dominion argues that what got Trump to start attacking Dominion was seeing Fox focus on the claims of fraud; it suggests Fox was airing those claims of fraud to appease Trump.

What changed between November 7 and November 12? Fox entered the fray. Specifically, on November 8 Maria Bartiromo brought Powell onto her show to air the false claim that Dominion machines used an algorithm to calculate the votes that they would need to flip. Ex.A2 p.15. The Fox platform gave Powell the stamp of credibility, and reach, needed to spread the lies about Dominion. And while Trump was widely known to be a voracious consumer of Fox, Bartiromo did not leave anything to chance. [three lines redacted]

These redacted lines suggest that Bartiromo spoke with the Trump campaign directly to highlight these false claims; in the earlier filing, Bartiromo told Powell, “I just spoke to Eric [Trump] & told him you have very imp[ortant] info.” In that same reference, the filing revealed that Bartiromo “also provided information directly to Powell,” suggested that Bartiromo was a go-between between Powell and the campaign.

But that’s not the craziest part.

The crazy part — which is only clear from reading both Dominion’s recent filings — is that Fox got Trump to disavow Sidney Powell.

Remember how this looked in real time. After the embarrassing Four Seasons Total Landscaping press conference, the campaign publicly distanced itself from Powell on November 22.

Here’s the explanation offered by Maggie Haberman at the time.

According to Dominion, however, after Powell came after Tucker Carlson, Raj Shah — who used to work as a spox in Trump’s White House — inquired about her status with Trump. He learned two days before Rudy made a show of publicly ousting her from the campaign that she never worked for the campaign.

Second, Fox ignores what it knew better than the public at the time: Powell was never officially on the Trump campaign’s legal team, having never signed an engagement agreement. Ex.605, Shah 246 :4-12; id. 273:11-20. When Fox was finally motivated to get to the bottom of the relationship between Powell and Trump (which only happened after Powell came after one of Fox’s own, Tucker Carlson), it took Fox but a day or so to get the truth. See, e.g.,infra pp.163-164.

[snip]

Shah believed the Decision Desk got the Arizona call right (see,e.g.,Ex.725);that the November 19,2020,press conference featuring Sidney Powell and Rudy Giuliani was not credible ,including the claims about Dominion (see, e.g., Ex.605 , Shah 214 :21-215 :7); see also Ex.726 ( crazy fucking presser );and that Sidney Powell was generally nuts (Ex.727).

Yet Shah did nothing when on or around November 20,2020, he learned that Sidney Powell never had a retention agreement with Trump or his campaign. This was explosive news. For several weeks Shah’s network had been airing false allegations from Powell, in part, so they say now, because she was the President’s lawyer. But upon learning that she was not the President’s lawyer what did Shah do? Effectively nothing. See Ex.605, Shah 297:18-298:2. [italics my emphasis]

Fox learned that Sidney Powell never had a retention agreement with the Trump campaign, but still covered her, purportedly, based on the claim that what she did for the campaign was newsworthy.

It’s these two comments that are particularly interesting though: Fox brought her on and off the campaign, and had a role in her conspiracy theories.

And while Powell appeared on Fox only four times when she was even arguably part of the President’s team, and six times when Fox was clearly aware that she was not. As important, Fox was instrumental in maneuvering Powell both into the Trump campaign and then out of it.

Third, Fox ignores its own role in developing the conspiracy theories it then aired See Dom. MSJ pp.39-44

These two claims — that Fox “maneuvered Powell … out of” the Trump campaign and that they played a role in developing these conspiracy theories, are discussed in heavily redacted passages of the earlier filing (probably redacted because Fox has claimed it pertains to internal business deliberations).

The first — describing how Fox “maneuvered Powell … out of” the Trump campaign after Tucker came under fire for questioning Powell — consists of almost four full paragraphs introduced with a description that Fox, including Tucker and Raj Shah, “mobilized.”

“We won the battle with Powell. Thank god,” the passage quotes a Tucker text later. Dominion is now explaining that that “battle” pertained to getting Powell ousted from Trump’s orbit.

The second claim — that Fox was the source of some of these conspiracy theories — incorporates the description of how Fox got Powell ousted from the campaign, but also includes redacted passages describing Lou Dobbs’ role in “promoting the narrative,” another making a redacted reference to Hannity, as well as the unredacted reference to Bartiromo chasing an email from Sidney Powell that Powell herself said relied on a “wackadoodle” source. The later filing suggests the earlier filing goes as far as saying that Fox played part in developing the conspiracy theories.

To be sure: Fox’s real-time knowledge that Sidney Powell never had a formal relationship with Trump and Tucker’s [apparent] role in getting her ousted from Trump’s orbit are critically important for Dominion’s case that Fox properties continued to air her conspiracy theories, falsely claiming to do so because they reflected Trump’s strategy, are both crucial pieces of evidence in their case that Fox knew they were allowing Powell to make false claims on their shows.

But they are important for another reason: because Jack Smith is investigating at least one and possibly two (the Sidney Powell investigation that went overt in September 2021) prongs based on claims that the people raising money were knowingly lying.

Fox likely still has no criminal exposure for the campaign finance violations that Smith is investigating (though the report that Rupert gave Jared confidential information on Biden’s ads may give Smith reason to look more closely).

But, as I noted after the last filing, all this material about what Fox was being told by Trump’s team is directly relevant to those suspicions of fraud.

It’s not just that Dominion has laid out damning evidence that Fox knowingly and falsely accused it of fraud. But discovery in this suit appears to have produced abundant evidence that the campaign itself knew it was recycling fraudulent claims Fox was peddling to keep Trump loyal.

Fox may have no more than this civil exposure. But Dominion lays out plenty of evidence that Fox was part of Trump’s suspected fraud on his own voters.

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