How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

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In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022

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If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

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There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

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“Besmirched”

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So, some commenter that has five comments here since late October of last year, “aduckisaduck”, stated:

“So, to any who have felt that this thread has besmirched EW’s usual level of commentary, I’d just say that reading and remembering have been a lot of fun.”

That is maybe a fair comment, or not, but without context and support, hard to evaluate, and not worth much.

Are there allegations that anybody but Marcy posting here is “besmirschment”?

I’ve had it with this garbage. Everybody at our blog really care and have been here forever. Two of us from the start, the rest very close behind. We all knew each other before the formal start of the Emptywheel blog.

“Besmirched”?

Seriously?

This blog has always talked about sports. Marcy was the first person I recall suggesting it as to Trash Talk. Yeah, I talk about F1 sometimes. Have a lifetime lending to that. Music? Sure, we have from the start also done that.

So I want to know who thinks anybody but Marcy is “besmirching” this blog? Is it just me? Is it Rayne? Is it Ed? Is it Peter? Was it Jim White? What is your agenda and why?

Can you explain the “besmirching”? I’ll be waiting. I know “aduckisaduck” has very few, and limited in time, comments. But what should people who have been contributing here for over a decade and a half do? Just bow down to randos wandering in? Should we have no moderation no matter what garbage is attempted to be posted as “commentary”?

This is a position by me and me only. But a lot of current crap, including “besmirching”, insults everybody here, and who have ever been here. That is not supporting Marcy, nor Emptywheel, as a collective effort. It is insulting and petty garbage.

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Jeremy Liggett: A Little Bitty Fly that Jim Jordan Wants to Propagandize

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Close to the end of a May 17, 2022 interview with the January 6 Committee, alleged Three Percenter Jeremy Liggett claimed that Joe Biden’s DOJ was weaponizing DOJ, “to include the CIA.”

I believe that we should have the First Amendment right. I believe that we should be able to protest at the Capitol. Okay? I don’t believe that you should hit law enforcement officers. Okay? I don’t believe that you should, you know, go into the building unless you’re invited. From some of the stuff that I’ve seen that’s fact, people were invited in. Okay? So let’s put that on the Capitol Police. Right? I think that the Capitol Police could have done a better job securing the building beforehand. I believe that the individuals that struck law enforcement officers or went in the Capitol inside should be charged, you know, for what they did. Okay?

But with saying that, okay, I believe that this administration, the Joe Biden administration, has weaponized the Department of Justice, okay, to include the CIA. Right? And I believe that you guys are — you guys, them, are swinging a big bat at little bitty flies. And it disheartens me, okay, that I am a citizen of a country right now, okay, that is locking people up on misdemeanor charges and keeping them in jail with no bonds, okay, for now months and possibly years. Okay?

The claim that Biden has weaponized DOJ (to include the CIA) is a common myth among the far right, just like the myth — which Liggett also espoused in the interview — that the election was stolen from Donald Trump.

In general, the claim that DOJ “is locking people up on misdemeanor charges and keeping them in jail with no bonds … for [] months and possibly years” is also false (though a defendant named Michael Gareth Adams, who was originally arrested in April 2021, just turned himself in Thursday after being on the lam from his January 6 trespassing charge and a Virginia hit-and-run warrant for over a year and he is at least temporarily being jailed pre-trial).

But Liggett’s case will likely be at the center of such false claims if a committee Kevin McCarthy gave the insurrectionist members of Congress to end their opposition to his election as Speaker is passed as part of the Rules package on Monday. (On George Stephanopoulos’ show this morning, Scott Perry, whose phone was seized last summer as part of the investigation, said he’d be a totally appropriate member to sit on the committee.) That’s because the arrests of five of Liggett’s associates as well as a related search of Liggett’s home are almost certainly at issue in events that led to the suspension of an FBI Agent, Stephen Friend, who will be a star witness of the committee.

As Friend described in a declaration shared with Chuck Grassley and Ron Johnson, he refused to participate in FBI arrests of a group of January 6 suspects charged the week of August 15 and arrested on August 24.

During the week of August 15, 2022, I became aware of imminent arrests of J6 subjects and searches of their respective residences within the FBI’s Jacksonville and Tampa Field Office areas of responsibility. Simultaneous takedowns were scheduled to occur on August 24, 2022. Due to perceived threat levels, an FBI SWAT team was enlisted to arrest one of the arrests.

[snip]

I responded that it was inappropriate to use an FBI SWAT team to arrest a subject for misdemeanor offenses and opined that the subject would likely face extended detainment and biased jury pools in Washington D.C. I suggested alternatives such as the issuance of a court summons or utilizing surveillance groups to determine an optimal, safe time for a local sheriff deputy to contact the subjects and advise them about the existence of the arrest warrant.

[snip]

I told them that I would not participate in any of these operations.

Though Friend has never said it, his complaints amount to a complaint that some January 6 defendants — including those associated with militias — are treated as a domestic terror investigation. In November, a whistleblower complaint Friend submitted was rejected by DOJ’s Office of Special Counsel.

Based on timing, it is virtually certain that the arrest Friend refused to participate in was that of Liggett’s associates in the “B Squad” or “Guardians of Freedom.” They were charged on August 16 and arrested on August 24, three of them in Florida. The only one not charged with felony civil disorder, Tyler Bensch, allegedly posted a picture of himself on January 6 with an assault rifle, which is the kind of thing that would lead the FBI to involve SWAT in an arrest.

There’s no public sign that Liggett has been arrested, though he claimed his house was searched the day that FBI made the other arrests. The case against his associates has been continued twice, once in October and again at the end of December, to allow for plea negotiations and the sharing of grand jury information (which sometimes suggests cooperation), with the next status due on February 14. Contrary to the claims of Friend and Liggett, all the men, even those accused of felonies, were released on personal recognizance.

Any investigation against Liggett, however, may be a different issue. Not only does the complaint against his associates claim he made the travel arrangements for forty men for January 6, not only did he conduct a training in advance on how to come armed to DC, but he’s a key pivot between the militias and the January 6 organizers.

On May 17, in his interview, the committee focused on the ties between Liggett and two people associated with the MAGA Bus Tour, Dustin Stockton and Charles Bowman.

Stockton, you’ll recall, was the organizer who made great PR for himself by telling Rolling Stone that he had objected to the violent rhetoric leading up to January 6.

But on December 30, 2020, the Committee showed in both Liggett’s and Amy Kremer’s depositions, Stockton was made a member of Liggett’s group.

Q Okay. And just if you focus on the first and third name that Bowman sends, Jeremy Liggett and Tarra Nicolle Hernandez. Just remember those. And if we look at exhibit 21, it is not an email you would have seen. I just want to ask whether he talked about it. You see that on December 30th of 2020, this person Tarra Hernandez, she was the name three on thatlist, sends to Mr. Stockton an email that says: ~ Welcome to Three Percenters, guardians of freedom. So, just a week before the event of January 6th, it is telling Mr. Stockton: Welcome to Three Percenters, guardians of freedom. It is an honor to have you on our team patriots. And then, if you look down there, there is a paragraph towards the bottom that says: Please be advised, per the founder, Jeremy Liggett, you have been moved and assigned as a full active member and not a prospect member. ~ Please disregard the mandatory meeting attendance mentioned in the attached documents. Again, just asking, do you recall him, Dustin, bringing up the notion that he joined the Three Percenters just a week before the event on January 6th?

A No. No. Yeah, no.

Stockton may have gotten involved via Charles Bowman, who did security for the Kremers at several of their events.

Q Do you remember who you used for security in December in D.C.

A Yeah. We used RMS Protective Services. And we also hired the — that first security company that we used for November 14th, we hired them again to be security at the Supreme Court.

Q There is a name we have seen, Charles Bowman, does he work with the security? Do you know that gentleman?

A I know, I do know Bowman. He — mean, he worked – I don’t know that he technically works with them, but — like as an employee, but I know he, you know, works with those guys.

Q Okay. So the folks that you used for November and it sounds like December or at least some of them, Bowman somehow worked with them?

A Yeah. I mean Bowman was I don’t how to describe Bowman. He’s like a big brother that’s always you know, it was lie he was always looking out for us and making sure, you know, that we were safe and whatnot.

Stockton was with both Bowman and Liggett at their December event.

Q Okay. I’m going to pull up page 8 of this exhibit. This is an email blast that Dustin Stockton sent out to some people on December 16th. And then he’s talking about being in an elevator with Charles Bowman, with the 3 percent team in D.C.

A I don’t know why they kept using that term.

Q Well, this is on Saturday December 12th and if you remember back from that welcome email, Dustin Stockton is the one who joined your group, but he’s in the back right here giving a thumbs up.

A Yeah. I know Dustin.

Q Oh, you do? Okay. How do you know Dustin Stockton?

A I’ve met him at rallies and things like that. He’s done speaking engagements. He seems like a nice guy.

Q Did he ever invite you to do speaking engagements?

A Yeah, uh-huh.

Q Did you meet up with him on December 12th?

A I’m trying to remember if — I’m sure there’s a possibility I did. Is that picture from December 12th?

Q This picture is from December 12th.

A Oh, yeah. Then I met with him on December 12th

According to Liggett, Bowman had been on the Guardians of Freedom Telegram chat for years.

Q Okay. So Mr. Bowman was on the Guardians of Freedom Telegram chats?

A Yeah, at one point.

Q Was there anybody else from the Women for America First organization that 11 were on those chats?

A No. No.

Q And was Mr. Bowman a member of Guardians of Freedom?

A No. No.

Q Okay. Why was he on the Telegram chats?

A I sent him an invite.

Q And why did you send him an invite if he wasn’t a member?

A Because he wanted to make sure that there was no one in our group that were saying anything bad about anything, because like I told you guys prior to or earlier, that there’s a lot of people — when you have — when you have organizations that try to get into the organization — they’re bad people. Like, from my knowledge, you know, the few times that I — that I spoke with him, I mean, they don’t want to be affiliated with any kind of extremists or anything like that. mean, that’s —

In addition to inviting Liggett to speak on January 5, Bowman also set Liggett up as a “marshal” for the Ellipse event on January 6. This is how Justin Caporale, one of the main organizers, described Liggett’s inclusion.

Do you remember having conversations with Women for America First organizers about having volunteers for the event?

A I don’t remember the specific conversation, but, yes, we would’ve had that conversation.

Q And what’s the job for volunteers at an event like this?

A To act as an extension of kind of the guest management team, you know, provide way finding, be greeters, you know, make sure if someone needs to find a rest room or food or water, that we can help them get to where they need to go.

Q Was there ever an instance where you thought these volunteers might be used for security purposes at the Ellipse event?

Q No, sir.

A Do you know who Charles Bowman is?

Q I do not.

A Do you remember having any conversations with a Charles Bowman?

A It’s very likely that I did, but I don’t — I don’t know or I don’t remember those conversations. His name does not ring a bell to me. I couldn’t pick him out of a line-up.

Q Okay. And, if we go up here, we see that Mr. Bowman ultimately sends a list of, you know, several names, including a Jeremy Liggett, L-i-g-g-e-t-t, and others: Robinson, Hernandez, Clark. For volunteers, do you know if there’s any vetting done for who’s selected to be a volunteer for these kinds of events?

A Most of the time, there’s not vetting done unless that volunteer is required to be in a secure location.

Q And so there would not have been a way for you to know, as the person requesting volunteers, whether any of these individuals were associated with a militia organization or paramilitary group like the Three Percenters or Oath Keepers or that kind of thing?

Q No, sir.

Liggett did serve as a “marshal.” Per his testimony, he in fact did show people where the bathroom was (in addition to escorting VIPs). He complained that he was not fed lunch as part of the deal.

Q Just a quick followup on that, Mr. Liggett. You said you were disappointed a little in your role on January 6th. Could you explain why you were disappointed?

A Yeah. It was boring. First of all, they put me in a pink vest. Okay? And no offense, I know you’re wearing a pink tie, all right, but I’m not the pink kind of guy. So I was in a bright orange and a bright pink vest. It was fricking cold as hell, okay, and they didn’t feed us lunch. And it was boring, completely boring.

Q The speeches or the activity that you were doing?

A Oh, I don’t know. I didn’t get to see the speeches. I was too busy walking people here and there and passing out signs and stuff. So I was disappointed.

[snip]

You guys should put that in your report, that it was cruel and unusual punishment by these rally people by not feeding us all day. So anyway — and you know they had the budget, because they ask for your money all the time, right.

But that’s not the most damning part of his testimony (for which he had no attorney). When specifically asked if he was the Three Percenter group with which fellow Floridian Kelly Meggs had formed an alliance, he denied it, 100% (he also denied that the B Squad was a Three Percenter group or a militia at all, in spite of integrating the Three Percenter logo into their bling).

So Kelly Meggs is also —

A Who’s Kelly Meggs?

Q He is an Oath Keeper from Florida. And so he says: Well, we are ready for the rioters. This week I organized an alliance between Oath Keepers, Florida Three Percenters, and Proud Boys. We have decided to work together and shut this shit down. He posted it on December 19th, after President Trump’s “will be wild” tweet. Do you have —

A I don’t know.

Q Do you know who this Florida Three Percenter group would be?

A No. No. I can 100 percent, without a doubt, tell you that that is not in reference to anything that we were doing before or — well, I can’t say anything after, but before January 6th, there’s no way, no way.

Q Do you have any guess or hint about which Three Percenter group in Florida Mr. Meggs was talking about?

A I mean, my guess would be — if I were an investigator and I was investigating this, I would probably look into the Three Percenter-Originals. That’s probably who I would look at.

But as the J6C report itself explained, Liggett was the guy on the chats with Meggs.

Meggs bragged on Facebook that following President Trump’s December 19th tweet he had formed an alliance between the Oath Keepers, the Florida Three Percenters, and the Proud Boys “to work together to shut this shit down.”359 On December 19th, Meggs called Enrique Tarrio and they spoke for more than three minutes.360 Three days later, Meggs messaged Liggett, echoing his excitement about the December 19th tweet and specifically referencing the seat of Congress: “He called us all to the Capitol and wants us to make it wild!!!”361 Liggett said “I will have a ton of men with me” and Meggs replied that “we have made Contact [sic] with PB [Proud Boys] and they always have a big group. Force multiplier. . . . I figure we could splinter off the main group of PB and come up behind them. Fucking crush them for good.”362 Aside from Meggs, Stewart Rhodes brought in at least one local militia leader363 and Three Percenters into the Oath Keepers January 6th planning chats that came about following President Trump’s tweet.364

Liggett denied being the guy involved with Meggs, but he did not deny knowing Enrique Tarrio. Which is interesting for a stray reference in the deposition of Samuel Armes, the head of the Florida crypto currency association who, in the interest of war gaming possible threats, wrote the first draft of a document that came to be known as the Winter Palace document. After receiving the document from Armes, Tarrio’s girlfriend shared it with the head of the Proud Boys. Tarrio seems to have referenced in the context of the successful occupation of the Capitol.

J6C asked Armes if he knew Liggett, who they suggested had some association with the document.

I think then — actually, do you know someone named Jeremy Liggett in Florida?

A L-i-g

Q Yeah, L-i-g-g-e-t-t

A Jeremy Liggett. To the best of my recollection, I have never heard that name in my life. Jeremy Liggett? Is he into cryptocurrency?

Q I’m not sure. But it was just a question based on this document, so–

No, I’ve never heard of him in my life.

A Okay.

The document was shared around as a Google doc, so the people who accessed it would be accessible to investigators. But Liggett, even more than the Proud Boys, appears to be a fan of the 1776 invocation, which the document used.

Liggett says that the people who are being prosecuted — like five of his associates (four of whom are accused of pressuring cops in the Tunnel, the worst of the fighting) — are just “little bitty flies” who shouldn’t be prosecuted. He claims to believe false claims about the election, about the treatment of Jan 6 defendants, and about FBI more generally.

And that is the point of this committee. It is the reason why, under the Mueller investigation precedent, DOJ’s inability to share grand jury information with Congress won’t stop this committee from being a problem.

Jim Jordan and Scott Perry want to use their committee to claim that men like Liggett, someone who ties the Ellipse event organizers directly to the worst of the violence, should not be investigated. They want to magnify the complaints of people like Friend, who call a DC-led investigation those who attacked the Capitol an abuse of FBI authority.

The reason why is clear — because the existence of someone like Liggett, who was escorting VIPs even as he was paying for travel of men involved in the tunnel fight — makes their own role in the insurrection more problematic. This committee is not about overseeing the FBI. It’s about trying to spin their own attack on the Constitution as something else than it was.

Update: Added the chat between Liggett and Meggs.

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How the January 6 Committee Investigation Maps onto DOJ’s Known Investigation

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I’m going to attempt to do a live post mapping what we’re learning from the January 6 Committee investigation onto what we know about the multi-prong DOJ investigations. Before I do so, however, I want to point out several ways this matters, by showing how the multiple investigations intersect and how testimony to J6C may be useful for DOJ.

Ken Klukowski’s two interviews

I raised one example in this thread on Ken Klukowski, the lawyer who wrote the memo associated with John Eastman and Jeffrey Clark meant to justify a late-December DOJ intervention in Georgia. Klukowski is one of four people (and three lawyers) involved in a grand jury proceeding partially unsealed in December. By May 2022, DOJ had shown probable cause that one of his email accounts would include evidence of a crime, but DOJ also spent much of last summer working through the dicey privilege problems posed by an investigation involving a bunch of lawyers.

We now know the grand jury matters were unsealed after such time as DOJ first got some of the J6C transcripts, per this filing in the Proud Boys case, which shows DOJ passed on 16 Proud Boy transcripts before December 8.

Klukowski sat for two interviews with J6C — one on February 15, 2022, when he came off as a cooperative witness, and one on June 10, when the committee asked him about a bunch of documents involving John Eastman that Judge David Carter had released, some under a crime-fraud exception. At least during the interviews, Klukowski was represented by lawyers from Matt “Big Dick Toilet Salesman” Whitaker’s firm; see this exchange from Justin Caporale’s interview about how Matt Schlapp arranged for the defense of some Trump flunkies via the firm, and this reference to funding going to Schlapp from the J6C Report. In Klukowski’s second interview, the one discussing documents that had been liberated in part under a crime-fraud exception, one of Klukowski’s lawyers objected to the possibility that Klukowski might have to reassert privilege claims under oath. Whether these transcripts are part of why DOJ unsealed the grand jury materials or not, the two transcripts show how liberating the Eastman communications undercut much of what Klukowski had originally said about his involvement. And because he had already testified, this second interview provided useful backtracking on his earlier interview. The two transcripts may serve as useful tools in further breaching the privilege claims of these three lawyers, if not obtaining cooperation from one or several of them.

Alex Cannon’s two interviews

Alex Cannon is another example. Trump whisperers Josh Dawsey and Maggie Haberman have given him good press for his role in the stolen documents case. In February 2022, they tell us, Cannon refused to certify that Trump had turned over the the documents the President took from the White House.

Shortly after turning over 15 boxes of government material to the National Archives in January, former President Donald J. Trump directed a lawyer working for him to tell the archives that he had returned all the documents he had taken from the White House at the end of his presidency, according to two people familiar with the discussion.

The lawyer, Alex Cannon, had become a point of contact for officials with the National Archives, who had tried for months to get Mr. Trump to return presidential records that he failed to turn over upon leaving office. Mr. Cannon declined to convey Mr. Trump’s message to the archives because he was not sure if it was true, the people said.

[snip]

The conversation between Mr. Trump and Mr. Cannon took place after officials at the archives began asking Mr. Cannon, following the return of the 15 boxes, whether additional classified material was at Mar-a-Lago. It was when Mr. Cannon raised this with Mr. Trump that Mr. Trump told him to tell the archives he had given everything back, the people familiar with the discussion said.

At the time, the various investigations related to the Jan. 6 attack on the Capitol by Mr. Trump’s supporters were ramping up, with a number of requests for documents, the people familiar with the discussion said. Mr. Cannon told people that he was concerned that if Mr. Trump was found to be withholding material related to Jan. 6, he would be in a worse situation, according to people familiar with the discussions.

But Cannon’s two transcripts (April 13 and August 18, 2022) put that seeming scrupulousness in different light. Much of the first one establishes how, because of the jobs he was given as a campaign lawyer, he was in a position to understand that the claims made in fundraising emails sent after the election conflicted with the evidence showing no significant vote fraud. At the very end of that first interview, though, investigators asked Cannon why he was claiming privilege over discussions with Jared Kushner about forming a PAC when he was working with a campaign that should not legally coordinate with such a PAC (to say nothing of Cannon’s admitted inexperience on campaign finance law).

In that first interview, Cannon agreed that money raised after the election would have to be spent on recounts or debt retirement. His second interview (which took place ten days after the Mar-a-Lago search) focused more closely on how money raised in the guise of fighting vote fraud was actually spent. In it, Cannon bristled when investigators suggested campaign money could only be spent on debt retirement or recounts.

Then in Cassidy Hutchinson’s September interviews (September 14 and 15) — the two focused on attempts to obstruct her testimony — she described how Cannon first helped set her up with Trump lawyer Stephen Passantino, and then tried to get her several jobs. Hutchinson also described how Passantino claimed that Cannon (as well as Eric Herschmann, another person heroically portrayed in Maggie stories) was involved in the manipulation of stories with Maggie Haberman.

When J6C made its referrals, it made clear that DOJ was already aware of efforts to tamper with Hutchinson’s testimony. Hutchinson started cooperating with DOJ shortly after her solo J6C testimony, in July. So even before the raid on Mar-a-Lago, then, DOJ likely understood that Cannon’s role was more complex than you might understand from reading a Maggie Haberman story. Importantly, Cannon’s role in allegedly tampering with Hutchinson’s J6C testimony would span the time when (per Maggie’s reporting) he heroically refused to certify Trump’s February 2022 production and the time in May 2022 when Trump’s team tried to find ways to stave off further investigation. These strands overlap temporally.

That puts Cannon’s role as a witness in much different light, because it would give him different visibility — and criminal exposure — on several different things: Trump’s document theft, Trump’s lies about vote fraud, Trump’s efforts to tamper with witnesses, and Trump’s spending of money raised to combat vote fraud.

And that’s important background when you consider CNN’s reporting about the financial side of DOJ’s investigation, which described that “in recent months” an existing year-long investigation into the financing of the attack has shifted (like the J6C focus has) to how money raised purported in support of election integrity actually got spent.

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

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

When Cannon refused to certify Trump’s production in February 2022, he had personal exposure in January 6. Refusing to certify documents because withholding some might amount to obstruction is far less heroic than the Trump whisperers have made out. But in ensuing months, as the complexity of Cannon’s role has become clear, it would provide DOJ many angles for DOJ to persuade Cannon to cooperate.

Other privilege claims

The grand jury release last month made me realize just how complex it is to investigate suspected crimes in which at least 12 lawyers were involved. But the transcripts should help DOJ pierce other privilege claims as well. For example, multiple witnesses were asked and mocked the idea that their own conversations with Jenna Ellis — who is a lawyer whose name was on many of the subpoenas DOJ has sent out but was often described as playing a spokesperson role — might be privileged. The same is true of lawyer Boris Epshteyn, described as playing a logistics, not legal role.

So in the same way that DOJ seemed to focus on emails involving Scott Perry with the Eastman, Jeffrey Clark, and Klukowski seizures, the J6C testimony will provide many more levers to use to chip away at attorney-client privilege claims (on top of what seems to be a slew of subpoenas that will partly serve the same purpose).

At some point in recent weeks, Jack Smith returned to the US to oversee the investigation he has been leading since November. The belated sharing of J6C transcripts will likely provide a big boost to that investigation.

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The Money Trail Stuck in an Appendix of the January 6 Report

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Several weeks before the January 6 Committee released its report, CNN published a somewhat overlooked report describing the investigation that Jack Smith has inherited. Among other things, it revealed that (as Merrick Garland had promised) DOJ was following the money.

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

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

Given the report that DOJ already has a robust investigation into the money trail, was a bit surprised that the January 6 Committee not only didn’t refer Trump for financial crimes — an easier way to look smart than referring him for inciting insurrection when DOJ has charged no one with insurrection — but relegated the financial part of the report to an appendix. I thought that choice was especially odd given that the false claims Trump made about the Big Lie were repurposed in campaign ads. But among other things, because Alex Cannon (he of the good Maggie Haberman press on the stolen document case) happened to be assigned both to debunking claims of voter fraud generally and he was part of the ad approval process (but as someone who had been doing vendor relations for Trump golf courses until shortly before he moved to the campaign,  he was totally unprepared to deal with campaign finance law), you have a witness otherwise exposed in DOJ investigations who recognized the fundraising claims could not be substantiated.

Q Okay. Did you have discussions with anyone within the campaign about the inflammatory tone of the post-election emails?

A Yeah. mean, I did mention it to Justin Clark.

Q What did you say to him?

A That, you know, I just didn’t love the messaging, something along those lines.

Q What was the issue you had with the messaging?

A I think it’s just some of it seemed a little over the top to me.

Q Because you had just spent weeks researching and looking and trying to figure out what was verifiable and what wasn’t right?

A Yes, maam.

Q You had had face-to-face conversations with Mark Meadows, with Peter Navarro, with the Vice President. You’d been told to your face you’d been accused of) being an agent of the deep state in response to telling people the truth about what you were seeing in terms of election fraud that was verifiable or would be admissible in court, hadn’t you?

A Yes

Q And, in response to all of the truth that you were propounding to people, you watched for weeks as the ton of these email got stronger and more inflammatory, raising millions — hundreds of million dollars off of theories that you had spent weeks debunking and denying because you had found that they were not verifiable, right?

A I can see how you would draw that conclusion.

As one of the J6C hearings had noted — and as the appendix lays out in more depth — Trump continued to fundraise until the riot kicked off on January 6.

Within the campaign, there was a really junior staffer who got fired, seemingly because he refused to make false claims in ads.

In that meeting, as Coby addressed the staff and expressed that the digital team would continue to work, Ethan Katz, an RNC staffer in his early twenties, rose to ask a question: 130 How were staffers supposed to tell voters that the Trump Campaign wanted to keep countingvotes in Arizona but stop counting votes in other States (like Pennsylvania, Georgia, and Michigan)? 131

Katz said that Coby provided an answer without substance, which caused Katz to reiterate his question. His question made clear that the Campaign’s position was wildly inconsistent.132 Allred and Boedigheimer corroborated that Katz confronted leadership.133

Katz also recalled that, shortly after the election, Allred directed him to write an email declaring that President Trump had won the State of Pennsylvania before anyone had called Pennsylvania for either party.134 Katz believed the Trump Campaign wanted to send this email out to preempt apotential call that was likely to be in former Vice President Biden’s favor.135 He refused to write the email. Allred was stunned, and instead assigned it toanother copywriter.136 Allred confirmed that Katz expressed discomfort at writing such an email and that she relied on another copywriter.137 On November 4, 2020, the Trump Campaign sent out an email preemptively and falsely declaring that President Trump won Pennsylvania.138 Katz was fired approximately three weeks after the election.139 In aninterview with the Select Committee, when Allred was asked why Katz, her direct report, was fired, she explained that she was not sure why because TMAGAC was raising more money than ever after the election, but that the decision was not hers to make.140

The RNC simply stopped echoing all the claims Trump was making.

Allred and Katz both received direction from the RNC’s lawyers shortly after the election to not say “steal the election” and instead were told to use “try to steal the election.”94 Allred also recalled that, at some point, theRNC legal team directed the copywriters not to use the term “rigged.”95

After the media called the election for former Vice President Joe Biden on Saturday, November 7, 2020, the RNC began to quietly pull back from definitive language about President Trump having won the election and instead used language of insinuation. For example, on November 10, 2020, Justin Reimer, RNC’s then-chief counsel, revised a fundraising email sent to the Approvals Group to remove the sentence that “Joe Biden should not wrongfully claim the office of the President.”96 Instead, Reimer indicated the email should read, “Joe Biden does not get to decide when this election ends. Only LEGAL ballots must be counted and verified.”97 Both Alex Cannon and Zach Parkinson signed off on Reimer’s edits.98

On November 11, 2020, Reimer again revised a fundraising email sent to the Approvals Group. This time, he revised a claim that “President Trump won this election by a lot” to instead state that “President Trump got 71 MILLION LEGAL votes.”99 Once again Cannon and Parkinson signed off on Reimer’s edits.100 Also on November 11, 2020, Jenna Kirsch, associate counsel at the RNC, revised a fundraising email sent to the Approvals Group to, among other things, remove the request “to step up and contribute to our critical Election Defense Fund so that we can DEFEND the Election and secure FOUR MORE YEARS.”101 Instead of “secure FOUR MORE YEARS,” Kirsch’s revised version stated a contribution would “finish the fight.”102 Once again Cannon and Parkinson signed off on these edits for the Trump Campaign.103 Regarding the change to finish the fight, Zambrano conceded, “I would say this a substantive change from the legal department.”104 Kirsch made numerous edits like this, in which she removed assertions about “four more years.”105 Such edits continued into late November 2020.

Even so, the fundraising emails from both the campaign and the RNC got more and more incendiary in the weeks after the election, so much so that the direct mail services for both, Iterable and Salesforce, rejected some ads for Terms of Service violations, and actually shut down RNC ads for a brief period after the attack.

The Select Committee interviewed an individual (“J. Doe”) who worked at Salesforce during the post-election period during which TMAGAC was sending out the fundraising emails concerning false election fraud claims.147 Doe worked for Salesforce’s privacy and abuse management team, colloquially known as the abuse desk.148 An abuse desk is responsible for preventing fraud and abuse emanating from the provider’s user or subscriber network.

Doe indicated to the Select Committee that, as soon as early 2020, they recalled issues arising with the RNC’s use of Salesforce’s services and that a“deluge of abuse would’ve started in June-ish.”149 Doe noted that Salesforce received a high number of complaints regarding the RNC’s actions, which would have been primarily the fundraising efforts of TMAGAC.150 In the latter half of 2020, Doe noticed that the emails coming from the RNC’s account included more and more violent and inflammatory rhetoric in violation of Salesforce’s Master Service Agreement (“MSA”) with the RNC, which prohibited the use of violent content.151 Doe stated that, near the time of the election, they contacted senior individuals at Salesforce to highlight the “increasingly concerning” emails coming from the RNC’s account.152 Doe explained that senior individuals at Salesforce effectively ignored their emails about TMAGAC’s inflammatory emails 153 and Salesforce ignored the terms of the MSA and permitted the RNC to continue touse its account in this problematic manner.154 Doe said, “Salesforce very obviously didn’t care about anti-abuse.”155

[snip]

Further, J. Doe, the Salesforce employee interviewed by the Select Committee, provided insight into the action that Salesforce took after the attack. Doe explained that after they became aware of the ongoing attack, they (Doe) took unilateral action to block the RNC’s ability to send emails through Salesforce’s platform.227 Doe noted that the shutdown lasted until January 11, 2021, when senior Salesforce leadership directed Doe to remove the block from RNC’s Salesforce account.228 Doe stated that Salesforce leadership told Doe that Salesforce would now begin reviewing RNC’s email campaigns to “make sure this doesn’t happen again.”229

Remember: The RNC successfully fought a subpoena from the J6C, which kept Salesforce information out of the hands of the Committee. They would have no such opportunity with a d-order from DOJ, though, and those records would show the same kind of awareness at Salesforce as Twitter and Facebook had that permitting Trump’s team to abuse the platform contributed to the violence.

After raising all this money, Trump reportedly then used it for purposes not permitted under campaign finance laws.

There was even a hilarious exchange from a Cannon deposition about how, as a lawyer working for the campaign, he could claim privilege over a discussion with Jared Kushner about setting up a PAC that could not coordinate with the campaign.

The appendix in the report has more details about where the funds eventually ended up — for example, in Dan Scavino’s pocket, or that of Melania’s dress-maker, or legal defense in investigations of these very crimes.

For example, from July 2021 to the present, Save America has been paying approximately $9,700 per month to Dan Scavino,171 a political adviser who served in the Trump administration as White House Deputy Chief of Staff.172 Save America was also paying $20,000 per month to an entity called Hudson Digital LLC. Hudson Digital LLC was registered in Delaware twenty days after the attack on the Capitol, on January 26, 2021,173 and began receiving payments from Save America on the day it was registered.174 Hudson Digital LLC has received payments totaling over $420,000, all described as “Digital consulting.”175 No website or any other information or mention of Hudson Digital LLC could be found online.176 Though Hudson Digital LLC is registered as a Delaware company, the FEC ScheduleB listing traces back to an address belonging to Dan and Catherine Scavino.177

[snip]

Through October 2022, Save America has paid nearly $100,000 in “strategy consulting” payments to Herve Pierre Braillard,195 a fashion designer who has been dressing Melania Trump for years.196

[snip]

From January 2021 to June 2022, Save America has also reported over $2.1 million in “legal consulting.” Many firms perform different kinds of practice, but more than 67% of those funds went to law firms that are representing witnesses involved in the Select Committee’s investigation whowere subpoenaed or invited to testify.

CNN’s report notes that on the financial side of the investigation, DOJ has acquired some cooperating witnesses (the Report hints at who those might include — and Cannon seems to have exposure on the obstruction side of the investigation even while getting good press for refusing to certify Trump’s production to NARA on the stolen document side).

On top of being an entirely different kind of crime, the financial trail may be one area where it is easier to show pushback on Trump’s false claims.

But J6C didn’t include that in its referrals, perhaps in part because Trump relied on the advice of one of the main GOP campaign finance firms, Jones Day, for some of the later financial decisions.

In any case, it turns out (as with many parts of the investigation) DOJ has quietly been investigating this for some time. Which may make the financial side of the Trump’s claims a key part of proof available about his campaign’s awareness that he was lying.

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“Dumb & silent we may be led, like sheep, to the Slaughter:” Elvis Chan, Hacks, the Klan, and the Twitter Files

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In one of many false claims Michael Shellenberger made (see this thread for another) in his Twitter Files thread purporting to address Twitter’s handling of the “Hunter Biden” “laptop” (but which focused a lot on non-Twitter material on the “laptop”), he made this claim about the deposition of FBI Assistant Agent in Charge Elvis Chan.

Chan was interviewed as part of the lawsuit filed by Eric Schmitt before Schmitt was elected to the Senate. The suit alleges that the government has violated the First Amendment rights of Americans by pressuring social media companies to take down misinformation. The bolded language below, from an address by George Washington, appears in the first paragraph of Schmitt’s complaint.

if Men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind; reason is of no use to us—the freedom of Speech may be taken away—and, dumb & silent we may be led, like sheep, to the Slaughter. [my emphasis]

Shellenberger’s tweet is part of an argument that the FBI warned the social media companies specifically about Hunter Biden. Indeed, his tweet is premised on the claim that the FBI gave “warnings of a hack-and-leak operation relating to Hunter Biden.” [my emphasis]

In fact, though Hunter Biden came up in this deposition 36 times, Chan’s testimony was that Hunter Biden came up in just one briefing with social media companies, one in which someone from FBI’s Foreign Influence Task Force, Laura Dehmlow, refused to comment in response to a question from Facebook about the already-published NY Post story.

Q. BY MR. SAUER: Do you know that in 20– so you remember sometime in 2020 a Facebook analyst asked the FBI to comment on the status of the Hunter Biden investigation?

A. That’s correct.

Q. And you believe that this occurred after there had been, you know, a New York Post article about the contents of the laptop that you referred to — I think you referred to earlier you finding out about it that way, right?

A. Yeah, I only found out through news media. I have no internal knowledge of that investigation, and yeah, I believe that it was brought up after the news story had broke.

Q. And so the — what did the Facebook analyst ask Ms. Dehmlow? Did they ask, you know, “Hey, we have the story. Can you confirm it,” or what did they ask?

A. Yeah, they just — I can’t remember the exact question, but I believe the investigator asked if the FBI could provide any information about the Hunter Biden investigation.

Q. Did they refer to the laptop in particular that had been the subject of the news stories?

A. I can’t recall.

Q. And what did Ms. Dehmlow respond?

A. She said no comment. She said something to the effect that the FBI has no comment on this.

Q. Did she indicate why the FBI declined to comment?

A. Yes. It was because — at the time I do not believe that we had confirmed that it was an active — we had — at the time we had not confirmed that the FBI was actually investigating Hunter Biden. So she did not have the authority to say anything or to comment about it.

Q. Did she know at the time that the FBI had the laptop and that the contents had not been hacked?

MR. SUR: Objection; calls for speculation and gets into law enforcement privilege.

Q. BY MR. SAUER: To your knowledge?

A. I have no idea. I never asked her, and she never told me.

Q. Did Hunter Biden come up with any other social media platforms during 2020?

A. Not to my knowledge.

Q. Do you recall any mention of Hunter Biden at any meetings with any social media platforms?

A. No. It stood out because that Facebook meeting was the only one where an individual from one of the companies even asked about it.

Q. You’re confident that Hunter Biden did not come up at any other meetings between federal government officials and social media platforms in 2020?

A. I was confident that I was not a party to any meeting with social media companies where Hunter Biden was discussed outside of the one incident that I told you about.

Q. That was the one where it was a FITF Facebook meeting where the analyst asked Ms. Dehmlow and she refused to comment, correct?

A. That is correct. That is correct.

Note that Twitter Files propagandists often refer to Dehmlow’s actions in 2020 and describe that she was in charge of the entire FITF effort, but at the time she was only in charge of the China unit. That has the effect of falsely suggesting she and all the other FITF warnings were focused primarily on Russia (Iran is similarly neglected from the focus of the Twitter Files propagandists).

In his deposition, Chan takes issue with former Twitter head of Trust and Safety Yoel Roth’s use, in a declaration explaining why Twitter took down links to the NY Post article, of the word, “expectation,” to describe FBI’s warnings to be on the lookout for hack-and-leak operations and notes that the FBI would have been the only federal law enforcement agency who offered such warnings; CISA, which organized other meetings with the FBI, is not a law enforcement agency (though the Twitter File propagandists have at times claimed it is). He also has to correct Schmitt’s lawyer when he treats Roth’s reference to the Infosec community’s response to the NY Post story to include the FBI, as opposed to the private sector Infosec community.

But Chen’s testimony — whether it accords with Twitter’s own records or not — is quite clear: while the FBI (and CISA and ODNI) were absolutely warning that there might be hack-and-leak operations in 2016, those warnings did not mention Hunter Biden. Rather than admitting that, Shellenberger instead states as fact that these warnings were “relating to Hunter Biden.”

And then he does something funnier. To prove that these warnings “relating to Hunter Biden” that weren’t related to Hunter Biden weren’t based on any new information, he points to Chan’s repeated comments that the FBI had not seen any intrusions like the 2016 ones.

Q. You said that there might be a Russian hack-and-dump operation?

A. So what I said was although we have not seen any computer intrusions into national-level political committees or election officials or presidential candidates at this time, we ask you to remain vigilant about the potential for hack-and-dump operations, or something to that effect.

Q. Did you specifically refer to the 2016 hack-and-dump operation that targeted the DCCC and the DNC?

A. I believe I did.

Q. Did you provide any basis to the social media platforms for thinking that such an operation 20 might be coming?

A. The basis was — my basis was it had happened once, and it could happen again.

Q. Did you have any other specific information other than it had happened four years earlier?

[snip]

THE WITNESS: Through our investigations, we did not see any similar competing intrusions to what had happened in 2016. So although from our standpoint we had not seen anything, we specifically, in an abundance of caution, warned the companies in case they saw something that we did not.

Q. BY MR. SAUER: So did you ask the companies if they had seen any attempts at intrusions or unauthorized access?

A. This is something that we — that I regularly ask the companies in the course of our meetings. 

Q. Did you ask them in these meetings?

A. Not at every meeting, but I believe I asked them at some meetings.

Q. And did you repeatedly warn them at these meetings that you anticipated there might be hack-and-dump operations, Russian-initiated hack-and-dump operations?

[snip]

THE WITNESS: So repeatedly I would say — can you — can you ask your question like — what do you mean by “repeatedly”? Like times, five times?

Q. BY MR. SAUER: Well, did you do it more than once?

A. I did it more — yes. I warned the companies about a potential for hack-and-dump operations from the Russians and the Iranians on more than one occasion, although I cannot recollect how many times. [my emphasis]

But note that Chan specifically referenced hacks of “national-level political committees or election officials or presidential candidates.”

Hunter Biden is not and was not a national-level political committee.

Hunter Biden is not and was not an election official.

Hunter Biden is not and was not a presidential candidate.

Having misrepresented what Chan said about the extent of any discussions of Hunter Biden (whether it is accurate or not), Shellenberger then pointed to testimony about hacks of political candidates to disclaim the FBI had any information about hacks of someone who is not a political candidate.

And while it doesn’t show up in this deposition because Eric Schmitt doesn’t much care about Russian hacking, Chan’s reference to Russia and Iran is significant: because according to former CISA Director Chis Krebs’ January 6 Committee deposition, both did hack “election-adjacent systems” in 2020.

Q Are you able to form any conclusions as to whether there was a cyber intrusion in connection with the 2020 election?

A Yes. In fact, we released alerts on these things throughout. There were both Russian and Iranian actors that were able to gain access to election-adjacent systems. The Iranians, in one case, I think, had access to a voter registration database. But we’re not aware of any instance where they were in a system that would’ve been directly connected or, you know, involved in casting, counting, certifying of votes.

Indeed, Iran conducted the most notable information operation in 2020, emails to Democrats in Florida purporting to be Proud Boys providing disinformation about the election. So a good deal of the wailing about last minute warnings to social media companies in 2020 had to do, in part, with foreigners maligning far right militia members, not Hunter Biden. We haven’t heard anything about the FBI’s efforts to protect the reputation of the Proud Boys from Elmo’s propagandists, though.

Several more points about Chan’s responses on hack-and-leak campaigns are worth nothing. First, Chan said he kept raising the potential of a hack-and-leak campaign, “in case [the tech companies] saw something that we did not.” Russian denialists like Matt Taibbi — who espoused the Single Server fallacy until at least 2019 — don’t understand this, but when GRU engaged in a hack-and-leak campaign in 2016, tech companies were seeing the operation and attributing it to Russia in real time (though not Twitter, that I am aware of). Tech companies saw some parts of the attack before the FBI did. Yet in his deposition, Chan had to repeatedly explain to Schmitt’s lawyer that most of his interactions with social media companies involve hacks, not disinformation.

THE WITNESS: Yeah. The majority of my interaction with Facebook is not in the disinformation or malign-foreign-influence realm. It is actually for things related to my — to the Cyber Branch, which are specifically cyber investigations.

One time Chan even had to explain that “malign foreign influence” sometimes involves hacking (the Iranian campaign targeting the Proud Boys appears to have, for example). And Chan described several times that his team not only investigated part of the 2016 hack, but still had an active investigation into those actors. That’s important not only because he would have firsthand knowledge of the kinds of attribution social media companies (and Google and Microsoft) had in 2016, but for another reason: On October 19, 2020, DOJ indicted a bunch of GRU hackers, including one charged in the 2016 hack-and-leak campaign, for a variety of additional hacks, including the hack-and-leak targeting Emmanuel Macron. The Macron campaign, specifically, included both Google and Twitter components. So in the very same weeks when — right wingers complain — Elvis Chan was in close contact with Twitter about the ongoing election, he or his subordinates were likely working with prosecutors in Pittsburgh on an indictment implicating both Google and Twitter.

Emmanuel Macron is not mentioned in the Chan deposition.

Something else not mentioned in the Chan deposition — not once among the 36 mentions of Hunter Biden!!! — is Burisma Holdings. Mind you, it was not FBI that had attributed a 2019 hack of Burisma to the GRU, the very same actors under discussion, earlier in 2020, it was a Bay Area Infosec company, that same Infosec community that Yoel Roth had attributed some of his concerns about Hunter Biden to. We have no idea whether the FBI — whether a team under Chan’s direction, possibly! — similarly discovered that GRU had hacked Burisma in 2019. Chan was never asked. It’s one of the questions you’d have to ask, though, if you wanted to know whether the FBI had any knowledge that might lead them to believe that Hunter Biden — as distinct from “national-level political committees or election officials or presidential candidates” — had been targeted with a GRU info op during the 2020 presidential cycle.

So there are several things that you would want to ask Elvis Chan about whether he knew of things in 2020 that might have raised concerns that the NYPost article was part of a hack-and-leak campaign, including what hacks Russian and other foreign countries did do, his interactions with Bay Area companies Google and Twitter in those very same weeks in advance another indictment of the GRU, as well as his knowledge of the Bay Area attribution of a GRU campaign targeting Burisma. Eric Schmitt’s lawyer didn’t ask. Which is to say that nothing in this deposition addresses Shellenberger’s specific claims, which unsurprisingly didn’t stop him from claiming it did.

But at least we know he knows of the deposition, though from the looks of his screen cap, he may have mostly just searched it for isolated language that would confirm his priors.

Lee Fang, whose single entry in Twitter Files is the least dishonest, has also read it. He posted a screen cap reporting as “news” that the FBI weighs in on legislation that affects the FBI (which is tantamount to confessing that Fang knows next to nothing about how DC works; Fang did not retract his wildly erroneous article that was significantly debunked by Chan’s deposition).

In other words, two people associated with the Twitter Files have at least claimed familiarity with this deposition.

And yet, as recently as Friday, #MattyDickPics has continued to make grossly false claims about what FBI was doing.

Over and over again, Matty has complained that the FBI sent Twitter URLs for tweets, including tweets written by Americans.

Some of the moderation decisions he reviewed in his first Twitter File thread focus on Tweets about the means and method of voting. He calls Tweets advertising an incorrect day for election day “silly numbers.”

In short, Matt Taibbi has gone from being furious that Twitter removed non-consensually posted dick pics, some of which were the product of inauthentic campaign launched by Steve Bannon buddy Guo Wengui, to being outraged that the FBI shared Tweets advertising the wrong day for election day.

He has done so in spite of the fact that Chan’s deposition explains why the FBI was doing that: because sending false information that might lead someone to lose their opportunity to vote is a crime.

Q. But you received reports, I take it, from all over the country about disinformation about time, place and manner of voting, right?

A. That is — we received them from multiple field offices, and I can’t remember. But I remember many field offices, probably around ten to 12 field offices, relayed this type of information to us. And because DOJ had informed us that this type of information was criminal in nature, that it did not matter where the — who was the source of the information, but that it was criminal in nature and that it should be flagged to the social media companies. And then the respective field offices were expected to follow up with a legal process to get additional information on the origin and nature of these communications.

Q. So the Department of Justice advised you that it’s criminal and there’s no First Amendment right to post false information about time, place and manner of voting?

[snip]

A. That was my understanding.

Q. And did you, in fact, relay — let me ask you this. You say manner of voting. Were some of these reports related to voting by mail, which was a hot topic back then?

A. From my recollection, some of them did include voting by mail. Specifically what I can remember is erroneous information about when mail-in ballots could be postmarked because it is different in different jurisdictions. So I would be relying on the local field office to know what were the election laws in their territory and to only flag information for us. Actually, let me provide additional context. DOJ public integrity attorneys were at the FBI’s election command post and headquarters. So I believe that all of those were reviewed before they got sent to FBI San Francisco.

Q. So those reports would come to FBI San Francisco when you were the day commander at this command post, and then FBI San Francisco would relay them to the various social media platforms where the problematic posts had been made, right?

A. That is correct.

Q. And then the point there was to alert the social media platforms and see if they could be taken down, right?

A. It was to alert the social media companies to see if they violated their terms of service. [my emphasis]

I’ve got a request into the FBI but have not gotten a response about what crime this violated, but I believe the crime DOJ was relying on — Bill Barr’s DOJ! — was the Ku Klux Klan Act, which was passed in 1871 to prevent racists from conspiring to deprive former slaves from voting. This is the same crime that Douglass Mackey was charged with for allegedly conducting a more systematic campaign to misinform black voters about when to vote in 2016 (Mackey has pled not guilty and is vigorously contesting the constitutionality of the statute).

In other words, after complaining that Twitter chose to take down revenge porn targeting Joe Biden’s son, Taibbi is now complaining that DOJ enforced a law designed to protect Black people’s right to vote.

And his fellow Twitter File propagandists, at least two of whom claim familiarity with Elvis Chan’s deposition that explains this, are letting him continue to grossly misrepresent an effort to protect the right to vote.

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The J6C Transcripts: Patrick Byrne’s Conduit, Garrett Ziegler

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The other day, I noted that while I agree with Rayne that the January 6 Committee could use referrals to make important symbolic statements, the Committee’s referral, in practice, was weaker than it should have been to make that symbolic impact. That made bmaz’ earlier gripes about such a referral look more justified.

Similarly, the release of the first set of January 6 Committee transcripts last night show how right he has been that the Committee was remiss in not turning these over to DOJ sooner. Most of these transcripts are people who pled the Fifth and most you’re hearing about are the big name people like Mike Flynn and Roger Stone. But the first I read, from a Peter Navarro aide, Garrett Ziegler, hinted at just how valuable the J6C interviews will be, even of those who (like Ziegler) refused to cooperate.

Ziegler is most famous as the guy who let Sidney Powell, Mike Flynn, and Patrick Byrne into the White House for a famously confrontational meeting on December 18, 2020, which preceded Trump’s announcement of the January 6 riot. But Ziegler’s non-answers to J6C staffers serve as roadmap of the larger operation. He refused to answer questions about the following:

Ziegler was — is — a kid, totally unqualified for the role he had at the White House, which it sounds like he didn’t do anyway, instead at least partly working for Trump’s reelection on the taxpayer dime. But he was also totally wired into most aspects of the coup attempt.

His role in all this is interesting for several more reasons. First, it appears that Ziegler did not turn over the “path to victory” email in response to his January 6 subpoena, which means for all the times he invoked the Fifth, he might still have exposure to obstruction charges.

He is represented by John Kiyonaga — a lawyer who has represented key assault defendants in January 6, including former Special Forces guy Jeffrey McKellop. In fact, prosecutors are considering charging McKellop in January for violating the protective order covering evidence on January 6 by sending evidence from jail to others.

And Ziegler published a copy of both the “Hunter Biden” “laptop” and the diary stolen from Ashley Biden.

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The Fourth Account: The Grand Jury Investigation into Jeffrey Clark and Others

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Last Friday, Beryl Howell unsealed two opinions regarding privilege team reviews in the grand jury investigation into attempts to overturn the 2020 election. The first order, dated June 27, 2022, pertains to 37 emails involving Scott Perry seized from two Gmail, one Microsoft, and John Eastman’s Chapman U email accounts involving:

  • A non-lawyer whose name remains redacted (probably 8 documents total)
  • Jeffrey Clark (19 documents total)
  • Ken Klukowski (7 documents total)
  • John Eastman 3 documents total)

The second order, dated September 27, 2022, pertains to a filter review of an outline for an auto-biography Clark was writing on October 11 and 14, 2021, which was auto-saved 331 times in Google Notes. Because Clark attempts to invoke both work product and attorney-client privilege over a document he initially labeled as not privileged, Howell calls Clark’s claims in that dispute “throwing spaghetti at the wall to see what sticks.”

The orders reveal bare outlines of the investigation.

It shows, first of all, what I laid out here: That the FBI obtains warrants for materials stored in the cloud that are accessible covertly before it gets warrants for things — like phones and homes — that it must seize overtly. In Clark’s case, the FBI first obtained his Outlook account and only later his Gmail account.

By May 26, the FBI had warrants for the cloud accounts of four people. But it took just a month to get a warrant for Jeffrey Clark and John Eastman’s phone.  Amazingly, it seems that the FBI used Scott Perry’s involvement in the investigation as a way to initially isolate information that should not be privileged. Most of the emails in the first order sound investigatively uninteresting, including things like nine copies of Clark sending Perry two versions of his resume or requests from Perry to give him a call; that provides a glimpse of the difficulties of an investigation, like this one, in which most of the suspected co-conspirators are lawyers.

The material covered by the second order sounds more interesting, as it gives Clark’s version of the January 3 confrontation where most of DOJ’s top officials and Trump’s top White House Counsel threatened to quit.

The second order explains that after an overt search takes place on a subject, then their own attorneys are brought into the filter process (as Clark’s attorney was in the second order).

The filter protocol was later amended with respect to Clark and others to provide for detailed procedures for disclosing certain material to any potential privilege holder after separate search warrant on Clark and others, and Clark’s residence were executed, alerting these persons to the government’s investigation.

This detail suggests there likely was an overt warrant served on Klukowski (otherwise the existence of the cloud warrant targeting him would not be unsealed). It suggests the fourth person, a non-lawyer, has not yet been formally alerted into the investigation into him or her.

It also likely provides background to what happened with Scott Perry. DOJ was already accessing his [email protected] email, at least those seized from the lawyers. He likely learned the full extent of prior warrants served on him in August, after DOJ seized his phone. And a more recent dispute over text messages reported by CNN may operate under a similar protocol, with his lawyer contesting access directly.

 

Timeline

May 26, 2022: Three separate hearings on filter protocol; Howell approves filter protocol for four email accounts

June 17, 2022: Filter team begins reviewing 130,000 documents

June 23, 2022: Jeffrey Clark home searched and phone seized; John Eastman phone seized

June 24, 2022: Warrant approved for Clark Gmail account

June 27, 2022: Howell authorizes sharing of Scott Perry emails; Warrant executed for Clark Gmail

July 12, 2022: Filter protocol covering devices seized from Clark’s residence

July 21, 2022: Howell approves filter protocol for Clark Gmail account

August 9, 2022: Scott Perry phone seized

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 25, 2022: Clark attorney Charles Burnham objects to sharing of auto-biography, claiming attorney work product

August 29, 2022: Filter team provides more substantive reply; Burnham responds, “We object”

September 8, 2022: Filter team moves to share a copy of motion with Clark’s lawyer and a memoir with investigative team

September 21, 2022: Supplemental response to Beryl Howell query

September 27, 2022: Howell approves sharing of memoir

September 28, 2022: Clark provided September 27 order

November 16: Howell issues minute order about unsealing opinions

December 15: Howell unseals two redacted orders

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The Day after I Blew Off Josh Schulte He Started Deleting “Suspicious Emails”

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On the evening of August 13, 2018, Joshua Schulte activated a Samsung phone he had just gotten in a swap with another detainee at Metropolitan Correctional Center.

On August 14, according to a page of his prison notebook introduced at trial, he wrote up the beginnings of his plan for an “information war” conceived — Schulte claimed at trial — after doing some kind of drugs on August 8.

The way is clear. I will setup a wordpress of joshschulte.wordpress.com and presumption of innocence.wordpress.com. From here, I will stage my information war.

“Give me a phone and a blog and I will change the world,” he wrote in the margin of the same page where he planned out how to manage the limited charge time on his phone: “1 charge per day//use from 3-death.”

On August 21, according to another of the pages introduced at trial, Schulte made plans to cover his tracks.

In between those two days, August 14 and August 21, 2018, Schulte, his cellmate, Omar Amanat, and/or Amanat’s brother, Irfan, pitched me via email that Schulte could, “prove to be the most valuable source of information you have ever had.” The day after I declined that offer, Schulte started “delet[ing] suspicious emails.”

At 6:52PM ET on August 14, I received this email from the psalms100@protonmail account. (I’ve replaced the bitly links with direct links indicating the bitly code, but have not fixed typos.)

Hello Marcy : Confidential Intelligence Source

Dear Marcy,

I am writing on behalf of a senior ex NSA/CIA Intellgence officer who spearheaded many of the CIA’s technology hacking and counter-hacking intelligence efforts against state sponsored hackers overseas between 2010-November, 2016. He is currently imprisoned inside MCC (aka Manhattan’s Guantanamo) next to El Chapo and the Chelsea Bomber. He is charged with the largest leak in the history of the CIA: the Vault 7 release to Wikileaks.

The Government does not allow him to electronically communicate with anyone outside the prison via its monitored electronic communication system because he is designated as a “danger to the facility.” Please keep this source confidential as if all goes well you will be able to speak to him and even meet with him in person to corroborate everything I am writing as an approved visitor. We know you disclosed that you revealed another source to the FBI before and that we are therefore taking a huge risk in contacting you. However in your writings and NPR interview we have gleaned that you are a truly thoughtful independent thinker and patriot unafraid to communicate with others if you deem their underlying intentions to be worthy. That is the case with this source, whom you will find to have a pristine moral clarity and intellect -despite the lurid false and totally unsubstantiated accusations against him.

If you protect his confidentiality he will prove to be the most valuable source of information you have ever had.

He has a lot of material information —- never before revealed to the public —-including, but not limited to, Trump principals and agents acquiescence in what’s going on under cover of night with Putin backed Russian Oligarchs —revealing their true agenda. Trumo had a 2 hour dinner at Nobu in Moscow in 2013 with 12 Oligarchs which laid all of this out in advance. These covert efforts are ill understood by media and political hacks but they are actually the single largest threat posed by Putin-backed Russian Cyberhackers on behalf of the Oligarchy : their successful attempts to target second tier—-but highly strategic—- economic assets using an innovative Russian incubated “disruptive business model innovation” they are now exporting to the West called Reiderstvo. See www.reiderstvo.org It is the mechanism that enabled 12 men to end up with 51% of the wealth of one of the wealthiest countries in the world. If it continues unabated it will end with them perpetrating the largest transfer of power and wealth in the history of the world. —via state sponsored legalized theft —-not new value creation and if followed to its logical conclusion the evolution of this virulent “Malware of the Mind” could possibly usher in the decline of western civilization as we know it by rendering the west’s judicial infrastructure and Federal Rules of Evidence completely comprised and ineffectual.

These reids are highly sophisticated legal campaigns that began in 2016 targeting wealthy Clinton backers and they are using President Trump’s own personal lawyer Marc Kasowitz —-who represents Putin’s own bank the largest bank in Russia -Sberbank. [bitly link 2P3oVSd to this NYT story]. Using a Kasowitz division called Intelligence Options which on its website [bitly link 2BafcX6 to Intelligence Options page] brags about its ability to take out business rival targets in highly coordinated efforts involving law enforcement authorities. He can confirm that the Kasowitz firm has been paid “mid 8 figures” by Russian oligarchs close to Putin to implement Reiderstvo targeting American and European citizens who are falsely arrested and their assets seized by the Oligarchs losing billions in the process using (and distorting) the American justice system. And they are just getting started. The Despite the furor over Peter Strzok the FBI itself is compromised by many recent ex Field Agents loyal to Trump working for Kasowitz Intelligence Options division including many who served as personal security guards for him and his family. We have their names.

Inception Hacks
Our ex CIA tech wiz can confirm that they have already used ‘near misses’ in these disinformation campaigns to convince prosecutors, judges and juries that “real info is fake” and have distorted justice in the process. They have developed a lethal technology that is the “nuclear bomb of hacking” that no other state actor has discovered : “Inception Hacking”: is the planting of fabricated emails onto ISP’s without leaving a trace behind. Imagine planting child pornography on an adversary’s computer without him ever knowing or anyone being able to prove it wasn’t his. No network intrusion. No trace.

$6-9 billion of value has already been stolen from American citizens and another $150 billion is currently in the targets sights with $1Trillion in transfered assets by 2022 as their stretch goal. The targets of these campaign includes one in jail with the ex NSA/CIA intelligence officer who he met at MCC and whose case study you will find fascinating and disturbing.

Is there a phone number I can call you to discuss? I tried sending to your encrypted email but it doesn’t seem to work from protonmail.

Thanks

Jake

I declined the offer to connect with “the most valuable source of information you have ever had.”

Aside from an email I sent on October 29 after the contraband phones were revealed in a court filing (which went unanswered), our last contact was at at 3:49PM on August 21, the same day Schulte wrote a list of things to do to hide his tracks.

I wasn’t sure whether this pitch came from Schulte and/or someone working with him until the first trial. I’m still not sure who, specifically, sent the email. But evidence submitted at Schulte’s two trials revealed that the pitch used common content and the same email as were used in later efforts using contraband phones. It was Schulte or someone else involved in his efforts to communicate from jail.

Most notably, the email address — [email protected] — is the same one mentioned in a Signal text sent to Shane Harris about seven weeks later, after Schulte was thrown in SHU on October 1. The text probably reflects Schulte cellmate Omar Amanat’s effort, using Schulte’s Samsung after Amanat’s own iPhone had been seized, to get Harris to move to an account he still had access to.

In what follows, I will use the pronoun, “they,” to reflect that the email was, for the reasons I lay out here, probably a collective effort. At least in the case of a very similar email sent to Shane Harris months later, Schulte, Omar, and Irfan Amanat all worked on a common Google Doc, chatting on the side via encrypted texts, to put together the content of the email. Given the similarity between the documents and the use of the common protonmail account, I think it likely that the same happened with the email sent to me.

I’m sharing this now for several reasons. Most notably, I’m intervening in the case in an attempt to liberate a discussion during a sealed CIPA hearing about DOJ’s application of the Espionage Act, and I don’t want DOJ to have any lingering suspicions that I ever pursued a secret back channel with Schulte. I’ve long wanted to be transparent about this, given how closely I have covered the case. But I wanted to wait until after the guilty verdict to avoid contributing in any way to Schulte’s prosecution (I had hoped to wait until his post-trial motions were adjudicated, which is why I didn’t do it during the summer, when I started drafting this post). And for a variety of reasons, the WikiLeaks crowd has belatedly decided to spin Schulte as a hero, so I wanted to explain why I’m so certain he’s a fraud.

I’m sharing it (but not subsequent emails) because I did not agree to confidentiality before they sent it and I’m certain this email and follow-ups are riddled with lies. For example, the claim that this email was sent from a Schulte cousin and their representations about communications in jail almost certainly served to hide the use of a contraband mobile phone to send it. While Schulte’s cousin was involved in contacting other journalists, according to a 2020 FBI interview he did, he only ever used a JohnGalt@protonmail account to do so, and Schulte demonstrably lied to Shane Harris later in the summer about the same cousin.

Court filings give reason to believe Schulte was a liar even before I got this email, but this correspondence is one reason I’m certain he is.

I’m sharing this email, too, because I think the way they pitched this may be of interest for others trying to understand what Schulte was up to. For example, whereas Schulte got WaPo’s Harris to make a series of agreements before sending this Reiderstvo pitch on September 22, 2018, they just gave it to me as the initial dangle. Boom. Here’s the purported good stuff! I regarded it then, as now, as a dangle, an attempt to package up what they imagined I most wanted to hear as a way to get me on the phone. Maybe they tried to raise the value of it with Harris by making it harder to get?

The content of the email sent to me, too, may be of interest. It’s unclear whether and if so how the “Reiderstvo” pitch evolved by the time they prepared to send it to Harris. But as it appears here, it seems, at least in part, a bid to create an alternative narrative that might undermine the viability of the evidence against both Schulte and Amanat. The idea laid out in the “Inception Hacking” passage of the email incorporates alibis that both Schulte and Amanat were offering in their own defense in 2018 (and still, in Schulte’s case): a claim that the FBI fabricated Yahoo emails in Amanat’s case, and a claim that the FBI planted Child Sexual Abuse Material on Schulte’s computer in his case.

The form of the claim capitalized on Schulte’s own hacking expertise.

Here’s how Schulte described that expertise in another document he wrote in jail.

Do you know what my speciality was at the CIA? Do you know what I did for fun? Data hiding and crypto. I designed and wrote software to conceal data in a custom-designed filesystem contained within the drive slackspace or hidden partitions. I disguised data. I split data across files and filesystems to conceal the crypto — analysis tools would NEVER detect random or pseudo-random data indicative of potential crypto.

This was part of the National Defense Information that Schulte was charged and convicted of leaking from jail. So there must be truth to it (to be clear, I have no reason to believe the things in the email to me are true, much less classified).

Significantly, the email sent to me also calls “Inception Hacking,” “Malware of the Mind,” which is the name Schulte gave to that larger document in which he described “disguis[ing] data.”

According to this pitch, the evidence of Schulte and/or Amanat’s guilt was instead proof they were victims of the kind of hack Schulte bragged he could do for the CIA, but here the culprit (in an email to someone they seemed to think would respond enthusiastically) was Russia, not CIA.

Equating Malware of the Mind with Inception in the email sent to me invokes another spy movie, like the Jason Bourne identity Schulte (predictably) adopted as his own, days after this email was sent.

Finally, I’m posting this because of the timing. While I can’t prove this email came from Schulte, as opposed to one of the Amanats or someone else tied to them, during the entirety of the first week Schulte had that Samsung phone, someone was trying to get me on the phone with him, promising that I could speak to him without jailhouse monitors knowing (a claim I found absurd at the time, but which made more sense once I learned of the contraband phones). The day I said, “no,” August 21, Schulte made a list of things to start deleting. The next day, August 22, he renewed his outreach to Harris.

I didn’t then and don’t now know what to make of this. On the one hand, Schulte attempted to speak to a number of journalists who cover this beat; at least five others have been identified in trial exhibits and court filings. In that, there’s nothing special about outreach to me.

Plus, there’s a perfectly reasonable explanation for why they pitched some journalist at the time. At least according to jail house informant Carlos Betances, Schulte wanted the Samsung because, after someone that Betances believed to be Schulte’s cousin got raided by the FBI, Schulte grew paranoid that the FBI could be monitoring the phones Schulte and his buddies already had.

Q. Mr. Betances, what did the defendant say about why he didn’t want to use iPhones anymore?

A. Because of a conversation in Chino’s cell, he was very scared because his cousin — or, I don’t know who it was. The FBI had gone to that person’s house. They had taken his computer, and since then, he was very scared. So he wanted to replace all phones. He wanted to get all new phone chips, and because of something like that that had happened; he didn’t know what.

[snip]

Q. OK. But that has nothing to do with the FBI or my cousin, right?

A. It does have something to do, because we had that conversation, and you were there.

Q. OK. So when you described me as very scared, what is that based on?

A. Because you said we had to change the phones, we had to change everything. You were freaking out. You were freaked out, in panic mode.

Q. OK. So your description’s not based on the demeanor but based on what you say are requested actions from me, right?

A. I didn’t understand your question. Could you repeat it?

Q. Yes. It wasn’t my outward appearance but what we were discussing that led you to believe I was very scared, right?

MR. LOCKARD: Objection. Form.

THE INTERPRETER: I’m sorry, sir. Did you say something? The interpreter just wants — did you say something at the very end?

MR. SCHULTE: I think there was an objection.

THE COURT: The objection’s overruled.

A. It’s not that you made me believe. It’s the way that you were acting, your outward appearance. You were freaking out.

Q. OK. And what was I scared of?

A. The fact that we had to change our phones, you were pacing back and forth, because the FBI might be listening in on the calls; they might do something. And then, so I asked you why. You know, did you talk to somebody on the phones that we were all using? And that’s when you didn’t answer me. You didn’t say yes or no.

It may not have been his cousin, Shane Presnall, but instead his parents that Schulte was worried about.

DOJ had been ratcheting up pressure on Schulte’s attempts to leak from jail for months by August 2018, when I got this email. In response to journalists publishing information on Schulte’s affidavits in May, DOJ admonished Schulte for violating his protective order. In an attempt to learn how the affidavits had gotten shared, the FBI first interviewed, then served a subpoena on Presnall to appear before the Grand Jury on June 13.

On June 28, Schulte posted a pro se bail application that the CIA claimed included classified information, which led the FBI to ask his parents and attorney in Texas for any classified information, something he repeatedly called a “raid” during the trial.

Then, in early August, Presnall turned over to DOJ another of Schulte’s narratives, which by description may be the one his parents wouldn’t post for him.

On or about August 6, 2018, Presnall, through counsel, produced documents responsive to the subpoena and an index. The index described Articles 1 through 7 by Joshua Schulte, which corresponded to the articles published on the John Galt’s Legal Defense Fund Facebook page in April 2018; as well as an “Article 8 by Joshua Schulte” and the Schulte Article described as “Article entitled ‘. . .unalienable Rights, that among these are Life. Liberty and the pursuit of Happiness’ by Joshua Schulte.” ” (Ex. 4; id. at JAS_021890-JAS_021902). The latter two articles had not yet been published on Facebook. The Schulte Article has four chapter headings, including “Chapter 1: The confrontation,” “Chapter 2: my last experience at the CIA and my reason(s) for resigning,” “Chapter 3: Hell,” and “Chapter 4: The Red Pill.” As with his other articles, the primary thesis of Schulte Article is that the defendant is innocent and he is the victim of lawless, dishonest agents and a criminal justice system uninterested in civil liberties or truth.

As I have noted, this article not only referred to his colleagues whose identities were classified by name, which if published would have exposed their identities, but also described the benefit to Russia that advance access to CIA’s source code would provide. It was a really damning document.

Inexplicably, DOJ did not use it in either of the two trials against Schulte.

The government’s discovery of the materials from Presnall may explain the panic that shows up in Schulte’s notebook in this period, with two notes Schulte wrote reflecting concern that the government had compromised the IMEI numbers for “all 3” phones.

 

The reference to three phones is probably a reference to the contraband jail phones, but Schulte used three different phones in 2017, after FBI seized a first one, that he would have received discovery on. In any case, DOJ’s increased efforts to crack down on his leaking from jail would have come just as reviewing his own discovery may have led Schulte to belatedly realize the import of the basic investigative tools, such as subpoenas for subscriber records, which the FBI uses to track suspects. That is, at precisely the time he was pursuing a variety of means to leak from jail, Schulte discovered that he hadn’t covered his tracks anywhere nearly as well as he arrogantly believed he had.

So he got a new phone and tried to encrypt everything.

So it would be unsurprising for Schulte, believing his past communications with journalists to have been exposed, to try someone new — me. Then the day after I said no, Schulte turned to reestablish ties with Harris via a new channel and new false identity.

But let’s be honest: it was fucking insane for these guys to do a cold outreach to someone who (as they note!) had only recently publicly confessed to sharing information with the FBI. I’ve never spoken to the FBI about this, but if they did find evidence that Schulte had reached out to me, the outreach would be adjacent enough to the things I did share, it would set off alarms bells all over DOJ. Indeed, there are several non-public details –details that DOJ knows about — that make me uncertain, even today, whether Schulte wasn’t trying something more, and one of those details may have led DOJ to suspect the same.

Plus, Schulte had no reason to believe I’d be receptive to his story. Already, in my coverage of Vault 7, I had made observations — such as that someone may have used CIA’s own hacking tools against it or that Schulte violated release conditions to get back on Tor in the wake of an Assange tweet seeming to use the stolen CIA documents for leverage against Don Jr — that may have been of particular interest to Schulte. But my coverage of Schulte wasn’t particularly sympathetic at all. Even in 2018, Schulte was unlikely to convince me of his lies, and that should have been clear from what I had written.

It’s pretty likely that DOJ did discover traces of this outreach, which is another reason I’m not withholding it. Schulte laid out a plan to delete his Google Docs (given the length of the email and the hotlinks in this email, I assume it was drafted in Google Docs, as the documents later shared with Harris were) the same day I declined this offer, so DOJ may not have the banal content of this email. But even assuming he deleted drafts of this email written collectively on Google Docs, given all the references to other journalists submitted in exhibits and other court filings, I assume references to me would show up in the same places that their names did: in searches conducted using the other phones, in text threads conducted on WhatsApp before Schulte installed Signal, in Schulte’s notebook, in pictures that jailhouse informant Betances took of the phones he tended (by Betances’ description, the email to me was sent before Schulte changed the password to the Samsung). DOJ has a great deal of evidence about Schulte’s actions they didn’t share at trial, and given the timing, much of it would be precisely where any mention of my name would appear.

For example, my name doesn’t show up in unredacted form in what were described as the “Internet searches” done on the Samsung (this is the version introduced at the first trial), though those only start on August 13, by which point whoever sent the email presumably had already gotten contact information for me. But it’s likely it shows up on another phone — perhaps the iPhone that Amanat had been using, or in Google searches (at the first trial the jury got all of Schulte’s Google searches, but the exhibit was not released publicly). Someone went to my website to get both the email addresses I had listed at the time.

Nor does my name appear in the prison notebooks introduced at trial. But there are twenty pages in Schulte’s prison notebooks between the beginning of the August 14 entry and the beginning of the August 21 one, just one of which was included in the trial exhibit. So even assuming the FBI never got into the psalms100 ProtonMail account (something I think is unlikely), they probably learned of the existence of this email via the notebook and searches, and may have gotten the content from Google Docs. So the final reason I’m sharing this is to clarify for anyone at DOJ who might still wonder about this that I said “no” to this outreach. There’s probably nothing in the email Schulte sent me that they didn’t find in other places.

And, yes, whoever sent this really did use “Confidential Intelligence Source” in the subject line of an email sent to a Gmail email, and they really did mention Vault 7 in the first paragraph.

So Schulte and his buddies were not just liars and bad suck-ups, but also stupid.

Again, I had and have no idea what to make of this — though over the course of two trials, how it fits into Schulte’s efforts to work the press in 2018 makes more sense. But at the very least, it hints that there are a lot more things in evidence seized from Schulte’s jail cell that were likely of interest to investigators, but not evidence of a crime.

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