The Big Election Lie Built on the Last Big Election Lie

Welcome to Byron York’s readers! Since you’re here, you may be interested that Byron didn’t tell you in his error-riddled piece that I was years ahead of the Right Wing in debunking the dossier, and have even noted how Byron ran interference for Oleg Deripaska, thereby hiding the way Deripaska was really fucking over Paul Manafort. And not only did I not attribute Hillary’s loss to Russia, I even challenged the easy claims it was all Comey’s fault. You might ask yourself why Byron didn’t reveal any of that to you (to say nothing of misrepresenting what this post says).

NPR did a good piece last week on Trump’s Big Lie about winning the election.

Call it an insurrection or a coup attempt, it was fueled by what’s known as the “Big Lie”: the verifiably false assertion that Trump won. Joe Biden won 306 votes in the Electoral College, while Trump received 232. In the popular vote, Biden won by more than 7 million votes.

Many are warning that over the past year, that “big lie” of a stolen election has grown more entrenched and more dangerous.

It quoted Tim Snyder, an expert on authoritarians, on how the tactic of telling lies to turn a powerful person into a victim comes right out of Mein Kampf.

A couple of weeks later, he repeated the fiction at a rally in Iowa. “We didn’t lose,” he insisted to a crowd that rewarded him with chants of “Trump won!”

By inverting the narrative, attempting to slough off the “big lie” and pin it instead on his opponents, Trump exploited an age-old tactic, says Yale University history professor Timothy Snyder.

“Part of the character of the ‘big lie’ is that it turns the powerful person into the victim,” he says. “And then that allows the powerful person to actually exact revenge, like it’s a promise for the future.”

Snyder, author of the books The Road to Unfreedom and On Tyranny, has spent years studying the ways tyrants skewer truth. Snyder points to Hitler’s original definition of the “big lie” in his manifesto, Mein Kampf and the ways he used it to blame Jews for all of Germany’s woes.

“The lie is so big that it reorders the world,” Snyder says. “And so part of telling the big lie is that you immediately say it’s the other side that tells the big lie. Sadly, but it’s just a matter of record, all of that is in Mein Kampf.

That’s all true. As someone who has read virtually all of the statements of offense for those who have pled guilty for January 6, many credibly claim they really believed this Big Lie. Some still believe it. Their lives will be forever changed — some ruined — because they believed Trump was a victim and acted to avenge him.

But there’s something missing from all the worthwhile discussions of the Big Lie. It’s the lie those who helped tell this most recent Big Lie tell.

Consider this interview Chris Hayes did with Dustin Stockton and Jennifer Lynn Lawrence, who’ve been doing a media tour to claim they were betrayed when Trump launched his mobsters on the Capitol.

When Hayes asked them whether they now admit that the election wasn’t stolen, Stockton instead attempted to turn the question around:

Do you now admit that the “Russia memes” that you guys ran 24-hours a day in the early days of the Trump that got maybe several million impressions which our pages often do. [cross chatter] There were tons of ridiculous stuff.

[snip]

Democrats and Republicans, every four years, whoever loses, right, then goes on to say, “oh, it was broken this way, it was broken this way.” It’s not that there aren’t things that aren’t broken and should be done better with mail-in balloting, with the way we verify people, the way we, make sure everybody has access to voting. There is common ground here. The problem is partisanly the Left fights, when they lose, the Right fights, when they lose.

[snip]

Or widespread Russian interference.

Stockton did, ultimately, concede that Biden is President and that there were tons of ridiculous claims about the election. But he excused his own contributions to sowing The Big Lie by equating lies about Trump’s loss with reporting about Russia’s attempt to interfere in the 2016 election, and claimed that reporting arose out of Democratic excuses to explain Hillary’s loss.

That is, a key purveyor of the The Big Lie excuses his actions because MSNBC reported on a Russian investigation that was based off real facts, an investigation that led to the prosecution of Trump’s National Security Advisor, Trump’s Coffee Boy, Trump’s personal lawyer, Trump’s Campaign Manager, and Trump’s rat-fucker, all of whom covered up aspects of the Trump camp’s outreach to Russia in advance of becoming President (Paul Manafort wasn’t prosecuted for his lies, but Amy Berman Jackson agreed with the Mueller team that he lied to cover up, among other things, why he traded campaign strategy for $19 million in debt relief). Stockton equates reporting on all that — plus the dossier and Alfa Bank and the failson’s meeting to trade campaign dirt for sanctions relief, as well as details of the disinformation campaign that had as a primary goal sowing division — Stockton equates all that with a deliberate attempt, over the course of months, to completely dismantle the credibility of our electoral system.

The equation is all the crazier given that, while Hillary herself did put some of the blame for her loss on Russia’s interference, most Democrats blame Jim Comey, the guy whom Trump fired in an attempt to undermine the Russian investigation. Those of us who live(d) in states that Hillary neglected were perfectly happy to blame Hillary’s own mistakes. More importantly, Hillary ceded power with no contest of the results even in closely fought states like Michigan.

This is just one example where Trumpsters excuse their own participation in The Big Lie by turning a bunch of different prongs of reporting on Russia in 2017 — some undoubtedly overblown but much based on real facts about real actions that Trump and his aides really took — into the equivalent of wild hoaxes about efforts to steal the 2020 election.

And it’s not just those who fostered The Big Lie. As I’ve noted, a viral thread earlier this year went further still, blaming January 6 on the Steele dossier (which most Republicans agree was larded with Russian disinformation).

This use of the Russian investigation, the Democratic-paid dossier, and the legitimate reporting on both to rationalize Trump’s actions post-2020 is no accident. That’s one reason I persist in reporting on the dossier: because Paul Manafort came back from a meeting with an Oleg Deripaska associate and encouraged everyone to discredit the Russian investigation by focusing on the dossier. Because it was so full of garbage (some of it placed there at the behest of Russian intelligence, if you believe all the Republican members of Congress to focus on it), it was an easy way to make the real Russian investigation look corrupt to people like Dustin Stockton, to say nothing of the real cover-up disclosed by the investigation.

Before Trump claimed to be the victim of vote fraud, Trump claimed to be the victim of an investigation into the many documented ways in which Trump tried to optimize Russian help to get elected. That claim — that he was the real victim of the Russian investigation — is how Trump trained so many Republicans to put his fate over the fate of the country.

And so as the traditional press turns its attention to the lies that Trump tells to claim he’s a victim, that first lie cannot be forgotten.

A Christmas Limerick from Limerick

In Limerick Christmas is here

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I write on this blog

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From EU I send readers cheer

 

Broken Windows Policing and January 6 Plea Deals

Before Proud Boy Matthew Greene entered into a cooperation plea deal yesterday — the January 6 investigation event that generated a lot of press attention — something else happened that helps to explain the Greene (and most other) pleas thus far.

In a status hearing for Kurt Peterson, AUSA Alison Prout described that the government had offered Peterson a plea deal that she wanted to put on the record. He could plead guilty, Prout explained, to one count of obstruction, which would give him a guidelines range of 41 to 51 months. That compares to the sentence he faces if he were to go to trial on the other 7 counts, including a destruction of government property count, which Prout claimed might be 210 to 262 months. Prout claimed there had even been a meeting in Louisville to discuss such a deal and explicitly acknowledged the plea would include cooperation.

Only after that did Peterson’s attorney, Laura Wyrosdick, ask that the hearing — which I had just tweeted out in real time — be sealed to hide the discussion of cooperation.

Whatever effect Prout’s comments will have on her ability to finalize a plea deal with Peterson, she has confirmed something I pointed out when Graydon Young pled guilty. The government is using the terrorism enhancement that can come with 18 USC 1361 charges for damage to government property to convince people to plead to the obstruction charges and gain their cooperation. And because Peterson broke a window while at the Capitol, such a deal will look preferable by comparison.

It’s unclear what the government believes he can offer in cooperation (though the meeting in Louisville suggests he has already proffered testimony). On Facebook after the riot, he revealed he, “was with 3 men who had served our country in special forces. All of us in our sixties. They were patriots and not an [sic] anarchists.” Thus far, just two Special Forces veterans, Jeffrey McKellop and Jeremy Brown, have been arrested so far. McKellop would likely would be younger than his 60s (he completed 22 years of service in 2010) and I think Brown would be too. So it may be DOJ has an interest in Peterson’s co-travelers.

It’s also possible DOJ wants Peterson’s testimony about the attempts to break into, first, the House Chamber and then the Speaker’s Lobby. He was present as Ashli Babbitt was killed (and claimed to be calling the crowd to stop, though that doesn’t show up on the video I’ve seen). He’s not being prosecuted by AUSA Candice Wong in the group of men from that scene that seem to be clustered together. If that’s the case, then the government would be seeking to use the testimony of someone who had himself damaged the building to help prosecute men (at least Zach Alam, the guy who punched through the Speaker’s Lobby door) who likely do merit a terrorism enhancement for their efforts to hunt down members of Congress.

We’ll see whether Peterson ultimately decides to cooperate. But a similar calculation seems to have convinced Matthew Greene to flip on his Proud Boys.

Greene was charged, along with Dominic Pezzola and William Pepe, in what I call the “Front Door Proud Boys Conspiracy,” for the way the three of them worked towards Pezzola’s breach of a Northwest window, the first breach of the building on January 6. Greene was charged with conspiracy to obstruct the vote count (18 USC 371), obstruction (18 USC 1512(c)(2)), civil disorder (18 USC 231), destruction of government property (18 USC 1361, the charge that can carry a terrorism enhancement), as well as three trespassing counts.

His plea agreement shows that he pled to conspiracy — which the plea agreement claims included both obstruction and civil disorder (the first indictment did include both) — and the obstruction charge. Rather than a separate charge for vicarious responsibility for Pezzola’s break of the window (on an abetting charge), that liability is added to the obstruction charge as an “offense involving property damage.” At the hearing yesterday, it was said his guidelines range would be 41 to 51 before accounting for the cooperation.

That is, Matthew Greene made effectively the same deal that Peterson is contemplating, though he was probably working from a much higher guidelines range because of the additional civil disorder charge, not to mention possible weapons violations based off an AR-15 seized at his arrest.

Curiously, Greene’s written plea agreement still permits the government to request a terrorism enhancement under U.S.S.G. § 3A1.4, n. 4, which normally is being taken out of cooperation plea deals. But the entire proceeding yesterday was dismayingly discombobulated, with the plea itself just signed by Greene’s attorney and some clauses in the elements of the offense requiring tweaking. So it’s possible the prosecutors just used boilerplate and forgot to take that out. Greene’s attorney, Michael Kasmarek, spoke about the detailed discussions he has had with prosecutors, so he seems to trust them, but I’d still make sure everything were better captured in writing.

Perhaps it reflects the overwhelming workload of this investigation (the Proud Boys team has significantly fewer prosecutors — at least that have noticed appearances — than the team prosecuting the Oath Keepers), but I remain concerned that the team prosecuting the Proud Boys seems less organized than a bunch of the people prosecuting non-militia trespassers.

Greene’s deal differs from others thus far in that he’s moving immediately to sentencing on March 10 (he’s the only publicly identified cooperator in custody), with the understanding that even after sentencing the government may file for another downward departure while he serves his sentence.

The plea agreement contemplates the possibility of witness protection.

Update: Corrected to add Jeremy Brown as a Special Forces arrestee.

Update: Gina Bisignano’s August plea agreement has now been released. She, too, dodged the property damage crime by cooperating. She also faces the same 41 to 51 month sentence.

Behind the Arrest of Putin’s Pen-Tester, Vladislav Klyushin

There’s a gratuitous passage in the March 20, 2021 complaint charging Vladislav Klyushin, Ivan Yermakov, Igor Sladkov, Mikhail Irzak, and Nikolay Rumyantev with conspiracy to violate the Computer Fraud and Abuse Act. It describes that Klyushin — the guy just extradited to the US on the charges — possessing a picture of Alexander Borodaev and Sergey Uryadov posing in front of Scotland Yard in London.

Thus far, it’s unclear who the guys in the picture are, other than customers of M-13’s “investment services,” for which they paid extortionate 60% commissions to benefit from the insider trading scheme allegedly run by Klyushin and Yermakov. But, in addition to alerting Klyushin to how many of his personal files the FBI has obtained, folks back in Russia will have a taste of the kind of information at risk now that Klyushin is in US custody.

That is, this passage, and a host of others in the charging documents, appear designed to maximize the discomfort of a number of people involved, as much as justifying the arrest and extradition of the guy who led a company that provided services that amount to information operations to Vladimir Putin. As the DOJ presser explained,

M-13’s website indicated that the company’s “IT solutions” were used by “the Administration of the President of the Russian Federation, the Government of the Russian Federation, federal ministries and departments, regional state executive bodies, commercial companies and public organizations.” In addition to these services, Klyushin, Ermakov and Rumiantcev also allegedly offered investment management services through M-13 to investors in exchange for up to 60 percent of the profit

The insider trader scheme works like this: Klyushin (the guy in US custody) and Yermakov (a key person involved in the 2016 DNC hack, described in DOJ’s press release as a “former” GRU officer), along with one other guy from M-13, area accused of hacking at least two US filing agents to obtain earnings reports before they were officially released. They conducted trades for a handful of clients — along with Borodaev and Uryadov, Boris Varshavskiy is mentioned. Klyushin also conducted trades for himself. The three M-13 figures were indicted on conspiracy, hacking, wire fraud, and securities fraud charges on April 6, 2021, an indictment that formalized the extradition request for Klyushin, who had already been arrested in Switzerland.

Then there are two apparent private citizens who live in St. Petersburg, Michail Irzak and Igor Sladkov. They were indicted on May 6, 2021 on conspiracy to hack and hacking charges, along with securities fraud. That indictment (like the complaint) focuses on some different trades than the Klyushin one (and because neither is likely to be extradited anytime soon, the second indictment may shield some portion of evidence from discovery).

Actions attributed elsewhere to Yermakov are attributed to Co-Conspirator 1 in that indictment, and it is on that basis that Irzak and Sladkov are exposed to the hacking charges. Irzak and Sladkov don’t appear to have been paying the extortionate 60% fees that the other M-13 clients were, which makes me wonder whether Yermakov was helping buddies get rich on the side. Worse still, Sladkov had some epically bad operational security; the indictment describes he had in his possession pictures showing:

  • A picture of a black Acer computer, with a blue Russian Olympic Committee sticker over the camera, showing a press release with Snap’s 2017 earnings that was not released publicly until 8 hours later.
  • A picture showing the same Acer computer with the same blue sticker showing his own trading activity on BrokerCreditService on May 2, 2018
  • A picture taken on July 24, 2018 at 2:05PM (ET) showing himself and Irzak sitting at a brown table; Irzak had Facebook running at the time, which showed him to be in the vicinity of Sladkov’s house
  • A picture dated July 25, 2018 showing him trading in a bunch of shares the earnings reports of which had been illegally accessed the day before
  • A picture dated October 14, 2018 showing a hand-written note instructing to “short” three shares, which Irzak did short two days later

In other words, Sladkov documented much of his insider training in photographs (perhaps to share the instructions with Irzak), and left all those photographs somewhere accessible to the US government.

If Yermakov was sharing this information with these guys without permission, then Sladkov’s role in providing the US government really damning information that would form the basis for an arrest warrant for Klyushin, then things might get really hot.

But it’s not like Klyushin or Yermakov did much better. In addition to the pictures of the clients, above, and some screencaps that got sent showing trading activity (though with less obvious evidence of insider trading), there’s a bunch of messaging from both, including an oblique reference to messages Yermakov and Borodaev sent on November 19, 2020 that have nothing to do with the context of the indictment but happens to be after the US election. There are even pictures Klyushin shared with Yermakov, “showing a safe that contained growing stacks of U.S. one hundred dollar bills.”

Yermakov appears to have used one of his messaging accounts via multiple devices, because on December 3, 2018, when he “forgot telephone at work,” he was still able to message Klyushin about closing out a trade. Using the same messaging app across platforms would offer one means of compromise, especially if the FBI had gotten into Yermakov’s device updates. The indictment doesn’t mention a warrant for such messaging that you would expect if it took place on Facebook.

Again, this indictment seems to aim to cause discomfort and recriminations based on information in US possession.

But then there’s the question of how it came about, how it landed in Massachusetts rather than DC (where the lead FBI agent is from) or NY (where the trades get done) or Pittsburgh, where one of the prior indictments against Yermakov was done.

The indictments and complaint base the MA jurisdiction on the fact that the culprits used a VPN that used a server in MA on several occasions. At a presser the other day, Acting US Attorney Nathaniel Mendell suggested the case had been assigned to MA because of its good securities prosecution teams.

As to how it came about, purportedly, the story starts in January 2020, when two filing agents allegedly hacked by the men, FA1 and FA2, reported being hacked at virtually the same time. Someone had used an FA1 employee’s credentials on January 21, 2020 to access the earnings data for IBM, Steel Dynamics, and Avnet before those results were publicly announced the following day, but no similar transaction noted with respect to F2 (indeed, a list of accesses involving F2 have a gap from November 2019 through May 2020). The investigation determined that FA1 had first been hacked by November 2018 and that FA2 had first been hacked by October 2017.

FA1 and FA2 discovered this compromise just months after the third M-13 employee, Rumyantev, was blocked by his Russian-based brokerage account for suspicious transactions. Months after FA1 and FA2 reported their compromise, Rumyantev and Klyushin lied to a Denmark bank that they were working entirely off of public information. By that point, in other words, banks in at least two countries were onto them.

Then, the story goes, the FBI investigated those hacks — through domains hosted by Vultr Holdings to a hosting company in Sweden to a user account under the name Andrea Neumann. From there, the FBI tracked back through some Bitcoin transactions made in October and November 2018 to the IP address for M-13 where they just happened to discover one of the very same hackers that was behind the 2016 hack of the DNC was also behind this hack. Mendell sounded pretty sheepish when he offered that explanation at the press conference.

Perhaps it’s true, but another key piece of evidence dates to actions Yermakov took on May 9, 2018, when he was under very close scrutiny as part of the twin investigations into his role in the hacks of the DNC and doping agencies, but before the first indictment against him was obtained.

Based on a review of records obtained from a U.S.-based technology company (the “Tech Company”), I have learned that on or about May 9, 2018, at 3:44 a.m. (ET), an account linked to ERMAKOV received an update for three native applications associated to the Tech Company. Records show that the May 9, 2018 application updates were associated to IP address 119.204.194.11 (the “119 IP Address”).

Based on my review of a log file from FA 2, I learned that on or about that same day, May 9, 2018, starting at 3:46 a.m. (ET)–approximately two minutes after ERMAKOV received application updates from the Tech Company–the FA 2 employee’s compromised login credentials were used to gain unauthorized access to FA 2’s system from the same 119 IP Address, and to view and/or download earnings-related files of four companies: Cytomx Therapeutics, Horizon Therapeutics, Puma Biotechnology, and Synaptics.7 All four companies reported their quarterly earnings later that day.

It would be rather surprising if the FBI agents investigating the DNC hack had not at least attempted to ID the IP associated with Yermakov’s phone (or other device) back in 2018. Whether or not they watched him engage in insider trading for years after that — all the while collecting evidence from co-conspirators flaunting the proof of their insider trading — we may never learn. The discovery on this case, featuring evidence explaining how the FBI tracked the insider trading of Putin’s pen-tester, will certainly feature a number of law enforcement sensitive techniques that Klyushin would love to bring back to Putin.

But it’s possible these techniques were what the FBI used to target these guys four years ago now, and the insider trading that Yermakov was doing in addition to whatever he spent the rest of his time doing has now provided a convenient way to bring Putin’s pen-tester to the United States for a spell.

Update: Included the pictures of the safe included with his detention memo, as well as earnings reports from Sladkov’s computer. Note the detention memo says the latter came from an ISP.

Hot and Cold Running John Durham Conspiracy Conspiracies

I’d like to congratulate Assistant [Durham] Special Counsel Michael Keilty. In what is close to a first from Durham’s team, he submitted a filing without obvious glaring errors (like the Criminal Information for Kevin Clinesmith that revealed the Durham team didn’t even know for what crime Carter Page had been investigated or their persistent cut-and-paste errors).

The filing is a motion for miscellaneous relief, asking Judge Anthony Trenga to require Igor Danchenko to waive any conflict he might have because his new defense attorneys, Danny Onorato and Stuart Sears, are at the same firm as (according to Josh Gerstein) Robert Trout, who is representing, “the 2016 “Hillary for America” presidential campaign (the “Clinton Campaign”), as well as multiple former employees of that campaign, in matters before the Special Counsel.”

The filing is entirely reasonable.

It simply asks that Judge Trenga inquire into the conflict presented by partners from the same firm representing multiple investigative Durham subjects and ensure that if Danchenko chooses to continue with Onorato and Sears as his attorneys, he does so waiving any potential conflict down the road.

Notwithstanding the potential conflicts involved, the government believes that this potential conflict is waivable, should the defendant so choose, assuming a knowing, intelligent and voluntary waiver is executed.

Based on the foregoing, the government respectfully requests that Court inquire into the conflict issues set forth herein.

It’s how Keilty gets there — as well as the Durham’s team uneven treatment of the connectivity of their investigation — that I find interesting. Remember: The Clinton campaign is referenced in Michael Sussmann’s indictment, though Durham already had to confess that the indictment overstated Sussmann’s contacts with members of the campaign.

But Durham’s effort to implicate the Hillary campaign in Danchenko’s actions is more of a stretch, going through Charles Dolan and entailing treating Hillary as a more dangerous adversary than Russian intelligence.

Again, the Paul Manafort report may be the most provably correct report in the entire dossier. Claiming (correctly) that Manafort was ousted not just because of his corrupt ties in Ukraine — a claim that Republicans have spent five years claiming was just a propaganda campaign launched by Democrats — but also because others wanted him out actually undercuts the story that has always claimed to be the most useful to Democrats. The report on Embassy staff changes was, Durham suggests, based directly off quotes Dolan got from the staffer in question; indeed, Durham points to the accuracy of those quotations to prove the report came from Dolan. There was a flourish added — that the person in question was untainted by involvement with the Russian election operation — which Danchenko disclaims, but there’s no evidence the flourish comes from Dolan (or even Danchenko — it’s the kind of thing Steele seems to have added). In other words, assuming Dolan was the source for the things Durham claims he was, Dolan seems to have been the most accurate source for the dossier.

There was an unbelievable amount of shit in the dossier and it would be useful if there were an accounting of how that happened (which Durham is not doing here). The Danchenko-to-Steele reporting process (which, contrary to Durham’s claims, Danchenko candidly laid out in his first interviews with the FBI) was one source of the problems with the dossier. But at least as much of the shit seems to come from Danchenko’s sources, several of whom had ties to Russian intelligence and who may have been deliberately injecting disinformation into the process. Instead of focusing on that — on Russians who may have been deliberately feeding lies into the process — Durham instead focuses on Dolan, not because Durham claims he wittingly shared bad information to harm Trump (his one lie served to boost an accurate story that went against the grain of the Democrats’ preferred narrative), but because as a Democrat he — not Russian spies — is being treated by Durham as an adversary.

Plus, at least as alleged in the Danchenko indictment, there’s no firsthand Hillary witness necessary to Danchenko’s conviction. The witnesses to Danchenko’s five alleged lies are all FBI personnel. The evidence against Danchenko regarding the four claimed lies about Sergei Millian involve Danchenko’s own emails and — !!! — the hearsay Twitter account of someone once and possibly still suspected of being a Russian agent. Dolan’s testimony about what he and Danchenko discussed six years ago at the Moscow Ritz will undoubtedly be of interest to the jury and still more interest to the frothy right, but not only is that not necessary to prove the single count claiming Danchenko lied about Dolan’s role in all this, it falls short of proof that Danchenko didn’t go from that lunch to speak to personnel at the Ritz himself.

Even though no one with a paid gig on the Hillary campaign is needed (or even, at least as charged, conceivably useful) as a witness against Danchenko, here’s how Keilty lays out the potential conflict.

As discussed above, the Clinton Campaign, through Law Firm-1 and U.S. Investigative Firm-1, commissioned and financed the Company Reports in an attempt to gather and disseminate derogatory information about Donald Trump. To that end, U.K. Person-1 relied primarily on the defendant to collect the information that ultimately formed the core of the allegations contained in the Company Reports. The Indictment alleges that certain statements that the defendant made to the FBI about information contained in the Company Reports, were knowingly and intentionally false. Thus, the interests of the Clinton Campaign and the defendant could potentially diverge in connection with any plea discussions, pre-trial proceedings, hearings, trial, and sentencing proceedings. Areas of inquiry that may become relevant to defense counsel’s representation of the defendant, and which also may become issues at trial or sentencing, include topics such as (1) the Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Company Reports sourced by the defendant, (2) the Clinton Campaign’s awareness or lack of awareness of the defendant’s collection methods and sub-sources, (3) meetings or communications between and among the Clinton Campaign, U.S. Investigative Firm-1, and/or U.K. Person-1 regarding or involving the defendant, (4) the defendant’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Company Reports, and (5) the extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled the defendant’s activities. On each of these issues, the interests of the Clinton Campaign and the defendant might diverge. For example, the Clinton Campaign and the defendant each might have an incentive to shift blame and/or responsibility to the other party for any allegedly false information that was contained within the Company Reports and/or provided to the FBI. Moreover, it is possible that one of these parties might also seek to advance claims that they were harmed or defrauded by the other’s actions, statements, or representations. In addition, in the event that one or more former representatives of the Clinton Campaign (who are represented by defense counsel’s firm) are called to testify at any trial or other court proceeding, the defendant and any such witness would be represented by the same law firm, resulting in a potential conflict. Finally, it is also likely that defense counsel’s firm already has obtained privileged information from the Clinton Campaign regarding matters involving or relating to the defendant, the Company Reports, and the conduct alleged in the Indictment.

Some of this is the kind of fevered conspiracy theorizing that has fueled Durham for 950 days so far and sustains the Durham presumption that Hillary Clinton is a greater adversary to the United States than Russian intelligence operatives. None of it is contained within the existing indictment. It doesn’t envision as a possibility that this was all a clusterfuck better suited to a child’s game of telephone than the conspiracy Durham needs it to be. It also seems to forget that even if Danchenko lied to Christopher Steele, that would not amount to fraud on the Hillary campaign.

But it is a road map to what Durham is planning: an attempt to sic various participants in the 2016 efforts against each other such that they start entering cooperation agreements in which they spin up the grand conspiracy Durham is certain exists. It’s certainly sound prosecutorial strategy for Keilty to alert Judge Trenga that down the road they seek to pit all the subjects of their investigation against each other such that down the road, people who have never been alleged to have interacted with Danchenko personally might one day testify against him, all to support the claim that the Hillary campaign engaged in a conspiracy to defraud the FBI, DOJ, and DARPA funders.

But it raises questions about something that happened in the other active prosecution of the Durham investigation, Michael Sussmann’s. Based on court filings and what was said at a December 8 hearing in the Sussmann case, Durham has the following evidence about what Sussmann did or did not say:

  • A report written by Durham investigators, probably in conjunction with a 2017 leak investigation, in which “Durham or someone on his team questioned James Baker’s credibility.”
  • An October 3, 2018 Baker interview that conflicts with the indictment.
  • An October 18, 2018 Baker interview that conflicts with the indictment.
  • A July 15, 2019 Baker interview that conflicts with the indictment.
  • The first Durham interview with Baker on this subject, in June 2020, that conflicts with the indictment.
  • Three more Durham interviews with Baker on this subject that align with the indictment.
  • Grand jury testimony that must align with the indictment, but which had not been released to Sussmann’s cleared lawyers before the December 8 hearing.
  • Hearsay testimony from Bill Priestap that generally aligns with the indictment.
  • Hearsay testimony from another FBI witness that differs in some respects from Priestap’s and may or may not align with the indictment.
  • Testimony from two CIA witnesses at a different meeting that may or may not align with the indictment.
  • A report based on notes that have been destroyed, the final version of which differs somewhat from the indictment and may or may not align with it.
  • A draft (there seems to be some disagreement whether it is a memorandum to the file or emails) of that CIA report that reflects Sussmann mentioning a client — which therefore dramatically undermines the indictment.
  • At least one 302 reflecting an interview with Baker about another aspect of the Durham investigation.

Had Mueller believed it ethical to charge someone with evidence this contradictory — and I’m really not exaggerating when I say this — he had the goods to charge Trump with agreeing to give Russia sanctions relief in exchange for an impossibly lucrative real estate deal in Moscow. He could have charged Paul Manafort with trading $19 million in debt relief for the campaign strategy and help carving up Ukraine. He could have charged Roger Stone — and through him, Donald Trump — with entering into cooperation with the Russian hacking team before they spent September hacking Hillary’s analytics, for a still unexplained purpose.

This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories. It doesn’t mean he won’t get there. He might! It means he’s engaging in extraordinary conduct to get there.

It’s the last bullet I find particularly interesting. In the December 8 hearing, AUSA Andrew DeFilippis explained, “We did a meeting w/Mr. Baker in which we did not touch on charged conduct. We did not produce to defense.” That is, they’re withholding at least one 302 of a Durham interview in this investigation with Baker. Judge Christopher Cooper responded that he, “won’t disturb USG’s view that this is not discoverable.”

So on the one hand, Durham’s prosecutors are arguing that a conspiracy not yet charged creates conflicts for an Igor Danchenko indictment that doesn’t implicate any paid members of the Hillary campaign. But on the other hand, they’re arguing that the same investigation is sufficiently bracketed that they’re not required to provide Sussmann the records of what exposure Baker himself may have that might persuade him to change his story.

Sussmann’s attorney Sean Berkowitz observed that Baker had obviously changed his story. Durham’s team explains that’s because Baker refreshed his memory (though what we’ve seen of the contemporary records suggest there are two possible readings of them). But Sussmann could well argue that, because of criminal exposure himself, Baker changed his story to reflect what Durham wanted it to be.

As I have said, repeatedly, Durham needs Sussmann to have lied to have any hope of building this conspiracy case, and if he fails, each of the parts are far weaker.

And while claiming the conspiracy case he has not yet charged creates already existing conflicts, he’s still going to withhold the evidence of the conspiracy he’s trying to create.

How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

  1. The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.
  2. The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.
  3. Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.
  4. The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.
  5. After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)). [my emphasis]

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters

In a post laying out what I called my “taxonomy” of the DOJ investigation of the January 6 crime scene, I noted that the next step in holding those who orchestrated January 6 responsible was to start holding the “organizer-inciters” responsible.

 I have argued that DOJ is very close to rolling out more details of the plot to seize the Capitol, a plot that was implemented (at the Capitol) by the Proud Boys in coordination with other militia-tied people. I have also argued that one goal of the misdemeanor arrests has been to obtain evidence showing that speeches inciting violence, attacks on Mike Pence, or directing crowds to (in effect) trespass brought about violence, the targeting of Mike Pence, and the breach of the Capitol.

If I’m right about these two observations, it means that the investigation has reached a step where the next logical move would be to charge those who incited violence or directed certain movement. The next logical step would be to hold those who caused the obstruction accountable for the obstruction they cultivated.

This is why I focused on Alex Jones in this post: because there is a great deal of evidence that Alex Jones, the guy whom Trump personally ordered to lead mobs to the Capitol, was part of the plot led by his former employee, Joe Biggs, to breach a second front of the Capitol. If this investigation is going to move further, people like Alex Jones and other people who helped organize and incite the riot, will be the next step.

Though you might not know it from the coverage, DOJ has charged several people who played a key role in creating and mobilizing the mob that seized the Capitol. This is where, however, the obscurity of the investigation and First Amendment protections raise real questions about whether DOJ will be able to move up the chain of responsibility.

I’d like to look at the prospects of accountability at three nodes of organizer inciters:

  • Walkaway founder Brandon Straka
  • SoCal anti-maskers Russell Taylor and Alan Hostetter
  • Alex Jones, Owen Shroyer, and Ali Alexander

The import of January 5 in January 6

Before I do so, though, a word about January 5. Though the general outline of the January 6 attack kicked off in November 2020 and was fine-tuned in December (the MAGA events in both months were critical both as dry runs and for networking among participants), the final outline of plans took place in the days before the riot. There seems to have been an intra-militia meeting planned on January 3 in Quarrysville, Pennsylvania where groups, “[got] our comms on point with multiple other patriot groups.”

After Proud Boy Enrique Tarrio got arrested on January 4, the Proud Boys frantically tried to regroup. As late as 9PM on January 5, Joe Biggs and Ethan Nordean were meeting with some unnamed group, out of which came their plan for the 6th.

There were rallies organized for January 5 at which a number of leaders gave incendiary speeches. There’s some reason to believe that members of what I’ve called a “disorganized militia” conspiracy, Ronnie Sandlin, Nate DeGrave, and Josiah Colt, learned key details of the plan for the next day at that event, which allowed them to be tactically important in the breach. Other disorganized attendees, like Jenny Cudd, came away from those Janaury 5 speeches persuaded a revolution was inevitable.

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

As Robert Costa and Bob Woodward have described, Trump ratcheted up the pressure as the mobs formed the night of January 5 by falsely claiming that Mike Pence agreed he could ignore the true vote counts.

Yet, even in spite of the import of January 5 to what happened on January 6, DOJ has included remarkably few details about what January 6 defendants did that day.

The organizer-inciters called for revolution on January 5

The three organizer-inciters are a notable exception. As I noted in this post, DOJ focused on the January 5 speeches of Straka, Shroyer, and Taylor in their arrest affidavits. Straka’s described how he called for revolution on January 5.

STRAKA was introduced by name and brought onto stage. STRAKA spoke for about five minutes during which time he repeatedly referred to the attendees as “Patriots” and referenced the “revolution” multiple times. STRAKA told the attendees to “fight back” and ended by saying, “We are sending a message to the Democrats, we are not going away, you’ve got a problem!”

The SoCal 3%er conspiracy described how Russell Taylor called for violence.

[T]hese anti-Americans have made the fatal mistake, and they have brought out the Patriot’s fury onto these streets and they did so without knowing that we will not return to our peaceful way of life until this election is made right, our freedoms are restored, and American is preserved.

And Owen Shroyer’s arrest affidavit described him calling for revolution, too.

Americans are ready to fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election . . . we are the new revolution! We are going to restore and we are going to save the republic!

But the treatment of these three organizer-inciters, both in their charges, and the development of their prosecution so far, has been very different.

Brandon Straka

Originally, Brandon Straka was charged with trespassing and 18 USC 231, civil disorder, for egging on rioters as they stripped a cop of his shield.

At around the 3:45 mark of the video, an officer from the United States Capitol Police holding a protective shield could be seen in the crowd. As individuals pushed past the officer toward the entrance of the U.S. Capitol, the officer held his shield up in the air. At around the 3:59 mark of the video, STRAKA stated, “Take it away from him.” STRAKA and others in the crowd then yelled, “Take the shield!”

As several people in the crowd grabbed the officer’s shield, STRAKA yelled, “Take it! Take it!” The crowd successfully pulled the shield away from the officer as the officer appeared to be trying to move back toward the entrance of the building.

After his early arrest, his case was continued without indictment several times, first in February, then in May, then in August, each time invoking fairly standard boilerplate about a plea. “The government and counsel for the defendant have conferred, and are continuing to communicate in an effort to resolve this matter.” In September, Straka was finally charged, with just the less serious of the two trespassing misdemeanors. After a tweak in October reflecting that he never entered the Capitol itself, he pled guilty on October 6. His statement of offense says only this about January 5:

Brandon Straka flew to Washington D.C. to speak at a rally protesting the election results on January 5 and January 6, 2021.

It focuses entirely on his role in egging on rioters at the Capitol.

This plea could be one of the ones in which someone cooperating was able to plead to a misdemeanor (the only confirmed one of which, so far, was Jacob Hiles, who cooperated in the prosecution of Michael Riley). After all, he could provide valuable information not just on the plans for January 5, but also explain what he learned about why the scheduled rally on January 6, at which he was also supposed to speak, got canceled. And in fact, he posted the kind of self-justification in advance of pleading that might reflect cooperation.

[O]n Facebook this week he addressed 357,000 followers as “Dear Patriots,” thanked them for their patience, and urged them to tune out “negative press . . . likely coming down the pike” as he took the first meaningful step toward concluding “the perils of the situation I am in.”

“Hang on tight,” Straka wrote on the site, where he has asked for financial support and plugged a forthcoming “grand relaunch” of his campaign. “Let it come, and let it go. It means nothing. It’s just pointless noise. The best is yet to come. We’re almost there.”

But his plea agreement includes the boilerplate cooperation language that generally gets taken out when someone has already cooperated, which is one reason to believe his plea may just reflect good lawyering.

We may find out whether his plea included a cooperation component when we see the filings regarding his sentencing. He was originally supposed to be sentenced on Friday December 17, but that got bumped back (as many things are, these days) to December 22. His sentencing memos were due on December 15. But unless something happened with PACER overnight, they’re not there (PACER was particularly unreliable yesterday on account of the AWS outage, but the filings could also be sealed).

Update: The two sides have asked for 30 more days to make sense of some stuff that has recently come up.

On December 8, 2021, the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation. Additionally, the government is requesting additional time to investigate information provided in the Final Pre- Sentence Report. Because the government’s sentencing recommendation may be impacted based on the newly discovered information, the government and defendant request a 30-day continuance of this case so that the information can be properly evaluated.

The government is currently ordered to file its sentencing memorandum and any video evidence in support of its memorandum on December 17, 2021. The government respectfully requests that this deadline be extended based upon the reasons stated.

3%er SoCal Conspiracy

Calling the indictment against Alan Hostetter et al the “3%er SoCal conspiracy” is actually a misnomer, because it has more to do with how two men calling for violence helped organize Southern Californians largely mobilized around anti-mask politics.

The indictment provides evidence that some of the men charged–Erik Warner, Tony Martinez, Derek Kinnison, and possibly Ronald Mele– are 3%ers. Though the indictment shows Hostetter invoking the language of 3%ers in one place, he is the head of the American Phoenix anti-mask group and his anti-mask activism is one of the places Hostetter met Russell Taylor (the other is the QAnon conference in Arizona in October 2020). Hostetter and Taylor repurporsed a Telegram chat Hostetter was already using to sow violence to organize Southern Californians to travel to DC for the rally, then created a new one on January 1 called “The California Patriots-DC Brigade.”

Much of the conspiracy involves the planning of alleged conspirators for the trip, including discussions of how to bring weapons to DC.

Just one of these men, Warner, entered the Capitol; the rest skirmished around the West Terrace. Not all of the January 6 defendants whose arrest documents show them to be members of the California Patriots-DC Brigade Telegram chat are included as part of this conspiracy; Jeffrey Scott Brown and Ben Martin, who were each charged individually, are described to have been part of the chat, and it’s likely that Gina Bisignano and Danny Rodriguez and his co-conspirators were also part of that chat (among others). In addition, there’s a Person One described in the indictment, whom Hostetter has identified as big GOP donor Morton Irvine Smith, who wasn’t charged, though Irvine Smith’s actions appear distinguishable from Hostetter’s only in that he didn’t climb onto the West Terrace on January 6. So it’s not entirely clear why DOJ included the six people they did in this conspiracy.

As I laid out before, in addition to being charged individually with obstructing the vote count, the men were charged with conspiracy under the obstruction statute rather than the conspiracy statute, as most other January 6 conspiracies were charged (though a Patriot-3%er two person conspiracy unsealed the other day uses 1512(k) as well). Taylor was charged for civil disorder for an interaction with cops and his trespassing charges were enhanced because he was armed with a knife. Warner and Kinnison are separately charged for efforts to hide the Telegram chat.

In other words, this conspiracy ties together two guys publicly calling for violence with members of a militia who discussed arming themselves.

Hostetter says he wants no part of it, though. After getting permission to represent himself in October, earlier this month the former cop filed a motion to dismiss the entire indictment because of alleged government misconduct. The entire thing is the kind of batshit conspiracy theory you’d expect from Tucker Carlson or Glenn Greenwald, spinning what appears to have been inappropriate coddling of him by an Orange County Sheriff’s Sergeant into an FBI plot (that started in spring 2020) to get him, involving Yale’s Secret Society Skull and Bones, the Freemasons, Scientologists, Mormons, and a talented artist named Bandit who likes to mock him. (Read this thread if you want to laugh along.) In the wild yarn Hostetter spins, he argues both Irvine Smith and Taylor must be FBI informants and therefore he can’t be held accountable for any of the actions they induced him to take.

He asks to be severed from the other defendants and/or have his case thrown out because, he claims, he “has never knowingly met, nor has he ever knowingly communicated with, four of the co-defendants,” the 3%ers, and according to his feverish conspiracy theory, Taylor is an FBI informant who set him up (Taylor is Mormon, which is where that part of Hostetter’s conspiracy theory stems from). In a filing asserting as fact that, “the election of 2020 was actually stolen from a duly elected President whom was elected in one of the biggest landslide victories in the history of our country,” Hostetter complains that his actions to prevent the vote count of the actual winner do not amount to a crime.

On January 6, 2021 defendant did not commit one act of violence. Defendant did not commit one act of vandalism. Defendant never entered the U.S. Capitol Building. Defendant never conspired with anyone to do anything illegal, immoral or unethical. The government has not provided anything, that defendant has yet seen in discovery, that contradicts these claims by defendant. Yet, defendant is charged with federal felonies that could result in his imprisonment for up to twenty years.

Particularly given the scope of Dabney Friedrich’s ruling on the application of obstruction, with its caveats regarding whether legal activities can be deemed part of an effort to obstruct the vote count, Hostetter’s claims may have some success (Royce Lamberth is presiding over the case).

His motion to dismiss doesn’t, however, mention a number of overt acts described in the conspiracy to obstruct the vote count:

  • His participation in the November 14, 2020 MAGA event in DC
  • His own November 27, 2020 call to execute “traitors”
  • A December 12, 2020 Stop the Steal rally in Huntington Beach
  • His own calls for people to travel to DC starting on December 19, 2020

Rather than addressing most of the overt acts alleged against him, Hostetter provides what appear to be cover stories for two key December 2020 events in this timeline.

After Taylor and Hostetter spoke at an Orange County event on December 15, they met with Irvine Smith the next day, and Taylor gave both axes.

On December 15, 2020, defendant and co-defendant Russell Taylor both spoke at an Orange County Board of Supervisor’s Meeting. This was only three weeks prior to January 6th. As usual at the Board Meeting, the topics to be discussed related to Orange County issues to include Covid-19 related issues, which is what we typically spoke out about. For some reason, while Taylor was speaking during this particular board meeting, he made the following comment to the Board which was completely unrelated to any of the topics on the agenda: “Week after week, I and others are with thousands in the street all up and down the state of California. You know what they are saying? Revolution. Storm the Capitol.”

[snip]

On December 16th, the day following Taylor’s comments to the Orange County Board of Supervisors, co-defendant Russell Taylor met defendant and “Person One” Morton Irvine Smith at a Mexican restaurant in San Clemente, CA called “El Ranchito.” Taylor was the organizer of this meeting and had requested, planned and organized it a few days prior. While at the restaurant, Taylor told defendant and Irvine Smith that he had purchased gifts for them. Taylor reached under the table and pulled out two boxes and gave them to defendant and Irvine Smith.

Inside these boxes were the axes that have been referred to in the indictment as proof of defendant’s nefarious intent to attack the Capitol using the axe as a weapon of some sort. Until receiving this “gift,” defendant had never personally owned an axe in his life. As he gifted it to us, Taylor described the axe metaphorically as a “battle axe” representing the battles we had already fought in support of freedom and the many battles yet to come.

Upon leaving the restaurant, either (informant) Taylor or (informant) Irvine Smith requested one of the restaurant employees take our photograph in front of the restaurant holding the axes. Defendant liked the photograph and thought it looked quite masculine and “tough” so he posted the photograph to Instagram with a somewhat provocative comment attached to the photograph. Defendant’s comment was, “The time has come when good people may have to act badly, but not wrongly.” Defendant continued in this post with, “Thank you @russ.taylor for the gift of the #thebattleaxe representing the many battles yet to come.”

Defendant had read this quote about good people possibly having to act “badly but not wrongly” in a meme very close in time to when Taylor gifted the axe to him. Defendant had no thought whatsoever about January 6 or the U.S. Capitol when creating this Instagram post. Defendant had been making public speeches regarding the fact that the U.S. was and had been “at war” with the Chinese Communist Party and domestic enemies for approximately 8 months prior to receiving this axe from Russell Taylor

Hostetter posted the photo not as a call for war, he claims, but because it made him look manly. And his caption to the photograph wasn’t a prospective call to war on January 6 in response to Taylor’s call for revolution, but to the prior 8 months of political unrest.

Particularly given Hostetter’s description of the December 16 meeting, which he helpfully tells us was actually planned, “a few days prior” (and so possibly the same day that Irvine Smith, but not Hostetter, returned from the DC MAGA March), I find the description Hostetter gives for his involvement in the January 5 event of interest. He learned of it from Irvine Smith at around the same time as that same December 16 meeting at El Ranchito and before — the indictment alleges but Hostetter ignores — he started recruiting people to attend the event.

January 5, 2021: Defendant’s non-profit organization, American Phoenix Project (APP), cohosted a rally with a group called Virgina Women for Trump. The VWT group was headed by Alice Butler-Short, a well-known and well-connected woman in the DC area.

This event, and APP’s ability to co-host it was brought to defendant’s attention in mid-December after informant Morton Irvine Smith returned to California after attending the December 12, 2020 Stop the Steal rally in Washington DC. Defendant did not attend this event. Irvine Smith claimed to have met Ms. Butler-Short for the first time at this 12/12/2020 event and the two of them agreed to APP becoming involved in co-hosting the event together.

Irvine Smith arranged for defendant to participate in a conference call with Ms. Butler-Short and two members of another group identified as Jericho March as they were a nationally known group also supporting election integrity. Once this conference call was completed, defendant told Irvine Smith that he was not interested in having American Phoenix Project co-host the event as it was too far away from California to be able to properly assist in putting it together and defendant had also gotten a bad vibe / feeling from some of the other participants in the conference call.

Irvine Smith was highly disappointed and notified defendant that he, Irvine Smith, would then just continue to help Butler-Short on his own time as they had developed a good relationship and he wanted to be personally helpful to her. Within a week or two, Irvine Smith notified defendant that Butler-Short had lined up some very big-name and popular conservative speakers for the event to include Roger Stone, Alex Jones, General Michael Flynn’s brother Joe Flynn, among several others. Irvine Smith notified defendant that ButlerShort was continuing to hold out the invitation for APP to co-host this event with her group, to include flying the APP banner at the event. Irvine Smith told defendant the only thing Butler-Short requested of APP was to help her with finding security staff to cordon off an area in front of the Supreme Court because it was a “first come, first served” policy as far as finding a location to set up a stage and microphone.

[snip]

After hearing from Irvine Smith about the high-quality speakers involved and the relative ease with which APP could co-host such a high-profile event, defendant agreed to co-host the event under the APP banner. Were it not for the individual efforts of Morton Irvine Smith, neither defendant nor APP would have been involved with this event at all.

Irvine Smith’s role in getting him this gig certainly raises more questions about why he wasn’t charged, but it doesn’t change Hostetter’s own exposure.

Hostetter adds to the questions about Irvine Smith’s treatment by revealing that Irvine Smith was not searched until the day before this indictment (Hostetter also makes much of what appears to be FBI’s choice to image Irvine Smith’s devices rather than seizing them).

On 1/27/2021 when Taylor and defendant had search warrants served on them, Irvine Smith did not. It wasn’t until nearly five months later, on June 9, 2021 that Irvine Smith finally had a search warrant served on him. This was one day before defendant’s indictment was unsealed. The timing of Irvine Smith’s “raid” is transparently obvious and laughable. It was intended to “clean him up” as an informant.

Hostetter’s questions about Irvine Smith, who funded much of his actions, are as justified as questions from the Oath Keepers about Stewart Rhodes not being charged yet. But I expect this crazypants motion to be dismissed and the conspiracy prosecution to continue to hang on whether all six members of the conspiracy entered into an agreement to help stop the vote count on January 6.

But Hostetter’s motion does suggest that the conspiracy indictment uses the involvement of the 3%ers as a way to raise the stakes of both Hostetter and Taylor’s own public calls for violence. That is, DOJ seems to have charged these organizer-inciters (but not the guy funding it all, yet) by exploiting their ties to an organized militia.

Alex Jones, Owen Shroyer, and Ali Alexander

The way that DOJ appears to have used militia ties to charge organizer-inciters Alan Hostetter and Russell Taylor makes their treatment of far more important organizer-inciters, Alex Jones, Owen Shroyer, and Ali Alexander, more interesting.

Ignore for a moment Ali Alexander’s crucial role in setting up explicitly violent protests.

It is a fact that the guy leading the coup, Donald Trump, asked Alex Jones (personally, as Jones tells it) to lead the mobs Trump had incited at the Ellipse down the Mall to the Capitol. As Jones was doing this, his former employee, Joe Biggs, was kicking off the entire riot. It is also a fact that Jones lured rioters like Stacie Getsinger to the East side of the building, to where Biggs and the Oath Keepers were also gathering, by promising a second speech from Trump.

There’s reason to believe that Jones and Biggs remained in contact that day, evidence of which DOJ would presumably have from Biggs’ phone, if not his phone provider (based on whether the contact was via telephony or messaging app). If it was the latter, getting it may have taken a while. While DOJ obtained Ethan Nordean’s phone when they searched his house (because his spouse provided the FBI the password), and obtained the content of Biggs’ Google account quickly (which included some videos shared with his co-travellers), it may have taken until July 14 to exploit Biggs’ phone (this Cellebrite report must pertain to Biggs because it is not designated Highly Sensitive to him). While the content of any calls Biggs had with his former boss would not be captured, some of it is also likely available from videos shot of him. If his co-travellers wanted a cooperation deal they might be able to provide Biggs’ side of any contacts with Jones too, though several of Biggs’ co-travelers are represented by John Pierce, who may be serving as a kind of firewall for Biggs or even Enrique Tarrio.

Nevertheless, if DOJ has in its possession evidence that one of the guys accused of masterminding the plan to breach the Capitol from two sides was in contact during that process with Jones, who lured unwitting rioters to the second breach by lying to them, then DOJ would appear to have far more evidence tying Jones to militia violence than they used to charge Hostetter in a conspiracy with 3%ers. And Jones got just as far inside the restricted area of the Capitol — to the top of the steps on the East side — as Hostetter did.

Of course, two things have made it harder to charge Jones: he is a media figure, one who very quickly disseminated a cover story claiming his intent for joining the Proud Boys and Oath Keepers at the site of the second breach was to de-escalate the situation, not to escalate it.

DOJ has been chipping away at both those defenses. It already arrested two of Jones’ employees, videographer Sam Montoya and on-air personality Owen Shroyer.

DOJ arrested Montoya for trespassing on April 13 and charged him with misdemeanors on April 30. The arrest warrant cited a number of things Montoya said that were captured on his own footage making it clear he viewed himself as part of the mob.

We’re gonna crawl, we’re gonna climb. We’re gonna do whatever it takes, we’re gonna do whatever it takes to MAGA. Here we go, y’all. Here we go, y’all. Look at this, look at this. I don’t even know what’s going on right now. I don’t wanna get shot, I’ll be honest, but I don’t wanna lose my country. And that’s more important to me than—than getting shot.

And DOJ noted that Montoya had no press credentials for Congress (a really shitty distinction for an event where legitimate journalists chased mobsters inside).

At times during the video, Montoya describes himself to others inside the Capitol Building as a “reporter” or “journalist” as he attempts to get through crowds. The director of the Congressional press galleries within the Senate Press office did a name check on Samuel Christopher Montoya and confirmed that no one by that name has Congressional press credentials as an individual or via any other organizations.

Montoya’s case has been continued on his own initiative since then. Given the discovery notices he has gotten — from AUSA Candice Wong — he had been treated as part of the mob most closely involved in the scene at Ashli Babbitt’s shooting. On December 10, Montoya got discovery from the Statutory Hall Connector that other defendants in that group did not get, and a different prosecutor, Alexis Loeb, took over his case. Loeb’s January 6 caseload is eclectic, but in October she started taking over the case of Proud Boys Joshua Pruitt, and Nicholas Ochs and Nicholas DeCarlo, and she has always been in charge of the prosecution of the pair that played a key role in opening the East doors from the inside, George Tenney and Darrell Youngers.

In August, Shroyer was arrested. His arrest was opportunistic, relying on the fact that he had a still-unsatisfied Deferred Prosecution Agreement arising from his attempts to disrupt Trump’s first impeachment making his loud presence inside the restricted are of the Capitol uniquely illegal. He filed a motion to dismiss his case, which was basically the cover story about de-escalation that Jones offered up immediately after the riot and Ali Alexander prepared to deliver to Congress last week. In a filing debunking that cover story, the government noted that calling for revolution — as Shroyer and Jones did from the top of the East steps — does not amount to de-escalation.

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Shroyer let the due date to reply to this debunking, November 22, pass without filing anything. A status conference that had originally been scheduled for Tuesday, December 14 has been rescheduled for Monday December 20.

As I said in my taxonomy post, the government seems to be very close to being able to demonstrate how that the breach of the second front worked, an effort on which the Proud Boys, Oath Keepers, and Alex Jones seemed to coordinate.

Doing so will be very important in demonstrating how the militia conspiracies worked. But if DOJ finds a way to charge Alex Jones for his role as the Pied Piper of insurrection, the organizer-inciter who provided the bodies needed to fill that second breach, it would bring the January 6 investigation up to an order issued directly by the former President.

The investigation of three InfoWars figures — Montoya, Shroyer, and Jones — who all have legitimate claims to be media figures happens even as DC judges are getting more insistent that DOJ adhere to Merrick Garland’s own media guidelines. In November, for example, Chief Judge Beryl Howell required prosecutors to acknowledge the media guidelines if they sought orders and warrants targeting news media.

Of course, Alexander has no such press protection, and his decision to go mouth off to Congress for seven hours last week may prove as self-destructive as the similar decision by his mentor, Roger Stone, four years ago.

The government seems to have a pretty good case about how the multi-front breach of the Capitol worked. The question is whether First Amendment protections will shield those who made that breach possible from prosecution.

Have Ethan Nordean’s Hopes Been Semi-Colon’ed by Dabney Friedrich’s [Chapter and] Verse?

Back in June, I noted that Ethan Nordean’s lawyers were staking his defense on getting all the crimes charged against him thrown out — from the obstruction charge applied in an unprecedented manner, to the civil disorder tainted by its racist past, all the way to trespassing.

The biggest advantages that Ethan Nordean and the other men charged in the Proud Boys Leadership conspiracy have are a judge, Tim Kelly, who is very sympathetic to the fact that they’re being held in jail as the government fleshes out the case against them, and the 450 other January 6 defendants who have been charged with one or another of the same charges the Proud Boys were charged with. The biggest disadvantages are that, as time passes, the government’s case gets stronger and stronger and the fact that seditious conspiracy or insurrection charges not only remain a real possibility, but are arguably are a better fit than what they got charged with.

That’s why it baffles me that, minutes after Judge Kelly noted that every time Nordean files a new motion, Nordean himself tolls the Speedy Trial clock, Nordean’s lawyer, Nick Smith, filed a motion to dismiss the entirety of the indictment against Nordean.

[snip]

[T]actically, trying to throw out every single crime, up to and including his trespassing charge, charged against one of the key leaders of a terrorist attack that put our very system of government at risk trades away the two biggest advantages Nordean has on legal challenges that won’t eliminate the prosecution against Nordean.

[snip]

[I]f any of these challenges brought by others succeed, then at that point, Nordean could point to the appellate decision and get his charges dropped along with hundreds of other people. But launching the challenge now, and in an omnibus motion claiming that poor Ethan didn’t know he was trespassing, is apt to get the whole package treated with less seriousness. Meanwhile, Nordean will be extending his own pre-trial detention. The government will be given more time to try to flip other members of a famously back-stabbing group, possibly up to and including Nordean’s co-conspirators (whose pre-trial detention Nordean will also be extending). And Judge Kelly will be left wondering why Nordean keeps undermining Kelly’s stated intent to limit how much the government can draw this out.

As I noted, on Friday Dabney Friedrich became the first DC District judge to uphold the obstruction application. The decision comes as — predictably — DOJ seems to be closing in on a much more substantive description of the Proud Boy-led plan to assault Congress. All the while, Nordean has been sitting in SeaTac jail, and even got thrown into SHU (solitary) last week for as yet undisclosed reasons.

To be clear: Friedrich’s is in no way the last word. Judges Randolph Moss, Amit Mehta, and the judge presiding over Nordean’s case, Tim Kelly, are all due to rule on the issue as well, with a number of the other judges facing such challenges as well. I’d be surprised if all the judges ruled for DOJ.

And because these judges are likely to rule differently, as all the parallel challenges have been briefed, some of the lawyers in the key cases have kept the judges apprised of what was going on in other challenges. For example, after getting leave first, the government submitted filings they made in Nordean and Guy Reffitt’s challenges to obstruction in the Brady Knowlton docket. Defendants have occasionally used that opportunity to respond.

Yesterday, without first asking for leave to file it, Nordean submitted what was billed as a “notice of new authority” in the case, but which was, in fact, a 23-page point by point rebuttal of and which didn’t actually include Friedrich’s opinion. As part of that, purportedly to take issue with the grammatical claims that Judge Friedrich made but actually in an effort to attack an example Friedrich used rather than the law itself, Nordean lawyers David and Nick Smith use an Emily Dickinson poem to — they claim — make a point about line breaks and semicolons.

And the Court did not explain how a semicolon and line break somehow altered the meaning of (c)(2)’s “otherwise” phrase which, as the Court correctly noted, “links” it to the meaning of (c)(1). As Nordean has previously explained, the question of meaning involves grammar, not page format. Subsection (c)(2) is a clause dependent on (c)(1) for its meaning because the predicate “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to. . . .” is not a complete sentence.

[snip]

As the Court will see, each of the provisions in the case relied on by the Sandlin Court is a complete sentence, unlike subsections (c)(1) and (c)(2) of § 1512. Thus, they are grammatically independent in a way that (c)(1) and (c)(2) are not. The same grammatical point distinguishes Justice Scalia’s finding in United States v. Aguilar, on which the Sandlin Court relies, that the ejusdem generis canon did not apply to § 1503’s “omnibus clause.” 515 U.S. at 615-16 (finding that the omnibus clause is “independent” of the rest of § 1503 in a grammatical sense: it stands alone as a complete sentence).

Contrary to the Sandlin Court’s understanding, line breaks and semicolons do not necessarily alter the meaning of the clauses that follow in a sentence. One simple example would seem to suffice:

The reticent volcano keeps
His never slumbering plan;
Confided are his projects pink
To no precarious man.

In the sentence above, the line break between “The reticent volcano keeps/His never slumbering plan” does not indicate that the second line’s meaning is “independent” of the first line’s. To the contrary, the phrase containing the pronoun “his” cannot be understood without reference to its antecedent in the first line. Similarly, the same pronoun following the semicolon cannot be understood without reference to the first line. Just so with (c)(2)’s “; or otherwise obstructs . . .” We are concerned with meaning, not the surface of the page.

This is poetry!! It is fairly insane to liken poetry, much of the power of which stems from breaking the rules of grammar and which often strives to obscure meaning, to US Code, which aspires to use grammar in ways that clarify meaning.

There’s one more problem, too.

There’s some dispute, because there is no final manuscript for this poem, about whether Dickinson used a semicolon or a dash after “slumbering plan.” And Dickinson’s dashes — literary experts say with all the certitude that drove me from literary academics — put great stake in the ambiguity introduced by such punctuation.

“The dash is an invitation to the reader to make meaning,” Dr. Smith said. “It can also be a leap of faith.”

Moreover, these were handwritten works, and so dashes would not even be regular lines. The variation in such lines has been interpreted with various meanings as an immediate expression of Dickinson’s intent. [Note: I owe this observation to several people on Twitter but have lost those Tweets; h/t to them]

That is, Dickinson’s poem is not so much an apt comment on Friedrich’s examples. Rather, it’s an example of the uncertainty embodied by the artistic expression of another individual, almost the opposite of laws codified by Congress.

Bizarrely, the citation of Dickinson is among the parts of Smith’s brief that Brady Knowlton’s attorneys lifted and replicated in their own unsolicited notice and reply. Carmen Hernandez, who is Donovan Crowl’s attorney, not only remembered to include Friedrich’s opinion, but she didn’t include the Dickinson poem.

There have been many aspects of my own literary training that I’ve used in my coverage of the January 6 investigation. Reading Emily Dickinson (about which I have no expertise) is not one I’d expect to need.

Update: In a hearing today, Judge Kelly joined Friedrich in rejecting the challenge to the obstruction application.

The Virgin Birth of Sidney Powell’s Fraud Fund

On the list of things those whinging about Merrick Garland seem to have missed is this Daily Beast story reporting that a grand jury is investigating Sidney Powell’s grift.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said. According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The story is most amusing because it airs the entertaining feud between Powell, Lin Wood, Patrick Byrne, and the Flynns. The story airs the claims of those feuding with Powell who say, at a time this is under criminal investigation, that they were uninvolved with the grift.

Powell created Defending the Republic with great fanfare in December 2020 and listed a who’s who of pro-Trump election conspiracy world on its incorporation paperwork. The group’s board originally included former Trump national security adviser Mike Flynn, his brother Joe, and QAnon enthusiast Lin Wooda fellow Trump-connected lawyer who recently started feuding with Powell.Attorneys for Defending the Republic claim that Wood was mistakenly listedas a board member and subsequently removed from registration filings.

Overstock.com founder Patrick Byrne, who briefly served as Defending the Republic’s CEO, says he had his own concerns about the group’s finances.

In a phone call with Wood that Wood surreptitiously recorded, Byrne claimed that Byrne, Michael Flynn, and Flynn’s brother Joseph Flynn quit the group in April after Powell refused to allow an audit of Defending the Republic’s accounts.

“I gave her a laundry list of things she had to clean up and told her she had to get an auditor,” Byrne told Wood on the call.

[snip]

While working as Defending the Republic’s CEO, Byrne said he became concerned that Powell was using the money for herself and may have potentially violated the law in the process. Byrne said he had determined that he faced no legal liability himself, but had been tempted to “drop a dime on” Powell and alert law enforcement.

“Sidney’s just running this as a scam,” Byrne told Wood.

The Daily Beast story on the criminal investigation into Powell then turns to some details laid out in the Dominion lawsuit against the Kraken lawyer. Powell had her Defending the Republic site up and running on November 23, before she incorporated it on December 1, 2020; and she advertised it falsely as a 501(c)(3), donations to which are tax deductible, rather than a 501(c)(4), which are not.

Defendant Defending the Republic, Inc. (“Powell’s fundraising website”) is the corporate form that was belatedly incorporated to solicit “millions of dollars” online at https://defendingtherepublic.org/, a website created shortly after the 2020 election. The separate corporate entity for Powell’s fundraising website was not created until December 1, 2020, after Powell had appeared on television to solicit donations to the website and after the website began representing to potential donors that it was a 501(c)(4) organization.8

18. On or before January 7, 2021, defendingtherepublic.org began representing to potential donors that it is a “501c3 (Status Pending) Non-Profit.”9

19. Unlike contributions to 501(c)(3) organizations, contributions to 501(c)(4) organizations are not tax deductible.

20. As of January 7, 2021, Defending the Republic, Inc. did not appear in a search of 501(c)(3) organizations or 501(c)(4) organizations on the IRS website.10

8 Sidney Powell talks about her allegations regarding the computerized voting systems on election night, Washington Examiner (Nov. 20, 2020), available at, https://www.washingtonexaminer.com/videos/sidney-powell-talks-about-her-allegationsregarding-the-computerized-voting-systems-on-election-night (last visited Jan. 4, 2021) (Ex. 5); Sidney Powell on Lou Dobbs Tonight on 11/30/20, YouTube (Nov. 30, 2020), available at, https://www.youtube.com/watch?v=4uMr-TRZNCw (last visited Jan. 4, 2021) (Ex. 6); Defending the Republic (Nov. 23, 2020), available at, https://web.archive.org/web/20201123034128/https://defendingtherepublic.org/ (Ex. 7).

9 Defending the Republic Contact Page, available at, https://defendingtherepublic.org/?page_id=15 (last visited Jan. 7, 2021).

10 Compare November 23, 2020 capture of https://defendingtherepublic.org/ (Ex. 7) with IRS Tax Exempt Organization Search, available at, https://apps.irs.gov/app/eos/allSearch (Ex. 8).

Daily Beast presents this as further evidence supporting claims from Byrne (who should not be trusted either) that this money was going to support Powell, not sowing conspiracy theories.

But I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

It was always the case that Flynn’s pardon was wrapped up in propaganda to get elected. As I’ve noted, Trump used the alteration Bill Barr’s DOJ made to Peter Strzok’s notes, along with Powell’s false claims about it, to launch a prepared debate attack on Joe Biden.

But now the details of how Powell took overt steps to help Trump try to overthrow the election before Trump gave her something in value are before a grand jury.

Liar’s Poker: The Complexity of Julian Assange’s Extradition

There’s a remarkable passage in the High Court ruling granting the US appeal to extradite Julian Assange. It basically judged that the key medical expert who determined that Assange would be at risk of suicide if he were extradited, Michael Kopelman, had deliberately not told the truth in his first report on Assange about his family ties to Stella Morris and their two kids, and had not used available means to correct his falsehood afterwards.

We do not accept that Professor Kopelman was confronted with a dilemma of such difficulty as has been claimed. No reason has been put forward why, if it was felt that concern for Ms Moris’ safety made it necessary to conceal her identity, he could not simply have reported all relevant facts but indicated that he did not think it right to name her. That, indeed, is what Mr Assange’s solicitor seems to have expected him to do: her statement says that she canvassed with Professor Kopelman whether the identification of Ms Moris as Mr Assange’s partner could be deferred, and the report served, without detriment to or qualification of its conclusions or their basis. Thus she was not proposing that the report should contain anything misleading, only that for the time being Ms Moris should not be named.

Nor has any reason been given why an application could not have been made to the court pursuant to rule 19.9 of the Criminal Procedure Rules which enables material to be withheld in appropriate circumstances. But in any event, even making every allowance for his being placed in a difficult situation, we cannot agree with the judge’s view that Professor Kopelman did not fail in his professional duty. As the judge found, he made at least two statements which were misleading; and we see no escape from the inference that he did so deliberately, having decided to obscure certain facts in order to avoid mentioning the obviously-relevant facts of Ms Moris’ recent and continuing relationship and of the children whom she had by Mr Assange. At the conclusion of his first report, and in accordance with rule 19.4 of the Criminal Procedure Rules, he signed a declaration in the form required by paragraph 19B.1 of the Criminal Practice Direction. In this, he stated amongst other things –

“(vii) I have exercised reasonable skill and care in order to be accurate and complete in preparing this report.

(viii) I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion. …

(x) I will notify those instructing me immediately and confirm in writing if for any reason my existing report requires any correction or qualification.”

In our view, Professor Kopelman plainly did not comply with those statements, because in his first report he chose not to state what he knew of the relationship between Mr Assange and Ms Moris when opining on the effects of Mr Assange’s “solitary confinement” in the Embassy and the risk of suicide; and subsequently he failed to correct his report or to make clear his earlier knowledge of the relationship. We regret to say that declaration (viii) was simply untrue. His second report did nothing to correct the misleading impressions created by the first. On the contrary, it maintained his silence about his knowledge at the time of the first report.

With all respect to the judge, we cannot agree with her implicit finding that Professor Kopelman’s failings could be excused or overlooked merely because his conduct could be viewed as “an understandable human response”. Many people mislead courts for reasons which might be understandable but that does not excuse the behaviour and it is incompatible with the obligations of an expert witness to do so. Nor was it relevant to the judge’s assessment of his evidence that she had learned of Mr Assange’s relationship with Ms Moris before she read the medical evidence: it was no thanks to Professor Kopelman that she had done so.

There were, therefore, substantial reasons for the judge to question the impartiality and reliability of Professor Kopelman’s opinion. With respect to the judge, we would have expected to see a rather fuller analysis than she gave of her reasons for deciding that she could accept his evidence not least because it was central to the success of Mr Assange on the single ground which led to his discharge.

The question for this court, however, is whether she was entitled to accept his evidence. Mr Lewis confirmed that the USA did not submit to the judge that the professor’s evidence was inadmissible and should be excluded but rather that it should be given little weight, particularly where it was not supported by other expert evidence or contemporary medical records. In the end the argument before the judge devolved to one of weight. It is highly unusual for the court to be considering an expert witness whom a judge has found to have given misleading evidence but whose evidence has nonetheless been accepted. [my emphasis]

Because the US did not argue that his testimony was, as a result, inadmissible, but instead argued his testimony should be given little weight, the High Court ruled they were unable to second guess Vanessa Baraitser’s ruling, which relied heavily on Kopelman’s opinion. For that reason, the High Court rejected US’ two bases for appeal tied to Kopelman’s opinion.

Nevertheless, the High Court accepted that US assurances that Assange would not be subjected to solitary confinement unless he does something new to merit it were sufficient to grant the extradition request.

Ground 2: Having decided that the threshold for discharge under section 91 was met, the judge ought to have notified the USA of her provisional view to afford it the opportunity of offering assurances to the court;

[snip]

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

[snip]

The first and fourth assurances wholly exclude the possibility of Mr Assange being made subject to SAMs, or detained at the ADX, either pretrial or after conviction, unless, after entry of the assurances, he commits any future act which renders him liable to such conditions of detention. It is difficult to see why extradition should be refused on the basis that Mr Assange might in future act in a way which exposes him to conditions he is anxious to avoid.

The ultimate effect is that, unless Assange succeeds in his own appeal of this or the underlying decision, then Priti Patel will soon face the decision of whether or not to extradite him.

These two issues go to the dubious credibility of both sides. The High Court ruled that Kopelman did not give unvarnished expert opinion (he was in no way the only one of WikiLeaks’ experts to do so), but found that could not, at this point, affect the legal analysis. And it found that US assurances that US jails would treat Assange humanely were sufficient, even though I believe there is a high likelihood that Assange will do something that ends up getting  him put in some form of isolation.

WikiLeaks has lied systematically throughout this extradition process — about why Assange was charged when he was, about what he was charged with, about how strong the case against him is, about what a Yahoo article actually said. I have described how a very close Assange associate ordered me, in advance of the first extradition hearing, to stop doing factual reporting on Joshua Schulte’s case because it would undermine the story about journalism WikiLeaks wanted to tell, which is one way I’m absolutely certain the lying is intentional. They have affirmatively told a story that was most useful to their propaganda effort, one they knew to be false.

It’s bad enough that WikiLeaks has chosen to lie over and over in Assange’s defense.

But out of a combination of sloppiness and willful ethical failures, press organizations and journalists have replicated those lies, claiming to do so in the name of “journalism.” In effect, press NGOs and journalists have spent the last two years stating that the lying and hacking that WikiLeaks does is what they do — a claim that I fear will backfire in the future. You can’t defend journalism by lying, but that is what Assange has induced journalists and their advocates to do, the world over.

That said, the US is little more credible. There’s scant reason to credit US assurances on jail and prison conditions. That’s true — and would be true for all international extradition cases — because our jails and prisons are shamefully inhumane. But it’s also true because a national security defendant like Assange would have little leeway before triggering more severe restrictions.

This is an example where neither side should be credited.

But that doesn’t change the danger. The way in which DOJ has applied the Espionage Act poses a grave threat to journalism.

17 of the 18 charges against Assange criminalize things that journalists also do: soliciting and publishing classified information.

The 18th charge is a hacking conspiracy, one that extends from efforts to hack multiple targets in 2010, including a WikiLeaks dissident, through the Stratfor hack, includes WikiLeaks’ efforts to exploit their role in helping Edward Snowden flee to Russia, right up to WikiLeaks’ efforts to recruit CIA SysAdmins like Joshua Schulte to hack the CIA, though the indictment stops short of WikiLeaks’ publication of those hacked files. There is nothing controversial about the CFAA charge — and, indeed, people who support privacy should be outraged about some of this (and this is not the only surveillance of private citizens I’ve heard about). A lot of people have been duped to cheerlead really invasive hacking and spying, if done by WikiLeaks, in the name of journalism.

The hacking charge parallels the Espionage charges, which is central to underlying extradition ruling. Judge Baraitser used the way these efforts worked in parallel to distinguish Assange from journalists.

[Baraitser] distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

She further used European privacy protections to distinguish Assange’s bulk publication of the identities of US and Coalition (therefore, also UK) informants from journalism.

She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

That’s scant comfort for the way Assange’s prosecution could be used against actual journalists, though, for several reasons. First, the Espionage Act charges still criminalize actions that journalists do, including the publication of classified information. Plus, the US First Amendment protects publication, not journalists, and so the distinction Baraitser made works less well in the US. And the US has none of the privacy protections that Baraitser used to distinguish his indiscriminate publication of informant identities (though it should).

In other words, unless the charges — or the way they’re presented — change between now and trial, ultimately the application of them to Assange would be a dangerous precedent given US law.

They may well change. The US government may have plans to make an argument that — even key press defenders have said — would make the Espionage Act charges more palatable: by, in effect, declaring Assange a spy. That’s one of the reasons I find the sealed ex parte filing submitted in the Joshua Schulte case on August 4 of such interest, because it seems so reactive to what is going on in the Assange extradition.

To understand why I think this is a possibility, it’s important to understand key details about the timeline leading up to Assange’s charges, details that WikiLeaks has worked very hard to obscure:

  • As CNN reported in a 2017 piece that Julian Assange’s expert professed to be unable to find with Google, “The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.” Snowden’s own book gave significant reason to believe this went well beyond simply fleeing to Russia. In any case, once Assange helped Snowden flee, WikiLeaks had eliminated the “NYTimes problem” DOJ faced if they prosecuted Assange for things real news outlets also do, because whatever else journalists do to protect their own sources, they don’t help the intelligence officers of one country flee to a hostile country.
  • Just before Obama left office, the review of WikiLeaks’ role in the Russian election operation changed the view of the Obama Administration. It’s impossible to know whether that would have led Obama to charge Assange if he had more time. But there’s reason to believe that developments people like to blame on Trump — like increased surveillance of Assange — were set in motion before Trump came in.
  • The 2017 release of hacked CIA tools — the publication that led Mike Pompeo to call WikiLeaks a hostile non-state intelligence agency and to consider and in some cases implement more onerous steps against Assange — not only involved the same actions currently charged for the Manning leaks (including the apparently selective publication of CIA officer identities), but it also involved efforts to extort the US government and even the President’s son. Additionally, the concern about WikiLeaks’ treatment of the CIA leak was not just or even primarily about the files that got released, but the files that WikiLeaks was hoarding; that’s what the government was really trying to understand when they conducted some of the more aggressive spying on WikiLeaks associates: what WikiLeaks was doing with the CIA’s source code, the vast majority of which is still unaccounted for.
  • In addition to the Vault 7 release, after Roger Stone almost got Trump to shut down the entire Russian investigation in June 2017, later in 2017 DOJ started investigating Assange’s role in the 2016 operation, an investigation that at least by 2018 encompassed the question of whether he was an Agent of Russia. Particularly about these topics, Assange repeatedly foregrounded Russian-favored storylines during his extradition, rather than the truth.
  • The surveillance that ratcheted up starting in summer 2017 and especially in December 2017 reportedly bore fruit. That month, according to even WikiLeaks-friendly sources speaking to Yahoo, Russia tried to exfiltrate Assange. This is a core detail of the Yahoo story that WikiLeaks has otherwise embraced, one that likely affects everything that came later. Julian Assange was not charged in 2016 after he helped Russia tamper in the US election. He was not charged in April 2017 after the Vault 7 release. He was charged the day the Russians tried to exfiltrate him. The Espionage Act charges that pose such a threat to journalism only came in May 2019, at least 8 months after DOJ started investigating whether Assange was a Russian Agent based on his 2016 conduct and two years after they significantly ramped up surveillance of him. The second superseding indictment that Assange boosters like to ignore includes conduct that extends through 2015 and incorporates multiple hacking conspiracies (in a single count) and his actions with regards to Edward Snowden. None of that changes the danger the Espionage Act charges pose to journalism. But it means they post-date the time when Russia came to fetch Assange.

In 2020, as part of a presumptively cynical attempt to coerce Jeremy Hammond to testify against Assange in a grand jury, prosecutors on this case asserted, as fact, that Assange is a Russian spy.

I don’t know whether that’s true or not — or whether the government would ever share its evidence to make the case, much less prove that he was a Russian spy during all the current charged acts going back to 2010. I know of plenty of circumstantial evidence going back even before 2009 that makes it plausible (here’s a compendium of some, but not all, of that evidence I know of). If that were proven, it would suggest Assange is — and may have been since he convinced Chelsea Manning to keep stealing documents, some of which she didn’t personally work with — a spy, using a classic technique of recruiting people using one motive to serve a very different one. It’d be a brilliant way to convince a lot of people to ruin their lives if that were true.

I’m not going to persuade the boosters nor, probably, is anything the US government would be willing to say in unclassified form. But I invite Assange boosters to consider whether they would continue their own activism for him if they were convinced of that fact. (There’s absolutely a case to be made for doing so, particularly for non-Americans.) More importantly, I invite journalists and journalism NGOs, particularly the ones who have been telling partial truths, lies of omissions, or magnifying brazen falsehoods, to consider what that would mean for their profession, if after spending two years proclaiming that what Assange does is what journalists do it were revealed that Assange was not what the deliberate lies WikiLeaks is telling proclaim him to be.

I’d like to protect journalism. That requires opposing the Espionage Act charges against Assange for obtaining classified information and publishing it. But it also requires telling the truth about Julian Assange.

What today’s High Court judgment confirms is that neither side can be trusted.