In an analysis piece earlier this week, the NYT reported as newsworthy that,
Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.
Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.
“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”
Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.
Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?
A Yes.
Q How many conversations did you have with him about pre-pardoning
A One or two.
Q And what did he say to you?
A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.
Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?
A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.
Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?
A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –
Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?
A No.
Q Okay. What do you mean by a global pardon?
A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.
Q So when you say everyone, who do you mean?
A I guess whoever it is that you started to request to come in, testify, subpoenaed.
It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.
This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.
It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.
It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:
December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee
What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.
So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.
Michael Cohen pardon dangle
This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.
On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.
But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.
Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.
Roger Stone commutation
Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.
While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.
That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.
53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.
54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”
In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.
But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.
Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.
Mike Flynn pardon
As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.
Replaced competent lawyers with incompetent TV grifters
Released evidence he lied to his lawyers doing the FARA filing
Consented to waive privilege so DOJ could find more proof he lied
Debunked a slew of conspiracy theories
Got really damning transcripts released
Served 708 days of supervised release
Joined a gang
Got one of his gang members prosecuted for death threats against Judge Sullivan
Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
Exposed his son to further prosecution
Exposed DOJ to further scrutiny
Proved Judge Sullivan’s point about selling the country out
After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.
Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.
That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.
More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.
THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?
MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.
THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.
MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.
THE COURT: What’s the reason why you can’t discuss that?
MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.
THE COURT: Well, you don’t work for the government.
MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.
THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?
MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.
THE COURT: How did you provide that update? Was it in writing?
MS. POWELL: No, sir.
THE COURT: How did you provide that update? Who did you speak with?
MS. POWELL: I provided it in person to counsel for the President.
THE COURT: I mean the White House counsel or a deputy or who did you speak to?
MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.
THE COURT: And did you make any request of the President?
MS. POWELL: No, sir. Other than he not issue a pardon.
THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?
MS. POWELL: That’s the only one I recall.
THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?
MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.
THE COURT: Are the New York Times’ representations erroneous?
MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.
THE COURT: All right. About this case. But there’s been more than one though.
MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.
THE COURT: And was that within the last two weeks?
MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.
THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?
MS. POWELL: Oh, heavens, no.
THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?
MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]
On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.
President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.
This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.
And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.
At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.
Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.
Roger Stone pardon
During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.
Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.
On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).
On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.
On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.
On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”
Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”
[snip]
Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”
The next day, Stone deleted the pictures of his face-to-face meeting with Trump.
On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.
Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)
Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.
Steve Bannon
Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.
It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.
December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.
In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.
“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.
Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”
So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.
But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.
Rudy Giuliani left dangling
Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.
While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.
It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.
But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.
Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.
But he didn’t.
That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.
Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion
https://www.emptywheel.net/wp-content/uploads/2022/02/Stone-a-Guilfoyle.jpeg422415emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-03 09:51:172022-02-03 15:00:23Trump’s Coup Attempts: A Tale of Five Pardon Dangles
Because TV lawyers continue to wail that DOJ isn’t doing enough to investigate Donald Trump, I want to dumb down this post.
While TV lawyers have been wailing impotently that DOJ has been doing nothing to investigate Donald Trump, DOJ and the National Archives have been acquiring the communications behind some of the most damning events leading up to January 6. DOJ has been doing so even as the TV lawyers guaranteed us they would know if DOJ were doing such things, yet insisting that DOJ was not.
Consider just the events leading up to the December 18, 2020 series of meetings at the White House, involving Sidney Powell, Rudy Giuliani, and Mark Meadows, which some of the same reporters that reported it in real time are reporting as if it were new news.
Sidney Powell
According to the WaPo story on the grand jury investigation into Sidney Powell, a subpoena in that investigation issued in September asked for “communications and other records related to fundraising and accounting” related to Powell’s grift.
Federal prosecutors have demanded the financial records of multiple fundraising organizations launched by attorney Sidney Powell after the 2020 election as part of a criminal investigation, according to a subpoena reviewed by The Washington Post.
The grand jury subpoena, issued in September by the U.S. attorney’s office for the District of Columbia, sought communications and other records related to fundraising and accounting by groups including Defending the Republic, a Texas-based organization claiming 501(c) 4 nonprofit status, and a PAC by the same name, according to the documents and a person familiar with the investigation who spoke on the condition of anonymity to share details of the probe.
As part of the investigation, which has not been previously reported, prosecutors are seeking records going back to Nov. 1, 2020.
The subpoena reviewed by The Post was signed by Assistant U.S. Attorney Molly Gaston, who is also handling politically charged matters related to the Jan. 6 attack on the Capitol, including contempt of Congress charges brought against former Trump adviser Stephen K. Bannon for refusing to testify in front of the House committee investigating the pro-Trump riot. [my emphasis]
While the predication of that investigation seems to be based on Powell’s fundraising — soliciting money from dupes who believe her false claims of a stolen election — because proving that she knew those claims were false would require collecting everything about her efforts to manufacture false claims, it would get the communications explaining how to exploit those false claims as well. Plus, this September subpoena reveals just what DOJ did after moving to an overt phase. Prior to that, DOJ presumably obtained — first — preservation orders and — then — warrants on the emails that, according to Patrick Byrne, Powell claims she sent Rudy about her schemes.
On January 21 (a week before Trump started dangling pardons again), Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.
A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.
Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.
[snip]
Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.
He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.
“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.
Any emails obtained with a non-public warrant would be sent to a taint team that would review Sidney Powell’s privilege claims independently. Of particular interest, after Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing 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.”
With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of that December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.
Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. So she may want to claim privilege, but after November 25, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.
As I previously noted, the prosecutor in charge of that investigation dropped off three other January 6 prosecutions by March 29 of last year (though there is at least one other investigation, the obstruction investigation into Capitol Police Officer Michael Riley, on which she was also working in the interim).
Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.
There continue to be some curious moves that suggest DOJ is shifting prosecutorial resources to unseen investigations in fairly urgent fashion.
Rudy Giuliani
Meanwhile, on January 21 (the same day that CNN reported that Powell was “cooperating” in the DOJ investigation, and so also a week before Trump started dangling pardons again), Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.
Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:
Because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.
But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.
Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.
And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.
Mark Meadows
On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.
But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.
Among the things included in the referral are:
A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too
This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.
If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.
As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.
Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.
So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.
In other words, while TV lawyers have been wailing that DOJ has been doing nothing, DOJ has been acquiring the communications from at least two of the key participants in that December 18 meeting, and the Archives have been acquiring the communications of a third.
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It consists of challenges to the Foreign Agent — 18 USC 951 — charge against him that rely heavily on the Bijan Kian case, which is in a different circuit and very much in flux. Though as always disputes about this Foreign Agent application are of interest.
It includes a typical challenge based on FBI’s practice of writing up reports of interviews rather than recording them. This challenge might or might not include more valid complaints about the 302 than similar challenges that have failed in the past (we’ll find out at the end of February when the government files its response).
Moreover, the sole record the government chose to create are the handwritten notes of a single case agent that reflect little more than the agent’s subjective commingling of the questions and answers into shorthand assertions, wholly devoid of the actual questions asked and answers given.
[snip]
Similarly, Count 6 alleges that Mr. Barrack “falsely stated [that he) had no role in facilitating communications between the President-Elect and officials from the United Arab Emirates[.]” Indictment ,r 105. The indictment alleges that this statement was false because Mr. Barrack supposedly “arrang[ed) one or more telephone calls between the President-Elect and Emirati Official 1 and Emirati Official 2” and because he “provid[ ed) contact information” for Emirati officials to the President-Elect’s assistant. As with Count 4, however, the record does not reflect whether the ambiguous term “facilitating communications” was used by the government in its question or instead whether those were words used by Mr. Barrack in his response.
But the bulk of this motion to dismiss consists of an insinuation that this prosecution should have been successfully obstructed by Donald Trump.
Barrack doesn’t say that outright. Instead, he raises the fact that he was charged two years after his interview. He says that over and over. He even asks for discovery as to why it happened that way.
After that June 2019 interview, Mr. Barrack heard nothing more from the prosecutors. They did not contact him or his counsel to express any concerns about the information he provided or to discuss potential charges or a pre-indictment presentation. Meanwhile, Mr. Barrack continued working as Executive Chairman of his company and in that role made dozens of trips overseas, including to the Middle East. He also continued to act as an informal advisor to the Administration on foreign and economic policy with no indication by the government that he was supposedly an undisclosed foreign agent or national security threat.
On July 20, 2021, after two years of silence, more than a dozen armed FBI agents burst into a Los Angeles office where Mr. Barrack was attending a business meeting and took him into custody. He was incarcerated in a California general population prison for four days until he was released under extremely harsh and virtually unprecedented bail conditions.
Third, the government waited two years long after memories of the precise language used during the interview would have faded to charge Mr. Barrack with multiple felony counts premised on allegedly false statements
[snip]
The government appears to have taken few investigative steps following Mr. Barrack’s June 2019 interview, waiting for two years before bringing charges. This delay is even more inexplicable given that the government’s actions since Mr. Barrack’s interview do not reflect any apparent concern that he was a foreign agent or national security threat, even though he traveled overseas more than a dozen times and continued to have access to senior White House personnel and the President. The Due Process Clause protects defendants against such prejudicial, unjustified pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324 (1971); see also Fed. R. Crim. Proc. 48(b) (allowing dismissal of indictment for pre-indictment delay). To establish such a due process violation, a defendant must show both that he was prejudiced by the delay and that the government acted with an impermissible mens rea in delaying the indictment. Because both are present here, the indictment must be dismissed in full. Or, at the very least, the Court should allow discovery into the reasons for the government’s extended delay.
[snip]
Finally, the government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]
Barrack’s suggestion — probably correct — that any charges under Donald Trump wouldn’t have survived Billy Barr’s meddling and Donald Trump’s pardons are all the more curious given his suggestion that the White House and intelligence agencies deleted records involving his actions.
To that point, the government has not produced, or perhaps not even searched for, internal memoranda or communications in government offices such as the White House or the intelligence agencies that were in the possession of key individuals in the campaign and Administration with whom Mr. Barrack was in communication about the matters alleged in the indictment. Moreover, it is doubtful that texts and emails once in the possession of such witnesses can now be reasonably obtained, especially with the change of administration.
While an intriguing insinuation, this seems to say more about the way that Jared Kushner and Trump were protected by this investigation than anything else; Barrack does not, here, make a claim that this should have been turned over in discovery. (I suspect the charges were scoped the way they were to implicate Trump and Kushner as little as possible, which I noted here.)
Unless the 302 problems are unique — and nothing here suggests they are — the way in which DOJ backstopped this with the false statements charges will make this indictment less susceptible to challenge on the face of the law.
But before it gets there, this challenge will be a test of DOJ’s ability to wait out an obstructionist President and Attorney General to prosecute an alleged criminal.
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In a truly hysterical self-own, the Federalist’s Margot Cleveland read this John Durham filing and (in addition to claiming that Marc Elias’ grand jury appearance must mean he testified to crime-fraud excepted matters even though he previously testified publicly about this matter without any such exception) predicted that the “corrupt media” would soon quote “false charges” of threats and intimidation “by this weekend.”
Then she quoted precisely those charges.
In addition to detailing all of the information the special counsel’s office had already provided Sussmann or would shortly, in requesting an extension to finish discovery, Durham’s team stressed the breadth of Sussmann’s discovery demands and the transparency with which those demands were met.
For instance, Sussmann’s attorneys requested “all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, ‘any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct…and all formal or informal complaints received by you or others’ about the conduct of the Special Counsel’s office.”
After noting that “communications with other counsel are rarely discoverable,” the government said it expects to produce responsive documents later this week. But the special counsel office added, “it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation.”
For instance, “certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as ‘threats’ or ‘intimidation,’” Durham explained to the court.
In other words, with Sussmann’s lawyers soon to receive this cache of complaints against Durham’s team, watch for the corrupt media to be quoting those false charges by this weekend, spinning a narrative of a corrupt special counsel’s office.
Cleveland was, as far as I saw, the first to quote those charges and one of the only ones to do so before the weekend. But given that, in the past, she has presented evidence that undermined Durham’s conspiracy theories without admitting that they did, I’d say she qualifies for her own designation as corrupt. A self-fulfilling prediction!
That said, I suspect that Durham is trying to get ahead of something potentially more problematic.
In the Sussmann indictment, Durham needlessly referred to April Lorenzen — who had used the pseudonym “Tea Leaves” to speak of the Alfa Bank allegations in 2016 and who could have been referred to by that same pseudonym here — by the moniker “Originator-1.” That introduced additional confusion and with it implied, without charging Lorenzen, that she had made up the anomalous data at the core of the allegation. It’s sort of like referring to someone by the pseudonym “Forger-1” or “Lady-with-the-Knife-1” in an indictment; it respects DOJ’s rules against naming uncharged individuals, but does so in such a way that insinuates wrong-doing.
Indeed, in the indictment, Durham repeatedly called the anomalous data “purported,” barely hiding that he believes Lorenzen manufactured the data, even though a shit-ton of evidence from later in 2016 makes it clear Lorenzen believed the anomaly was real and important.
Durham’s treatment of Lorenzen is all the more problematic given that she was among those that, this NYT story credibly argued, Durham had cited out of context in the indictment.
The indictment quotes August emails from Ms. Lorenzen and Mr. Antonakakis worrying that they might not know if someone had faked the DNS data. But people familiar with the matter said the indictment omitted later discussion of reasons to doubt any attempt to spoof the overall pattern could go undetected.
[snip]
The indictment suggested Ms. Lorenzen’s reaction to the paper was guarded, describing an email from her as “stating, in part, that it was ‘plausible’ in the ‘narrow scope’ defined by” Mr. Joffe. But the text of her email displays enthusiasm.
“In the narrow scope of what you have defined above, I agree wholeheartedly that it is plausible,” she wrote, adding: “If the white paper intends to say that there are communications between at least Alfa and Trump, which are being intentionally hidden by Alfa and Trump I absolutely believe that is the case,” her email said.
So Lorenzen has good cause to be miffed with Durham’s insinuations in the indictment.
Which brings us to the passage that Cleveland face-planted on.
Durham brags that he has been so kind as to respond to Sussmann’s request for records suggesting that Durham’s team might be bullying or bribing witnesses.
On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.” Despite the inflammatory and unfounded nature of these accusations, the Special Counsel’s Office intends to produce these materials to the defense to avoid any suggestion that it seeks to conceal these communications for some bad purpose.
Sussmann made this request after having been shown — months after he was indicted — James Baker’s interview reports with Durham’s team, which Sussmann’s lawyers noted at a December 8 status hearing had radically changed from his past sworn statements. Sussmann’s lawyers made it clear they may argue at trial that Baker’s testimony changed because Durham threatened to charge the former FBI lawyer if he didn’t change his story. And that’s clearly why, just days after seeing how dramatically Baker’s sworn testimony did change, Sussmann made this discovery request. Sussmann wants to test whether Durham has been pressuring witnesses — Baker, as well as others — to back Durham’s baseless conspiracy theories.
Durham is turning over this material not, as he suggests, out of the spirit of generosity. Rather, he’s turning it over because, to survive as Special Counsel long enough to write his report, he needs to avoid giving Merrick Garland cause to fire him. Sussmann has effectively put Durham on notice that he’s going to ask every witness whether they were bullied to tell a false story. And if Durham were to sit on records even hinting at such bullying, withholding them in discovery when the complaint is bound to come out at trial would provide Garland that cause for firing.
Which makes it all the more interesting that Durham stated he had included reports of calls with Lorenzen’s lawyer specifically.
numerous reports of phone calls between the Special Counsel team and counsel for several witnesses or subjects in this investigation, including counsel for the individual referred to in the Indictment as “Originator-1;”
Complaints from Lorenzen would be neither Jencks — the requirement to provide the interview reports and grand jury testimony from witnesses the prosecution plans to call at trial — nor Giglio — the requirement to tell defendants about any benefits witnesses received for their testimony. That’s because Durham is treating Lorenzen as a subject of the investigation, not a witness. Like all Fusion employees, Rodney Joffe, and all but one employee of the Clinton Campaign, she is not listed as having been interviewed. That suggests either that Durham still wants to charge Lorenzen as part of his conspiracy charge or that he tried to subpoena her and she told him she’d invoke the Fifth. (According to an earlier Sussmann filing, Durham has immunized at least one witness and he could do so with Lorenzen as well if he really wanted her testimony.)
Of course Lorenzen has a complaint. While I don’t think Durham leaked her identity (he doesn’t need to because there’s a whole slew of researchers, including suspected Russian agents, who guarantee anything he says will soon be attached to a name), he improperly included insinuations about Lorenzen not backed by any evidence as part of his grand conspiracy theory about why Sussmann lied. He has done real reputational damage to Lorenzen without presenting any evidence to back such damage.
Durham provided Sussmann whatever complaints she made about the reputational harm he had done to cover his ass — to ensure it doesn’t get him fired — because Sussmann has the ability to obtain (and may have already obtained) such records from Lorenzen directly.
For now, then, Durham has protected himself.
But if it were to come out, as I think is likely, that DOJ has in its possession information about someone who claimed to have brokered one of the more incendiary parts of the Alfa Bank story, someone who fabricated other Internet routing data in May 2016 (the month that, Alfa Bank claims, its own data started getting spoofed), it might make any bullying Durham has done of Lorenzen the kind of thing that would be actionable against Durham. All the more so if Durham had not provided such information in discovery to Sussmann (which would be shocking, but I’m getting used to being shocked by Durham’s incompetence).
Durham has covered his ass, for now. But if it came out that Durham insinuated Lorenzen had fabricated this data even though DOJ knows of a more likely candidate to have done so, that would cause all sorts of new problems for him.
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Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.
I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff. However, our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S. Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.
Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.
Durham’s statement came shortly after he obtained two Blackberries — one dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.
It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.
164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.
[snip]
484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.
This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.
[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.
The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.
This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).
For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.
[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.
Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.
On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.
Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.
Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.
Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.
Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).
But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.
On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.
That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.
It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.
Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.
Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.
the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;
And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.
Third, in January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.
At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.
As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).
Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.
And that may have a real impact at trial.
At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.
Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.
Effectively, they claimed they had better information when questioning Baker than anyone previously had.
Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.
But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)
All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.
John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.
Update: Judge Cooper has granted Durham’s extension.
Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.
After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.
This post has been updated to reflect how Durham learned he already knew of the phones.
All evidence from wiretaps or eavesdropping (there appears to be none)
All communications regarding Sussmann’s security clearance reviews (900 pages)
Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails
October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession
October 13: Durham issues a formal discovery request to DOJ IG
October 13: Sussmann asks for Priestap’s notes
October 20: Sussmann reviews Priestap’s notes
October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”
November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25
November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting
December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery
December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript
December 10: Sussmann asks for records “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others”
December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip
December 23: Durham gives Sussmann forensic report from DOJ IG tip
Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself
January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone
January 6: FBI Inspection Division tells Durham that DOJ IG has Baker’s phones
January 7: Durham asks DOJ IG about the phones
January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)
January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip
January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann
January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)
January 26: DOJ IG provides second forensic reports on the phones to Durham
January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago
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Brandon Straka released a post-sentencing statement announcing that he is self-deplatforming to Rumble and GETTR and claiming that the “left wing media” turned DOJ’s discussion of Straka’s cooperation into a narrative that “Trump Ally Turning Over Significant Information About January 6th.” [emphasis Straka’s] The closest to that phrase I can find (aside from Straka’s own comments posted to 4chan) is Politico, which is owned by right wingers, as well as the gay press.
Straka may in fact be more worried that the right wing press labeled him a snitch, not least because he uses the phrase later in his own statement.
The statement is interesting for several reasons.
First, Straka doesn’t deny the obstruction of the vote count that he should have been charged with. He explains asking his followers to “HOLD. THE. LINE” after he had been instructed by Ali Alexander, ““Everyone get out of there … The FBI is coming hunting,” that this was just about a peaceful protest, not physically occupying the Capitol to prevent Joe Biden’s win from being certified.
Some of my comments on January 6th and the following days have been highly scrutinized and my intent speculated. In particular, one stated to “HOLD. THE. LINE.” in addressing the people at the Capitol. You should all know that I was present on the East side of the Capitol and never witnessed any of the violence taking place on the West side that day. I shot video of the thousands of peaceful protestors standing on the East side singing songs and holding signs. This was the scene when I left the grounds. My statement was to encourage the thousands of peaceful protestors to stand their ground- after all, peaceful protests are still protected by our constitution, right?
Straka doesn’t deny being told about the violence on the west side. He falsely claims to have filmed only peaceful activities, when he in fact filmed himself encouraging rioters as they stole a cop’s shield.
More importantly, he doesn’t address that he was encouraging these “protestors” to continue to obstruct the vote certification.
And, again, he was doing so after he himself had left after having been warned about an incoming FBI presence.
Particularly given something that Straka said to Trump appointee Dabney Friedrich at sentencing (which I’ll return to once I find the best video), I find this comment from Straka of particular interest.
In the three and a half years that I have been working in the world of politics, I have not attained ANY INFORMATION of ANY KIND about any criminal wrongdoing of any person in the MAGA movement. That includes every person from the very bottom of up to Donald Trump and every person in between. It would be impossible for me to “snitch” or “turn people over” because I have NOTHING to share.
I do not believe that there was any kind of plot or scheme to initiate violence on January 6th. I do not believe that any kind of plot or plan or scheme will ever be discovered because I feel 100% certain no such thing exists. Like most of you, I’ve employed common sense and come to the conclusion that a very small percentage of people did some very bad things that day, and that this was a spontaneous riot that broke out without planning. If any evidence of anything ever comes to light, I will be as shocked as anybody else.
I have NO INFORMATION of any kind of share about any crime others in the MAGA movement have committed at any point, even prior to January 6th.
But he, again, does not deny there was a plot to obstruct the vote certification.
More interesting, given DOJ’s apparently belated discovery of Straka’s activities leading up to January 6, is his statement denying knowledge of crimes “prior to January 6th.”
Particularly given the way Straka sees what came earlier as separate from January 6th, Straka’s plea deal might not cover crimes he committed in that earlier period.
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Last weekend, the UK formally released an intelligence assessment that part of Russia’s plans in Ukraine involve a plot to replace Volodymyr Zelenskyy with a pro-Kremlin functionary.
The NYT version of the story noted that the four people named in the alleged plot all have ties to Paul Manafort.
All four of the other Ukrainians named in the communiqué once held senior positions in the Ukrainian government and worked in proximity to Paul Manafort, former President Donald J. Trump’s campaign manager, when he worked as a political adviser to Ukraine’s former Russian-backed president, Viktor F. Yanukovych. After Mr. Yanukovych’s government fell in 2014, they fled to Russia.
It also claimed that, because of a division of labor within the Five Eyes, this intelligence came from the UK.
In Washington, officials said they believe the British intelligence is correct. Two officials said it had been collected by British intelligence services. Within the informal intelligence alliance known as “Five Eyes,” Britain has primary responsibility for intercepting Russian communications, which is why it played a major role in exposing Russian interference in the 2016 elections.
I noted that you might make such a claim if the collection point (reflected in the Manafort tie) were not a legal NSA target to the US.
Indeed, NBC’s Ken Dilanian explained (but did not include in his story) that this was US intelligence announced by the UK.
It would make sense that this kind of intelligence came from the US — though if it did, it might well come from the FBI, not NSA.
When Manafort traded campaign strategy to Russia for relief from his debt to Oleg Deripaska on August 2, 2016, his cooperation in a series of similar efforts to install a Russian functionary to head Ukraine was part of the deal. Citing numerous documents obtained from Manafort’s devices, Mueller made public Manafort’s participation in the effort through the time he went to jail in 2018.
We can be certain that FBI has continued its investigation of such issues. We can be sure of that because we know (in part from Treasury’s increasing focus on Kilimnik) that FBI has developed a better understanding of Konstantin Kilimnik’s role in both 2016 and his ongoing efforts to undermine US democracy in 2020. We know that because DOJ continues to protect large swaths of Mueller’s files on Kilimnik’s other American partner, Sam Patten, which significantly focused on who was who in Ukraine and the various tools Russia used to manage the country via client politicians. The same is true of Rick Gates’ interviews. But we also know that, thanks in part to Trump’s continued ties to anti-democratic efforts in Ukraine, the FBI has continued to investigate what has been going on in Ukraine. Not only has EDNY conducted an investigation into Andrii Derkach, but Special Master Barbara Jones just handed over a bunch of Rudy Giuliani’s communications involving such issues to the FBI.
One thing we learned from all those investigations was that Paul Manafort was the guy Oleg Deripaska had employed, for years, to use the tools of modern campaigning, leavened by a great deal of corruption, to install puppet governments who would cater to Deripaska’s business interests. In 2016, Russia deployed Manafort to the United States to do the same thing in the US.
With the distance of almost six years, it may be safe to say that Russia succeeded in their 2016 attempt to interfere in the US election not so much from a failure of US intelligence collection in Russia (after all, the FBI warned the DNC it was being hacked in real time). It was — in addition to a misunderstanding of the WikiLeaks operation — a failure of US intelligence collection in Ukraine, whence the human side of the operation was significantly launched. The US has dedicated a good deal of energy to addressing that failure in recent years, though Russia continued to use Ukraine as a platform from which to undermine US democracy through the 2020 election.
Ukraine was then, as now, the test ground for Russia’s larger efforts to either subject “democracy” to the whims of kleptocracy or discredit democracy beyond the ability to govern. Among the things Russia tested on that ground was the 2017 NotPetya attack, which did devastating damage to a slew of companies who did nothing more than do business with Ukraine; I would be surprised if Putin hadn’t at least entertained similar efforts in the months ahead.
Before 2016, the US had the hubris to believe its own democracy was immune from such efforts (and that its tolerance for money laundering would not, in fact, foster kleptocracies on the other side of the world that could damage the US in turn).
Amid debates about how (or whether) the US should respond to Russia’s aggression, some have raised real questions whether, in the wake of January 6, the US has any place lecturing Ukraine about its democracy and whether the US wouldn’t be better, instead, putting its own house in order. It’s a fair question. But it misunderstands how 2016 led directly to January 6. It also misunderstands Russia’s project in Ukraine and beyond, which is of a piece with its earlier attack on American democracy.
We may not have a NATO commitment to defend Ukraine from Russia’s assault (though we do have a NATO commitment to defend NATO allies that Russia has likewise threatened). But we’ve recently seen that attacks on Ukraine are just the prototype for larger attacks elsewhere.
Update: Both Jonathan Swan and Jonathan Weisman have pieces out today attempting to explain why Tucker Carlson and Marjorie Greene Taylor are rooting for Putin in his aggression against Ukraine that don’t mention that Putin helped get Trump elected.
The backstory: Two observable shifts have happened in the GOP electorate over the past 15 years. The first is a growing skepticism about foreign intervention in general — frustration and anger still fueled by the disastrous wars in Iraq and Afghanistan.
The second is a more recent warming towards Russia — initiated by the party’s most powerful figure, Donald Trump.
Trump’s rhetoric about Putin was a far cry from 2012 when the GOP presidential nominee Mitt Romney warned that Russia was America’s “number one geopolitical foe.” (Prominent Democrats mocked Romney at the time but in the age of Trump endorsed his view and apologized).
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Update: Judge Friedrich sentenced Straka to 3 months home confinement and 36 months of probation. She repeatedly described his offense as worse than that of trespassers given that he encouraged them to breach the Capitol and defended the attack after the fact.
Brandon Straka did not start fundraising for the cops whose assault he cheered …
… Until a week after his second batch of leniency letters started coming in, and over 45 days after he pled guilty.
In fact, there’s no evidence in the public record that Straka ever gave any of that money to cops, not even the 75% he claimed to plan to donate, much less the 25% he was skimming from the top. There’s just a dated claim that it would be donated “at the conclusion” of a year that ended 20 days before the filing claiming it would be donated.
Since January 6, Brandon has spent a lot of hard time reflecting on his role in the events that took place that tragic day. He has offered strong condemnation for any violence used that day, especially the violence perpetrated against police. Additionally, Brandon has been actively using his platform to support law enforcement officers. Upon visiting the #WalkAway Foundation website, the first option presented is to donate to the “Refund the Police” initiative: “#WalkAway will donate 75% of the funds raised to pro-police organizations in [the fourteen (14) cities most affected by defunding initiatives]. The other 25% will be used for the cost of overhead for this campaign.”2 This initiative will close at the conclusion of this year; and is close to having raised over $18,000.00 at this time.
2 See #WalkAway Foundation Homepage last accessed Dec. 14, 2021, available at https://www.walkawayfoundation.org/.
That’s important because Brandon Straka really wants to continue doing such grifting as a public service in lieu of having Probation monitor his social media and finances, much less serve jail time for his role in inciting an insurrection. He even asks to pay $5,000 as a fine to be allowed to dodge further scrutiny of his grift.
The Defendant respectfully requests that he be sentenced to either a terminal disposition of time served for the two days he has already spent in custody, or in the alternate, a term of home confinement and community service. Defendant requests that he not be placed on probation. Defendant also requests that the Court impose the maximum fine permitted for this offense, which is $5,000.
[snip]
If the Court would allow Brandon to have included in his sentence a stronger portion of community service rather than a sentence of Probation, the country at large will be better served. The nature of Brandon’s job requires that he often travels, making supervision more difficult and costly—and to what end? Brandon has already been on Pretrial Release for nearly a year with no violations. He clearly has the capability to contribute to the greater good through fundraising and leading others into service with him. While the Probation Office’s Recommendation sees Brandon’s following as a reason for concern3, it is the Defendant’s belief, and Counsel for the Defendant’s belief, that his talents can be put to better use than verifying that he is in compliance with certain conditions of Probation—that if he is given true freedom, that he will use that freedom in service of his country.
[snip]
Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.
3 The government has never alleged, and there is no evidence, that Brandon used his following to commit any criminal activity. Brandon is charged for conduct he committed at the Capitol in his personal capacity.
Whether or not there is evidence that Straka used his online presence to prevent the peaceful transfer of power (and there is, though DOJ may have discovered it after entering into this dud plea agreement), Straka’s own story materially conflicts regarding what he did on January 6, 2021.
Straka’s own letter to Judge Dabney Friedrich implies that he went directly from Trump’s speech to the Metro and because he did so he had no way of knowing there was a violent riot going on.
I sat in the front row at the Ellipse and listened to the President of the United States speak. He concluded by telling the crowd that we were all now going to march “peacefully” to the Capitol. Everything felt perfectly normal and exactly in accordance with the schedule of events for that day. I then walked to the DC Metro On the way to the Capitol, I began getting text messages from people I knew who were at home watching the news on television indicating that people were going inside the Capitol building. Shortly after, I started getting numerous messages from the other scheduled speakers, some asking if our event was still happening, if it was now cancelled- it was total confusion. I was of 2 minds at this point. Either,
#1) The event is still happening and I’m still speaking, and that’s what I came all the way to DC to do. Or
#2) The event may no longer be happening, but SOMETHING is going on at the Capitol right now, and I want to be there to capture footage of whatever it is that’s going on. [my emphasis]
His sentencing memo describes that he came to DC to speak on January 5, and only stayed over because he was one of the very inflammatory people who were offered speaking slots on January 6 but who got canceled (!!!) at the last moment.
Prior to the January 6, 2021 rally at which then-President Donald Trump was set to speak, Brandon was set to speak at a rally held at Freedom Plaza on January 5, 2021 and travelled to Washington, D.C. for that purpose. Brandon remained in Washington, D.C. after the rally on January 5, 2021, as he was a potential slated speaker at a rally the next day. On the morning of January 6, 2021, Brandon arrived at the Ellipse at 5:00 a.m. in anticipation of then-President Trumps’ rally to start. Up until the time Brandon arrived at the event, he believed that he might speak at that event.
More problematic still, Straka’s sentencing memo describes that in-between Trump’s rally and the riot, Straka went to the Willard Hotel, where a bunch of his associates were plotting to steal the election (he doesn’t mention that fact), and where his “security guards” alerted him that it was too dangerous to walk the 28 minutes to the Capitol, which is why he instead took the Metro to the far side of the Capitol, spending perhaps 38 minutes in transit.
When President Trump concluded his remarks around 1:00 p.m., a wave of protestors left the Ellipse and headed toward the Capitol. At this time, Brandon left the Ellipse and traveled to the Willard Hotel to meet with two of his employees who were designated as security guards. Upon the advice of his security guards, Brandon did not participate in the march to the Capitol and instead took the Metro to the Capitol. While riding on the Metro, Brandon began receiving push notifications on his phone about what was happening at the Capitol. The Metro did not stop at the Capitol, and Brandon got off at the next stop—which was roughly an 18-minute walk from the Capitol.
By the time Brandon arrived, at around 2:40 p.m. (a full twenty minutes after the Capitol had been cleared), the outer barriers and fencing that had previously surrounded the Capitol were largely displaced. Brandon arrived and approached the East side of the Capitol, where things were calmer; and Brandon did not notice anything out of the ordinary during most of his walk to the Capitol.
And that version is off by at least two and possibly 22 minutes off from Straka’s sworn statement of offense.
Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m. He then knowingly entered the restricted area at the U.S. Capitol Grounds.
The revised story would have him arriving to the Capitol seven minutes after (prosecutors noted in their own sentencing memo) he was informed his speech was delayed because “they stormed the Capitol.”
At 2:33 pm on January 6, 2021, Michael Coudrey, the national coordinator for Stop the Steal, sent a message to a group chat telling those in the chat that the event that Straka was scheduled to speak at would be delayed because “They stormed the capital[sic].”
And that’s important, because Straka claims that when he said some inflammatory things on social media, he didn’t know about the violence.
Brandon made statements on social media that were in retrospect irresponsible and potentially inflammatory. Any statements Brandon made must be considered in context with the fact that Brandon had not witnessed the violence committed on the west side of the Capitol and he had not seen what was broadcasted on television. Once understanding the full context of the events, Brandon retracted and removed his prior statements.
Finally, it’s curious that DOJ is relying on a ProPublica story for the notice from Coudry (to say nothing of Ali Alexander’s warning, “Everyone get out of there … The FBI is coming hunting”). That’s because Straka claims to have provided prosecutors passwords to whatever phones he still had in his possession when the FBI searched his apartment.
Brandon cooperated fully with law enforcement, including providing two proffers and turning over the password to all devices seized as part of the search warrant executed on his apartment. Brandon provided information on individuals the government was investigating in separate cases and answered all questions posed by the government.
There’s abundant evidence that Straka is bullshitting prosecutors, and was bullshitting them when he got a sweet plea deal.
Indeed, with the inconsistencies between his letter to Dabney Friedrich and his own sentencing memo, the evidence shows he’s bullshitting Judge Friedrich.
I don’t know what excuses Probation scrutinizing Brandon Straka’s grift more closely than the FBI. I don’t know what targets DOJ was so desperate to implicate that they missed the target sitting in front of them.
But even his own sentencing package makes it clear he’s shoveling cow shit.
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The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.
He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.
But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.
That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.
To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).
Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).
That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.
Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.
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But those are all references of import to understand this footnote in the letter Bennie Thompson sent to Ivanka Trump, inviting her to testify voluntarily.
The Select Committee is aware of the motivation of many of the violent rioters from their posts on social media, from their contemporaneous statements on video, and from the hundreds of filings in federal court.11
11 For example, many defendants in pending criminal cases identified President Trump’s allegations about the “stolen election” as a motivation for their activities at the Capitol; a number also specifically cited President Trump’s tweets asking that supporters come to Washington, D.C. on January 6th. See, e.g., United States of America v. Ronald L. Sandlin https://www.justice.gov/opa/page/file/1362396/download: “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” United States of America v. Marshall Neefe and Charles Bradford Smith https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download: “Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” United States of America v. Caldwell et al. https://www.justice.gov/usao-dc/case-multi-defendant/file/1369071/download: “Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”
The Select Committee could have chosen any number of individual defendants to support the claim that Trump was the motivating force for the participants of the mob that stormed the Capitol on January 6.
It did not.
Instead, without saying that it had, it cited three conspiracy indictments: a conspiracy that involved totally random guys who met online coming armed to DC and assaulting officers to break open the East doors and break into the Senate chamber, a conspiracy where guys armed themselves to come to DC based on a motivation that, “Why shouldn’t we be the ones” to kick off war, and a conspiracy that has now officially been charged as sedition.
What the Select Committee just said to Ivanka, very subtly (and without the hotlinks to these court filings to make it easy) is that multiple organizers across multiple conspiracies — all involving arming themselves before traveling to DC — acted on Trump’s comments in December and January as instructions.
What the Select Committee has laid out in this footnote is that key members of conspiracies that led to violent assaults on January 6 entered into an agreement with Donald Trump to engage in violence.
Other coverage of this letter has focused on the many other scathing details included in it:
Proof that Trump knew he was making an illegal request of Mike Pence (and that Ivanka knew such pressure was wrong)
Proof that multiple people attempted to get Trump to call off the violence (and that staffers repeatedly asked Ivanka to intercede to get him to do so)
Proof that advisors including Kaleigh McEnany and Sean Hannity attempted to get Trump to disavow these efforts
In response to the letter, Ivanka issued a statement making it clear that on January 6 she disavowed the violence caused by her father.
Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”
But that doesn’t account for another detail of the letter that has gotten far less attention than the eye-popping new details about Trump’s actions: Chairman Thompson reminded Ivanka (in a paragraph that seemingly addresses another topic) not just of the requirements of the Presidential Records Act, but also that she got formal notice of those requirements in 2017.
The Select Committee would like to discuss this effort after January 6th to persuade President Trump not to associate himself with certain people, and to avoid further discussion regarding election fraud allegations. We also wish to share with you a memorandum from former White House Counsel Donald McGahn (attached), regarding the legal requirements on White House personnel to turn over to the National Archives any work-related messages from personal devices. We wish to be certain that former White House staff are fully aware of these obligations.
Ivanka, of course, is not just the former President’s daughter. She’s also someone legally obliged to share all the communications conducted while performing whatever role it is she played in the White House — up to and including begging her Daddy to call off a violent mob — with the National Archives.
Thompson would not have mentioned this if the committee had been able to obtain Ivanka’s side of many of these communications from the Archives (or at least seen them in documents Trump was attempting to claim privilege over). Thompson seems to know that Ivanka is not in compliance with the Presidential Records Act specifically as it pertains to her role on January 6.
Here’s the thing about conspiracies. Once you join them, you’re in them — you’re on the hook for what all other co-conspirators do, from acquiring weapons to bring to DC, to assaulting cops, to planning to overthrow the government — unless you make an affirmative effort to leave the conspiracy.
Ivanka might well point to that comment in her statement — The violence must stop immediately — as an effort to leave a conspiracy.
Except if she is covering up some of the things she knows by withholding records from the Archives, she’s going to have a hard time arguing that she didn’t remain in the conspiracy with all those people plotting violence by helping to cover it up.
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https://www.emptywheel.net/wp-content/uploads/2022/01/Screen-Shot-2022-01-21-at-12.31.16-PM.png464248emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-01-21 07:42:112022-01-21 10:11:02Bennie Thompson to Ivanka: Come In from the Conspiracy
