“Whether Others … Said Untrue Things on the Internet Does Not Exonerate” Trump

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Obstinately adhering to the pre-existing pre-trial schedule even though Trump’s immunity appeal has stayed all deadlines, Jack Smith just submitted a motion in limine asking to exclude a bunch of things from any eventual January 6 trial.

Altogether, the filing asks Judge Chutkan to exclude the following:

  1. Claims of selective and vindictive prosecution that will be settled when Chutkan rules on Trump’s motion to dismiss on the same topic
  2. Claims of investigative misconduct based on Carol Leonnig’s misleading article about the investigation
  3. Topics — such as claims that the First Amendment covers his alleged fraud — that are matters of law
  4. The consequences Trump might face, including electoral, if the jury convicts
  5. Claims that law enforcement did not adequately prepare for January 6
  6. Claims that January 6 was a FedSurrection incited by undercover feds
  7. Claims that the disinformation of foreigners, and not Trump’s own lies, mobilized January 6
  8. Discussions of revisions to the Electoral College Act passed to prevent Trump from criming (in this particular way) again
  9. Opinions from others about Trump’s state of mind
  10. Attempts to elicit witnesses to invoke privileges — such as attorney-client or Speech and Debate

The most important of these is what I’ve listed as number 9: an attempt to get witnesses to expound about what Trump’s state of mind was.

The defendant’s state of mind during the charged conspiracies will be a key issue at trial. Both parties will introduce circumstantial evidence of the defendant’s state of mind, and the defendant may choose to testify himself. But the defendant should be precluded from eliciting speculative testimony from any witnesses other than himself about the defendant’s state of mind or beliefs about the election or his claims of election fraud. In the particular circumstances here, such testimony—which would go to an ultimate issue for the jury’s consideration—would be speculative, unhelpful to the jury, and unfairly prejudicial, and should thus be excluded.

Eliciting such speculation from witnesses about what the defendant knew or believed would violate Rule 602’s precept that all non-expert witnesses must testify based only on “personal knowledge,” and Rule 701’s requirement that non-expert witnesses can provide opinion testimony only if it is based on personal knowledge and is helpful to the jury.

[snip]

Allowing witnesses to share their personal views about the defendant’s state of mind likely will only distract the jury from its duty to assess and weigh the facts, as opposed to the speculation of fact witnesses. Because a witness’s personal opinion about the defendant’s beliefs or knowledge has little or no probative value, any weight the jury gives to it is likely to be undue and based on improper considerations.

This is the kind of testimony that Trump-friendly witnesses — even Mike Pence!! — have often offered in the press. And Trump could call a long list of people who’d be happy to claim that Trump believed and still believes that the election was stolen.

But as the filing notes, that would be inadmissible testimony for several reasons. It would also be a ploy to help Trump avoid taking the stand himself.

That said, there are several quips in the filing, which was submitted by Molly Gaston (who has had a role in earlier Trump-related prosecutions), that are more salient observations about Trump.

For example, in one place, the government argues that Trump should not be able to argue (as he has in pretrial motions) that it’s not his fault if his rubes fell for his lies.

A bank robber cannot defend himself by blaming the bank’s security guard for failing to stop him. A fraud defendant cannot claim to the jury that his victims should have known better than to fall for his scheme. And the defendant cannot argue that law enforcement should have prevented the violence he caused and obstruction he intended.

Relatedly, the government notes that it doesn’t matter if (as he has also argued) foreign actors also spread disinformation.

Next, any argument that foreign actors—rather than the defendant, and his ceaseless, knowingly false claims of election fraud—were responsible for inflaming his followers and causing the Capitol riot is nothing more than an infirm third-party guilt defense.

[snip]

[I]n any event, whether others—be they civilians or foreign actors—said untrue things on the internet does not exonerate the defendant for the lies he told to his followers or the criminal steps he took to illegally retain power.

In 2016, Russians got too much credit for the lies they told on the Internet, absolving the more effective right wing trolls (some of whom themselves had ties to Russia) with which Trump had direct ties. In advance of his trial, Trump has tried to repeat that error, blaming Russia (and China) for his far more systematic and powerful lies.

While Judge Chutkan won’t have opportunity to rule on this motion for months yet, Molly Gaston is trying to lay a marker that, this time, Trump will be credited for the power and effect of his own lies.

Rudy’s Seized Devices Were More Useful for Investigating January 6 than Marie Yovanovitch’s Firing

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On April 28, 2021, the FBI seized up to 18 devices from Rudy Giuliani. On Tuesday, DOJ unsealed the affidavit behind that seizure.

The affidavit, read in conjunction with Barbara Jones’ Special Master reports, Rudy’s privilege log from the Ruby Freeman lawsuit, and a filing he submitted in that suit provide abundant evidence that the devices FBI seized on April 28, 2021 were more useful for investigating January 6 than any suspected FARA violations involved in the firing of Marie Yovanovitch.

And this goes well beyond Robert Costello’s claim that a number of the devices seized from Rudy were corrupted.

The affidavit, as written, was narrow: it only covered FARA violations tied to the role of Yuriy Lutsenko and other Ukranians in the firing of Ambassador Yovanovitch in spring 2019. While there is evidence cited in the affidavit from a broad period of time (for example, describing Rudy’s public admissions that he did certain things in early 2019 later that year), the last overt act described in the affidavit is of someone — probably Victoria Toensing — texting Rudy on May 9, 2019, complaining that people were asking about whether she had registered under FARA and denying that she had a client.

Remarkably, then, the affidavit asked for — and Judge Paul Oetken authorized — the authority to seize “any and all” devices at Rudy’s office and home almost two years after that last overt act.

Judge Oetken authorized that search and seizure even though one of the phones described in the affidavit — an Apple iPhone X that Rudy first started using on January 20, 2021 — could not possibly have been used in the suspected crime described in the affidavit. And three more of the devices described in it, including another iPhone, were only put in use later in 2019.

I’ve long argued that by September 2021, DOJ at least contemplated obtaining other warrants to access that content (because SDNY successfully argued to do the privilege review on all content that post-dated January 1, 2018). But given the scope of those devices, it looks likely that there was at least one other affidavit presented to Oetken in April 2021, one that would justify seizing those later devices.

This table shows (on the vertical axis) the devices that Rudy says were seized and (on the horizontal axis) the devices that FBI thought they’d find.

While Rudy’s own description of these devices (including the model number of the MacBook used in planning January 6, here listed as A22251) is as unreliable as everything else about him, the FBI didn’t find the two iPhone Xes — one used between January 8, 2018 and August 13, 2019, the other used between April 5 2018 and August 27, 2019, both marked in yellow above — that would have been Rudy’s primary phones during the events described in the affidavit.

Just three devices — two iPads and one iPhone 11 — clearly match the description of what the FBI expected to find.

All of them were, according to Rudy’s description (marked in the vertical “January 6 column”), among those used in planning January 6.

Whichever iPhone 11 they did find is almost certainly device that Special Master Jones labeled as device 1B05, the privilege review of which she described this way:

I next assigned for review the chats and messages that post-dated January 1, 2018 on Device 1B05, which is a cell phone. There were originally 25,481 such items, which later increased to 25,629 after a technical issue involving document attachments was identified. An initial release of non-designated items was made to the Government’s investigative team on November 11, 2021.1

Of the total documents assigned for review, Mr. Giuliani designated 96 items as privileged and/or highly personal. Of those 96 designated items, I agreed that 40 were privileged, Mr. Giuliani’s counsel withdrew the privilege designation over 19, and I found that 37 were not privileged. I shared these determinations with Mr. Giuliani’s counsel, and they indicated that they would not challenge my determination that the 37 items are not privileged. The 40 privileged documents have been withheld from the Government’s investigative team and the remaining 56 were released on January 19, 2022.

1 Additional non-designated items were released on January 19, 2022.

Those 25,000 chats were easily the most voluminous content turned over from any one device to the FBI. Of all the chats that Rudy attempted to withhold from that phone, he ultimately only succeeded in withholding 40 items. 40 chats or texts out of 25,000 total.

262 items in Rudy’s privilege log come from that phone. Another 127 come from a device, 1B09, also used to text about January 6 (including with Mark Meadows), which — given the date scope — must have been among the first devices Jones reviewed. That’s one possible source of a Ken Chesebro document included in the indictment but not identified in the January 6 Report.

And while Rudy withheld those documents from Ruby Freeman, since Jones only permitted Rudy to withhold 43 items total from DOJ, those must have been deemed non-privileged in the Special Master review. (I’ve noted before that there are easily 40 items that clearly relate to Rudy’s own lawyers.)

They were all turned over to DOJ, for use with whatever investigative teams had obtained warrants to access them, no later than January 21, 2022.

This is one thing Rudy accomplished by defaulting on discovery: Withholding from Ruby Freeman, and therefore from a public trial that would precede Republican primaries, documents that were turned over to DOJ in January 2022.

By April 2021 when — using warrants approved on Lisa Monaco’s first day on the job, but nevertheless a year after Bill Barr started obstructing this investigation — the FBI came looking for devices involved in Rudy’s suspected FARA violations tied to getting Marie Yovanovitch, they didn’t find the devices he would have been using at the time.

They did, however, find three devices on which Rudy planned January 6. And because of the way DOJ did the privilege review on those devices, those records would have been made available to any investigators with a lawful warrant no later than January 21, 2022.

Perjury Trapped: Rudy Giuliani’s Sync Sink

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As I noted here, I’m just beginning to go through the warrants from SDNY’s Lev Parnas and Rudy Giuliani investigation the NYT liberated.

I want to start with a very minor point about the apparent inconsistencies between what SDNY found when they conducted searches on Rudy’s cloud and what Rudy claimed — purportedly under penalty of perjury — before Beryl Howell.

In the Ruby Freeman case — the first one, not her renewed suit to enjoin him from continued lies about her — Rudy claimed that he didn’t need to separately search his messaging accounts, because his phones were all synced to his iCloud.

All of my [redacted]@icloud.com iCloud data would have also been included in the TrustPoint data because I synced my iCloud to my devices.

But SDNY, when they searched his iCloud back in 2019, discovered that known messages were not there.

On or about November 4, 2019, the USAO and FBI sought and obtained from the Honorable J. Paul Oetken, United States District Judge for the Southern District of New York, a warrant (the “November 4 Warrant”) for records in iCloud accounts belonging to Giuliani and [Victoria Toensing].

[snip]

As discussed above, on November 4, 2019, the FBI and USAO sought and obtained a search warrant for, among other things, Giuliani’s iCloud account. However, the iCloud did not contain many of the text messages outlined above with Parnas and [Fruman] during the December 2018 to April 2019 time frame. Based on my training and experience, as well as my review of records provided by Apple, I believe the iCloud account did not contain text communications from early 2019 because Giuliani did not backup that content, or removed it from the backup, and not because it does not exist. Indeed, for the reasons set forth below, including Giuliani’s public statement that he has retained potentially relevant communications on his cellphones, there is probable cause to believe that, unlike the iCloud account, evidence of the Subject Offenses continue to be maintained on the Subject Devices.

But, according to Robert Costello, in a declaration that — unlike Rudy’s — was actually notarized and so worth something if you ignore the obvious spin in his representations of what SDNY told him — when SDNY reviewed at least seven of those devices, they were corrupted.

Rudy’s messaging wasn’t in his iCloud when SDNY looked in 2019. And it wasn’t in his phones when SDNY looked in 2021. And yet this year, he claimed the content in both places would be the same.

Colorado Accelerates Timeline and Scope of SCOTUS Review of Trump’s January 6 Conduct

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Colorado just booted Trump from the ballot, building on the lower court ruling that no only was January 6 an insurrection, but Trump is an officer thereby disqualified to be President.

I’m not going to read the opinion closely — I’m sure the whole world will do that.

This ruling’s impact will be more important for the way it will accelerate and expand the scope of the Supreme Court’s review of Trump’s January 6 conduct. The state has stayed their decision until January 4, giving Trump time — but not much — to appeal.

Therefore, to maintain the status quo pending any review by the U.S. Supreme Court, we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.

There’s a non-zero possibility this will lead SCOTUS to accelerate their consideration of the Absolute Immunity appeal, which is more important in the near and long term. After all, if Trump were found guilty, then states really could and should consider the 14th Amendment implications.

One more point: Because Trump will have appealed by January 4, he will be on the primary ballot, giving SCOTUS lots of time to consider this issue before the General. But it really does put the onus on SCOTUS to decide a lot of these issues quickly.

11th Circuit Adopts DC Logic that Mark Meadows and Trump’s Campaigning Is Not an Official Act

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The 11th Circuit just ruled that Mark Meadows cannot remove his prosecution in the Georgia case to Federal court. The primary basis for the ruling is a technicality: That removal only applies to current federal officials, not former ones.

But the court, in an opinion by Chief Judge William Pryor, also explained that they wouldn’t have approved the removal in any case because Meadows (and by extension, Trump) had no authority over state elections and electioneering of Meadows (and by extension, Trump) was not in their official duties.

This passage, for example, adopts the logic of Amit Mehta’s opinion in Thompson, which was in turn adopted in Sri Srinivasan’s opinion in Blassingame, but does so to the criminal context.

Electioneering on behalf of a political campaign is incontrovertibly political activity prohibited by the Hatch Act. Campaigning for a specific candidate is not official conduct because the office of the President is disinterested in who holds it. See Thomspson, 590 F. Suppl. 3d at 82. Indeed, the political branches themselves recognize that electioneering is not an official federal function.

Elsewhere, Pryor’s opinion solidly debunks Meadows argument — adopted by Trump’s in his own filings — that the Take Care Clause gave him basis to intervene.

Meadows argues that the Take Care Clause, U.S. CONST. art. II, §3, empowers the President with broad authority to “ensure that federal voting laws are enforced.” But he concedes that the President has no “direct control” over the indidviduals — members of Congress and state officials — who conduct federal elections. And tellingly, he cites no legal authority for the proposition that the President’s power extends to “assess[ing] the conduct of state officials.” We are aware of no authority suggesting the Take Care Clause empowers federal executive interference with state election procedures based solely on the federal executive’s own initiative, and not in relation to another branch’s constitutionally-authorized act.

These are precisely the issues that the DC Circuit or, if it accepts Jack Smith’s appeal, SCOTUS, will be reviewing in weeks ahead. And by the time whoever reviews it does so, a very conservative judge will have backed the same logic coming out of DC.

Say Her Name: The Story of Ruby Freeman and Shaye Moss’ Vindication

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After a jury awarded Ruby Freeman and her daughter $148 million for the intentional lies the former president’s former lawyer told about them in an attempt to steal an election, this is some of what Freeman had to say:

Good evening everyone. I am Lady Ruby. Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter and held him accountable. And for that I’m thankful. Today is not the end of the road. We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable too. But that is tomorrow’s work. For now, I want people to understand this. Money will never solve all of my problems. I can never move back to the house that I called home. I will always have to be careful about where I go and who I choose to share my name with. I miss my home, I miss my neighbors, and I miss my name.

Freeman’s daughter, Shaye Moss, said this:

As we move forward, and continue to seek justice, our greatest wish is that no one — no election worker, or voter, or school board member, or anyone else — ever experiences anything like what we went through. You all matter and you are all important. We hope no one ever has to fight so hard just to get your name back.

For the women — vindicated by a jury of their peers, Rudy Giuliani’s peers, doing their civic duty — winning this substantial recognition of the damage done to them was about getting their name back.

The comments from the women said so much about the damage that Trump and Rudy’s bullying have done to the nation’s civic fiber.

But that’s not what led the coverage of their victory.

Rudy did.

Here’s how WaPo covered it.

WaPo first named Freeman and Moss in ¶3 of the story. The entire story quotes just 23 of their collective words after the verdict (though quotes or describes their testimony at more length, starting 24¶¶ into the story, after repeating Rudy’s false accusations about the women and the debunking presented at trial.

The damages verdict came in a defamation lawsuit filed against Giuliani, 79, by Fulton County, Ga., election workers Ruby Freeman and Wandrea ArShaye “Shaye” Moss, whom Trump and others on the former president’s campaign and legal teams falsely accused of manipulating the absentee ballot count in Atlanta.

“Today is a good day,” Freeman said, standing outside the courthouse with Moss after a jury awarded the mother and daughter pair $75 million in punitive and $73 million in compensatory damages for defamation and emotional distress.

[snip]

Their attorneys in closing arguments had urged jurors to “send a message” to Giuliani and others in public life that the “facts matter.” On Friday Moss added, “Giuliani was not the only one who spread lies about us, and others must be held accountable, too.”

By comparison, WaPo cited 58 words from Rudy’s post-verdict comments, with pushback on his claims that he hadn’t had a chance to present a case, but not on his comment that if the 2020 election weren’t exposed we wouldn’t have a country anymore.

Though the story described the verdict as a “potentially worrying sign for him as he faces criminal charges in Georgia accusing him of related efforts to overturn Biden’s victory there,” it didn’t talk about how some of the evidence Rudy withheld in discovery might have made that plight worse.

Here’s how Politico covered it (placed on the front page behind a 1,250-word story purporting to describe how impeachment will work, without mentioning there’s no evidence of wrongdoing).

Politico got the names of Ruby Freeman and Shaye Moss in the subhead and the second paragraph.

Politico sandwiched some of Freeman’s comments, 47 quoted words in ¶19, in-between two paragraphs — starting at ¶9 and in ¶24– quoting 49 words of Rudy’s comments.

A few minutes later, Giuliani stood outside the courthouse and declared, “I don’t regret a damn thing.”

The former mayor and federal prosecutor called the monetary award “absurd” and said he would appeal. He denied responsibility for the threats and harassment that Freeman and Moss received — including a bevy of unambiguously racist, violent messages — and said that he receives “comments like that every day.”

[snip]

“Today’s a good day. A jury stood witness to what Rudy Giuliani did to me and my daughter — and held him accountable,” Freeman told reporters after the verdict was delivered. “We still have work to do. Rudy Giuliani was not the only one who spread lies about us, and others must be held accountable, too,” she said, without elaborating.

[snip]

But after the verdict on Friday, Giuliani offered a different reason for declining to take the stand: “I believe the judge was threatening me with the strong possibility that I’d be held in contempt or that I’d even be put in jail,” he said.

Giuliani didn’t repeat his false claims about Freeman and Moss Friday, but continued to air false claims that the 2020 election was stolen. “My country had a president imposed on it by fraud,” he declared.

Rather than mentioning Moss’ tribute to other civil servants, Politico focused closely on tensions between Rudy and his attorney, Joe Sibley.

Even though the reporters on this story, Kyle Cheney and Josh Gerstein, provide some of the best coverage of all things January 6, the story didn’t mention that by blowing off discovery in this case, Rudy may have tried to keep evidence hidden from Jack Smith.

Like the other outlets, NYT’s story led with an image of Rudy.

But it focused paragraphs two through four on the women.

Judge Beryl A. Howell of the Federal District Court in Washington had already ruled that Mr. Giuliani had defamed the two workers, Ruby Freeman and Shaye Moss. The jury had been asked to decide only on the amount of the damages.

The jury awarded Ms. Freeman and Ms. Moss a combined $75 million in punitive damages. It also ordered Mr. Giuliani to pay compensatory damages of $16.2 million to Ms. Freeman and $16.9 million to Ms. Moss, as well as $20 million to each of them for emotional suffering.

“Today’s a good day,” Ms. Freeman told reporters after the jury delivered its determination. But she added that no amount of money would give her and her daughter back what they lost in the abuse they suffered after Mr. Giuliani falsely accused them of manipulating the vote count.

Because of that early focus, the dead tree version of today’s paper got Freeman’s name — and her declaration that it was a good day — on page A1 three times.

It closed with Freeman’s promise of more.

“Our greatest wish is that no election worker or voter or school board member or anyone else ever experiences anything like what we went through,” she said.

And while this is a an artificial measure, this NYT story also managed to quote more of Freeman’s speech — 31 words — than Rudy’s — 28. While it quoted Rudy attacking the verdict and standing by his lies, it did not repeat his other lies.

As with all the others, this story didn’t consider whether Rudy was protecting himself criminally by withholding related information in discovery.

I get that these measures are totally artificial. I mean this as observation, not criticism.

I get that Rudy is the famous one, Rudy makes this a tale of downfall. Even bmaz made this about Rudy, not the women who faced him down, Ruby Freeman and Shaye Moss.

But I was really really struck by how, even in their vindication, the heroism of what these women did, the heroism of election workers refusing to be bullied, still wasn’t the focus.

Google Kills the Geofence Capability that Will Show ~30,000 Trump Supporters Swarmed the Capitol on Trump’s Orders

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At Trump’s trial, prosecutors will use Google Location data to show how Trump’s mobs responded to his order to march to the Capitol by doing just that: swarming the Capitol. That data will show that roughly a quarter of the people at the Ellipse, around 30,000 people, entered the restricted grounds outside the Capitol, committing at least trespassing on Trump’s instruction, of which 11,500 would be identified by their Google Location data.

Jack Smith’s prosecutors revealed that they will do this on Monday in an expert notice filing.

On Wednesday, Google announced that it will soon change the way Google Location works to make such analysis impossible in the future.

If you’re among the subset of users who have chosen to turn Location History on (it’s off by default), soon your Timeline will be saved right on your device — giving you even more control over your data. Just like before, you can delete all or part of your information at any time or disable the setting entirely.

If you’re getting a new phone or are worried about losing your existing one, you can always choose to back up your data to the cloud so it doesn’t get lost. We’ll automatically encrypt your backed-up data so no one can read it, including Google.

Additionally, when you first turn on Location History, the auto-delete control will be set to three months by default, which means that any data older than that will be automatically deleted. Previously this option was set to 18 months. If you want to save memories to your Timeline for a longer period, don’t worry — you can always choose to extend the period or turn off auto-delete controls altogether.

These changes will gradually roll out through the next year on Android and iOS, and you’ll receive a notification when this update comes to your account.

Orin Kerr first identified the significance of the change to surveillance capabilities: that it will make Google geofence warrants all but impossible. Forbes confirmed that Google is making the change with the intent of making it impossible to respond to geofence warrants.

But they missed one aspect of the timing. The announcement — of a change Google is implementing prospectively, a change that will take a year to implement — came days after prosecutors revealed they had obtained a Google warrant showing the movement of people from the Ellipse to the Capitol.

Expert 1

Expert 1 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the interpretation and visual representation of geographic location data. The Government expects that Expert 1 will testify about his/her use of ArcGIS (Geographic Information Systems) software to create a map of the Google location history data produced in response to a search warrant. Specifically, Expert 1 plotted the location history data for Google accounts and devices associated with individuals who moved, on January 6, 2021, from an area at or near the Ellipse to an area encompassing the United States Capitol building. His/her testimony will describe and explain the resulting graphical representations of that data, and it will aid the jury in understanding the movements of individuals toward the Capitol area during and after the defendant’s speech at the Ellipse. [my emphasis]

We had known that the FBI used Google geofence warrants — which identify all the people using Google Location services in a given geographic area — to identify individual January 6 suspects.

Challenges to the geofence — first by trespasser David Rhine and then by cop-sprayer Isreal Easterday — revealed that the FBI had gotten two geofence warrants (and had done three sets of de-anonymization of the data obtained): the first, on January 13, 2021, for just the Capitol building itself, and then the second, for the entire restricted area outside the Capitol, on May 21, 2021.

The warrant described in Tuesday’s expert notice must be a third warrant, one building off the May 2021 one. Perhaps the FBI asked Google for all the selectors found in the May 2021 warrant (who, with the important exception of journalists, were either victims, first responders, or trespassers), that also showed up in a geofence at the Ellipse while Trump was speaking.

There would be no need to de-anonymize these selectors. Those of investigative interest for their own actions at the Capitol would have been de-anonymized with one of the earlier warrants. This warrant is about capturing the effect of Trump’s speech, measuring how many people who attended the speech itself — Trump claims 120,000 did so — then moved to the Capitol.

Of those who moved, only a third or less would trigger the geofence (and fewer among Apple users). But it would include most of the 11,500 people who had already been identified and de-anoymized. altogether, that’s consistent with 30,000 people being at the Capitol.

Trump is claiming that just 1% of those who heard his incitement went on to join the insurrection. This expert witness will show it’s closer to a quarter of the total.

There were, undoubtedly, a range of reasons why Google made the decision to end its ability to respond to geofence requests. As Forbes noted, the Fourth Circuit also heard the government’s appeal of Okello Chatrie’s successful challenge of a geofence this week. Early next year the DC Circuit will review Rhine’s appeal of its use with him. The Easterday challenge made it clear that Google geofences work best on Android devices — meaning Google was making it easier for law enforcement to investigate its customers over Apple’s.

But Google announced this decision — of prospective changes — months ahead of the time when a geofence will be used to prove the crimes of Donald Trump.

It’s likely at least partly an attempt to pre-empt the blowback that is bound to result.

Update: To clarify some responses I’m getting to this. Killing the geofence capability won’t affect the evidence against Trump at all. Prosecutors already got the warrant and did the analysis on the results. This will only prospectively make Google geofence warrants impossible, and not even immediately.

Easterday challenge

une 30, 2023: Motion to Compel, Declaration

August 22, 2023: Opposition Motion to Compel

September 26, 2023: Motion to Suppress Geofence

October 10, 2023: Opposition Motion to Suppress

October 17, 2023: Reply Motion to Suppress

October 26, 2023: Guilty Verdict

November 25, 2023: Supplement Opposition Motion to Suppress

Donald Trump Says He Can Only Work Over Christmas If He’s Planning a Coup

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There’s a passage of Trump’s opposition to fast-tracking the DC Circuit review of Judge Tanya Chutkan’s opinion holding he is not immune from criminal prosecution that has gotten a lot of attention: Where he accuses Jack Smith of being a mean old Grinch.

Even if the Court grants expedited consideration—which it should not do—it should not adopt the prosecution’s proposed schedule, which is facially unreasonable. The prosecution “requests that the Court require the defendant’s opening brief be due no later than ten days from the entry of a briefing order,” Mot. 5-6—which, assuming the Court rules promptly on the motion to expedite after the close of briefing, would make President Trump’s opening brief due the day after Christmas. This proposed schedule would require attorneys and support staff to work round-the-clock through the holidays, inevitably disrupting family and travel plans. It is as if the Special Counsel “growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming. … But how?’” DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).

Trump shouldn’t have to reschedule his holidays to make his argument that he is above the law, he says.

The argument is obnoxious on its face. All the more so because Trump has been known to work over Christmas.

Indeed, Donald Trump worked his ass off — as did many of his closest aides and his lawyers — over Christmas 2020.

On December 18, Trump had the famous meeting to discuss seizing the voting machines. On December 19, he tweeted out the “Will be wild” announcement, kicking off efforts around the country to travel to DC for the rally. On December 21, he had a planning call with members of the Freedom Caucus. On December 22, Trump approved an ad buy to pressure governors. On December 22, Trump met with Scott Perry and Jeffrey Clark. On December 22, Mark Meadows attempted to enter the counting area in Cobb County, GA. On December 22, Trump gave a speech in which he defamed Ruby Freeman and Shaye Moss. On December 23, Trump called Georgia investigator Frances Watson and suggested that he she showed him winning by hundreds of thousands, “you’ll be praised.” On December 23, Trump accused Georgian election officials of being “Terrible people.” On December 23, Trump had an Oval Office meeting with Doug Mastriano and other Pennsylvania State Senators. On December 23, John Eastman fine-tuned his scheme to have Vice President Pence pick and choose which votes to count. On December 23, Trump tweeted out about Operation PENCE Card. On Christmas Day, Trump called Rusty Bowers and asked him to support the fake elector scheme. Also on Christmas, Trump tried to persuade Pence to reject Biden votes. On December 26 and 27, Scott Perry developed his plan to have Jeffrey Clark intefere at DOJ. On December 27, Trump harangued Jeffrey Rosen and Richard Donoghue for two hours in an attempt to get them to support his false claims of fraud, before he suggested he might install Clark. On December 27, he spoke with Roger Stone about plans for January 6, including his own plan to speak. On December 27, Trump started getting more involved in planning the event, beginning to discuss a march to the Capitol. On December 27, Trump boosted January 6 again. On December 28, Rudy’s team finalized their Strategic Communications Plan they’d been working on for weeks.

This is a non-exclusive list. Trump worked his ass off over the Christmas holiday in 2020.

So it’s not that Trump (or his lawyers) are averse to working through the holidays.

They’re only willing to do so, though, when planning a coup.

SCOTUS Takes Up January 6 Obstruction Challenge — But with Unknown Scope

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Today, SCOTUS granted cert to one of the initial challenges to 18 USC 1512(c)(2), that of Joseph Fischer.

Depending on what they do with the appeal, the review could have significant effect on all the January 6 cases charging obstruction — over 300 defendants so far, including Trump.

But no one knows how broadly they will be reviewing this appeal.

On its face, the only thing being appealed in Fischer is whether this statute requires document tampering.

Did the D.C. Circuit err in construing 18 U.S.C. § 1512(c) (“Witness, Victim, or Informant Tampering”), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence?

If SCOTUS upheld the DC Circuit opinion (and all the underlying District opinions), nothing would change. If it overturned the DC Circuit opinion, then hundreds of cases of rioters would be thrown out.

Remember that defendants have always likened the January 6 attack with the interruption by protestors of Brett Kavanaugh’s confirmation hearing (there are significant differences, starting with the fact that all the protestors who disrupted Kavanaugh’s hearing were in the building legally). So I wouldn’t even rule out some set of Republicans rejecting this application on those grounds.

But it’s not clear that would affect the charges against Trump. That’s because Trump’s obstruction does involve document tampering: the forged elector certificates.

It’s possible, though, that SCOTUS will also review a more contentious issue: the definition of “corrupt purpose” in the statute. Fischer addresses that deeper in the petition.

While some courts have limited Section 1512(c)(2)’s scope by a particular definition of the critical mens rea element—“corruptly”—they have not defined it uniformly. See Miller, 605 F. Supp. 3d at 70 n.3. And the D.C. Circuit’s lead opinion declined to define it all, even while stating that “corrupt intent” limited Section 1512(c)(2)’s reach. Compare Pet. App. 17a-18a with Pet. App. 20a. The lead opinion nonetheless acknowledged three potential definitions:

1. Corruptly means conduct that is “wrongful, immoral, depraved, or evil.” Pet. App. at 18a (quoting Arthur Anderson LLP, 544 U.S. at 705, discussing 18 U.S.C. § 1512(b)).

2. Undertaken with a “corrupt purpose or through independently corrupt means, or both.” Pet. App. 18a-19a (quoting United States v. Sandlin, 575 F. Supp. 3d 16, 30 (D.D.C. 2021) (citing United States v. North, 910 F.2d 843, 942-43 (D.C. Cir. 1990) (Silberman, J., concurring and dissenting in part)).

3. Conduct that involves “voluntarily and intentionally [acting] to bring about either an unlawful result or a lawful result by some unlawful method, with a hope or expectation of either financial gain or other benefit to oneself or a benefit of another person.” Pet. App. 19a (quoting Aguilar, 515 U.S. at 616-17) (Scalia, J., concurring).

Here, SCOTUS could adopt the more restrictive definition of corrupt benefit, option 3.

In that case, it’s not clear what would happen with the crime scene defendants: at the DC Circuit, Justin Walker argued that Trump supporters might have obtained a corrupt purpose if Trump were unlawfully retained.

But for Trump, there’s no question: He was attempting to retain one of the most valuable jobs in the world through unlawful means.

All of which is to say, SCOTUS’ decision to review the case is huge — though not entirely unexpected.

But we won’t know what to make of the review for some time.

Update: I had been anxiously waiting to see what Steve Vladeck had to say about this. He notes that SCOTUS took Fischer but not Miller and Alam, which had been joined to it.

All three defendants filed cert. petitions challenging the D.C. Circuit’s decision. The Department of Justice filed a single, consolidated brief in opposition—and the Court’s website used to reflect that the three cases had been “vided” (meaning that they were being considered alongside each other). Thus, it’s really strange that the Court granted Fischer, but not Lang and Miller. (And then quietly removed the notation from Fischer’s docket page that the case was tied to Lang and Miller.) Yes, the Court often holds parallel cases for a lead case, but not after both the court of appeals and the government had already consolidated them.

Part of why it’s weird is because all three petitions raise the question presented in Fischer—the actus reus question. The other two petitions also raise the mens rea question (and Fischer does not), but if the Court was interested in answering the actus reus question in general (and only the actus reus question), it could easily have granted all three petitions only on that question.

Otherwise, the only difference I can readily discern between Fischer and the other two cases is that Fischer entered the Capitol later on January 6 (after the Joint Session recessed). But it’s hard to believe that the Court is intervening in an interlocutory posture (remember, the cases have not yet gone to trial) because it wants to draw a temporal distinction among which January 6 rioters can and can’t be prosecuted under 1512(c)(2).

All of this is to say that, if the Court really was interested in narrowing the scope of 1512(c)(2) to align with Judge Katsas’s dissent in Fischer, I don’t get why the Court would sever cases that had hitherto been consolidated.

 

It Was Donald Trump, in the Dining Room, with the Twitter Account

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In spite of the fact that Jack Smith recognizes Trump’s interlocutory appeals of absolute immunity and double jeopardy will stay proceedings, as promised, his team nevertheless met a preexisting deadline yesterday: To provide expert notice.

Two of the notices describe how DOJ will show that the mob moved to the Capitol after Trump told them to.

The demonstration, and probably even the experts, are a version of something shown in a great number of January 6 trials already.

The third expert, however, has generated a great deal of attention. That expert will describe what two White House phones show about the actions Trump — and possibly another person, Individual 1 — took with those phones.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

I’m particularly interested in the identity of Individual 1. Johnny McEntee told the January 6 Committee that Trump sometimes used his phone (albeit while traveling); the stolen documents indictment shows that he also used Molly Michael’s phone. Dan Scavino had access to Trump’s Twitter account.

But I’m not at all surprised by the fourth bullet point: The focus on when the phone was unlocked and open to Twitter on January 6.

It’s the counterpart of what I laid out in this post — and will undoubtedly be mirrored by the search returns from Trump’s Twitter account.

That post explained that the metadata involving attribution that Jack Smith’s team obtained from Twitter was probably at least as important as any DMs Trump received (and they only obtained around 32 DMs involving Trump’s account, what prosecutors called a “minuscule proportion of the total production”), because prosecutors would need to attribute the Tweet that almost got Mike Pence killed.

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

[snip]

[O]ne thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Indeed, Thomas Windom said as much: “user attribution is important.”

What Jack Smith plans to do with the other evidence — what images the two phones had on them and what websites they visited — may actually be more interesting. After all, we know far less about the December 19 Tweet that kicked off the entire insurrection than we do the Tweet that almost got Trump’s Vice President killed. Somehow Trump’s Twitter account got the data from Peter Navarro that Trump’s account then tweeted out, announcing the January 6 rally. This expert testimony will be part of how prosecutors describe what happened.

But as to the Tweet that almost got Mike Pence killed? We know that. It was Donald Trump, alone in the dining room, with the lethal Twitter account.