January 6 Insurrection Archives - Page 19 of 77

Mark Meadows’ Middling Path: There Are Several Paths to Prosecute Donald Trump

August 21, 2023/93 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Two things happened over the weekend that may provide more clarity about Mark Meadows’ fate in the twin Trump investigations in which he’s implicated.

Second in terms of order but I’ll deal with it first, ABC had a big scoop about key parts of his testimony in the stolen documents case. There are four key disclosures about Meadows’ testimony.

Meadows knew of no standing order to declassify documents
He was not involved in packing boxes, didn’t see Trump doing so, and wasn’t aware Trump had taken classified documents

Meadows offered to sort through boxes of documents after NARA inquired about them in May 2021, but Trump declined the offer
Meadows ultimately backed his ghostwriter’s account that the Iran document that Trump described to Meadows’ ghost-writer was on the couch in front of him at the time of the exchange

The circumstances around Meadows’ testimony about his ghost-writer are the most telling. As ABC describes it, his ghost-writer sent him a draft that conflicted with the final copy of his book. That draft described that when Trump boasted about an Iran document he could use to prove Mark Milley wrong, it was in front of him on the couch. After receiving the draft, Meadows edited out the account that would provide proof Trump was sharing a classified document at Bedminster.

But a draft version of the passage initially sent to Meadows by his ghostwriter, which was reviewed by ABC News, more directly referenced the document allegedly in Trump’s possession during the interview.

“On the couch in front of the President’s desk, there’s a four-page report typed up by Mark Milley himself,” the draft reads. “It shows the general’s own plan to attack Iran, something he urged President Trump to do more than once during his presidency. … When President Trump found this plan in his old files this morning, he pointed out that if he had been able to make this declassified, it would probably ‘win his case.'”

Investigators may have found this by obtaining a warrant for Meadows’ email and discovering it as a clearly non-privileged attachment, by subpoenaing Meadows’ ghost writer, or both. It would be unsurprising if Jack Smith obtained Meadows’ email from 2020 through the FBI search of Mar-a-Lago, particularly given reports that his account got a privilege review too, and attachments are often the most interesting things obtained from cloud warrants.

The discrepancy between the draft and the final — hinting that Meadows recognized the document to be particularly sensitive — may have driven investigative focus on the document, leading Smith to obtain several recordings of the conversation and ultimately testimony sufficient to charge Trump’s willful retention of it in the superseding indictment.

Just as significantly, for a read of Meadows’ posture towards the dual investigations into Trump: ABC describes that his testimony changed. At some unspecified original interview (by context it appears to have been before the MAL search), Meadows said that he edited that passage because he didn’t believe it. But, apparently in that first interview, he conceded that if Trump did have the document in Bedminster to share with his ghost-writer, it would be problematic.

Sources told ABC News that Meadows was questioned by Smith’s investigators about the changes made to the language in the draft, and Meadows claimed, according to the sources, that he personally edited it out because he didn’t believe at the time that Trump would have possessed a document like that at Bedminster.

Meadows also said that if it were true Trump did indeed have such a document, it would be “problematic” and “concerning,” sources familiar with the exchange said.

But then Meadows’ own testimony changed — possibly at the April grand jury appearance mentioned by ABC.

Meadows said his perspective changed on whether his ghostwriter’s recollection could have been accurate, given the later revelations about the classified materials recovered from Mar-a-Lago in the months since his book was published, the sources said.

Meadows’ explanation for his changed testimony is not all that credible. It sounds like, as he came to understand how solid the case against Trump was, he became less interested in exposing himself to legal troubles by protecting him.

But for Meadows’ purposes, it likely doesn’t have to be. Meadows was not a direct witness to this incident. After prosecutors spent much of the spring fleshing out what happened here, it seems, Meadows conceded the points that were necessary. And the concession may well have been key to the inclusion of the document in the indictment(s): because it meant a witness who might otherwise have provided exculpatory testimony was locked into testimony that did not dispute the testimony of the direct witnesses against Trump.

Importantly, this is not the testimony of a cooperating witness. It is the testimony of someone prosecutors have coaxed to tell the truth by collecting so much evidence there’s no longer room to do otherwise. And it is testimony, if Meadows provided it at that April grand jury appearance, obtained four months after Fani Willis lost her grand jury as an investigative tool.

Which brings us to Meadows’ motion to dismiss the Georgia charges against him, submitted in federal court in NDGA.

The day after the GA indictment, Meadows’ attorneys filed to have it removed from GA to federal court because he was a senior government official during the events in question; this was expected from him, and still is expected from Trump and Jeffrey Clark. The next day, Judge Steve Jones ruled that he had to hear the challenge — effectively ruling that there was nothing procedurally wrong with Meadows’ demand.

Then Friday, Meadows’ team submitted their motion to dismiss the Georgia charges against him. Again, this was expected. But I also expected the brief to be far stronger than it is. It is an example where a team of superb lawyers argue the law — 19 pages of citations before they finally get around to addressing the alleged facts, and several more pages of law but not facts to follow.

Meadows’ motion makes three arguments about how the law applies to the alleged facts:

Meadows’ alleged actions in the GA indictment fall within his duties as Chief of Staff
But for his position as Chief of Staff which required him to remain close to provide advice, he would not have done the actions alleged
His actions were legal at the federal level

The first two points are closely related and appear in two successive paragraphs. It is true that Meadows’ job was to arrange whatever calls the President wanted to make. And most — but not all — of Meadows’ alleged Georgia acts fit into that kind of thing.

The question is not whether Mr. Meadows was specifically authorized or required to do each act, but whether they fall within “the general scope of [his] duties.” Baucom, 677 F.2d at 1350. They surely do. As noted, those duties included information-gathering and providing close and confidential advice to the President. Moreover, as explained below, the State’s characterization of one of these acts as violating state law is wholly irrelevant. See Part II.B, infra. Stripped of the State’s gloss, the underlying facts entail duties with the core functions of a Chief of Staff to the President of the United States: arranging or attending Oval Office meetings, contacting state officials on the President’s behalf, visiting a state government building, and setting up a phone call for the President with a state official. Those activities have a plain connection to his official duties and to the federal policy reflected in establishing the White House Office. [my emphasis]

From there, Meadows argues that if he weren’t Chief of Staff to epic scofflaw Donald Trump, he wouldn’t have been doing these unlawful things for Donald Trump, and if he had simply left the room to object, then he wouldn’t be in the room to provide close and confidential advice.

The “nexus” is readily apparent. Only by virtue of his Chief of Staff role was Mr. Meadows involved in the conduct charged. Put another way, his federal position was a but-for cause of his alleged involvement. Moreover, if Mr. Meadows had absented himself from Oval Office meetings or refused to arrange meetings or calls between the President and governmental leaders, that would have affected his ability to provide the close and confidential advice that a Chief of Staff is supposed to provide. It is inescapable that the charged conduct arose from his duties and was material to the carrying out of his duties, providing more than merely “some nexus.”

Thus far (and ignoring that not all of the charged conduct in Georgia qualifies), this argument actually makes perfect sense for the removal and dismissal argument. Several of the actions charged against Meadows in Georgia really are about arranging meetings and phone calls for the President.

And the argument that Meadows had to stick around to provide advice is stronger than you might think.

It’s where Meadows’ team argues that his actions were legal at the federal level where, in my opinion, the argument starts to collapse — but also where this filing hints at more about Meadows’ strategy for avoiding charges himself.

Meadows team recites the alleged Georgia acts as Judge Jones has characterized them on page 19 and then directly quotes the references to Meadows in the federal indictment on page 26. It helps to read them a table together:

There’s an arc here. The early acts in both indictments might be deemed legal information gathering. After that, in early December, Meadows takes two actions, one alleged in Georgia and the other federally, both of which put him clearly in the role of a conspirator, neither of which explicitly involves Trump as charged in the Georgia indictment. Meadows:

Asks Johnny McEntee for a memo on how to obstruct the vote certification
Orders the campaign to ensure someone is coordinating the fake electors

The events on December 22 and 23, across the two indictments, are telling. Meadows flies to Georgia and, per the Georgia indictment, attempts to but fails to access restricted areas. Then he flies back to DC and, per the federal indictment, tells Trump everything is being done diligently. Then Meadows arranges and participates in another call. Both in a tweet on December 22 and a call on December 23, Trump pressures Georgia officials again. For DOJ’s purposes, the Tweet is going to be more important, whereas for Georgia’s purposes, the call is more important. But with regards his argument for removal and dismissal, Meadows would argue that he used his close access to advise Trump that Georgia was proceeding diligently.

On December 27, Meadows calls and offers to use campaign funds to ensure the signature validation is done by January 6. This was not Meadows arranging a call so Trump could make the offer himself, it was Meadows doing it himself, likely on behalf of Trump, doing something for the campaign, not the country.

On January 2, Meadows participates in the Raffensperger call, first setting it up then intervening to try to find agreement, but then ultimately pressuring state officials not so much to just give Trump the votes he needs, which was Trump’s ask, but to turn over state data.

Meadows: Mr. President. This is Mark. It sounds like we’ve got two different sides agreeing that we can look at these areas ands I assume that we can do that within the next 24 to 48 hours to go ahead and get that reconciled so that we can look at the two claims and making sure that we get the access to the secretary of state’s data to either validate or invalidate the claims that have been made. Is that correct?

Germany: No, that’s not what I said. I’m happy to have our lawyers sit down with Kurt and the lawyers on that side and explain to my him, here’s, based on what we’ve looked at so far, here’s how we know this is wrong, this is wrong, this is wrong, this is wrong, this is wrong.

Meadows: So what you’re saying, Ryan, let me let me make sure … so what you’re saying is you really don’t want to give access to the data. You just want to make another case on why the lawsuit is wrong?

Meadows was pressuring a Georgia official, sure, but to do something other than what Trump was pressuring Raffensperger to do. His single lie (he was charged for lying on the call separately from the RICO charge), one Willis might prove by pointing to the overt act from the federal indictment on December 3, when Jason Miller told Meadows that the number of dead voters was not 10,000, but twelve, is his promise that Georgia’s investigation has not found all the dead voters.

I can tell you say they were only two dead people who would vote. I can promise you there were more than that. And that may be what your investigation shows, but I can promise you there were more than that.

But even there, two is not twelve. Meadows will be able to challenge the claim that he lied, as opposed to facilitated, as Chief of Staff, Trump’s lies.

Finally, in an overt act not included in the Georgia indictment, Meadows is among the people on January 6 who (the federal indictment alleges) attempted to convince Trump to call off the mob.

There’s a lot that’s missing here — most notably Meadows’ coordination with Congress and any efforts to coordinate with Mike Flynn and Roger Stone’s efforts more closely tied to the insurrection and abandoned efforts to deploy the National Guard to protect Trump’s mob as it walked to congress. Unless those actions get added to charges quickly, Meadows will be able to argue, in Georgia, that his actions complied with federal law without having to address them. If and when they do get charged in DC, I’m sure Meadows’ attorneys hope, his criminal exposure in Georgia will be resolved.

Of what’s included here, those early December actions — the instruction to Johnny McEntee to find some way to obstruct the January 6 vote certification and the order that someone coordinate fake electors — are most damning. That, plus the offer to use campaign funds to accelerate the signature match, all involve doing campaign work in his role as Chief of Staff. For the federal actions, Jack Smith might just slap Meadows with a Hatch Act charge and end the removal question — but that might not help him, Jack Smith, make his case, because several parts of his indictment rely on exchanges Meadows had privately with Trump, and Meadows is a better witness if he hasn’t been charged with a crime.

Aside from those, Meadows might argue — indeed, his lawyers may well have argued to Jack Smith to avoid being named as a co-conspirator — that his efforts consistently entailed collecting data which he used to try to persuade the then-President, using his access as a close advisor, to adopt other methods to pursue his electoral challenges. Meadows’ lawyers may well have argued that several things marked his affirmative effort to leave the federally-charged conspiracies. In this removal proceeding, I expect Meadows will argue that his actions on the Raffensperger call were an attempt, like several others, to collect more data to use his close access as an advisor to better persuade the then-President to drop the means by which he was challenging the vote outcome.

Meadows’ motion to dismiss is weakest because he doesn’t explain there was any federal policy interest in these actions, much less an executive branch one. The early December activities — the order to Johnny McEntee to find a way to delay the vote certification that both the Constitution and the Electoral College Act reserve to Congress and the order to coordinate fake electors overstep executive authority. How Georgia tallies their vote, which Meadows might otherwise claim were efforts to advise Trump, is reserved to Georgia. There’s no federal policy interest here because Trump’s efforts stomped on the prerogatives of both Congress and the state of Georgia.

The 19 pages of Meadows’ motion to dismiss that discuss the law in isolation of the facts mentions the centrality of federal policy 9 times. The part that discusses the facts uses the word “policy” twice (once, which I’ve bolded, in the Secretary of State passage cited above), but makes no effort whatsoever to describe how these actions — particularly the intervention into matters reserved for Congress and the states — pertained to federal policy. These very good lawyers simply never get around to applying their law about intervention, which pivots on federal policy, to the facts. Instead, their argument relies much more heavily on their claim that, particularly since Meadows hasn’t been charged, Willis won’t be able to prove that Meadows’ actions violated federal law. That argument will only matter if they succeed in getting the case removed to federal court.

Between the overt political nature of three of his actions and the lack of any policy argument, Fani Willis should be able to mount an aggressive challenge to this effort, though the effort is not entirely frivolous and Meadows has very good lawyers even if those lawyers don’t have great facts.

But there’s a bunch more going on here.

First, as I noted in this post, these prosecutors are using different strategies to get Trump to trial. Willis, who can’t be fired by Trump if he wins in 2024, charged broadly and presumably hopes to use the RICO exposure to flip some of the key conspirators as witnesses against others. Smith, who may have a much shorter clock (but who also has both indicted crimes, but also his financial investigation, to play off each other), has chosen to charge Trump for January 6 alone, with six people identified as unindicted co-conspirators. Smith seems to believe he can introduce all the evidence he needs to convict Trump relying on the hearsay exception just for those six unindicted co-conspirators. He hasn’t made Meadows a co-conspirator, and so is confident he can get Meadows to take the stand and testify to the facts alleged in the indictment.

Until now, the two investigations have not coordinated, though something Willis said in her press conference suggested that perhaps they’ve started talking now, possibly to exchange evidence as permitted under grand jury rules.

Reporter: Have you had any contact with the special counsel about the overlap between this indictment and–

Willis: I’m not going to discuss our investigation at this time.

Plus, they’ve been working on different tracks. Willis had to take overt steps earlier, mostly last summer, and lost her power to compel testimony in December (though she has immunized all but three of the fake electors in recent months). While DOJ was provably doing covert things during Willis’ overt investigation, most of DOJ’s overt acts took place since Willis lost investigative subpoena power.

Willis, who has close ties to January 6 Committee and certain TV lawyers, may well believe their propaganda about how little DOJ was doing, and likewise may share their (provably incorrect, given what we’ve seen in the Steve Bannon and Peter Navarro contempt prosecutions) view that DOJ could have and should have prosecuted Meadows for contempt for blowing off the J6C. She may believe she needs to, and that it is key to her case, to flip Meadows.

That’s where the ABC report that Meadows changed his testimony about the Iran document is instructive. When he was interviewed in what may have been an interview before the August search of Mar-a-Lago, Meadows said he believed his ghost-writer was incorrect when they claimed Trump had the Iran document in front of him. When Meadows testified before Willis’ grand jury, he offered next to nothing, invoking the Fifth Amendment repeatedly.

Using the Fifth Amendment or citing various legal privileges was a strategy that the grand jury saw from several of the most prominent witnesses, including Trump White House chief of staff Mark Meadows, according to [investigative grand jury foreperson Emily] Kohrs.

“Mark Meadows did not share very much,” she said. “I asked if he had Twitter, and he pled the Fifth.”

Now, at least in the stolen documents probe, Meadows has reversed his prior testimony, explaining that given how damning the facts against Trump are in that case, he thinks his ghost-writer is probably correct about the Iran document being there on the couch.

Meadows also provided compelled, executive privilege-waived testimony since, grand jury testimony obtained before both federal indictments against Trump, grand jury testimony that Smith’s prosecutors used to lock Meadows into a certain story.

These dynamics may explain the curious sequence as portrayed across the two indictments from December 22 and 23, 2020.

On or about the 22nd day of December 2020, MARK RANDALL MEADOWS traveled to the Cobb County Civic Center in Cobb County, Georgia, and attempted to observe the signature match audit being performed there by law enforcement officers from the Georgia Bureau of Investigation and the Office of the Georgia Secretary of State, despite the fact that the audit was not open to the public. While present at the center, MARK RANDALL MEADOWS spoke to Georgia Deputy Secretary of State Jordan Fuchs, Office of the Georgia Secretary of State Chief Investigator Frances Watson, Georgia Bureau of Investigation Special Agent in Charge Bahan Rich, and others, who prevented MARK RANDALL MEADOWS from entering into the space where the audit was being conducted. This was an overt act in furtherance of the conspiracy.

On December 23, a day after the Defendant’s Chief of Staff personally observed the signature verification process at the Cobb County Civic Center and notified the Defendant that state election officials were “conducting themselves in an exemplary fashion” and would find fraud if it existed, the Defendant tweeted that the Georgia officials administering the signature verification process were trying to hide evidence of election fraud and were “[t]errible people!”

On or about the 23rd day of December 2020, DONALD JOHN TRUMP placed a telephone call to Office of the Georgia Secretary of State Chief Investigator Frances Watson that had been previously arranged by MARK RANDALL MEADOWS. During the phone call, DONALD JOHN TRUMP falsely stated that he had won the November 3, 2020, presidential election “by hundreds of thousands of votes” and stated to Watson that “when the right answer comes out you’ll be praised.” This was an overt act in furtherance of the conspiracy.

Given what Kohrs said about Meadows’ grand jury appearance, we can be sure that all of the claims in Willis’ indictment come from Georgia witnesses. A bunch of people will testify that Meadows tried to force his way into a restricted area — itself suspicious as hell — and Frances Watson will testify that after Meadows reported back, he arranged a call on which Trump harangued her in such a way that is entirely inconsistent with having been told that Meadows told Trump the Georgia investigators were “conducting themselves in an exemplary fashion.”

Meanwhile, that “exemplary fashion” claim could only have come from Meadows’ grand jury testimony, almost certainly in April. Sandwiched between the two overt acts in the Georgia indictment, it is not all that credible. But we can be sure it is locked in as grand jury testimony.

The degree to which subsequent events, including the Georgia indictment, may discredit Meadows’ federal grand jury testimony likely explains why we’ve gotten the first ever leak as to the substance of Meadows’ testimony, which often serves as a way to telegraph testimony to other witnesses. Several of the things ABC describes him as testifying to — that he had no idea Trump took classified documents and that he offered to sort through everything but Trump refused — seem unlikely. But so long as whoever else could refute that (including Walt Nauta, who helped pack up the boxes) tells the same story, he might get away with improbable testimony.

With January 6, though, it’s far less likely he’ll get away with improbable claims before a grand jury, especially if he fails to get the prosecution removed to federal court.

That explains his rush. It explains why Meadows wants to prevent Trump’s and Clark’s motions for removal from causing any delay in his own, which is currently scheduled to be heard on August 28.

Because if and when any other federal crimes come out, his entire argument starts to collapse, particularly given that he failed to argue there was some policy interest in badgering Georgia officials.

Meadows appears, thus far, to have succeeded with a very tricky approach. He has great lawyers and it may well succeed going forward. But with all the indictments flying, that effort gets far more difficult, particularly given the way the overt acts in the Georgia indictment discredit Meadows’ federal grand jury testimony.

Update: I continue to write “Mar-a-Lago” when I mean Bedminster. Fixed an instance of that here.

What Is The Sound of a Dead Bird Xitting?

August 20, 2023/79 Comments/in 2016 Presidential Election, 2020 Presidential Election, Culture, Elections, Internet infrastructure, January 6 Insurrection /by Rayne

[NB: check the byline, thanks. /~Rayne]

This post contains observed and speculative material following the reported loss of content circa 2011-2014 at the former bird app.

~ ~ ~

Observed:

August 9, 2023 – D.C. Circuit Court of Appeals affirmed the D.C. district court’s earlier finding holding Twitter in contempt and assessing a $350,000 fine for failure to fully comply by the district court’s subpoena deadline.

August 16, 2023 6:41 a.m. ET – Marcy posted about Xitter’s sketchy behaviors in its response to a DOJ subpoena approved on January 17, 2023. Xitter has been held in contempt and assessed a $350,000 fine for failure to comply with the subpoena.

August 16, 2023 1:59 p.m. ET – Marcy posted about the importance of attribution related to January 6 tweets which could have gotten former VP Mike Pence killed. Twitter data could reveal the account login information and device used for the purposes of threatening Pence.

August 17, 2023 6:23 a.m. ET – Marcy posted about Elon Musk’s meetings with with Jim Jordan and Kevin McCarthy while Xitter’s internal and external legal team tap danced about the subpoena it had failed to comply with fully and on a timely basis. This dancing may have been an effort to protect Musk and his political network including certain members of Congress.

August 17, 2023 3:26 p.m. ET – Brazilian Xitter user Danilo Takagi posted,

Acabei de confirmar aqui. O Twitter/X removeu todas as mídias e imagens postadas de 2014 pra trás. Eles não tem dinheiro nem pra armazenamento mais. Artistas e criadores de conteúdo, vocês realmente ainda querem continuar usando esta rede?

[Translation from Portuguese: I just confirmed here. Twitter/X has removed all media and images posted from 2014 onwards. They don’t even have money for storage anymore. Artists and content creators, do you really want to continue using this network?]

August 19, 2023 11:31 a.m. ET – Xitter user Tom Coates confirms Danilo Takagi’s earlier observation:

More vandalism from @elonmusk. Twitter has now removed all media posted before 2014. Thats – so far – almost a decade of pictures and videos from the early 2000s removed from the service. For example, here’s a search of my media tweets from before 2014. https://twitter.com/search?q=From%3Atomcoates%20until%3A2014-01-01&src=typed_query&f=media

Xitter Birdwatch contributors added context:

Images before/around 2014 are still saved on Twitter/X’s servers, however, the t.co links appear to be broken at the moment.

The famous Ellen DeGeneres selfie from the 2014 Oscars is currently missing from her tweet. https://twitter.com/EllenDeGeneres/status/440322224407314432
But the original file is still available on their servers.
https://pbs.twimg.com/media/BhxWutnCEAAtEQ6?format=jpg&name=large
thttps://twitter.com/Accountabilabud/status/1693026133191819518?s=20

Each of the links above in the Birdwatch context field have not been available consistently; they have been converted by Xitter’s t.co link shortener when the tweet is shared but the shortened links may not work properly.

The erasure appears to be related in part to a “failure” of the t.co link shortener which eliminates accessibility to content, but this doesn’t explain why graphic media circa 2011-2014 is no longer available.

What the actual fuck is going on at Xitter?

~ ~ ~

Here are several prominent theories about the loss of media on Xitter:

• Musk is cutting costs, some say, by refusing to host media content.

It’s possible, but why 2011-2014 and not ALL of the former Twitter’s media content? Is this explanation consistent with the “failure” of the t.co shortener and loss of graphics in that date range?

• Musk is trying to damage social networks within Xitter for his personal political agenda, others say.

Again, why that specific range and not from the former Twitter’s inception?

• Musk is erasing cultural history, engaging in ethnocide or cultural genocide, noted by minority groups.

True. Erasing key parts of the Black Lives Matter movement’s inception and the social response to deaths which preceded it is one example targeted by this date range.

Also the erasure of Arab Spring-related content may be ethnocide.

You’re going to see folks making these points across social media, but there’s at least one more possible factor driving Musk’s erasure.

~ ~ ~

Speculative:

What if Musk is eliminating access to evidence?

How do we know for sure whether Xitter the former dead bird platform is simply running into the operations problems expected since Musk canned 75-80% of staff, or whether he’s actively obstructing investigations which rely on former Twitter content by screwing with data accessibility?

How do we know Musk isn’t doing the bidding of his fossil fuel financiers from Qatar and KSA by suppressing access to content critical of leadership in those countries? Perhaps even hiding what it was spies for KSA employed by Twitter had been doing, or hiding possible foreign interference in democracy here and abroad?

Ponder this bit of dead bird xit for a while.

On Visibility and [dis]Covering Kenneth Chesebro

August 19, 2023/61 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Yesterday, CNN reported that Kenneth Chesebro, identified as co-conspirator 5 in Trump’s DC indictment and charged in the Georgia one, in both indictments for actions limited to the fake electors scheme, trailed Alex Jones while he was present at the Capitol on January 6, apparently recording Jones’ actions and words for most of the time he’s at the Capitol.

CNN cites Ryan Goodman — who has steadfastly refused to look closely at much of the crime scene video evidence (much less credit the investigators who have meticulously catalogued it) — making a nonsense legal argument about the significance of Chesebro’s actions, one that clings to a cognitive distance between the white collar planning, to which he assigns Chesebro, and the blue collar execution of the attack).

Ryan Goodman, a law professor at New York University who previously served as the special counsel to the general counsel at the Department of Defense, told CNN that Chesebro’s presence on the Capitol grounds could be cited by prosecutors.

“Regardless of Chesebro’s potential criminal liability for being in the restricted areas of Capitol grounds, this evidence could be cited by prosecutors as further proof that Chesebro was not operating as a bona fide legal advisor but rather was an activist aligned in the cause to overturn the election,” Goodman said. “It undercuts defenses Chesebro might mount that he was functioning only in the role of providing legal advice for clients.”

The NYT version of the same story makes an equally nonsensical observation about what it means, claiming that this is the first evidence that “different tentacles of the efforts to keep Mr. Trump in power [] overlapped.”

Until now, there appeared to be different tentacles of the efforts to keep Mr. Trump in power that had not overlapped. But Mr. Chesebro hinted at those connections in an email exchange with John Eastman, another lawyer who was instrumental in the plan to pressure Mr. Pence with the fake elector scheme.

In late December 2020, the two lawyers discussed how to get a case before the Supreme Court. Mr. Chesebro told Mr. Eastman as they discussed filing a legal action that in terms of the highest court, the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”

The pressure on state legislators brought to bear by Stop the Steal, ginned up at rallies headlined by Jones and Alexander, has always been a necessary component of the fake electors plan. The Georgians charged in the Trump side of the fake elector charges in the Georgia indictment, Robert Cheeley and Scott Hall, were also coordinating with the people pressuring Ruby Freeman. The political violence was not an afterthought, it was part of the plan.

Indeed, Thomas Joscelyn, a key author of the January 6 Report, noted that this overlap is in no way new and reminded that Jones and Owen Shroyer were in contact with the Proud Boys who are awaiting sentencing on their sedition conviction.

There is no firm dividing line between those orchestrating the political conspiracy to overturn the election and the extremists who led the attack on the Capitol.

He cited back to the passage of the report describing that Jones’ entourage was in direct contact, in real time, with the Proud Boys, even as they kicked off the riot.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Those ties have remained close. Indeed, Jones and Shroyer — who were asked to lead Trump’s mob to the Capitol by someone in Trump’s immediate vicinity — have shared a lawyer, Norm Pattis, with former InfoWars employee and seditionist Joe Biggs for over a year; Pattis has also even taken over the defense of Zach Rehl.

But the limited visibility J6C had on that key node, the Jones entourage (largely because of their obstruction), ultimately prevented it from connecting all the dots and indeed the full extent of those dots remains obscure.

Even before you add Chesebro to the equation, in that entourage you had Jones who understood he was sent to lead the mob by Trump himself (J6C concludes it must have been conveyed through Caroline Wren, though for reasons I included in this post, that’s not entirely convincing). You had Shroyer, who shared that understanding, and who was coordinating with those launching the attack. And in addition to his frequent updates from Wren and coordination with Garrett Ziegler (now a central player in the Hunter Biden information operation led by Rudy Giuliani), Ali Alexander was also coordinating closely with Paul Gosar’s office — the guy who’d kick off the challenges. And all of them have exceptionally close ties to Roger Stone, including membership in the Friends of Stone list.

And, as CapitolHunters reminded in response to this coverage — and backed with a new researcher-compiled video of Jones’ movements that day — Jones played an absolutely central role in the success of the attack, first by bringing reinforcements to those leading the attack, and then, once he got there, by leading a huge chunk of those mobsters to the East side of the Capitol, where they’d serve a crucial role in a second, pincer attack on the building.

The convergence of first Jones and then key members of two militias on the East doors is the easiest place to see that the attack on the Capitol wasn’t random, but — at least in key movements — was fairly well executed. That convergence — and collection of evidence showing the import of Jones’ actions, for which people have already done time — has been an investigative focus from the start.

And Chesebro was there, capturing Jones’ actions.

Jones is a blowhorn-wielding asshole. But he commands almost the same kind of rabid loyalty as Trump does (Alexander estimated that a third of the attendees that day were Jones’ people). And via whatever means (the new Jones compilation video makes me wonder about potential uneven understanding of the events of the day, between Jones, Alexander, and Jones’ handlers) Jones played a central role in events of the day.

That entourage was a bunch of men checking in with at least Wren and possibly Ziegler, with Gosar’s office, and with the Proud Boys as they launched the attack on the Capitol. That entourage led a mob from the Ellipse, and then wittingly or not, deployed the mob where they would be the most effective, right there on the East steps before a second major breach would occur.

That’s the background one should bring to the images showing Chesebro, someone always associated with the plotting in the Willard, filming Jones as that entourage moved around the Capitol.

It’s not clear who sent him or why. NYT quotes a Jones lawyer — probably the same lawyer that Jones, Shroyer, Biggs, and Rehl share, Norm Pattis — disclaiming any knowledge of why Chesebro was shadowing Jones that day (though, given Jones’ paranoia and Shroyer’s pending sentencing, I’d find the denial more credible if Jones were squawking about being spied on by the Deep State).

It remains unclear why Mr. Chesebro was with Mr. Jones’s group outside the Capitol or how he came to be with them. A lawyer for Mr. Jones said that Mr. Jones was unaware that Mr. Chesebro had been following his entourage that day.

Plus, at one point, Chesebro seems to share something on his phone with a member of Jones’ security.

It is clear that Chesebro is not participating in the riot. Chesebro never indulges in the kind of fan worship of Jones as everyone else following him around does. Nor does he ever get distracted by the far more significant spectacle happening just yards away. He appears to be, at a minimum, monitoring Jones (though CapitolHunters pointed to some mannerisms that could be the kind of signaling as other things seen in the crime scene footage). And when Jones leaves, Chesebro follows. Chesebro continues to monitor — and film — as Jones seeds a conspiracy theory about the attack being launched by provocateurs on his way out (Michael Coudrey is a key Alexander associate, another member of the entourage).

We have seen that members of both the Proud Boys and Oath Keepers monitored the proceedings of the attack remotely, with Proud Boy leaders — including Tarrio and Bertino — chiming into the command and control from afar. It may be that’s what we’re seeing here.

After thirty months of hypervisibility, it’s easy to forget that there were actually pockets of the attack (inside offices without surveillance cameras and under the scaffolding are two of them) that could only be rendered visible by the cameras of others onsite, making their own recording. There are parts of Jones’ movement — which his own entourage recorded with a GoPro and at least one phone — that he subsequently edited.

The actions of Ken Chesebro suggest that someone wanted to make sure Jones’ movements at the Capitol would be visible, possibly to people monitoring the attack remotely, perhaps even in real time. Indeed, given that we’ve never seen this footage published on Parler, it suggests someone wanted a record of Jones’ real-time movement for private consumption.

The two indictments implicating Ken Chesebro have brought new visibility to him, and his actions. The discovery of Chesebro monitoring Jones’ activities during the attack have made aspects of the coordination behind this attack visible to TV lawyers for the first time. But amid all that newfound visibility, it’s worth remembering that some people knew to — and did — monitor all this in real time.

Update: I may have overstated when I claimed that Chesebro hadn’t cheered Jones. At the very beginning of this clip, Chesebro (in the far left of the frame) yells out, “Alex Jones” with the rest inaudible to me.

Beryl Howell Scoffs That We Think We Know Anything about the Trump Investigations

August 18, 2023/94 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

On February 16, CNN published a story describing that there were eight sealed grand jury matters in the twin investigations into Trump. In addition to the not-yet filed Mike Pence challenge to his own testimony, it named seven other sealed proceedings:

The crime-fraud ruling pertaining to Evan Corcoran
DOJ’s bid to hold Trump in contempt for failing to turn over all stolen documents in his possession
Trump’s Executive Privilege claim with Greg Jacob and Marc Short
Trump’s Executive Privilege claim with the two Pats, Cipollone and Philbin
Scott Perry’s Speech and Debate challenge to the warrant for his phone
The privilege fight over Jeffrey Clark, John Eastman, Ken Klukowski, and one other person’s content
The order compelling Kash Patel to testify

Just over a week later, on February 24, Xitter’s lawyers would include that story in package of media articles it claimed — in its reply brief to vacate the gag order — showed that DOJ didn’t need to keep the warrant for Trump’s Xitter account sealed any longer.

That story about how little we knew of sealed grand jury proceedings became part of yet another sealed grand jury proceeding in the investigation into Donald Trump.

The reply motion itself made a bunch of claims about how much was known about the investigation, with more links to news articles.

3 Mr. Trump may be unique in this regard for this investigative step. Because he was announced as a principal subject of investigation and because the public reporting has focused on investigative actions directed at him, he may have a unique level of knowledge about investigative actions regarding him—even relative to other investigations of him that were conducted with far less public awareness.

4 The news articles Twitter cited its initial motion are attached here as Exhibit A. The articles cited in this Reply are attached as Exhibit B.

5 Maggie Haberman & Michael S. Schmidt, Jared Kushner and Ivanka Trump Subpoenaed in Jan. 6 Investigation, N.Y. TIMES (Feb. 22, 2023), available at [link redacted]

6 Maggie Haberman & Glenn Thrush, Pence Gets Subpoena From Special Counsel in Jan. 6 Investigation, N.Y. TIMES (Feb. 9, 2023), available at [link redacted]

7 C. Ryan Barber & Sadie Gurman, Mark Meadows, Trump’s Last Chief of Staff, Subpoenaed by Grand Jury, WALL STREET JOURNAL (Feb. 15, 2023), available at [link redacted]

8 C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023), available at [link redacted]

9 Katelyn Polantz et al., Special counsel is locked in at least 8 secret court battles in Trump investigations, CNN (Feb. 16, 2023), available at [link redacted]

10 C. Ryan Barber & Alex Leary, Trump Lawyers Appeared Before Grand Jury as Part of Classified-Documents Probe, WALL STREET JOURNAL (Feb. 11, 2023).

11 Jim Small, GOP Arizona legislators, including leaders of the house and senate, subpoenaed to testify in special counsel probe of Trump, Arizona Mirror (Feb. 17, 2023), available at [link redacted]

That February 24 package was actually the second package of news articles Xitter cited or linked to support its argument that revealing the warrant wouldn’t help Trump because so much of the investigation had been publicly reported; it cited a bunch in the initial motion to vacate, too.

First, the Department of Justice’s criminal investigation into former President Trump and his potential role in the efforts to overturn the 2020 presidential election and the January 6, 2021 attack on the United States Capitol, has been public for several months prior to the issuance of this Warrant. Specifically, the news media has reported extensively that presidential advisors, including White House counsel and senior staff, have been subpoenaed to testify before a federal grand jury investigating those events. See e.g., Casey Gannon et al., Former Trump White House Counsel and His Deputy Testify to Jan. 6 Criminal Grand Jury, CNN (Dec. 2, 2022), available at [link redacted] First on CNN: Top Trump Advisor Stephen Miller Testifies to January 6 Federal Grand Jury, CNN (Nov. 29, 2022), available at [links redacted]; Bart Jansen, Justice Department Subpoenas Dozens of Trump Aides in Apparent Escalation of Investigation, According to Reports, USA Today (Sept. 12, 2022), available at [link redacted]; Kyle Cheney, Two Top Pence Aides Appear Before Jan. 6 Grand Jury, POLITICO (Jul. 25, 2022), available at [link redacted].

[snip]

It is also well known that, as part of its investigation, the Department of Justice is closely examining the private communications of people within the scope of its investigation, including the former president’s aides and allies. Indeed, the Department of Justice has obtained search warrants for electronic devices of numerous close associates of former President Trump. See e.g., Steve Benen, DOJ Seizes Team Trump Phones as Part of Intensifying Jan. 6 Probe, MSNBC (Sept. 13, 2022), available at [link redacted]; Ella Lee, Pennsylvania Rep. Scott Perry, a Trump Ally, Says FBI Agents Seized His Cellphone, USA TODAY (Aug. 10, 2022), available at [link redacted]; Scott Gleeson, MyPillow CEO, Trump Ally Mike Lindell Says FBI Issued Subpoena, Seized Phone at a Hardee ‘s, USA TODAY (Sept. 14, 2022), available at [link redacted]; Alan Feuer & Adam Goldman, Federal Agents Seized Phone of John Eastman, Key Figure in Jan. 6 Plan, N.Y. Times (Jun. 27, 2022), available at [link redacted]. The Federal Bureau of Investigation (“FBI”) has also executed a search warrant at the home of a Trump ally to seize electronic devices. See e.g. Alan Feuer at al., Federal Authorities Search Home of Trump Justice Dept. Official, N.Y. Times (Jun 23, 2022), available at [link redacted].

Then it included those articles as an appendix in its opposition to show cause to hold it in contempt.

Over and over again, Xitter argued that the media coverage of the investigation provided a thorough understanding of the steps taken so far in the investigation.

It was an argument that then-Chief Judge Beryl Howell, deep into presiding over her second and third investigations — that we know of! — into Donald Trump found wildly unpersuasive.

She and AUSA Gregory Bernstein discussed it at some length in the February 7 hearing on the warrant.

At first, she asked how much Xitter really knew so she could figure out whether Xitter had refused to respond to a warrant thinking that no one would protect Trump’s privileges — thinking that somehow Judge Howell, deep into presiding over her second and third investigation of Donald Trump, had ignored those sensitivities.

Howell: I need to be clear about what Twitter has seen of the warrant package. I don’t know how many of you at Twitter’s table have ever been prosecutors; but you know the warrant is a very thin little part — important part, critical part, it is a court order — a thin part of a warrant package. I am not clear from this record what Twitter has seen and what it hasn’t. It doesn’t know very much at all, although it thinks it does, about the government’s investigation; but it certainly doesn’t know, I don’t think, very much about the warrant that I signed and all of its parts. But I need to be clear about what it does and doesn’t know about that.

[snip]

THE COURT: ALL right. Now let’s turn to the warrant package. Okay.

So the warrant package consisted of an incredibly lengthy affidavit, the warrant itself. The warrant itself had Attachment A, property to be searched; it had Attachment B, particular things to be searched; and Attachment B had different parts.

Now, certainly, Twitter hasn’t seen the application part of the package; it hasn’t seen the affidavit part of the package. Is that right?

MR. BERNSTEIN: Yes, Your Honor.

THE COURT: That’s correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: Certainly, Twitter has seen the warrant and Attachment A; is that correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: And out of Attachment B, has Twitter seen any part other than Part 1?

MR. BERNSTEIN: No, Your Honor.

THE COURT: Okay. Well, that’s sort of what I thought, but I wanted to make sure.

So Twitter, as it sits here, has zero idea and zero affirmation about whatever filter protocol or procedure there is attached to this warrant in terms of processing any warrant returns; is that correct?

MR. BERNSTEIN: That’s correct, Your Honor.

THE COURT: And if they know, it’s not from the government.

MR. BERNSTEIN: I’m sorry. Can you repeat the question, Your Honor?

THE COURT: They wouldn’t know from the government.

MR. BERNSTEIN: They would not know from the government, Your Honor, that’s correct.

THE COURT: ALL right. So to the extent that Twitter is standing here, as I understand their position, trying to protect any privilege of the account user with this solution of providing prior notice to the account user, they are taking no account because they can’t — because they haven’t seen it and they don’t know anything about any filter protocol that might be attached to this warrant.

MR. BERNSTEIN: That’s correct, Your Honor. They do not know about any Filter protocol that could or could not be attached to the warrant.

THE COURT: Got it. Okay.

I just want to make it clear, when providers step in here and take up my time on what should be a simple processing of a warrant, exactly how much in the dark they are. Okay.

But then she returned to the question — and the first of Xitter’s two big packets of articles on the investigation — when trying to ascertain whether Xitter had any basis to claim that revealing the warrant wouldn’t alter the balance of the public knowledge on the investigation.

THE COURT: Okay. So Twitter, in its opposition, had, like, I don’t know, I counted like pages of an exhibit of all these press reports about the special counsel investigation; I didn’t look at it in detail.

But, in sum, Twitter’s argument is: Hey, the government’s interest in maintaining the NDO isn’t compelling because look at all this press. Lots of people know about this investigation going on. The Attorney General has an order on the DOJ website saying: I have appointed the special counsel to look at the following issues.

Twitter goes on to say that the press has been doing its job, thankfully. And so, as a consequence, we all know that, you know, the government, in aggressively pursuing this investigation, has been looking at the communications of a number of people.

So it sums up by saying: It strains credulity to believe that the incremental disclosures of this warrant could somehow alter the current balance of public knowledge in any meaningful way so as to cause harm to the investigation.

So just like Twitter doesn’t know much about the warrant here at all, and has only seen a small sliver of the entire warrant package, do you think that it strains credulity to believe the incremental disclosure of this order would somehow alter the current balance of public knowledge in any meaningful way?

MR. BERNSTEIN: Absolutely not, Your Honor.

There is an incredible difference between the public knowing about the existence of the investigation and the account holder in this case knowing about a concrete, investigative step that the government has taken.

And, again, I have to be careful about what I say in this setting because I don’t want to disclose information that’s covered by 6(e) or that otherwise would compromise the investigation. With that said, Your Honor, I think when Your Honor gets our ex parte filing with respect to the NDO, I think Your Honor will wholeheartedly reject the assertion that it strains credulity to think that there could be serious adverse consequences from the President finding out about this search warrant.

Howell and Bernstein returned to the question a short time later, when Bernstein said, “they don’t know anything” but where making “confident factual assertions without knowing the actual facts of the investigation.”

Howell: So do you want to respond to that? — to Twitter’s comment that there is no reason to believe notification would suddenly cause Trump or potential confederates to destroy evidence, intimidate witnesses, or to flee prosecution, or are you waiting on that for an ex parte submission?

MR. BERNSTEIN: We are waiting. But I can give Your Honor two responses in the meantime.

First, they don’t know anything. I mean, they know some stuff. They know what they have read in the newspapers. But they’re making these confident factual assertions without knowing the actual facts of the investigation.

Number two, they have cited a number of news articles. They seem to have a robust understanding of what is in the public record. They seem to be ignoring the fact that there is an entirely separate public investigation into the former President for doing just that, for taking obstructive efforts with respect to NARA’s request to retrieve classified documents, and then the government — the grand jury’s request to subpoena classified documents from the former President, and the steps that he took to obstruct those efforts. So there will be considerably more detail about the basis for the NDO when we brief this issue.

For now, though, the assertion that they’re making, one, is not based on any factual foundation that they could possibly be aware of; and then, second, to the extent that they are able to ascertain details from the public record, they seem to be ignoring those details.

Xitter had no factual foundation to make the confident assertions about the investigation, an AUSA who had been involved in crafting the warrant explained.

DOJ repeated that argument in its opposition to Xitter’s motion to vacate the order of contempt.

Twitter offers (Twitter’s Mem. 8–14) two unpersuasive arguments to the contrary. First, Twitter contends (id. at 8–12) that because some aspects of the investigation are publicly known, it “strains credulity to believe” that providing the Warrant to the former president will “alter the current balance of public knowledge in any meaningful way” because such a disclosure would be merely “incremental.” Id. at 11. That contention is flawed in several respects. Although the investigation’s existence is no longer secret, it does not follow that the specific ongoing investigative steps the Government is pursuing are therefore publicly known. Many of the media accounts that Twitter cites (id. at 8–10) attempt to fill in gaps based on discrete pieces of information or courthouse sightings of witnesses.4 Whatever the effect of those accounts on the “current balance of public knowledge,” id. at 11, they provide nowhere close to the detail supplied in the Warrant. Providing the Warrant to the former president at this point in the investigation would thus far exceed some mere “incremental” step in informing the former president, as described in the ex parte submission.

4 The same is true of the 80 pages of articles and other documents that Twitter submitted as an exhibit to its opposition to the Government’s Motion to Show Cause. See Twitter’s Opposition to Government’s Motion for an Order to Show Cause, Exhibit B (filed Feb. 6, 2023).

At the same time as we were having very public, ugly battles about what TV lawyers were sure they knew about the investigation, Beryl Howell and Gregory Bernstein were scoffing at the idea that anyone would have a thorough understanding of the investigation based off what witnesses shared with the press or what journalists spied from staking out Prettyman Courthouse.

While Politico sussed out that WilmerHale was involved in a high level fight with Jack Smith’s team when the lawyers came back for an appellate hearing in May, no one knew way back in early February that the pitched battle was already, at that point, several weeks in progress.

Neither Politico nor CNN — the two best outlets for staking out the courthouse — knew their own work had been cited as proof that the public knew all there was to know about the investigation, only to have Beryl Howell scoff at the idea.

No one knew that Jack Smith had obtained Trump’s Xitter account. And even after seeing 500 pages from the fight over that warrant, no one yet knows precisely what they were looking for.

I take that back.

After Judge Tanya Chutkan crafted a protective order last week, Trump got his first batch of discovery. And here’s what he described learning about the investigation, in his bid to delay the January 6 trial until April 2026.

It, among other things, interviewed and subpoenaed hundreds of witnesses, executed over 40 search warrants, and compiled information from countless individual sources. The government included some, but not all, of these materials in a massive, 8.5-terabyte initial production, totaling over 11.5 million pages, together with native files, recordings, and other electronic data not amenable to pagination. [my emphasis]

We’ve spent the last two weeks entranced by a single warrant, making grand conclusions about what Xitter — which also knew nothing — was emphasizing to win a legal battle.

We know of perhaps ten other warrants, if Jack Smith is sharing the warrants for Trump’s co-conspirators and close aides (though he doesn’t have a Fourth Amendment interest in any of those warrants).

Rudy’s devices (likely a warrant served on the FBI in NY)
Ken Klukowski’s Google account
Jeffrey Clark’s Outlook account
Jeffrey Clark’s Google account
Jeffrey Clark’s phone
The fourth account from an as-yet unidentified non-lawyer
John Eastman’s Chapman University emails
John Eastman’s phone
Boris Epshteyn’s phone
Mike Roman’s phone

We know of subpoenas targeting Sidney Powell. We know nothing — literally nothing — about the investigation targeting Ken Cheseboro, one of Trump’s unindicted co-conspirators (except that investigators would have been very interested to learn why he was tailing Alex Jones during the attack on the Capitol, filming him on his phone).

We know of subpoenas obtaining information from NARA. We know of other phones that were seized — like Scott Perry’s and some of the key fake electors and Owen Shroyer — but those present sensitivities that make it less likely they would get shared with Trump, that they would be among the 40 warrants he knows about but we don’t.

We can assume that DOJ obtained warrants for every little last shred of cloud content available from Trump and his co-conspirators, long before they would have started seizing phones.

We can be sure that Trump’s Xitter file would be the last to be seized, not the first. The filings themselves cite how Trump and his associates use Xitter, which DOJ would have learned by seizing those associates’ Xitter accounts first.

Donald Trump is looking at forty warrants and we only know of one with his name on it, and even there we have no idea what DOJ was really after.

I’d say that Beryl Howell was right to scoff at Xitter’s lawyers, at us, for our confident statements about the investigation.

“They Spoke Often:” It Took the Fash-Friendly FBI Over Two Months to Document the Lies Their Informant, Joe Biggs, Told them

August 18, 2023/81 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The most telling detail released in DOJ’s sentencing package for Joe Biggs is this — the first 302 from after he led an attack on the nation’s Capitol, memorializing an interview done on January 8, one day after the first Proud Boy, Nicholas Ochs, was arrested.

DOJ included it — and excerpts from a second recorded interview from January 18 — to substantiate a 2-point obstruction enhancement to his sentence.

Biggs denied being with anyone he knew while he was inside the Capitol. Id. at 19:50 et. seq. (Q: “were you with anybody?” A: “No. I was lost. Like I didn’t know where to fucking go. I was by myself and I was scared shitless.”).

Biggs was asked again later in the interview whether there was anyone else with him. Biggs again claimed that he was separated and didn’t see anyone else he knew until after he left the Capitol. Id. at 25:45 et. seq. (Q: “Was there anyone else in your group that was in the Capitol?” A: [Pause] “Um, I mean, there had to have been.” Q: “You said you got separated, right?” A: “Yeah. I got separated. I didn’t see people until afterwards. I finally found people scraggling [sic] around running, you know, looking for people like me.”)

After initially denying breaking anything, Biggs was asked again whether there was anything else that was “worth sharing.” Twenty-four minutes into the interview, Biggs acknowledged “shaking” a black metal fence, but he claimed that he was only doing it because people were getting “pinned [] against it.” Id. at 24:25 et. seq. (Biggs: “I was shaking [the fence] at one point to get it loose so people could move and wouldn’t get pinned up against it” Biggs: “There was one guy who was pinned up against the fence like literally screaming; the pole was dug into his belly, and there was so much force from all the people around him, he couldn’t even breath . . . I thought that dude was gonna get hurt bad.”)

The sentencing memo suggests that Biggs victimized the FBI with these lies.

But there’s a backstory, one Biggs himself told over two years ago, in a filing submitted on March 29, 2021, in a bid to stay out of pre-trial detention.

As Biggs told the story then — two days before this 302 was finalized — Biggs would routinely reach out to cops before the Proud Boys would stage an operation, much as Enrique Tarrio did with Shane LaMond, a DC cop now being prosecuted for giving Tarrio inside tips about the investigation into him.

The same year, 2018, after the move to Florida, Biggs became active as an organizer, event planner and thought leader in the Proud Boys. He used his platform as a radio and social media personality to promote Proud Boy events and ideas. In particular, he personally planned two major events: rallies in Portland, Oregon in both 2019 and 2020 designed as counterdemonstrations against Antifa, which had been active in and around Portland for over two decades. See generally, MARK BRAY, ANTIFA: THE ANTI-FACIST HANDBOOK (August 2017) (history of Antifa networks in the Americas and Europe by social historian and Dartmouth College lecturer); L. Magelson, “Letter from Portland: In the Streets with Anitfa,” The New Yorker (Nov. 2, 2020 issue). As part of the planning, Biggs would regularly speak with by phone and in person to both local and federal law enforcement personnel stationed in Portland, including the FBI’s Portland Field Office. These talks were intended both to inform law enforcement about Proud Boy activities in Portland on a courtesy basis but also to ask for advice on planned marches or demonstrations, i.e., what march routes to take on Portland streets, where to go, where not to go. Similar conversations were held regularly with local police and FBI personnel for less major events in other cities.

As Biggs described it, rather than cracking down on the right wing group that would go on to lead an attack on the Capitol, the cops could give him “cautionary” phone calls.

By late 2018, Biggs also started to get “cautionary” phone calls from FBI agents located in Jacksonville and Daytona Beach inquiring about what Biggs meant by something politically or culturally provocative he had said on the air or on social media concerning a national issue, political parties, the Proud Boys, Antifa or other groups. Biggs regularly satisfied FBI personnel with his answers. He also stayed in touch with a number of FBI agents in and out of Florida.

As Biggs described it, he “regularly satisfied FBI personnel” with his explanations for stoking violence.

He did so even though — as his sentencing memo describes — he was openly calling for violence and attacks on the government.

Perhaps more than any other defendant, Biggs promoted the use of force against the government. Beginning in the days after the election, Biggs declared that the country could face “civil war” because the “left” was “radicalizing people by stealing th[e] election.” Ex. 603-1 and 2. Biggs told his followers that it was “time for fucking War if they steal this shit.” Ex. 603-4. Biggs steadily escalated his calls for political violence. During an episode of the “Warboys” podcast with Tarrio and Nordean in late November, Biggs demonized the “party” that was telling the public to accept the result of the election. Biggs closed his diatribe by saying that “they are evil scum and they all deserve to die a traitor’s death.” Biggs Ex. 1. Biggs’s comment prompted Nordean to calmly lean toward his microphone and say, “the day of the rope.” Id.

Biggs’s calls for political violence escalated throughout the fall, and he consistently called for war while characterizing his enemies (which included government actors such as the police) as traitors. The critical issue to Biggs was the stolen election, and he tied his calls to violence to the election. For example, in late November, in a post on his social media, Biggs warned officers in Michigan (a state won by Biden) that if they stopped electors from casting a vote for Trump, the people would “treat your thin[] blue line like we do antifa . . . get in our way and get walked over.” Ex. 603-33. Biggs declared that the officers would be “tried for treason” and that “[w]e aren[‘]t here to play games. This is war.” Id.

In fact, as Biggs further described it back in March 2021, long after he had become a key figure staging violent confrontations, five months before leading an attack on the peaceful transfer of power, an FBI Agent in Daytona Beach recruited Biggs to be an informant targeting Antifa.

In late July 2020, an FBI Special Agent out of the Daytona Beach area telephoned Biggs and asked Biggs to meet with him and another FBI agent at a local restaurant. Biggs agreed. Biggs learned after he travelled to the restaurant that the purpose of the meeting was to determine if Biggs could share information about Antifa networks operating in Florida and elsewhere. They wanted to know what Biggs was “seeing on the ground.” Biggs did have information about Antifa in Florida and Antifa networks in other parts of the United States. He agreed to share the information. The three met for approximately two hours. After the meeting, Biggs stayed in touch with the agent who had called him originally to set up the meeting. He answered follow-up questions in a series of several phone calls over the next few weeks. They spoke often.

So during the entire period when Biggs and his buddies were planning an attack on the nation’s Capitol, during the entire fall period when (prosecutors describe) Biggs was openly talking about attacking the government, he and this FBI agent?

“They spoke often.”

The FBI claims it had no notice of the terrorist attack on the nation’s Capitol, not even with an FBI agent “speaking often” with one of its leaders and an DC intelligence cop speaking often with the other one.

So now, DOJ wants to hold Joe Biggs accountable for the lies he told to the FBI agent who thought a key leader of the Proud Boys would make an appropriate informant targeting Antifa. But thus far, his handler has not been held accountable for missing the planning of a terrorist attack in DC when while speaking “often” with one of its key leaders.

Notably, the Daytona FBI office is the same one where, after fake whistleblower Stephen Friend refused to participate in a SWAT arrest of a Three Percenter known to own an assault rifle, his supervisor said “he wished I just ‘called in sick’ for this warrant,” before taking disciplinary action against him (though Friend didn’t start in Daytona Beach until after Biggs had already been arrested).

The second of these interviews (but not the first) interview was mentioned in Biggs’ arrest affidavit. It’s possible that investigating agents didn’t even know about what occurred in the first one.

Indeed, it’s really hard to credit the reliability of a 302 written two days after Biggs described his chummy relationship but not this interview in an attempt to stay out of jail.

This is why the FBI didn’t warn against January 6. Because these terrorists were the FBI’s people.

The Challenge of Treating the Proud Boy Leaders as Terrorists

August 18, 2023/55 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The omnibus sentencing memo for the Proud Boy Leaders — an 80-page document supplemented by another 15 pages for each — describes their crime this way:

The defendants organized and directed a force of nearly 200 to attack the heart of our democracy.

[snip]

None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.

For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.

[snip]

The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.

The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.

That language is a succinct statement of the terrorism committed by the Proud Boys.

But the document as a whole is a testament to how the asymmetrical treatment of terrorism in the United States makes it much harder to hold men like Enrique Tarrio and Joe Biggs accountable for attacking the Capitol that it would be if they were Islamic terrorists, rather than right wing Trump supporters.

The reason why the government had to dedicate 80 pages to justify sentences of 30 years for the core leaders of the January 6 attack is because it requires massaging the sentencing guidelines to treat white (or Afro-Cuban, as Tarrio identifies as) person terrorism like the US has long treated Islamic terrorism.

Here’s what DOJ had to in order to justify calling for these sentences:

Ask for consecutive sentences, effectively stacking some sentences on others
Adopt the treason sentencing guideline for sedition (which doesn’t otherwise have one), even while the maximum sentence for sedition is just 20 years
Ask that Judge Tim Kelly use the conspiracy convictions to apply the conduct of each defendant against the other, to apply the assault and property damage done by Pezzola against the others and the sedition conviction against Pezzola
Use enhancements for property destruction, substantial interference in the vote certification, and extensive planning on the obstruction charges
Use leadership or management enhancements for everyone but Pezzola
Ask for additional departures from the guidelines for “conduct [that] resulted in a significant disruption of a governmental function” and an “intent to frighten, intimidate, and coerce” federal lawmakers
Dismiss challenges (led by Nordean attorney Nick Smith over two years) to the treatment of the vote certification as an official proceeding that can be obstructed
Ask for a terrorism enhancement for the destruction of property (tied to the window Pezzola broke and some bicycle racks)
Ask for terrorism enhancement based on the clear political intent of all these crimes, including sedition, which is explicitly political
Add enhancements for Biggs, Tarrio, and Rehl for obstructing the investigation or trial (which is why Nordean’s proposed sentence is lower than the other guys’)
Describe the Oath Keeper as late-comers to sedition, by comparison
Laugh at any claim these men accepted responsibility for their crimes

The sentences make sense — particularly when you compare the damage these terrorists did against the aspirational Islamic terrorists who have been sentenced to even longer sentences. But in the scope of the sentencing guidelines as they exist, it all comes off as funny math.

Update: I probably should have explained in the post why this happens. Because domestic terrorism is not a crime unto itself, but instead an enhancement (which is the way it is being used with the destruction of property here), it is not finally used as a label until sentencing. Prosecutors have, in fact, been calling the Oath Keepers and Proud Boys terrorists throughout their prosecution in detention memos (relying on the same destruction of property). I addressed this in this post and this one.

Update: Here’s a post I wrote in 2015 about this asymmetry.

Note: The image accompanying this post is a challenge coin for January 6 introduced as an exhibit in Christoper Worrel (who has skipped bail as he awaits sentencing). The Proud Boys literally made the attack on the Capitol into a coin of their terrorist group. Update: Added the image to the body of the post, too, bc I confused people by referencing it w/o including it.

As Xitter’s Lawyer Stalled DOJ, Elon Musk Met with Jim Jordan (Twice!) and Kevin McCarthy

August 17, 2023/52 Comments/in 2020 Presidential Election, Hunter Biden, January 6 Insurrection /by emptywheel

Elon Musk has been eerily quiet about being held in contempt by Beryl Howell since the DC Circuit opinion was first released on August 9.

It’s not like him to pass up the opportunity to make an obnoxious comment.

Which is why I’m interested in what Musk was doing during the period when Xitter’s counsel was stalling on the DOJ request — including a visit to Kevin McCarthy on January 26.

Beryl Howell approved the warrant on January 17. After several failed attempts, the government served it to the official portal on January 19. But then Xitter’s senior-most legal person stalled for 12 days, until she told DOJ that Xitter was going to make a First Amendment challenge so Trump could invoke executive privilege.

The government’s initial service attempts on Twitter filed twice, with the government’s receipt both times of an automated message indicating that Twitter’s “page [was] down.” Gov’t’s Mot. at 2 (alteration in original). On January 19, 2023, the government was finally able to serve Twitter through the company’s Legal Requests Submissions site. Id

Twitter, however, somehow did not know of the existence of the Warrant until January 25, 2023—two days before the Warrant returns were due. That day, the government contacted Twitter about the status of the company’s compliance with the Warrant, and Twitter’s Senior Director of Legal, JN [redacted], indicated she was not aware of the Warrant but would consider it a priority.” Id; see also Decl. of [redacted], Senior Director of Legal for Twitter (“[redacted] Decl”) 2 (SEALED), ECF No. 9-1. The government indicated that they were looking for an on time production in two days time” to which [J redacted] responded, “without knowing more or taking any position that would be a very tight turn around for us.” [Jl Decl. ¶ 2. The government sent the six pages of the Warrant and the NDO directly to [J redacted] later that evening Meanwhile, [J redacted] directed Twitter’s personnel to preserve data available in its production environment associated with the Target Account, and “have confirmed that the available data was preserved.” Id. ¶ 4.

Twitter notified the government in the evening of January 26, 2023, that the company “would not comply with the Warrant by the next day, “Id. 5, and responded to the government’s request for more specific compliance information, by indicating that “the company was prioritizing the matter and taking it very seriously” but that [redactedl had the Warrant and NDO only “for two days,” id. ¶ 8, even though the government had tried to submit the Warrant and NDO through Twitter’s Legal Requests Submissions site nine days earlier. The Warrants deadline for compliance makes no exception for the provider’s failure to have a fully operational and functioning system for the timely processing of court orders.

On January 31, 2023, Twitter indicated for the first time that the company would not comply with the Warrant without changes to the NDO, stressing as “essential to Twitter’ business model including [its] commitment to privacy, transparency, and neutrality) that [Twitter] communicate with users about law enforcement efforts to access their data.” 1d. 10.

The Legal Director’s declaration is more obnoxious than that. She made no mention of DOJ’s attempts to serve the warrant before she got involved and makes much of a claim that it took the AUSA two efforts to email a separate copy to her. Her assurances that everything was preserved — made as of January 25 — don’t rule out any deletions before that.

It wasn’t until February 1 that WilmerHale was officially involved.

And in the meantime, Elon Musk had made a widely covered trip to DC. He met with Jim Jordan on Thursday January 26, Kevin McCarthy that evening, and then Jordan (again) with James Comer the next day (Axios, NYT, CNN)

As of now, at least, Jordan and McCarthy are two of the just 51 people that Trump follows, who could have sent him DMs.

The next week, Comer formally announced his dick pics hearing, which (as Allison Gill observed yesterday) took place the day between two hearings on the warrant, as contempt fees started piling up. In that hearing, Republicans spun Musk’s willful violation of the consent decree against Xitter as an assault on the First Amendment.

As it was happening, Musk posted a tweet with nothing more but a period.

This was happening in the period when Xitter was doing more intensive searches to get — for example — the second preservation of Trump’s account from January 12, 2021 and all other accounts associated, via common device, cookie, or IP, with Trump’s own.

In the February 7 hearing, then-Chief Judge Beryl Howell questioned whether Xitter was stalling on this production because Musk “wants to cozy up with the former President, and that’s why you are here?”

But it may be more than that.

Musk is solidly part of the far right culture that might have been involved in any DM lists organizing the insurrection. One of the main reasons he started considering buying Xitter is because of the efforts Xitter took in the aftermath to crack down on violence.

And in the lead-up to Musk’s purchase of Xitter, someone — there’s reason to believe it might be Stephen Miller, who had been interviewed by Jack Smith’s prosecutors in November, before he was interviewed in a privilege-waived interview in April — texted Musk personally to raise the sensitivities of restoring Trump to Xitter.

And one of Musk’s phone contacts appears to bring Trump up. However, unlike others in the filings, this individual’s information is redacted.

“It will be a delicate game of letting right wingers back on Twitter and how to navigate that (especially the boss himself, if you’re up for that),” the sender texted to Musk, referencing conservative personalities who have been banned for violating Twitter’s rules.

The anonymous texter then offers up a suggestion for “someone who has a savvy cultural/political view to be the VP of actual enforcement.” That suggestion: “A Blake Masters type.”

Any delays and obstruction may not just be an effort to protect Trump.

It could be Musk’s effort to protect his own network — and people in DC like Jim Jordan.

Death by Tweet: “User Attribution Is Important”

August 16, 2023/102 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

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.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one 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.

Before Dan Scavino told the grand jury that he wasn’t in the room when that tweet was sent, as he must have, DOJ would have needed a better idea whether Scavino sent the tweet, to know whether he was telling the truth once he did sit for a privilege waived interview.

But they were also asking for a very specific clue about the other part of that murder weapon: some way to identify the phone from which the potentially deadly tweet was sent. Identifying which phone was alone in the room with Donald Trump on January 6 would also identify which phone to go seize to learn who else Trump was communicating with when he was sitting alone in his dining room as he watched his supporters assault the Capitol. Identifying which phone was alone in the room with Donald Trump on January 6 would help to fill the gap in communications that the January 6 Committee never completely filled.

And not just that phone.

Obtaining the associations to Trump’s Twitter account would also help explain one of the most enduring mysteries about January 6: What happened between the time Sidney Powell left after a screaming meeting on December 18 and the time Trump announced the rally in the early hours of December 19, leading thousands of his most rabid followers to start planning to come to DC?

87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, “Big protest in D.C. on January 6th. Be there, will be wild!” Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

That December 19 tweet, and the phone it was sent from, was another kind of murder weapon, the shot that would set off the entire riot. And to figure out who was wielding it, the circumstances in which it went off, investigators would work backwards from where it was stored, on Twitter.

They would want to know, too, how Ali Alexander and Alex Jones copped on so quickly — whether any of the participants in the DM lists via which Stop the Steal was coordinated had a user who also had access to Trump’s Twitter account.

Even before Trump became President, his communication habits made it very difficult to pin down his actions. Roger Stone, for example, would call Trump during the 2016 election on Trump’s cell, his Trump Tower phone, two work phones, via three different assistants, and Keith Schiller. And Stone often used other people’s phones to call on.

Trump still has a habit of using other people’s phones. The stolen documents indictment reflects Molly Michael telling Walt Nauta that Trump had had her phone. Several of Trump’s aides were asked by J6C whether Trump ever used their phones; several probably didn’t tell the truth in response.

But much of execution of January 6 went through the single most stable means of communication Donald Trump had: his Twitter account. And to attribute any actions that happened using Trump’s Twitter account, DOJ needed as much data as possible about who else used it and in what circumstances.

User attribution is important. Especially with a guy who has the ability to murder by tweet.

“Poor Mr. Zebley:” Both Xitter’s Lawyers and Journalists Responding to Boilerplate Need to re-Read Mueller

August 16, 2023/53 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

I’ve stopped trying to convince Russian denialists on Xitter that they’re willfully ignorant of facts. At this point, denialists are just trolls exploiting Xitter’s algorithm to create scandal.

I try to focus my time, instead, on conspiracy theorists platformed by prominent schools of journalism.

But when others try to correct denialists on Xitter, they almost always say the denialists haven’t read the Mueller Report closely enough.

So I found it wildly ironic that Chief Judge Beryl Howell, during a period in February when Elon Musk was letting denialists like Matty Dick Pics Taibbi invade the privacy of then-Twitter’s users so he could spew conspiracy theories, Howell scolded Twitter’s lawyer George Varghese that he hadn’t read the Mueller Report closely enough.

THE COURT: You need to read the Mueller report a little bit more carefully.

The transcript of the court hearing and much of the rest of the back-up to Xitter’s attempt to stall compliance of the warrant was unsealed yesterday.

Mind you, Howell was trying to convey to Twitter’s team that there is precedent for investigating Donald J. Trump without giving him advance warning of every investigative step.

MR. VARGHESE: Yes, Your Honor. Our —- by

THE COURT: You think that for 230 orders, 2800 subpoenas, and 500 search and seizure warrants the Mueller team gave advance notice to the former President of what they were about?

MR. VARGHESE: I don’t know that, Your Honor.

THE COURT: You do not know that.

The hearing made it pretty clear that Howell is convinced that Trump will stop at nothing to obstruct criminal investigations into himself.

Howell, who knows what went into the Mueller Report as well as anyone outside the investigative team, does know that.

In fact, when she told Varghese he should have read the Mueller Report more closely, she had just pointed to private comms described in the Mueller Report — the ones where Trump told Mike Flynn to stay strong — where Trump had not gotten advance notice, as prosecutors were demanding he not get advance notice about a warrant to Twitter.

THE COURT: Because the Mueller report talks about the hundreds of Stored Communications Act — let me quote.

Let’s see.

The Mueller report states that: As part of its investigation, they issued more than 2800 subpoenas under the auspices of the grand jury in the District of Columbia.

They executed nearly 500 search and seizure warrants, obtained more than 230 orders for communications records under 18 U.S.C. Section 2703(d); and then it goes on and on and on for all of the other things they did.

And some of those communications included the former President’s private and public messages to General Flynn, encouraging him to “Stay strong,” and conveying that the President still cared about him, before he began to cooperate with the government.

So what makes Twitter think that, before the government obtained and reviewed those Trump-Flynn communications, the government provided prior notice to the former President so that he can assert executive privilege?

MR. VARGHESE: My understanding, Your Honor, is that the Mueller investigators were in contact with the White House counsel’s office about executive privilege concerns.

THE COURT: You quoted the one part that said that, and that was for testimony, testimony, where it was not covert.

Side note: Xitter’s lawyers may not have been entirely wrong about consultations with the White House counsel, even for materials obtained covertly.

This exchange happened on February 7. Two days later there was a follow-up hearing, and WilmerHale counsel Aaron Zebley — someone who knows better than Beryl Howell what happened to the materials for which Howell approved legal process after it got handed over but before they ended up in the Report itself — filed an appearance in this challenge. He never spoke though; he showed up late, if at all, and at one point, after Twitter had presented their opening argument, Howell asked someone to check whether “poor Mr. Zebley” was standing outside a locked door waiting to get in.

THE COURT: Okay. Well, let me just —

Mr. Windom, do you want to think about that or do you want to respond?

Do you think Mr. Zebley is standing outside the locked door?

MR. HOLTZBLATT: I think there is a chance.

THE COURT: Could you check? Poor Mr. Zebley.

MR. WINDOM: Should I wait, Your Honor, or proceed?

THE COURT: Proceed. In my chambers we wait for no man.

Twitter was trying to make an argument that someone had to attend to potential Executive Privilege claims. Howell and the prosecutors nodded several times to a filter protocol addressing privilege issues, of which Twitter was ignorant. And yet Twitter was refusing to comply unless they had the opportunity to tell Donald Trump about the warrant in advance.

Beryl Howell, who was years into her second investigation of Donald Trump at this point, might be forgiven for impatience with lawyers who don’t understand how many Executive Privilege disputes she had presided over between those two investigations. They might be forgiven for their ignorance of all the resolutions of Trump’s current challenges to Executive Privilege in the January 6 investigation.

That said, Twitter’s lawyers aren’t the only ones who should have read the Mueller Report more closely. So are the journalists reporting on this.

One after another journalist (CNN, NYT, Politico, all involving journalists who covered the Mueller investigation) has mistaken DOJ’s request for data — attachment B to the warrant — as some kind of statement of what DOJ was most interested in receiving. Based on that, their stories focus on the fact that DOJ asked for or obtained DMs involving the former President.

But that attachment looks to be largely boilerplate. It is not much different from warrants obtained five years ago, in the Mueller investigation, such as this one, also served on Twitter, apparently targeting Trump’s rat-fucker Roger Stone in an investigation into whether he was serving as a foreign agent of Russia, a warrant that also came with a gag, one Twitter did not contest. One main — telling — difference, is that the Trump request included standard subscription information, which Mueller’s investigators appear to have already requested; one of the items on which Twitter held up compliance, in fact, was Trump’s gender, a sure testament to obstruction within the company.

While Twitter’s services have changed significantly in the interim years, both ask for the same kind of information: DMs, drafts, deleted content, favorited content.

And for good reason!!! These warrants may well have been targeting the same kind of behavior, the kind of organized troll campaigns that exploit Twitter’s algorithms, in which users use a variety of means to obscure their identity. There is a significant likelihood these warrants were targeting precisely the same group of far right online activity, the very same people.

One of the most important Twitter users leading up to January 6, Ali Alexander, is the protégé of Roger Stone and the effort to drive attendance at January 6, Stop the Steal, was a continuation of the effort Stone started in 2016, an effort that may well have been covered by that 2018 warrant or one of the others targeting Stone’s Twitter activity.

To be sure: There are DMs in Trump’s account, though it’s not entirely clear when they date to. Without reading any of the DMs, Twitter checked to see whether the volume of data in Trump’s account indicated the presence of DMs.

MR. VARGHESE: So, Your Honor, we went back — because this was an important issue for us to compare, whether or not there were potentially confidential communications in the account, and we were able to confirm that.

THE COURT: How?

MR. VARGHESE: So, Your Honor, there was a way that we compared the size of what a storage would be for DMs empty versus the size of storage if there were DMs in the account. And we were able to determine that there was some volume in that for this account. So there are confidential communications. We don’t know the context of it, we don’t know —

THE COURT: They are direct messages. What makes you think — do you think that everything that a President says, which is generically a presidential communication, is subject to the presidential communications privilege?

MR. VARGHESE: No, Your Honor.

But Twitter’s focus on DMs arose from their frivolous basis for delaying response to the warrant — their claim that some of these DMs might be subject to a claim of Executive Privilege.

Moreover, having DMs in the account is not the same thing as a prosecutor confirming that they ultimately obtained DMs, or that any DMs were relevant to the investigation, or that DMs were one of the things they were most interested in.

I don’t doubt that’s likely! But what prosecutors asked for and what was in the larger account is not the same thing as what DOJ ultimately received and used.

And the DMs — most of them, anyway — are something that were available elsewhere. At least as represented in the dispute, NARA already has Trump’s DMs from the period (DOJ chose not to go to NARA, in part, because they wanted to avoid notice that NARA has provided to Trump along the way).

There were three more things that DOJ showed perhaps more interest in, requiring Twitter to go beyond their normal warrant response tools to comply.

The first has to do with emails to Twitter about the account, of which prosecutor Thomas Windom was most interested in emails from people on behalf of Trump.

But this information about, you know, what it is that we say that we’re most specifically interested in, I did not represent that we were most interested in communications betueen government officials and Twitter regarding the account.

We did point out that — much as Your Honor did just now — it seemed beyond comprehension that there weren’t communications regarding the account when it was suspended and terminated, but that doesn’t mean government officials at least cabined to that. It can mean campaign officials. It can be anybody acting on behalf of the user of the account, or the user of the account himself.

THE COURT: So any person regarding the account is broader than what you just said, though, Mr. Windom.

“Any person regarding the account” is quite broad. It could be all the complaints of all of the Trump supporters out in the world saying: What are you doing, Twitter?

So I take it, from what you just said, that you are interested only in =- rather than “any person,” a person who was the subscriber or user of the account or on behalf of that person regarding the account?

MR. WINDOM: Yes, ma’am. An agent thereof.

When Twitter cut Trump off in 2021, they cut off active plans for follow-up attacks. And these emails might indicate awareness of how Trump was using Twitter as a tool to foment insurrection.

Another item on which Windom focused in the following hearing was associated accounts — other accounts the identifiers used with Trump’s accounts also use. Twitter claims they don’t have that — at least not in their law enforcement portal — and so had to collect it manually. But DOJ did ask them to produce it. (Note, the fact that Xitter doesn’t store this is one reason why they’re so bad at tracking information operation campaigns, because visibility on these kind of associations are how you discover them.)

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information.

As Windom explained, this information is critical to any attribution, but it’s also important to learning the network of people who would Tweet on Trump’s behalf, and any overlap between his account and their own (as Roger Stone’s showed in 2016).

Then there’s something that remains only partially explained. For some reason — even Twitter could not figure out why — there were two preservations of Trump’s account in January 2021, before the preservation associated with this warrant. One was on January 9. The other covered January 11 and 12. And when asked, the government of course wanted the latter preservation too — and it is in the possession of Twitter, and so covered by the warrant.

MR. HOLTZBLATT: At 5 p.m. on February 7th, I think that was our day, we produced all data in this category that was in the standard production tools of Twitter.

We communicated with the government on February 8th that there were prior preservations of the subject account that are not within Twitter’s standard production tools and that would, therefore, require engineering to obtain information. And we asked the government whether it wished us to undertake that effort, and the government confirmed that it did.

And we have since then — when we produced on February 7, we indicated to the government in our production letter that there was potentially deleted data that might exist, which is what would be found in prior preservations, but that it would require additional engineering efforts.

At 2 a.m. last night, or this morning, Twitter produced additional information from those prior preservations that falls within category 2A. There are —

THE COURT: When you say “prior preservations” what are you talking about?

Prior litigation holds of some kind or that you had a stash or a cache of preserved data sitting in different places? What are you talking about?

MR. HOLTZBLATT: I am referring — with respect to this particular account, I am referring to preservations from two specific dates. There is a preservation that was made that includes the subject account covering January 3rd to 9th, 2021. There is a second preservation of this that includes this account that covers January 11 to 12, 2021.

Those are collections of data that — they are not — it’s not coterminous with the categories that would exist in the active account right now and — and that’s data that does not exist within a production environment. So it’s not data that you can just click — we have a system to just click a button and produce, which is why we indicated that further engineering efforts might be necessary.

We asked the government if they wished us to undertake those efforts. We had an engineer working through the night, after the government asked us to, to undertake those efforts. At 2 a.m. in the morning we produced additional information that came from those preservation.

There are two categories of information that — actually, I’m sorry, three categories of information that we are still working to produce because of the engineering challenges associated.

One of those categories is the list of — I am not sure this is from 2A. But I think, for purposes of coherence, it would be helpful for me to describe it now because it connects to this preservation; that is, followers — a list of followers for this account that were contained within the January 11 through 12th prior preservation. We have segregated that information. It is a complicated and large set of information. And we are unable to deliver it in the manner that we normally deliver information to law enforcement, which is to send a token.

We believe right now it would require physical media to put that information on and to hand it over to the government.

[snip]

MR. HOLTZBLATT: As I mentioned, Your Honor, there were two prior preservations, and then there is the current production tools. In two of the three of those sets, the January 3 through 9 and the current one, we have produced the tweets and related tweet information for the account.

In the January 11 to 12th prior preservation, the way that the tweet and tweet-related information is stored, it goes all the way back to 2006. We don’t have a warrant — that is contents of user communications. He don’t nave a warrant that would permit us to produce the entirety of that information. So what we have is a tool 7 that — what we refer to as a redaction (sic) tool or trimming tool. Because this is not a production environment, a human being has to go in and manually trim the information to isolate the date range. That, I think Your Honor can understand, is a laborious process, including for this particular account, given the time frame; and we need to isolate it, I think, over a three-month, four-month period, I’m sorry, Your Honor. So we are undertaking it.

Unsurprisingly, DOJ wanted to be able to compare the accounts as they existed on January 8 and January 12, 2021, because Trump’s attack was still ongoing and because people were beginning to delete data.

Trump’s DMs, if he used them or even just received them in this period, would be critically important. But Twitter was one of Trump’s most important tools in sowing an insurrection. And the data showing how he used the account, and who also used it, is as important to understanding how the tool worked as the non-public content.

Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

August 15, 2023/203 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

The Georgia indictment and Trump’s federal indictment tell the same story. But those stories have some key differences, that will create an interesting prisoner’s dilemma for those involved. The different exposure of Sidney Powell in both and the different treatment of Ruby Freeman show how they’re different.

Sidney Powell’s lawsuits and alleged hacking

The last overt act described in the federal indictment against Donald Trump describes how, at 3:41AM, Mike Pence certified the election for Joe Biden.

123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.

But two of the charged conspiracies — the 18 USC 371 conspiracy to defraud the US and the 18 USC 241 conspiracy against rights — go through January 20. Since they are charged as conspiracies, anything Trump’s co-conspirators said and did after January 6 can also be used to prove the case against Trump.

That’s particularly notable for Trump’s Crazy Kraken Conspirator, Sidney Powell. As noted, the only overt act of hers described in Trump’s federal indictment has to do with her lawsuits targeting Dominion.

Those lawsuits don’t figure in the Georgia indictment at all — not even the November 25 one against Georgia explicitly described in the federal indictment. Instead, Powell’s primary criminal exposure in the Georgia indictment has to do with her conspiracy to get access to Dominion data from Coffee County, a conspiracy that — the Georgia indictment alleges — started on December 1, continued through their access of the data on January 7, after which the data continued to be exploited until at least April. Powell’s larger effort to exploit Dominion data, even that obtained in Michigan, plays a part in the RICO conspiracy.

In the federal case, Powell’s lawsuits serve both to justify backstopping of the electoral certification (meaning, you had to have lawsuits to justify having fake electors) and to prove that Trump was magnifying fraud claims from someone — Powell — everyone openly labeled as batshit. If and when Jack Smith ever adds charges — against Powell, Trump, or his PAC — for fraudulent fundraising, his embrace of claims sourced to Powell will be important to prove he knew he was lying in his fundraising.

In the Georgia case, by contrast, she is charged with outright conspiracy to illegally access computers and election fraud associated with accessing the Dominion data.

The overall arc of the conspiracies is the same; the criminal exposure is radically different.

Death threats and interstate entrapment efforts

Paragraph 26 of the federal indictment describes how Rudy Giuliani lied in a Georgia hearing, including but not limited to about Ruby Freeman and Shaye Moss, which resulted in death threats.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

Prosecutors are well aware of the import of Trump’s bullying — they made it part of their bid for a protective order. But, probably in an effort to stave off any real claim about charging First Amendment protected speech, such bullying is not charged, not even Trump’s targeting of Mike Pence.

The Georgia indictment, as Rick Hasen also notes, focuses much more on crimes targeting Freeman and Moss.

Rudy is charged for the lies he told on December 10 in Count 7. He and Ray Stallings are charged with soliciting Georgia Representatives to violate their oaths in Count 6.

But in addition to that, Lutheran minister Steve Lee is charged with two counts for trying to trick Freeman, once on December 14 and again on December 15, into confessing to voter fraud that didn’t happen. And he is charged along with Kanye’s publicist, Trevian Kutti, and Black Votes for Trump official Harrison Floyd with another attempt to get her to confess to voter fraud on January 4 and an attempt to get her to lie to the state.

These are alleged crimes that arise from Freeman’s status as a Fulton County election worker and as such are properly the concern of Fani Willis, not Jack Smith.

All of which is to say that even though both the RICO charge and Trump’s conspiracies map the same conduct, they tie to different crimes, with different kinds of exposure for different people.

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

In other words, if people who are likely to be indicted by Jack Smith think the charges in Georgia are at all serious, they may flip sooner rather than later, which will likely lead them to cooperate in the DC case as well.

There’s a reason why prisoner’s dilemma is the basis for so much game theory. The way these two competing indictments intersect may rewrite that doctrine, something called Trump defendant dilemma.

Then consider the timing. Later this month — potentially on August 28, three days after all Willis defendants have to turn themselves in — Jack Smith’s prosecutors will fight for a January 2 trial date, which is ambitious. Last night, Fani Willis said she wanted to bring all 19 defendants to trial within 6 months, which would be late February or March.

Even if one or both of those dates would hold, it might require Alvin Bragg be willing to reschedule his own trial on the hush payment cover-up.

But if even just one of these trials goes forward on such an ambitious schedule, it would mean that this Trump defendant dilemma will be playing out even as GOP primary voters go to the polls.

The Bubble Three

One of the most interesting other ways the Georgia indictment and the federal one will interact is in how the three men on the bubble — Mike Roman, Boris Epshteyn, and Mark Meadows — respond. While we’re not yet sure whether Boris or Roman is CC6 in the federal indictment, there’s more support right now for it being Boris. Both men had their phones seized by DOJ in September. Both men sat (or said they’d sit) for proffers with Jack Smith’s team; neither has been (publicly) charged by DOJ yet.

Roman is charged in the Georgia indictment, both with the RICO charge and the Trump side of each of the fake elector charges. He’s the guy who was interacting directly with people in Georgia (and with CC4, Robert Sinners, who cooperated even with the January 6 Committee). If Roman actually did start cooperating with Jack Smith’s team, there’d be no down-side to doing so with Willis’ team, either.

Boris, by contrast, is almost certainly CC3; Act 109, describing a Chesebro email to Eastman and CC3 matches this passage from the January 6 Report.

By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that thereare two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”122

So Boris is not facing the charges that can’t be pardoned but may he facing the charges that can be.

Finally, there is Meadows. The slim exposure for Meadows in this indictment — he is charged in the RICO charge and the solicitation charge tied to the Raffensperger call — may explain why he was not listed as a co-conspirator, yet, for the Jack Smith indictment. The most damning acts attributed to him in the indictment were:

Sometime in December: Meeting with Johnny McEntee and asking him for a plan to throw out half the electoral votes in some states
December 22: Unsuccessfully attempting to enter the audit site in Georgia
December 27: Offering Trump campaign funds if it would help get signature verification done by January 6

Other than that, Meadows’ actions entail setting up phone calls on which Trump lied and solicited unlawful acts. Meadows has a superb lawyer and might try his luck with these charges.

If any of these men cooperated — if any already is (though I really think Meadows is not) — then it would provide both prosecutors a pivotal person in the conspiracies (and, in Boris’ case, the stolen documents conspiracy as well).

As I said above, the interaction of these two indictments, along with the uncertainty as Jack Smith continues to investigate, creates a fierce game of prisoner’s dilemma. And that’s before Smith charges any financial crimes tied to fraudulent fundraising.

Update: Meadows has moved to remove the charges against him to federal court — a move he may have more success doing than Trump.

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“They Spoke Often:” It Took the Fash-Friendly FBI Over Two Months to Document the Lies Their Informant, Joe Biggs, Told them

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Death by Tweet: “User Attribution Is Important”

“Poor Mr. Zebley:” Both Xitter’s Lawyers and Journalists Responding to Boilerplate Need to re-Read Mueller

Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

Sidney Powell’s lawsuits and alleged hacking

Death threats and interstate entrapment efforts

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

The Bubble Three

Interesting links

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