Jack Smith Gives Trump Until Thursday to Explain Himself to the January 6 Grand Jury
Trump has released this post on his failing social media site, which I’ve altered to remove the garbage.
Maggie and Mike Back Together Again, This Time on, or with, January 6 Corrupt Purpose
Yesterday, the NYT broke the news that Jared Kushner testified before Jack Smith’s grand jury last month and told them — in testimony that conflicts with other witness testimony — that his father-in-law really did believe he had won the election.
Federal prosecutors investigating former President Donald J. Trump’s attempts to overturn the 2020 election have questioned multiple witnesses in recent weeks — including Mr. Trump’s son-in-law, Jared Kushner — about whether Mr. Trump had privately acknowledged in the days after the 2020 election that he had lost, according to four people briefed on the matter.
The line of questioning suggests prosecutors are trying to establish whether Mr. Trump was acting with corrupt intent as he sought to remain in power — essentially that his efforts were knowingly based on a lie — evidence that could substantially bolster any case they might decide to bring against him.
Mr. Kushner testified before a grand jury at the federal courthouse in Washington last month, where he is said to have maintained that it was his impression that Mr. Trump truly believed the election was stolen, according to a person briefed on the matter.
The scoop, which brings the old team of Maggie and Mike back together again, is fine. Whoohoo! Another top witness.
Just as interesting that Jared has testified is the news — buried in paragraph 31 — that Ivanka has not yet testified before the grand jury, though there’s a good deal of wiggle room about whether she has complied with a document subpoena or whether she has spoken with prosecutors outside of a grand jury.
The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.
Maggie and Mike, always solicitous of Ivanka and her family, mention Ivanka’s testimony to the January 6 Committee, but they neglect to mention that after Ivanka testified to the January 6 Committee, the committee specifically called her out for her lack of candor, effectively inviting DOJ to consider false statements charges for her. So it may not be a good sign for Ivanka that she hasn’t been called before the grand jury.
That’s an interesting detail, but given that this is Maggie and Mike, I’m as interested in what appears between the Jared news and the Ivanka news: Maggie and Mike’s explanation for why (they claim) this matters. They explain that asking whether Trump knew he lost is important to ascertaining whether he had a “corrupt purpose” in obstructing the vote certification. Based on that premise, Maggie and Mike raise doubts about whether Jack Smith will be able to charge this, because without that, they suggest, Smith will lack one key element of the obstruction statute.
Maggie and Mike don’t mention that dozens — probably over a hundred — people have been convicted under 18 USC 1512(c)(2) for their actions on January 6 already; by DOJ’s most recent count, 310 people have been charged with it. Many if not most of them tried to argue at some point that their crimes were cool because they really did believe Donald Trump’s lies.
To be fair to poor Maggie and Mike, who after all are mere journalists, the conceit that Trump might dodge obstruction charges because he believed his own hype is one that has long been parroted by TV lawyers, and Maggie and Mike do cite several lawyers talking about how having proof that Trump knew he lost would strengthen the case.
But we have two years of public record showing that’s not how it works.
What VIP obstruction looks like: Alan Hostetter
Here’s what a guilty verdict for obstructing January 6 looks like in reality, taken from findings that Reagan-appointed Judge Royce Lamberth wrote up to support his guilty verdict yesterday for Alan Hostetter, a southern California anti-mask activist who played a key role in organizing others from southern California to come to DC on January 6.
In December 2021, I wrote about the challenges and import of prosecuting people like Hostetter — I called him and similar figures organizer-inciters — for obstruction, in part because it’s a test of whether DOJ will be able to hold even more senior people accountable for inciting others to commit violence.
Like Trump, Hostetter is a VIP who didn’t enter the Capitol, but who spent the weeks leading up to January 6 riling up others to obstruct the vote certification. As such, he’s a really good read on how obstruction might apply to Trump.
Every time Lamberth presides over a bench trial, he writes up and dockets his findings. I could hug him for doing so, because they provide a really superb way to understand how a very senior judge who has been presiding over these cases for over two years views them. Journalists and TV lawyers who, unlike Lamberth, haven’t been living and breathing January 6 for two years could learn a lot from reading every one of his findings reports, or at least this one.
Lamberth pointed to the following evidence to support his guilty verdict that Hostetter had obstructed the vote certification:
After arriving at the West Plaza, Mr. Hostetter advanced underneath the inauguration stage scaffolding and up a set of stairs leading to the inauguration stage. While on the stairs, Mr. Hostetter used a bullhorn to cheer on the crowd below as it violently fought against police and attempted to break the lines. Meanwhile, on a landing at the top of the stairs, several officers formed a line to prevent a group of rioters from reaching the inauguration stage. Mr. Hostetter’s co-conspirator, Mr. Taylor, joined the group of rioters and began pushing against the officers who were blocking access to the stage.
[snip]
Mr. Hostetter’s actions obstructed and impeded the proceeding by, together with the actions of others, forcing the evacuation of Congress and the end of the certification session, as shown in the testimony of Inspector Hawa and Mr. Schwager. By joining the riot, exhorting the crowd, standing with a vanguard of rioters making a highly-visible and violent effort to access the inauguration stage, and remaining on the Upper West Terrace for two hours while police attempted to clear out rioters, Mr. Hostetter helped ensure that Congress was under a sufficient security threat requiring adjournment and then an inability to resume the official proceeding that their actions helped to disrupt.
It’s not just that Hostetter’s own physical premise obstructed the vote certification, his exhortations to other, more violent people, did too.
Lamberth specifically noted that Hostetter’s purpose was to obstruct an election result he viewed as fraudulent.
Among other evidence … Mr. Hostetter’s own testimony[] demonstrate[s] that Mr. Hostetter understood his purpose on that day to be stopping an election result that he viewed as fraudulent by obstructing or impeding the Electoral College Certification.
Lamberth cited multiple exhibits and testimony showing that Hostetter knew the significance of the Electoral Certification. Notably, he describes how Hostetter listened to Trump explaining what he wanted, and then took action.
Mr. Hostetter testified that he had been closely following the efforts to overturn the 2020 Presidential Election and news about what was happening with the Electoral College Certification. Additionally, Mr. Hostetter testified that he listened to speeches at the Ellipse given by Rudy Giuliani and President Trump, was engaged by them, and remembers President Trump talking about Vice President Pence. During President Trump’s speech, President Trump made statements concerning what he wanted to happen with the certification and Vice President Pence’s role in the certification, which Mr. Hostetter heard.
Lamberth substantiated Hostetter’s corrupt purpose — what Maggie and Mike claim requires proof of knowledge that Trump lost — by pointing to the former cop’s consciousness of wrong-doing by walking, armed with a hatchet, onto Capitol grounds, what Dabney Friedrich adopted as “otherwise illegal means” standard to meet the statute’s corrupt purpose requirement.
Mr. Hostetter had the necessary mental state to meet the “corruptly” requirement. First, by himself carrying an inherently dangerous weapon into the restricted grounds of the Capitol, Mr. Hostetter used an unlawful means, specifically the independently felonious means of entering and remaining in a restricted building with a deadly or dangerous weapon.
Lamberth also pointed to Hostetter’s own incitement of others as evidence of corrupt purpose.
Additionally, Mr. Hostetter sent numerous messages and made speeches before and immediately after January 6 effectively calling for revolution. He also recorded videos in which he called for executions of public officials in connection with the 2020 Presidential Election.
Importantly, Lamberth specifically addresses, and dismisses the import of, Hostetter’s claims that he believed he was doing something good.
I also find that even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing. Belief that your actions are ultimately serving a greater good does not negate consciousness of wrongdoing.
[snip]
[T]he point isn’t that the defendant needs to understand what he’s doing is morally wrong; it’s that he needs to understand that what he’s doing is unlawful. Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.
And Lamberth addresses the mid-point of the appellate debate at the DC Circuit on corrupt purpose in the Fischer decision — requiring an unlawful benefit to find corrupt purpose.
I find that Mr. Hostetter took these actions in order to provide an unlawful benefit to his preferred presidential candidate, President Trump–by disrupting the Electoral College Certification that would have led to President Trump’s loss of the presidency.
Requiring finding an unlawful benefit is not, yet, the standard for obstruction in the DC Circuit. A separate panel considered the standard for corrupt purpose in Thomas Robertson’s appeal on May 11. But it is likely to be the most conservative standard that the DC Circuit (and even SCOTUS) would adopt, so Lamberth is protecting this verdict in advance of further rulings from the Circuit.
In any case, as I’ve noted over and over, even if that were the standard, it would apply to Trump if he were charged far more easily than any of the 300-plus people who’ve already been charged with obstruction for January 6. For Trump, whether he believes he won or not is not only unnecessary, but because he was trying to steal the election, it’s easier to prove corrupt purpose under this standard for him than for anyone else.
This is what applying the obstruction statute to January 6 looks like in real life. One after another judge has, like Lamberth, explained why it doesn’t matter whether someone believed that Trump won.
It doesn’t matter. Maggie and Mike built an entire story around a standard that two years of directly applicable precedents — precedents that will dictate terms of the elements of offense if Trump ever is charged under 18 USC 1512(c)(2) — show doesn’t matter.
Whether Trump believes he won doesn’t matter for 18 USC 1512(c)(2).
Jared Kushner’s central role in monetizing the lies
Whether Trump knew he won doesn’t matter for 18 USC 1512(c)(2).
It does matter — a lot — for any campaign finance charges arising out of January 6, and in that, it could have an indirect impact on Jack Smith’s charging decisions.
And, in part because Jared made himself scarce for January 6 itself, that’s actually the area where the former President’s son-in-law has more personal exposure than on the conspiracy to obstruct the vote certification.
This is a point MSNBC’s Lisa Rubin made at length in response to this news yesterday (and her coverage of this is so good I hereby create a special category of people who happen to be lawyers but even in spite of that provide superb TV analysis based on the actual facts).
Here’s how J6C addressed it.
Several days earlier, Trump Campaign Senior Advisor Jason Miller had explained the intention for this round of advertisements in an email. He wrote that, “the President and Mayor Giuliani want to get back up on TVASAP, and Jared [Kushner] has approved in budgetary concept, so here’s the gameplan” in order to “motivate the GOP base to put pressure on the Republican Governors of Georgia and Arizona and the Republican controlled State legislatures in Wisconsin and Michigan to hear evidence of voter fraud before January 6th.”317 Miller anticipated a budget of $5 million and asked for the messaging to follow an earlier round of advertisements, “but the endings need to be changed to include phone numbers and directions to call the local Governor or state legislature.”318 On December 22nd, Jason Miller texted Jared Kushner that “POTUS has approved the buy.”319
[snip]
Trump Campaign leadership was fully aware of post-election fundraising totals. According to Coby, President Trump’s son-in-law and senior advisor Jared Kushner “had the most interest in the digital program” and “would just check in on [fundraising] results,” and routinely received updates regarding fundraising from Coby.70 Coby also made clear that Kushner was heavily involved in the Campaign’s budget process71 and that he updated Kushner on TMAGAC’s post-election fundraising totals.72
The Select Committee received documents confirming Kushner’s involvement. For example, on November 8, 2020, Kushner requested that a daily tracker be created showing the Trump Campaign’s financial position from election day forward.73 In an email, Kushner noted that the tracker would allow the Campaign to consider its cash flow ahead of the creation of “a new entity for POTUS[’s] other political activities.”74 Just days after the election, and after the Campaign had three of its four best fundraising days ever on November 4th, 5th, and 6th,75 Kushner was preparing for the launch of President Trump’s new leadership PAC, Save America. Kushner stated that he needed this new daily tracker because the Trump Campaign was going to continue fundraising post-election.76 Kushner continued to receive these detailed daily trackers, which included Save America’s fundraising hauls, through at least December 2020.77
Jared Kushner isn’t much use as a witness about Trump’s actions and intent on January 6 itself.
He’s a central witness to the decision to monetize Trump’s lies by sowing violence — and even, to then use that money for purposes other than addressing election integrity. That’s why his grand jury testimony last month is of interest.
And his claim that Trump really believed he won may not help Trump; it may hurt Jared. But then, Jared has a very direct interest in claiming that all this fundraising based off lies were based on a good faith belief Trump had won.
Campaign finance fraud is an otherwise illegal action
I’m not promising here that Trump will be charged with obstruction — though, as noted, I long ago pointed to people like Hostetter as early tests of whether he could be, and his conviction yesterday shows how that might work.
I’m saying that people who came late to the understanding that DOJ is using obstruction to prosecute January 6 — which I first mapped out 23 months ago — seem little interest in the two years of precedent about how it will be applied. I include, for special notice, this “model prosecution memo” from JustSecurity — which doesn’t even mention the Justin Walker concurrence in Fischer (which Lamberth addressed in his findings), much less the pending Robertson decision in the DC Circuit that will dictate this application for Thomas Robertson, for Alan Hostetter, and for Donald Trump — in that category.
Trump’s knowledge of his loss matters far more for his decisions about fundraising than it does for obstruction charges. But they may influence any obstruction charges, because campaign finance violations — Trump’s fundraising through the moment he sicced his mob on the Capitol — would be one way DOJ could prove otherwise illegal conduct to meet that corrupt purpose standard under 18 USC 1512(c)(2) if that’s what the DC Circuit adopts in Robertson.
Plus, profiting off false claims of being robbed is another way that Trump personally benefitted from the incitement, even ignoring his bid to stay in power.
Update: This post on Maggie’s curious foray into campaign finance journalism notes that shortly after that misleading story, she and Mike broke the news of the Jared and Ivanka subpoena, which Maggie and Mike claimed was about calling off dad’s attack.
After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.
That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.
Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.
Back to Maggie’s solo endeavor to read FEC filings.
[snip]
As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.
But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”
“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”
I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.
Rudy’s Even Worse Week
Back in May, I wrote a post called, “Rudy’s very bad week.”
It described:
- He had lost his lawyer for a PA suit against him
- Judge Beryl Howell was forcing him to cooperate in the Ruby Freeman lawsuit against him
- Rudy claiming he faced no legal risk from Jack Smith
- He was being sued by a former associate Noelle Dunphy who claimed to have two years of his email
He had a worse week this week.
That’s true, in significant part, because yesterday the DC Board on Professional Responsibility recommended he be disbarred in DC. the committee basically said he made false claims based on no evidence to disrupt the peaceful transfer of power.
The documentary evidence that Respondent did produce is fundamentally vague, speculative, or facially incredible. We have reviewed it and have examined with particularity the materials cited by Respondent in his posthearing filings. Respondent’s PFF 36-37. Although the materials identify a handful of isolated election irregularities, they completely fail to demonstrate that the observational boundaries or Notice and Cure procedures facilitated any meaningful fraud or misconduct that could have possibly affected the outcome of the presidential election.
[snip]
Mr. Giuliani’s argument that he did not have time fully to investigate his case before filing it is singularly unimpressive. He sought to upend the presidential election but never had evidence to support that effort. Surely Rule 3.1 required more.
[snip]
Mr. Giuliani brought a case that had no factual support. It caused an astonishing waste of the resources of the District Court, the Third Circuit, and multiple defendants in a compressed time frame.
[snip]
We cannot blind ourselves to the broader context in which Mr. Giuliani’s misconduct took place. It was calculated to undermine the basic premise of our democratic form of government: that elections are determined by the voters. The Pennsylvania claims were carefully calibrated to blend into a nationwide cascade of litigation intended to overturn the presidential election. FF 9. Since John Adams established the precedent in 1800, no president – until 2020 – refused to accept defeat and step away from that office. And no lawyer – until 2020 – used frivolous claims of election fraud to impede the peaceful transition of presidential power and disenfranchise hundreds of thousands of voters.
[snip]
His frivolous claims impacted not only the court and parties involved but threatened irreparable harm to the entire nation.
Even before that, though, Rudy was taking steps to settle a lawsuit for his conduct after he gave up filing frivolous lawsuits based on no evidence — the attacks he made on Ruby Freeman and her daughter.
On Thursday, Rudy’s attorney Joe Silbey reached out to Freeman’s lawyers and, less than a day later, they asked for time to come to some settlement.
On July 6, 2023, counsel for Defendant Giuliani approached counsel for Plaintiffs to discuss a potential negotiated resolution of issues that would resolve large portions of this litigation and otherwise give rise to Plaintiffs’ anticipated request for sanctions. Throughout July 6 and July 7—and into the evening on July 7, counsel for both parties have worked diligently to negotiate a resolution and believe they are close.
Silbey’s approach for a settlement came one day after Freeman’s lawyers asked for $89,172.50 in legal fees for all the stalling that Rudy has already done.
The same day as Freeman asked for sanctions, they also filed a motion to compel Bernie Kerik’s cooperation. They included a revised privilege log that — while they still argue it is noncompliant with legal standards — nevertheless points to a whole slew of interesting communications in Kerik’s possession. For example, there’s a January 4, 2021 briefing for members of the Senate on which Steve Bannon was CCed (note, Katherine Freiss used both protonmail and hushmail to conduct her coup plotting; I’m leaving these emails unredacted to show the stealth with which these people were trying to steal an election).
There’s a FISA proposal from Mark Finchem.
There is what appears to be a request that Mark Meadows clear them into the White House for the December 18 meeting that doesn’t even get Meadows’ first name right.
There’s an email showing MI fraudster Matthew DePerno receiving Peter Navarro’s report even before Trump sent it out, right along with the rest of Rudy’s team (and other emails show that Victoria Toensing was closely involved in the MI shenanigans).
And the emails give a better sense of what Sidney Powell and Mike Flynn were up to.
Almost none of this would be privileged, because Rudy was no longer pursuing litigation after the PA lawsuit.
All this comes amid more reporting on Rudy’s recent 8 hour interview with Jack Smith’s team, which itself follows voluntary interviews with (at least) Mike Roman and Boris Epshteyn.
During Rudy’s last really really bad week, he had the fantastic belief he wasn’t in any legal trouble.
He may finally understand how ridiculous that is.
Update: I hadn’t been tracking the Dunphy suit, but Rudy narrowly missed being assessed attorney fees there, too, this week.
OATH KEEPER SEDITIOUS CONSPIRACY CONVICTIONS WERE THE BATTLE; APPEALS MAY BE WAR
From emptywheel: Thanks to past support from readers, we can bring you Brandi’s preview of sedition appeals. To support Brandi’s larger book project on sedition, you can donate at the link here.
With the Oath Keepers’ historic seditious conspiracy trials now in the rearview, a new fight with significant implications is on the horizon. Almost all of the defendants—including and perhaps most unsurprisingly of all, Oath Keeper founder Elmer Stewart Rhodes are appealing their convictions.
Between two respective Oath Keeper trials involving seditious conspiracy that played out late last year and early into this one, prosecutors and defense attorneys spent an excess of 16 weeks duking it out in court, poring over mountains of evidence and examining dozens of witnesses including cooperating Oath Keepers. The Proud Boys seditious conspiracy trial stretched for more than 60 days and with verdicts reached in May, sentencing is expected in late August and early September.
It is often repeated and rightfully so: seditious conspiracy is one of the gravest charges that can be brought in the U.S., and it is very rarely prosecuted. When it is, it is not often a successful endeavor. The bar is high and narrow given that the line between First Amendment-protected activities and sedition can be razor-thin.
The U.S. has endured major setbacks in prosecuting sedition cases before, so with two sets of juries delivering guilty verdicts on this count for most of the Oath Keepers indicted on it, (and then later for the Proud Boys), these were huge victories for the Justice Department.
Huge but tempered.
Tempered because a conviction can also merely mark the end of one chapter and the start of another very tricky one once appeals are in the mix.
In a recent interview with NPR analyzing the Oath Keepers sedition verdicts, extremism expert and author Kathleen Belew pointed out that seditious conspiracy prosecutions can be a useful tool to combat extremist violence in society. She argues that it sends the message to extremist and militia groups, or other groups who use force as a movement, that they won’t be treated with kid gloves or prosecuted as lone actors. The risk of prosecuting extremists includes violent retaliation but as Belew also noted, these same prosecutions have the power to rouse people to the realization that their conduct is risky and potentially quite expensive to cope with legally.
Perhaps most eloquently, Belew underlined that the only way to tamp down on extremism is to confront it, not look away from it.
Recently, a report by The Washington Post suggested none of the sedition charges may have even come to pass if a reported skittishness to bring them had persisted at upper levels of the Justice Department at the outset of the Jan. 6 investigations. To read it, it would seem that many felt sedition was a bridge much too far or too risky politically. Marcy picked that WaPo report apart already and exposed key gaps and blind spots in the story so I won’t belabor those points here.
I will, however, belabor others.
First, Marcy’s unwinding of the Post story isn’t just context for context’s sake nor is it to browbeat a reporter like Carol Leonnig who is esteemed for good reason. (I have a lot of respect for her work and that of others at the Post, for the record). But Marcy does provide useful context by raising questions that, it would appear, the Washington Post seemed to miss or perhaps failed to appreciate when relying on its sources and then sharing those findings with a public largely unversed in the nuances of Jan. 6 and its related investigations.
In the same way that Belew suggests sedition trials and convictions can act as an important deterrent to possible criminal extremists, it would seem just as vital that non-criminal, non-seditious Americans accurately grasp these serious proceedings, too. Being empowered with the ability to cut through the bullshit being spun by the far right, or Jan. 6 conspiracy theorists, hinges considerably on having a clear understanding, or at least a thorough consideration, of the historical evidence at the trials themselves.
For my purposes, perhaps most striking in that Post piece was a detail that later needed to be corrected. In the first iteration of its story, the Post incorrectly stated that the Justice Department attempted to prosecute those involved in the kidnapping plot of Michigan governor Gretchen Whitmer with the sedition statute.
But they did not use it in that case; so the comparison wasn’t just incorrect but it wasn’t apt at its inception. What would be more apt would be to mention how prosecutors used it in the Hutaree Christian militia case from 2010. This is a critical distinction because the Hutaree case is deeply relevant as Oath Keepers appeals are underway. With the Hutaree militia, the judge acquitted the defendants of seditious conspiracy after the government closed its case. U.S. District Judge Victoria Roberts felt prosecutors had failed to sufficiently prove the militia members intended to forcibly resist the U.S. government. It was a just lot of vile talk, she found, but it didn’t rise to seditious conspiracy.
I will broach more about this later in this piece but first, let’s return to some baseline details on the appeals in progress.
OATH KEEPERS ON APPEAL
At his sentencing in May, Rhodes puffed up his chest to deliver a self-aggrandizing diatribe extremely short on remorse and extraordinarily heavy on claims of political persecution by the U.S. government and the “weaponization” of free speech by the Justice Department. His attorneys said early into the trial that if they lost, an appeal would certainly follow.
And it has.
Rhodes’ lawyers, James Lee Bright and Phillip Linder, did not return a request for comment to emptywheel this week but for the moment, according to the docket at the U.S. Court of Appeals for the D.C. Circuit, Rhodes and almost all of his co-defendants from the first trial group including Kelly Meggs, Kenneth Harrelson, and Jessica Watkins, have consolidated their efforts to attempt an appeal.
Another batch of Oath Keepers tried, charged, and convicted of seditious conspiracy include Roberto Minuta, David Moerschel, Edward Vallejo, and Joseph Hackett. They were split off into a second trial group for logistical reasons.
The only Oath Keepers convicted of seditious conspiracy as of Thursday who have yet to officially indicate whether they will appeal are Ed Vallejo and Joseph Hackett.
Vallejo’s attorney, Matthew Peed, wrote in an email to emptywheel this week that he felt it was “likely” his client would appeal. Hackett’s lawyer, Angie Halim, did not return multiple requests for comment. (Key to note: An appeal cannot be formally entered until a defendant’s final judgment makes it onto the docket and neither Vallejo nor Hackett’s final judgment has appeared yet.)
Rhodes’ attorney Phil Linder told CBS recently he expects it will take months to craft an appeal and one can only assume the same would apply to Kelly Meggs’ attorney Stanley Woodward given the demands on his schedule of late. Woodward also represents Waltine Nauta, former President Donald Trump’s valet and alleged co-conspirator in the Mar-a-Lago classified documents case. Woodward also represents Ryan Samsel, a Jan. 6 defendant who figures prominently in most “fedsurrection” conspiracy theories and he represents Frederico “Freddie” Klein, a former Trump-era State Department official. Klein faces a number of charges including assaulting police on Jan. 6, and he goes to trial in October. Woodward will also represent Trump’s former trade adviser Peter Navarro once Navarro’s trial for criminal contempt gets underway in September. Navarro, prosecutors say, defied a subpoena issued to him by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol.
Over the next 30 days, the Oath Keepers will continue to get their houses in order. Rhodes’ lawyers, according to a recent letter from the court clerk, have not yet been admitted to practice before the appeals court in but they have until July 12 to get admitted.
THE DEVIL IN THE DETAILS
After the massive unraveling of evidence and testimony at trial, it is hard to imagine a scenario in which an appeal, especially one from Rhodes, will contain, well, anything particularly novel. But the far more important factor will be whether his appeal will convince an appellate judge that his speech was not seditious.
Another one of his attorneys, Ed Tarpley, said after Rhodes was sentenced to 18 years in prison that the former far-right leader wouldn’t stop speaking up because it was a matter of principle.
The Justice Department had “weaponized” the First Amendment and used Rhodes’ own words against him to secure a conviction, Tarpley said.
Rhodes’ words were “used against him” technically speaking. But it wasn’t just his words that helped get him convicted though jurors did see mind-boggling amounts of evidence featuring his communications.
They heard speeches and reviewed texts and phone calls as well as a recorded meeting where he called for revolution days after the 2020 election. He decried the election as unconstitutional and fraudulent and promoted disinformation to rile up his group or to entice them to act in concert with him. He directed Kelly Meggs, a Florida division leader, to coordinate operations in advance of the 6th and on the 6th. He oversaw the coordination of the gigantic weapons stash, or a quick reaction force (QRF) with the help of his co-defendants. The cache was set up at a hotel in Virginia, just over the Potomac River from the Capitol. Aware of the gun laws in D.C., Oath Keepers, from points all over the U.S., understood and received directions to drop their weapons at the QRF. Rhodes’ future co-defendant Ed Vallejo would stand by awaiting Rhodes’ orders to haul the weapons in if asked.
The beginnings of Rhodes’ intent were aired out in trial courtesy of a recorded GoTo Meeting with fellow Oath Keepers on Nov. 9, 2020.. Rhodes didn’t mince words and in fact, his fury was so complete, he scared one Oath Keeper into eventually reporting the call to the authorities.
They would have to fight to keep Trump in office and this wasn’t a metaphorical “fight.”
“Let’s make no illusion about what’s going on in this country. We’re very much in exactly the same spot that the founding fathers were in like March 1775. Now—and Patrick Henry was right. Nothing left but to fight. And that’s true for us too. We’re not getting out of this without a fight. There’s going to be a fight. But let’s just do it smart and let’s do it while President Trump is still Commander in Chief and let’s try to get him to do his duty and step up and do it,” Rhodes said.
Trump would not urge his supporters to descend on D.C. until Dec. 19, but prosecutors demonstrated that the Oath Keepers’ seditious conspiracy didn’t simply or only start to exist once Trump called for the “wild” event.
During that Nov. 9 call, Rhodes’ told members they would need to be willing to travel to Washington and prepare to war with “antifa.” This was something he explained had multiple benefits.
If they were there to stop “antifa” from attacking Trump supporters, it would give Trump a reason to invoke the Insurrection Act and raise Oath Keepers to his side.
“I’m willing to sacrifice myself for that. Let’s start the fight there, OK? That would give President Trump what he needs frankly,” Rhodes said.
Getting Trump to invoke the Insurrection Act so the “fraudulent” election could be stopped was ideal for Rhodes and as the weeks after the election passed and Trump lost lawsuit after lawsuit challenging the results, his desperation grew.
On Jan. 6, Rhodes never stepped foot inside the Capitol. He stalked its grounds as he communicated with Oath Keepers on site and just moments before Oath Keepers breached, cell phone data showed Rhodes had called Meggs in what prosecutors argued was an order to get inside the Capitol and plow ahead. Prosecutors said the defendants understood, even without it being said explicitly, that this was a means to stop Congress from doing its duty. At trial, footage after this call in question appears to show Meggs entering the Capitol as if on cue.
Rhodes wasn’t indicted for propagandizing. He wasn’t indicted for having an opinion contrary to fact. He wasn’t indicted for wanting Trump to be in office even after Trump lost the election and then lost dozens of lawsuits seeking to overturn the results.
Rhodes wasn’t indicted for writing public letters and posting them online urging Trump to invoke the Insurrection Act in order to stop the “fraudulent” election of Joe Biden, a man Rhodes proclaimed was a “puppet” for communist China. (For the record, Rhodes wrote two of these letters; one was published on Dec. 14 and another on Dec. 23, 2021.)
And Rhodes certainly wasn’t indicted for merely traveling from Texas to D.C. on Jan. 6 to attend a rally with thousands of other people who showed up to support Trump’s Big Lie.
Rhodes was charged and convicted of seditious conspiracy, obstructing an official proceeding, and tampering with evidence because his words, when coupled with his conduct and the conduct of the men he oversaw, far exceeded the protections the First Amendment has to offer.
Rhodes didn’t simply oversee a bunch of loudmouth oafs hand-painting protest signs in a hotel in Virginia before sauntering over to the Capitol to chant outside of it peacefully.
When he was en route to D.C. from Texas, bank statements and receipts showed. Rhodes spent more than $10,000 on firearms and gear like sights, scopes, ammunition, and night vision equipment. On their return to Texas after the 6th, Rhodes didn’t stop spending. In fact, he spent at least another $30,000 on weapons and equipment. Jurors saw maps and cell extraction reports that showed how, when, and where Rhodes coordinated these purchases and communications. Jurors saw how Rhodes coordinated with Oath Keeper Joshua James while returning to Texas and how they worked together to collect firearms and tactical gear. And all the while, Rhodes angled to conceal his movements, using his then-girlfriend Kellye SoRelle as a cutout to communicate with Oath Keepers via text through her and her phone. It was revealed to jurors also that James, who pleaded guilty to seditious conspiracy, sent a message to Rhodes as late as Inauguration Day saying, “After this… if nothing happens, it’s Civil War 2.0.”
When former Oath Keeper Terry Cummings, who traveled with other members to D.C. for the 6th, testified against Rhodes in court, he said not since his time in the military had he ever seen so many guns in one place.
Rhodes’ defense hinged on the argument that Oath Keepers came to Washington merely to serve as a security force for Trump VIPs attending speeches or rallies. One of those VIPs was ratfucker Roger Stone. Oath Keepers Joshua James and Roberto Minuta were tasked to guard him. Yet they would leave Stone at the hotel and speed towards the Capitol on golf carts as soon as Rhodes called them to his side. Meanwhile, Stone hightailed it out of D.C.
At other times, the defense claimed Oath Keepers came to Washington to provide medical support as needed. Defendant and former Army medic Jessica Watkins had medical training, that was true, but her defense was undercut by her own admission on the witness stand: She did impede police when she forced her way into the Capitol and pushed past them.
At sentencing, she wept when she recalled memories of the police officer who was overrun thanks to her conduct.
It seemed at trial the defense’s goalposts shifted depending on which defendant was under questioning or how a witness performed. The disclosed purpose for amassing the weapons cache or going to the Capitol regularly shifted around its edges in the Rhodes trial, and so many stories simply didn’t hold up under the scrutiny of cross-examination or redirect.
Memorably, assistant U.S. Attorney Jeffrey Nestler remarked to jurors during closing arguments in the first Oath Keepers trial that for all the claims of Oath Keepers being an organized security force on Jan. 6, not one defendant was licensed or insured to provide security services and no one held any contracts for these supposed clients.
And if the evidence from before Jan. 6 or the day of didn’t sink him, what followed proved Rhodes wanted to overthrow a government where Joe Biden was its executive. On Jan. 10, 2021, while downtown D.C. was still bustling with National Guard left over to protect the Capitol and nearby federal buildings, Rhodes took a meeting in a parking lot in Texas with U.S. veteran Jason Alpers.
Alpers testified that he had “indirect” ties to the Trump White House but no further description was offered in court. Alpers said he linked up with Rhodes through an associate of Allied Security Operations Group, the same group that led an “audit” of voting machines in Antrim County, Michigan. (Michigan, of course, was one of several battleground states where Trump’s lawyers, including Sidney Powell and others, claimed fraud was pervasive. Powell was sanctioned for her role in pursuing such baseless claims in the courts last week.)
The meeting was set so Rhodes could pass a message to Trump. Alpers would secretly record the exchange. Rhodes was furious. He wouldn’t condemn the violence on the 6th but he had other regrets.
If Trump was going to just let himself be removed illegally, Rhodes remarked, “then we should have brought rifles.”
“We could have fixed it right then and there,” he said on the recording before adding that he would “hang fucking [then Speaker of the House Nancy] Pelosi from the lamppost.”
Furious, he tapped out a message into Alpers’ phone because he expected Alpers would pass it along to his Trump contact.
Trump would be killed by his enemies if he didn’t act now, Rhodes warned.
‘You must use the Insurrection Act… if you don’t, you and your family will be imprisoned or killed. You and your children will die in prison… you must do as Lincoln did. He arrested congressmen, state legislators and issued a warrant for SCOTUS Chief Justice Taney. Take command like Washington would… Go down in history as a savior of the Republic, not the man who surrendered it… I’m here for you and so are all of my men. We will come help if you need us,” Rhodes wrote.
He claimed he had 40,000 Oath Keepers backing him and millions of others who felt as they did.
He added: “There’s gonna be combat here on U.S. soil no matter what” and warned that the Biden administration would “disarm us all,” if allowed to take office.
The message was too extreme for Alpers to pass along. It didn’t help, the veteran testified, that Rhodes’ then-lover Kellye SoRelle, who was also there, was drunk. It put Alpers off. It was all too unprofessional and his confidence was shaken. On cross-examination, Alpers said he delayed reporting the meeting to the FBI because he didn’t want to get involved any further.
All of these elements are just slivers of what jurors heard in the weeks-long trial.
There were also several intense days where emotions ran high, including those where the parties started to dig into claims that Oath Keepers went to help Capitol Police after getting inside.
Meggs, Harrelson, and Watkins attorneys insisted their clients “assisted” U.S. Capitol Police Officer Harry Dunn who was stationed outside then-House Speaker Nancy Pelosi’s office. Armed with a rifle, Dunn told jurors he knew it wouldn’t take much for someone to grab it off him and make a bad situation worse. He told Oath Keepers to leave, he told them they were hurting police; he told them police were “getting the shit kicked out of them.”
The Oath Keepers wouldn’t leave right away though, they hung around him a bit longer instead. When prosecutors asked Dunn on redirect at trial what would have helped him that day, the officer was succinct: if they left, or never come in, that would help.
So, to review, here are the convictions from the Oath Keepers sedition cases. (It is worth noting that if Rhodes manages to pull off an appeal, he could also be resentenced.)
On seditious conspiracy:
- Elmer Stewart Rhodes, Kelly Meggs, Roberto Minuta, David Moerschel, Joseph Hackett
On conspiracy to obstruct an official proceeding:
- Kelly Meggs, Jessica Watkins, Roberto Minuta, David Moerschell, Edward Vallejo, Joseph Hackett
On obstruction of an official proceeding:
- Elmer Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, David Moerschel, Edward Vallejo
On conspiracy to prevent officials from discharging their duties:
- Kelly Meggs, Jessica Watkins, Kenneth Harrelson, David Moerschel, Edward Vallejo, Joseph Hackett
On tampering or destruction of evidence:
- Elmer Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, Joseph Hackett
Impeding officers during a civil disorder:
- Jessica Watkins
IS EVERYTHING OLD NEW AGAIN?
When the federal judge presiding over the Hutaree matter tossed all of the sedition charges against those defendants, she explained that prosecutors had failed to prove beyond a reasonable doubt that the Christian militia members took concrete steps to violently revolt against the federal government with the aid of weapons of mass destruction.
The Hutarees were recorded discussing how police were their enemies and how they wanted to kill them. They discussed how a war against the U.S. government was necessary, too. But Judge Victoria Brown ruled that a conspiracy required a specific plot or a knowing agreement to break the law or a knowing intent to join that effort. Guilt by association was not enough, she said, and neither was repugnant conversation.
A Hutaree defense attorney noted in an interview with The Guardian last October when the Oath Keepers went on trial, that when it came to the Hutaree militia, beyond a lack of a plan, there was also “no action taken.” Hutarees may have shared disdain for law enforcement, communications showed, but, he argued, it pretty much stopped there.
After the sedition acquittals for the Hutarees in 2012, a law professor from Wayne State University noted to the New York Times that the outcome just went to show how difficult it is to prosecute cases involving groups engaged in political speech. The professor also noted how Hutarees were “a fairly disorganized group” who may have “talked big” but didn’t seem to be doing much otherwise.
At the Oath Keepers trial, the defense was insistent that because there was not a concrete plan laying out the Oath Keepers’ precise efforts up to, on, or after Jan. 6, the government’s case was overcharged and amounted to a gross infringement on their First Amendment rights.
But neither Judge Mehta nor the jury believed that was the case for the Oath Keepers who were ultimately convicted of seditious conspiracy. At Rhodes’ sentencing, Judge Mehta was unequivocal on this point, telling Rhodes he posed an “ongoing peril to democracy.”
He was the one giving orders, Mehta said.
“He was the one organizing teams that day. He was the reason they were, in fact, in Washington, D.C. Oath Keepers wouldn’t have been there but for Stewart Rhodes, I don’t think anyone contends otherwise. He was the one who gave the order to go, and they went,” he said.
When the jury was instructed before deliberations, they were told that a conspiracy was defined as two or more people trying to accomplish some unlawful purpose and in order to sustain a seditious conspiracy charge, they must agree that a defendant conspired with at least one other person to oppose the government by force to delay and impede it; or they reached an agreement to use force in the ordinary sense of the word; or simply that they contemplated using force while at least one defendant actually used it.
The government had no burden, Mehta said, to prove beyond a reasonable doubt that there was an express agreement or an implied one. They just had to prove that the members of the conspiracy met, talked about unlawful objectives, and agreed to some of the details or what the means were by which objectives could be accomplished. The success of that aim was irrelevant.
Jurors deliberated for three days in the Rhodes trial; jurors in the second trial group took just over a week to reach a verdict. The end results were a mixed bag of verdicts, suggesting that jurors meticulously reviewed each defendant’s conduct.
Watkins was acquitted of sedition but convicted of conspiracy to obstruct a proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, and impeding officers during a civil disorder. She recruited Oath Keepers and coordinated with them to breach the building and disrupt police on Jan. 6, but the jury, in the end, wasn’t fully convinced her role was central to that of a seditious conspiracist.
The bar to convict remained high even for someone who recorded themselves breaching the building while actively and repeatedly encouraging others to “push, push, push” because the police “can’t hold us.” Before sentencing her to 8.5 years, Judge Mehta remarked that no one would suggest she is Rhodes or even Kelly Meggs.
“But your role in those events is more than that of a foot soldier. I think you can appreciate that,” he said.
Will these words haunt an appeal to come?
When sentencing Rhodes and Meggs, Judge Mehta was far harder on them than their co-defendants also convicted of seditious conspiracy. He handed down an 18-year sentence to Rhodes and 12 years to Meggs with terrorism enhancements applied. The maximum on seditious conspiracy alone is 20 years. Minuta was sentenced to just 4.5 years; Joseph Hackett to 3.5 years. Vallejo and Moerschel received just 3 years. And again, that would include all of the convictions weighed in.
Mehta emphasized to Rhodes at his sentencing that there was no question he “took up arms and fomented a revolution” on Jan. 6.
“That’s what you did. Those aren’t my words. Those are yours,” Mehta said. “You are not a political prisoner, Mr. Rhodes. You are not here for your beliefs.”
Perhaps this encapsulates the very reason why it matters that the sedition charge was used instead of abandoned early on. The evidence would indicate this wasn’t merely a First Amendment matter. Perhaps it may have been easier for Rhodes or Meggs or other Oath Keepers charged and convicted of seditious conspiracy to wriggle out of an obstruction charge if the focus on sedition wasn’t also on the table to start.
But whatever the case may be, that’s the recent past. And while important, there’s now an equally if not more important future to ponder just ahead.
At a time when the U.S. is awash in far-right extremism; when the man who incited the insurrection on Jan. 6 is now twice-indicted yet still running for president and running on a vengeance platform; at a time when he and other right-wing politicians vow to pardon all Jan. 6 defendants if ever given power by the body politic to do it—it will matter what happens with these appeals.
Will the Oath Keepers convicted of sedition appeal their sentences? Or will they appeal the conviction? Appealing the conviction would seem the likely route given Mehta’s light touch at sentencing for most. And as part of his tough-guy-patriot-against-the-Deep-State-routine, Rhodes has already said he’s willing to do prison time for his beliefs. An appeal on the conviction that could potentially humiliate the U.S. government would seem too tantalizing for a man like Stewart Rhodes to pass up.
If terabytes of evidence weren’t enough, if hours and hours of video footage weren’t enough, if proclamations and concerted efforts to foment an armed rebellion live on television aren’t enough to maintain the Oath Keepers seditious conspiracy convictions, then one must wonder, what will happen if history repeats itself?
FBI Saw Itself “Managing What the Elephant Sees and Hears” in Advance of January 6
According to a report released yesterday by the Senate Homeland Security and Governmental Affairs Committee (HSGAC), on January 2, 2021, then FBI Washington Field Office Assistant Director Steve D’Antuono came away from some kind of exchange with then Deputy Director David Bowdich and described to two top WFO officials, Matthew Alcoke (in charge of counterterrorism) and Jennifer Moore (in charge of intelligence) how he tried to “tamp down” concerns about or plans for January 6.
Alcoke thanked D’Antuono for “ramp[ing] down” expectations, since really all the FBI’s WFO was doing was passing on information from partners like the DC Cops and Capitol Police.
Alcoke then made a shocking suggestion about intelligence sharing:
[M]anaging what the elephant sees and hears is sometimes the best way to control the elephant’s movements.
He seems to have suggested that the FBI might manage how the Federal government would respond to January 6 by managing what kind of intelligence the FBI passed on — and his assumption was that the FBI was only passing on intelligence from partners, not collecting any of its own.
It turns out that the Federal government — that elephant Alcoke imagined he might control — didn’t respond, not adequately. In the aftermath of that shoddy response, D’Antuono claimed that the FBI had seen nothing other than First Amendment protected activity.
During a briefing with reporters on Friday, Steven D’Antuono, FBI Washington Field Office assistant director in charge, told reporters that the bureau’s threat assessments leading up to Wednesday’s mobbing of the Capitol showed “there was no indication that there was anything other than First Amendment protected activity.”
Virtually every Federal official blamed local cops and the Capitol Police, insisting the Feds weren’t supposed to be the ones moving at all, the Capitol Police were.
D’Antuono, we’ve since learned, repeatedly tried to limit the investigation in the aftermath, playing a key role in thwarting any investigation into Trump’s actions for ten months.
Manage the elephant by controlling what it sees and hears.
A day after D’Antuono and Alcoke discussed tamping or ramping down, WFO personnel sent D’Antuono, Alcoke, and Moore a summary describing the following open source intelligence:
On January 3rd, an internal WFO email marked “for FBI internal use only” cited “unsubstantiated” open-source reporting that “ranges from threats to the DC water supply to armed insurrection to various groups threatening to kill those with opposing viewpoints.”156 Among the reports cited, the email noted an open-source post regarding January 6th that said “[i]t needs to be more than a protest. We need to kick doors down and fuck shit up” and another user commented, “will kill if necessary.”157
Another social media post stated, “I’m just waiting for the 6th so I can 1776 them… January 6th we burn the place to the ground, leave nothing behind.”158
The internal FBI-WFO email noted that a tipster reported that individuals on fringe websites were discussing an overthrow of the government if President Trump did not remain in office, and stated “[d]ate of attack 01/06.”159 A Parler user stated, “[b]ring food and guns. If they don’t listen to our words, they can feel our lead. Come armed.” 160
The email also reported social media posts that noted plans to bring firearms into the District and “set up ‘armed encampment’ on the [National] Mall,” and that the Proud Boys planned to “dress ‘incognito’ in order to more effectively target ‘antifa’ in the city.”161
A tipster from Georgia told FBI that the Proud Boys were planning to come to D.C. on January 6th and warned “[t]hese men are coming for violence.” 162 Another tipster told FBI that a Proud Boy told her they were planning an attack on January 6th to shut down the government. 163
Another tip stated “there is a TikTok video with someone holding a gun saying ‘storm the Capitol on January 6th.’”164
As the HSGAC report notes, even in spite of the two warnings about the Proud Boys and threats of violence, WFO concluded that this described just First Amendment protected activities.
Despite all of that reporting, the FBI summary concluded, “FBI WFO does not have any information to suggest these events will involve anything other than [First Amendment] protected activity” and that FBI had “identified no credible or verified threat to the activities associated with 6 January 2021.”165 This was also despite the fact that the Proud Boys were known to engage in violence, including at protests in Washington, D.C. in late 2020.166
As Alcoke described, the FBI marked the summary of these warnings “Internal” because sources were sensitive about sharing it outside the FBI.
A day after discussing “tamp[ing] down” concerns with Bowdich, D’Antuono just sent this entire email to the Deputy Director.
I just sent the whole thing, I don’t want him getting a sanitized version of events.
This is a report that attempts to do what January 6 Committee largely abdicated doing, looking at intelligence failures in advance of January 6.
The House Select Committee’s final report found that President Trump engaged in a multipronged effort to overturn the 2020 election by knowingly disseminating false and fraudulent allegations, pressuring state officials to submit false elector slates, pressuring DOJ officials to make false statements alleging election fraud, and calling on supporters to join him in Washington, D.C. on January 6 th and subsequently encouraging them to march on the Capitol.23 The House Select Committee’s report largely focused on President Trump’s role in attempting to overturn the 2020 election, and only briefly discussed federal intelligence efforts in the lead-up to the events of January 6th . 24 The House Select Committee report found that intelligence agencies, including FBI and I&A, had received intelligence on the potential for violence at the Capitol.25 This intelligence included discussions of the Capitol complex’s underground tunnels alongside violent rhetoric, information on the movements of violent militia groups like the Proud Boys and Oath Keepers, and numerous social media posts discussing storming the Capitol.26 The report also found that security agencies did not adequately prepare for and respond to the threat.27
At the direction of U.S. Senator Gary Peters, Chairman of the Homeland Security and Governmental Affairs Committee (HSGAC), and following the Committee’s initial review of the security, planning, and response failures in advance of and during the January 6th attack, Majority Committee staff conducted a subsequent review focused on the intelligence failures leading up to the attack on the U.S. Capitol on January 6th.
What it describes is utterly damning.
Yet, in spite of a laudable effort to do what J6C didn’t do, there are obvious gaps.
First, as described, HSGAC met the same kind of stonewalling others received.
The Committee received responses to many of its questions and numerous document productions from the agencies in its investigation, including DOJ-FBI and DHS-I&A. However, at various points throughout its investigation, the Committee encountered significant delays, incomplete responses, denied document requests (including documents required to be provided to the Committee under federal law), and refusals to make certain witnesses available to the Committee for interviews. The Committee sought to obtain the necessary information through voluntary compliance by the agencies in its investigation, but this lack of full cooperation hinders the ability of the Committee, and Congress more broadly, to effectively and efficiently conduct legitimate oversight of the Executive Branch.
The Chair of HSGAC, Gary Peters, has broad subpoena power. Yet this report remains wildly inadequate to the task of cataloging FBI’s failures to prevent January 6.
Worse, there are several known intelligence problems that it doesn’t address.
For example, it doesn’t chase down warnings floated in both militia leader trials in the last eight months.
It doesn’t pursue what happened after Oath Keeper “Abdullah Rasheed” called into an FBI tip line reporting on the November 9, 2020 GoToMeeting call in which Stewart Rhodes started talking about a revolution.
Listening to the meeting was Abdullah Rasheed, a Marine Corps veteran and a member of the far-right group from West Virginia. During testimony on Thursday at the trial of Mr. Rhodes and four of his subordinates, Mr. Rasheed told the jury that he was so disturbed by what he heard during the meeting that he recorded the conversation and ultimately called the F.B.I. to alert them about Mr. Rhodes.
“The more I listened to the call,” he said, “it sounded like we were going to war against the United States government.”
The testimony by Mr. Rasheed, a heavy-equipment mechanic, was clearly intended to bolster accusations by the government that Mr. Rhodes and his co-defendants — Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell — committed seditious conspiracy by using force to oppose Mr. Biden’s ascension to the White House.
[snip]
On Tuesday, prosecutors at the Oath Keepers trial played several clips of Mr. Rasheed’s recording for the jury. The jurors heard Mr. Rhodes make baseless claims about foreign interference in the election and declare that he would welcome violence from leftist antifa activists because that would give Mr. Trump an excuse to invoke the Insurrection Act and call on militias like his own to quell the chaos.
“We’re not getting out of this without a fight,” Mr. Rhodes said. “There’s going to be a fight. But let’s just do it smart, and let’s do it while President Trump is still commander in chief.”
While Mr. Rasheed initially called an F.B.I. tip line to complain about Mr. Rhodes not long after the meeting took place, the bureau did not reach out to him until March 2021, two months after the Capitol was attacked. He also tried to warn other law enforcement agencies, he testified, writing to the Capitol Police that Mr. Rhodes was “a friggin’ wacko that the Oath Keepers would be better without.”
It doesn’t consider whether Shane Lamond, Enrique Tarrio’s MPD buddy who was charged in May with obstructing the investigation into Proud Boy activities in December 2020, tainted FBI’s own understanding of what would occur on January 6.
It only mentions the FBI’s own informants once, describing how FBI’s confidential human sources led the Bureau to believe the number of “protestors” on January 6 would be lower than in November and December — something any passing glance at social media would have debunked.
WFO sent an email that afternoon that appeared to rely only on its confidential human sources and other investigative leads, concluding, “[a]s of today, WFO has no information indicating a specific and credible threat. All [confidential human sources] and Guardians are not indicating anything specific and credible. Most of what WFO is seeing are random chatter with no specificity. […] WFO expects the number of participants to be fewer than the previous times – each time the numbers get smaller.”174
Most importantly, it doesn’t consider how FBI’s decision to pay a bunch of Proud Boys to inform not on the Proud Boys, but on Antifa, guaranteed that FBI would wrongly see things in terms of protestors and counter-protestors. Two witnesses testified at the Proud Boy leader trial that they were never asked to — nor would they have agreed to — inform on their buddies. Descriptions of seven other FBI informants similarly suggest the FBI had tasked a bunch of Proud Boys and friends to narc out Antifa.
If you pay a bunch of gang members to tell the FBI that their largely manufactured adversaries are the same kind of threat, rather than paying them to tell you about the attack on the Capitol the gang has planned, you have tainted your understanding of things at the outset.
And not even the behavior of those with good intelligence on the far right — those very same counter-protestors — led the FBI and DOJ to reconsider that understanding. When anti-fascists didn’t show up, DOJ concluded nothing would happened, not that the people who really did track what the far right had in mind had concluded that January 6 would be something different.
Former Principal Associate Deputy Attorney General Richard Donoghue also told the Committee that then-FBI Deputy Director Bowdich gave a briefing the morning of January 4th to Acting Attorney General Rosen and Donoghue regarding January 6th, and that while they recognized the potential for violence, they felt “relief” that counter-protesters were not expected to attend in large numbers, as there would likely not be “a situation that concerned us so much, where you would have two different political factions fighting in the streets.”324
The HSGAC Report scratches the surface of how badly FBI did in advance of January 6. It suggests that FBI affirmatively tried to prevent the Federal government from responding with due concern.
But it doesn’t begin to consider how the FBI’s own relationship with the Proud Boys, in which the Bureau deemed the militia that would lead the attack on the Capitol as partners rather than adversaries, guaranteed that the FBI would miss the attack.
“Nonzero:” On Evidence-Based Investigations and Rudy Giuliani’s Devices
After the WaPo published its 8,000-word story purporting to describe the January 6 investigation, and after I pointed out key gaps and problems with it, Carol Leonnig reached out to me to find out why I found WaPo’s silence about Rudy Guiliani’s devices so problematic.
Even after my post, Leonnig still understood the exploitation of Rudy’s devices to be limited to the FARA investigation out of SDNY. “I hear you re search of Rudy phones but to be clear that is for probe of lobbying law violations – not a plan to look at Trump orbit plot to overturn elex results,” she described.
To be clear: Her understanding was correct with regards to the known warrant used to seize Rudy’s devices. It was badly wrong with regards to the process used to review them, something that has been public for a long time.
As I first laid out over 18 months ago, after seizing Rudy’s devices, SDNY successfully requested that the Special Master process review everything on Rudy’s devices between January 1, 2018 through the date of seizure, irrespective of scope:
- April 21, 2021 (Lisa Monaco’s first day on the job): DOJ approved a warrant for Rudy’s devices in SDNY FARA investigation
- April 29, 2021 (the day after seizure): Citing the Michael Cohen case, SDNY asked Judge Paul Oetken to appoint Special Master
- August 18, 2021: Special Master Barbara Jones notices a dispute about the range of privilege review, sets schedule for briefing
- September 3, 2021: SDNY generously offers to limit Special Master review to files post-dating January 1, 2018 through date of seizure
- September 16, 2021: Judge Oetken rules that the Special Master shall review for privilege all content between January 1, 2018 and date of seizure
Oetken’s decision pertained to more than just timeline. It made clear that the government would conduct any responsiveness review.
First, this Court appointed the Special Master for the purposes of reviewing the materials for privilege, not for responsiveness. While a general exclusion [of material that pre-dated January 1, 2018] as proposed by the Government is appropriate, the imposition of detailed date restrictions or other responsiveness criteria would risk further delay in the review process.
Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.
Once this Special Master privilege review finished, then, any content responsive to any probable cause warrant targeting those devices would be available to the government without further privilege review.
Note, when DOJ suggested Barbara Jones to serve as Special Master in Trump’s Florida Special Master matter last September, Trump raised a specific and secret objection to her, though he had raised no such objections after her review of Michael Cohen’s devices in 2018.
Based on that series of decisions — starting with a decision made on Lisa Monaco’s first day, followed by a successful argument that prosecutors, not a Special Master, would do any scope review for responsiveness with warrants (the reverse process as used for James O’Keefe’s phone) — DOJ guaranteed that the January 6 investigation could immediately access Rudy’s content, either based off a plain view discovery of evidence pertaining to a crime (which is how the investigation into Michael Cohen evolved from a FARA investigation to include the hush money payment that is the basis of Alvin Bragg’s indictment), or later warrants obtained as the January 6 investigation progressed. If DOJ obtained a new January 6 specific warrant, Rudy — and any journalists he wanted to complain to — would get no notice, because (as happened repeatedly in the Cohen investigation) the new warrant would be served internally.
DOJ secured the availability of Rudy’s content (pending a new warrant) by September 2021, before Matthew Graves was confirmed and before Thomas Windom was brought in to head up an investigation focusing on Trump’s people, personnel changes that WaPo claims drove the renewed focus on Trump.
In its 8,000-word piece, WaPo raised legitimate concerns about evidence being deleted as DOJ investigated. But within a week of Monaco’s start date, DOJ had preserved the content of Rudy’s devices and started a process that would eventually make it easier for January 6 investigators to access it.
To be sure, we don’t know when or how (via plain view or via a January 6 specific warrant) Rudy’s content was shared with January 6 investigators.
We do know that Special Master Jones prioritized the content on phones that were in current use in April 2021. The first 8 devices she reviewed all included content through seizure. This table shows all the content known to be seized by SDNY; the red rectangle shows the devices, clearly including Rudy’s main phone, Device 1B05, that were reviewed through seizure date.
And, to the limited extent that a sworn declaration from Rudy is reliable, we know that the devices Jones reviewed included all of Rudy’s January 6 content. According to a declaration Rudy submitted in the Ruby Freeman lawsuit, seven of those personal devices seized using a warrant obtained on Lisa Monaco’s first day included all the digital content pertaining to January 6 in his possession at the time.
Apple iPhone 11 ProMax
Apple MacBook Model A22251
Apple iPhone 11 Pro Max
Apple iPad Model: A1709
Apple iPad Model: A2013
Blackberry Model: RGVI6ILW
Apple iPad Model: A1395
[snip]
The TrustPoint One documents consist of all documents that were extracted from the electronic devices taken by the DOJ in April 2021 when the DOJ seized those devices.
The content from the first seven of devices Rudy was currently using was shared with SDNY by November 2, 2021, still before Graves was sworn in as US Attorney in DC. Jones started turning over content from what appears to be Rudy’s main phone on November 11, 2021, with the balance turned over on January 19, 2022.
Again, this information would have been turned over to SDNY, not DC USAO, and we don’t know when and via what means January 6 related content got passed on to DC. But whenever it was, it was available because of decisions made well before WaPo’s timeline, decisions that would have involved approval from people WaPo described as “slow” and “cautious.”
Whatever else it did, the way DOJ did the Special Master review of Rudy’s devices shaved nine months off any investigation pertaining to Trump’s personal lawyer, one of the most central players in Trump’s coup attempt, because whenever DC developed probable cause to access that content, the privilege review would already be done. By comparison, the privilege review for John Eastman and Jeffrey Clark’s content began on June 17, 2022, and NYT describes that privilege reviews of people like Mark Meadows and Cleta Mitchell started after July 2022.
One reason it is likely that Rudy’s content — and not just pressure generated in January 2022 from the January 6 Committee, as WaPo quotes an anonymous source claiming — drove the fake electors investigation is the focus of the investigation. The first fake elector warrants sent in May 2022 (not June, as WaPo implies) as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known interviews always list the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again.
Q. Who was on your team at that point [November 5]?
A. You know, it was put out in a press release some days later. So it’s hard to know exactly who joined. Very early on, there was Jenna Ellis, Vicki Toensing, Joseph DiGenova, Boris Epshteyn. That was the main team. We were joined by Christian Bobb about 5 days later, and by — by Katherine Friess, maybe 3 or 4 days later.
So if you look at the list of the team — now, it took about — that was the original team, meaning in the first 3, 4, 5 days. Within about a week or two, I can give you all the names if you want them.
Q. Who else joined the team after that group you just mentioned, lawyers? I’m just talking about lawyers for the moment.
A. Just lawyers, okay. So Toensing, DiGenova, Bob[b], Friess, Ellis, Epshteyn.
Neither appears to have been interviewed; neither is mentioned in the final report. Nor did they get much focus in the investigation. Christina Bobb and Eric Herschmann mentioned them in passing. Sidney Powell described that they may have been at a White House meeting on November 8. Alex Cannon was asked about an urgent demand that the campaign provide Toensing with a paralegal on November 29. Jacqueline Kotkiewicz, a campaign researcher, described doing at least one project for Toensing, the only substance of which that she could remember was a fight over whether “nonzero” meant “zero” or “a number greater than zero.” Cleta Mitchell described connecting Toensing with John Eastman and admitted having, “quite a number of calls with Victoria,” but couldn’t remember the substance. According to an email Mitchell reviewed, Toensing then shared Eastman’s whack theories with state legislators.
Nothing that came from the January 6 Committee explains why Toensing and DiGenova would be a persistent focus of DOJ’s fake electors investigation. But they were. (As I have noted, Boris Epshteyn and Bernie Kerik were also a focus of DOJ subpoenas before they were mentioned in J6C coverage, but unlike Toensing and DiGenova, they soon became a public focus of J6C.)
As far as is public, Toensing’s phone, which was seized in the same week as Rudy’s devices, was only reviewed for the period covered by the FARA warrants, ending in 2019 (though the content would have been preserved if DOJ ever later had an interest that post-dated that). Additionally, she belatedly invoked spousal privilege over all communications on her seized phone with DiGenova.
But Rudy’s phones — or possibly even the Sidney Powell prong of the investigation that was overt by September 2021, another thing WaPo doesn’t mention — might explain why DOJ’s fake elector investigation doesn’t look like the version that got told in the press or the one told by the January 6 Committee, starting a month later.
There’s one other thing. As I laid out here, Ruby Freeman’s lawyers are pursuing further testimony from Kerik, who served as Rudy’s chief investigator after the election. They’re contesting the privilege claims Kerik has sustained from J6C, based off an argument that Kerik’s communications were not created as work product in anticipation of litigation. As Rudy explained to J6C, his team abandoned the plan to sue to overturn the vote after about the first week post-election in favor of going to legislatures, so any work product Kerik created would have been in anticipation of legislative hearings, not litigation. As stated in emails exchanged between lawyers, Rudy is not claiming privilege over Georgia-related work product done in anticipation of sharing information with legislatures (as distinct from litigation).
The position we took was that communications and work product in connection with presenting testimony and evidence before the Georgia Legislature in December 2020 was not privileged. Not that it was privileged but that we were waiving it.
[snip]
I would say that any communications or materials created in anticipation of the December 2020 Georgia Senate hearings are not privileged and should not be withheld.
Rudy had claimed similar communications were privileged in his January 6 Committee deposition given in May 2022, so this is a change in stance.
There are a lot of things that have happened since that could explain the changed posture. A different lawyer, Joe Silbey, is handling Rudy’s civil challenges. Rudy testified last August in Fani Willis’ investigation. Beryl Howell issued a ruling on the application of privilege before her on May 19 of this year (the latter of which Freeman’s lawyers cited in discussions with Kerik lawyer Tim Parlatore). But another possible explanation for Rudy’s willingness to share information on pressuring legislatures when he hadn’t before would be if the material had been deemed non-privileged in the past, perhaps one of the 56 documents on Rudy’s phone over which an initial privilege claim was either withdrawn or overridden.
To the extent it presents a coherent timeline, WaPo’s story largely tells when former FBI Assistant Director Steve D’Antuono vetoed DOJ requests and when formal investigative decisions were made. But such formal decisions always follow evidentiary collection, often by months. That’s especially true here; it’s what Merrick Garland and Lisa Monaco demanded. Even with Stewart Rhodes, whose prosecution this story makes a far more central part of January 6 than Rhodes’ actions merit, this story doesn’t talk about known evidence and cooperating witnesses that advanced the investigation (not even Joshua James, the sole witness who would play a function in WaPo’s narrative). The only mention — at all — of evidence that might drive such decisions describes J6C investigator Timothy Heaphy sharing information about Trump pressuring Pence and others.
But the January 6 fake electors investigation does not resemble the DOJ one, certainly not as to the relative import of Toensing and DiGenova.
The most obvious place that focus might have come from, and come from in time to shape the May 2022 subpoenas, would be Rudy’s phones — phones that DOJ started the process of exploiting well before J6C even started investigating.
Update: Fixed an error re: Matthew Graves’ timeline. He was confirmed on October 28, 2021 but sworn in on November 5. So SDNY started obtaining Rudy’s content before Graves was sworn in.
WaPo’s First Amendment Blindness: When Exploiting a Media Figure’s Phone Gets Reported as “Cautious”
Ponder this: The Washington Post deems an investigation that fully exploited a high profile media figure’s phone as overly cautious.
To be sure, when WaPo wrote 8,000 words about the January 6 investigation, they exhibited not a shred of awareness that had happened.
But according to an exchange in a June 23, 2022 status hearing in Owen Shroyer’s prosecution, FBI case agents had just obtained the content of Shroyer’s phone and were just beginning to scope it (that is, post-privilege review, to isolate any content that complied with whatever warrant was used to access the phone). Within days after that, Alex Jones lawyer Norm Pattis joined Joe Biggs’ defense team.
As a reminder, in August 2021, DOJ used a pre-existing Deferred Prosecution Agreement with Jones’ sidekick as means to bypass any First Amendment concerns behind arresting Shroyer.
On Friday, Shroyer entered into the standard plea agreement for the more serious of two misdemeanors, requiring that he share his social media activity but not requiring an interview (though sometimes silence about an interview in these standard pleas reflects a prior interview), much less real cooperation. Particularly because of two 2011 DWI-related charges, Shroyer might face a sentence of some weeks or months of jail time, which if he did, would be a sentence imposed by Trump appointee Tim Kelly. While Shroyer’s Statement of Offense mentions Jones as Person One (which DOJ already had in November 2021), it is coy about any knowledge on Shroyer’s part that he and Jones were asked to lead Trump’s mob to the Capitol.
On January 6, 2021, the defendant attended the speeches at the Ellipse in downtown Washington, D.C., as part of the Stop the Steal rally. Early that afternoon, crowds of people began to gather and head towards the Capitol perimeter. The defendant took to a megaphone in front of one of those crowds on Pennsylvania Avenue:
In 1776, the American patriots sent a loud messages to the entire world: Tyranny will not exist in the West. And so now the Democrats are posing as communists, but we know what they really are: they’re just tyrants, they’re tyrants. And so today, January 6, we declare death to tyranny! Death to tyrants! Death to tyrants! Death to tyrants!
En route to the U.S. Capitol, the defendant continued shouting to the crowd walking behind and around him through his megaphone.
Even a declaration Shroyer submitted a year ago said more about his expectations that Trump would lead the march to the Capitol.
Nor does the Statement of Offense say anything about the texts Shroyer exchanged with the Proud Boys in the days and minutes before the attack on the Capitol.
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
Shroyer’s plea agreement was initialed by someone other than Jocelyn Ballantine, the AUSA overseeing complex conspiracy prosecutions.
Shroyer’s treatment, like Brandon Straka’s, may be a sign that DOJ continues to shy away from obstruction charges with the people who, like other rioters, broke the law and exhibited premeditation to obstruct the vote certification, but who might raise more vigorous defenses against obstruction charges.
But whatever else Shroyer’s prosecution represents, it is an instance where DOJ used the arrest of someone who fits solidly within DOJ’s media guidelines to obtain and exploit his phone. All with nary a peep from other journalists.
WaPo’s cavalier attitude towards the First Amendment considerations in this investigation extends into the details that they do provide. Consider how it presents a key showdown in late February 2021. As WaPo describes, JP Cooney pitched a plan to take investigative steps against Roger Stone, Alex Jones, and Ali Alexander directly — precisely the people whose activities might have been captured on Shroyer’s phone.
But a group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit — including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.
[snip]
In February 2021, Cooney took his proposal to investigate the ties with people in Trump’s orbit directly to a group of senior agents in the FBI’s public corruption division, a group he’d worked with over the years and who were enmeshed in some of the most sensitive Jan. 6 cases underway.
According to three people who either viewed or were briefed on Cooney’s plan, it called for a task force to embark on a wide-ranging effort, including seeking phone records for Stone, as well as Alexander. Cooney wanted investigators to follow the money — to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters. He was urging investigators to probe the connection between Stone and members of the Oath Keepers, who were photographed together outside the Willard hotel in downtown Washington on the morning of Jan. 6. [my emphasis]
This entire section seems reliant on three people familiar with this discussion; there’s no claim it relies on people who actually participated in it (though Michael Sherwin and either Steve D’Antuono directly or via his HJC transcript appear to be key sources for this story).
The description of the plan seems muddled.
JP Cooney, who would have known of Roger Stone’s past incitement of violence with the Proud Boys, couldn’t possibly have focused exclusively on Stone’s ties to the Oath Keepers to the exclusion of the Proud Boys, could he?
Plus, much of the rest of the discussion seems to ignore parts of this plan — such as following the money — that did go forward in 2021, in however curtailed a way. Indeed, in one place WaPo suggests that Garland, in a speech in which he said they were “follow[ing] the money,” had chosen to “start[] with ‘the people on the ground’ and work[] up,” a description that ignores the investigation into Sidney Powell’s grifting that was overt by September 2021. So it’s not clear whether Axelrod vetoed the entire plan, or just those two parts of it.
In any case, FBI agents balked and got two men with clear conflicts in the investigation, D’Antuono and Sherwin, to review and elevate concerns about Cooney’s plans.
Inside the FBI’s Washington Field Office, agents recognized Cooney’s presentation for the major course change that it presented. Investigators were already looking for evidence that might bubble up from rioter cases to implicate Stone and others. Cooney’s plan would have started agents looking from the top down as well, including directly investigating a senior Trump ally. They alerted D’Antuono to their concerns, according to people familiar with the discussions.
D’Antuono called Sherwin. The two agreed Cooney did not provide evidence that Stone had likely committed a crime — the standard they considered appropriate for looking at a political figure. Investigating Stone simply because he spent time with Oath Keepers could expose the department to accusations that it had politicized the probe, they told colleagues.
D’Antuono took the matter to Abbate, Wray’s newly named deputy director. Abbate agreed the plan was premature.
Sherwin similarly went up his chain of command, alerting Matt Axelrod, one of the senior-most officials Biden installed on his landing team at “Main Justice,” as the DOJ headquarters on Pennsylvania Avenue NW is known. Axelrod, a top Justice Department official during the Obama administration, had been tapped by Biden’s transition committee to help run the department day-to-day until Garland and Monaco could be confirmed.
This led to a meeting among top people, not all of whom are named. As described, Obama DOJ veteran Matt Axelrod objected primarily to two parts of the plan: to obtain membership rolls for the Oath Keepers (again, this story is silent about the Proud Boys) and information on permits for rallies.
Axelrod called a meeting for the last week of February with Sherwin, D’Antuono, Abbate and other top deputies. Cooney wasn’t there to defend his plan, according to three people familiar with the discussion, but Axelrod and Abbate reacted allergically to one aspect of it: Cooney wanted membership rolls for Oath Keepers as well as groups that had obtained permits for rallies on Jan. 6, looking for possible links and witnesses. The two saw those steps as treading on First Amendment-protected activities, the people said.
Axelrod saw an uncomfortable analogy to Black Lives Matter protests that had ended in vandalism in D.C. and elsewhere a year earlier. “Imagine if we had requested membership lists for BLM” in the middle of the George Floyd protests, he would say later, people said. [my emphasis]
It’s not even clear that obtaining the membership lists would be constitutional under NAACP v. Alabama. Plus, given the in-fighting within the Oath Keepers (and the Proud Boys) it’s also not clear it would be that useful. Ultimately, prosecutors worked from the content seized from arrestees’ phones and other evidence of ties between actual co-conspirators. That caused a significant part of the delay before charging both Stewart Rhodes and Enrique Tarrio, but in the latter’s case, that was a year-long delay to access evidence seized before January 6!
In both militia leader prosecutions, only content that would have been viewed by charged co-conspirators came in as evidence — but even there, defendants in both trials argued this exceeded the First Amendment.
Which is to say that Axelrod’s concerns about membership lists were not only right from a legal and civil liberties perspective, but possibly even from an efficacy one as well.
That’s far less clear with regards to information on people who had permits for rallies on January 6. That’s especially true given WaPo’s silence about Brandon Straka’s so-called cooperation, without consideration of which this story is incomplete.
Brandon Straka, recall, is one of the key “influencers” behind Stop the Steal; he played a key role in the TCF protest in Michigan. He attended the January 6 rally as a VIP, sitting right next to Mike Flynn. He stopped at the Willard between the time he left the rally and took the Metro to the Capitol, expecting to speak. He was initially charged with civil disorder and — based on the standards applied to other rioters — could easily have been charged with obstruction. Instead, he was given credit for cooperating in two early FBI interviews, and ultimately pled only to the less serious trespassing charge, to be sentenced to three years of probation.
According to his cooperation memo, Straka provided information on Alexander, Cindy Chafian, and the Kremers (as well as the Stop the Steal DM list) starting on February 11, in advance of the late February meeting discussing Cooney’s plan. That makes it likely that Cooney’s plan was partly a response to Straka’s first interview. My view — and that of everyone I know who has followed Straka’s prosecution closely — is that FBI agents who interviewed Straka were wildly credulous about his answers. FBI investigators bought stories that January 6 Committee investigators later poked big holes in. And neither the FBI nor the DOJ adequately investigated Straka’s role in inciting violence earlier, though DOJ may have revisited it after Probation discovered how he profited off his false claims.
If Cooney’s plan was an attempt to capitalize on Straka’s so-called cooperation, the failure started with the FBI agents getting bulldozed by Straka’s claims, not more senior decision-makers (though by all reports, D’Antuono would certainly have protected such investigative ineptitude).
Whatever the merit of Axelrod’s decision, WaPo describes it to be a decision about the First Amendment, not one about politics.
It then uses a decision it describes to arise from First Amendment concerns, describes that “some” of the half dozen or so present — at least two of whom had clear conflicts — also had political concerns.
Axelrod later told colleagues that he knew Jan. 6 was an unprecedented attack, but he feared deviating from the standard investigative playbook — doing so had landed the DOJ in hot water before. Former FBI director James B. Comey’s controversial decision to break protocol — by publicly announcing he was reopening the investigation into Clinton’s emails days before the 2016 presidential election — was widely viewed as swinging the contest in Trump’s favor.
Some in the group also acknowledged the political risks during the meeting or in subsequent conversations, according to people familiar with the discussions. Seeking the communications of a high-profile Trump ally such as Stone could trigger a social media post from Trump decrying yet another FBI investigation as a “witch hunt.” And what if the probe turned up nothing? Some were mindful, too, that investigating public figures demanded a high degree of confidence, because even a probe that finds no crime can unfairly impugn them.
All who assembled for the late February meeting were in agreement, with Axelrod making the final call: Cooney’s plan would not go forward.
Aspects of the proposal were reported in 2021 by The Post and the New York Times. But the identity of the prosecutor who pushed for the plan, several of its details and the full story of how it galvanized the Justice Department’s approach to the Jan. 6 investigation have not been previously revealed.
Inside the FBI’s Washington Field Office, buzz about who might join the task force to investigate those around Trump dissipated as word spread that plans for the team had been shelved. In the U.S. attorney’s office, budding investigative work around the finances of Trump backers was halted, an internal record shows, including into Jones, who had boasted of paying a half-million dollars for the president’s Jan. 6 rally and claimed the White House had asked him to lead the march to the Capitol. [my emphasis]
WaPo then appears to apply the political squeamishness it attributes to just “some” participants in a meeting attended mostly by people who’ve moved on, to all of DOJ’s subsequent decisions, dropping consideration of the very real First Amendment concerns that have been an issue at virtually every prosecution to date to say nothing of evidentiary concerns that the Rhodes prosecution bore out.
A Washington Post investigation found that more than a year would pass before prosecutors and FBI agents jointly embarked on a formal probe of actions directed from the White House to try to steal the election. Even then, the FBI stopped short of identifying the former president as a focus of that investigation.
A wariness about appearing partisan, institutional caution, and clashes over how much evidence was sufficient to investigate the actions of Trump and those around him all contributed to the slow pace. Garland and the deputy attorney general, Lisa Monaco, charted a cautious course aimed at restoring public trust in the department while some prosecutors below them chafed, feeling top officials were shying away from looking at evidence of potential crimes by Trump and those close to him, The Post found.
[snip]
The Justice Department’s painstaking approach to investigating Trump can be traced to Garland’s desire to turn the page from missteps, bruising attacks and allegations of partisanship in the department’s recent investigations of both Russia’s interference in the 2016 presidential election and Hillary Clinton’s use of a private email server.
Inside Justice, however, some lawyers have complained that the attorney general’s determination to steer clear of any claims of political motive has chilled efforts to investigate the former president. “You couldn’t use the T word,” said one former Justice official briefed on prosecutors’ discussions. [my emphasis]
Within two months after DOJ, prior to Garland’s confirmation, halted the investigation into Jones, FBI arrested his videographer Sam Montoya, followed four months later by the Shroyer arrest. Magistrate Judge Zia Faruqui was so skeptical that Shroyer’s arrest met DOJ’s own media guidelines that he demanded additional briefing before approving the arrest warrant; and in approving it, he suggested that Shroyer had the intent of obstructing the vote certification.
Shroyer’s arrest, in particular, was an opportunistic step, one that used his prior DPA to take a step that otherwise would have — and did, from Faruqui — elicit objections, in order to pursue evidence that might have (and still might!) substantiate the ties between Jones and the assault on the Capitol.
That makes his treatment similar to the treatment DOJ used with Rudy Giuliani — another investigative angle about which WaPo was not just unaware but affirmatively mistaken.
Approving the seizure of Rudy Giuliani’s phones on her first day on the job and taking subsequent steps to ensure all the content on them, including the January 6 content, got a privilege review from the start was not cautious. Using Shroyer’s prior DPA as a means to arrest a key pivot between the crime scene and the Willard was not cautious.
They were steps designed to obtain key evidence without attracting undue attention. And the steps themselves, at least, succeeded so well, the WaPo wrote an 8,000 word story purporting to describe the investigation, yet missed both of them.
The WaPo Shows There Should Be More Scrutiny of Steve D’Antuono
The WaPo has a story that many Merrick Garland attackers claim confirms their fears about the DOJ investigation. Except the story has really important gaps, most importantly in its portrayal of the fake electors investigation, which is the damning part of the story about Garland or Lisa Monaco’s direct decisions (as opposed to those of FBI).
Moreover, the one thing it proves definitively is that former FBI Washington Field Office head Steve D’Antuono repeatedly shot down investigative prongs of this investigation, just like he did the stolen documents investigation. That the head of the WFO was running interference for Trump raises key questions about FBI missteps with people like Brandon Straka, someone arrested early who had direct ties to the scheme in the Willard, to say nothing about WFO’s ineptitude in advance of the attack.
Here are the main disclosures.
Steve D’Antuono shot down an effort by JP Cooney early
The story describes that — after such time as Brandon Straka was being treated as a cooperative witness — JP Cooney pitched an idea to get to Stone through the Oath Keepers, not the Proud Boys.
But a group of prosecutors led by J.P. Cooney, the head of the fraud and public corruption section at the U.S. attorney’s office, argued that the existing structure of the probe overlooked a key investigative angle. They sought to open a new front, based partly on publicly available evidence, including from social media, that linked some extremists involved in the riot to people in Trump’s orbit — including Roger Stone, Trump’s longest-serving political adviser; Ali Alexander, an organizer of the “Stop the Steal” rally that preceded the riot; and Alex Jones, the Infowars host.
[snip]
According to three people who either viewed or were briefed on Cooney’s plan, it called for a task force to embark on a wide-ranging effort, including seeking phone records for Stone as well as Alexander. Cooney wanted investigators to follow the money — to trace who had financed the false claims of a stolen election and paid for the travel of rallygoers-turned-rioters. He was urging investigators to probe the connection between Stone and members of the Oath Keepers, who were photographed together outside the Willard hotel in downtown Washington on the morning of Jan. 6.
[snip]
D’Antuono called Sherwin. The two agreed Cooney did not provide evidence that Stone had likely committed a crime — the standard they considered appropriate for looking at a political figure. Investigating Stone simply because he spent time with Oath Keepers could expose the department to accusations that it had politicized the probe, they told colleagues.
D’Antuono took the matter to Abbate, Wray’s newly named deputy director. Abbate agreed the plan was premature.
It’s genuinely hard to believe this was the plan. To be sure, FBI did investigate Stone’s ties to the Oath Keepers, starting no later than March 2021. But that wasn’t the obvious route to get to Trump.
The route to get there, importantly, was via a route that Bill Barr had affirmatively dismissed in advance of the attack: through the Proud Boys, not the Oath Keepers. Stone’s ties to the Oath Keepers was not obviously criminal; it still may not be. His ties to the Proud Boys are central.
In any case, Steve D’Antuono — who stalled the stolen documents case investigation last summer — shot down this angle of the investigation early on.
The initial decision to exclude Trump came from a guy who had presided over a politicized DOJ
Michael Sherwin — who as US Attorney played a role in killing investigations into Trump’s people in summer 2020 — did not include Trump in his summary of the investigation in March 2021.
[A]ccording to a copy of the briefing document, absent from Sherwin’s 11-page presentation to Garland on March 11, 2021, was any reference to Trump or his advisers — those who did not go to the Capitol riot but orchestrated events that led to it.
[snip]
Sherwin, senior Justice Department officials and Paul Abbate, the top deputy to FBI Director Christopher A. Wray, quashed a plan by prosecutors in the U.S. attorney’s office to directly investigate Trump associates for any links to the riot, deeming it premature, according to five individuals familiar with the decision. Instead, they insisted on a methodical approach — focusing first on rioters and going up the ladder.
The strategy was embraced by Garland, Monaco and Wray.
This may or may not have been the right decision — but WaPo only mentions Sherwin’s role in Barr’s sabotage of ongoing Trump cases in passing.
Whether certain FBI decisions came from Steve D’Antuono or Chris Wray is unclear
Chris Wray absolutely comes off as gun-shy in this story, which is perfectly consistent with the way he threw his own agents under the bus in the wake of the DOJ IG Report on Carter Page.
Wray and his team sought to avoid even an appearance of top-down influence by having local field offices run investigations and make day-to-day decisions. In fact, when it came to the Jan. 6 investigation, agents noticed that Wray did not travel the five blocks from FBI headquarters to the bureau’s Washington field office running the investigation for more than 21 months after the attack. In that time, people familiar with the investigation said, he had never received a detailed briefing on the topic directly from the assistant director in charge of the office, Steven D’Antuono.
[snip]
D’Antuono, who was interacting with lawmakers and reporters, told colleagues: “Everybody keeps asking, ‘Where the hell is the FBI?’”
The answer they heard did not instill confidence. Top FBI aides told D’Antuono and Sherwin that Wray wanted to stay on as Biden’s FBI director. They said they would not put the top boss “out there” — in the public eye — because they feared any public comments might spur Trump to unceremoniously fire him.
I’m more concerned about Wray’s later actions — but the later timidity is described to have come from Steve D’Antuono, not Wray (and on the stolen documents investigation, Wray pushed for a more aggressive investigation, whereas D’Antuono pushed the slow it).
D’Antuono shot down an effort to pursue the Willard
In November 2021, when Thomas Windom asked to pursue the plotting in the Willard in November 2021, D’Antuono refused, and tried to get Windom to pursue militia ties instead.
At a meeting in November 2021, Windom asked D’Antuono to assist in a grand jury investigation, which would include subpoenaing the Willard hotel for billing information from the time when Trump lawyer Rudy Giuliani was working with Stephen K. Bannon, Boris Epshteyn and other Trump associates in their “war room.” Stone was staying there around Jan. 6 as well, in a different suite.
D’Antuono was skeptical. The investigative track sounded eerily similar to the Cooney proposal that had been shot down in February, he later confided to colleagues.
“I’m not serving subpoenas on the friggin’ Willard,” D’Antuono told Windom, according to a person familiar with their discussions. “You don’t have enough to issue subpoenas.”
This was absolutely the wrong decision, but it is yet another case where D’Antuono was thwarting the investigation. His refusal to investigate the Williard also should focus more attention on the treatment of Brandon Straka and others, because if the FBI hadn’t been so credulous months earlier, they would have had more evidence on the Willard.
800 words of this story pertain to Michael Sherwin’s firing
Sherwin’s firing for trying to force sedition charges is a distraction. Yet 800 words of this story focus on it.
While the story does show that under Chandler Phillips, there was uncertainty about direction of the investigation (Lisa Monaco’s office was micro-managing at that point, partly in an attempt to enforce consistency across hundreds of defendants, partly to ensure that more deliberate rioters were charged with felonies). But it does seem that the delay in getting Matthew Graves in place did delay a renewed focus on Trump. That’s Joe Biden’s fault.
The focus on Stewart Rhodes is a distraction
Similarly, the focus on Stewart Rhodes, as opposed to Enrique Tarrio, is a distraction.
The outstanding issue of whether to charge Rhodes and other militia leaders with seditious conspiracy quickly rose to the top of to-do lists for the two new appointees. It had been eight months since Sherwin directed his deputies to raise the idea in a memo to the office of the deputy attorney general.
A long story in which the Proud Boys investigation is treated as “other militia leaders” is a long story that doesn’t understand the most basic things about January 6.
Details about the decision not to pursue the fake electors are vague and at times inaccurate
The WaPo described that the original decision not to pursue the fake electors plot happened “about the same time,” as D’Antuono’s decision to shoot down Cooney’s Stone investigation without presenting a date.
About the same time, attorneys at Main Justice declined another proposal that would have squarely focused prosecutors on documents that Trump used to pressure Pence not to certify the election for Biden, The Post found.
Officials at the National Archives had discovered similarities in fraudulent slates of electors for Trump that his Republican allies had submitted to Congress and the Archives. The National Archives inspector general’s office asked the Justice Department’s election crimes branch to consider investigating the seemingly coordinated effort in swing states. Citing its prosecutors’ discretion, the department told the Archives it would not pursue the topic, according to two people with knowledge of the decision.
If that decision happened before Garland came in (as it appears to have), then the story is about how Garland chose to revisit and reopen the fake electors decision, not why he chose not to pursue it.
The story describes that when Lisa Monaco did publicly confirm DOJ was pursuing fake electors in January 2022, people were surprised to hear that.
Law enforcement officers, including some who would be called upon to join the investigation in ensuing months, were taken aback by Monaco’s comments because they had not been told work was beginning, and it was extremely rare for Justice Department officials to comment on ongoing investigations.
Behind the scenes, federal prosecutors in Michigan who received Nessel’s referral were waiting to hear from Monaco’s office about how Main Justice wanted to proceed. National Archives officials were dumbstruck; the Justice Department was suddenly interested in the fake electors evidence it had declined to pursue a year earlier.
One person directly familiar with the department’s new interest in the case said it felt as though the department was reacting to the House committee’s work as well as heightened media coverage and commentary. “Only after they were embarrassed did they start looking,” the person said.
In the weeks and days before Monaco’s announcement, DOJ had finalized exploiting Rudy’s phone (as I note below, the WaPo story doesn’t focus on Rudy). The DOJ pursuit of the fake electors plot included aspects and subjects the January 6 Committee never pursued. So it is virtually certain that Rudy’s phone, not just J6C, drove at least part of the renewed focus on this.
It took two months after this for the FBI — for D’Antuono and Wray — to open the investigation, and they did not open the investigation against Trump at first.
In April 2022, more than 15 months after the attack, Wray signed off on the authorization opening a criminal investigation into the fake electors plot.
Still, the FBI was tentative: Internally, some of the ex-president’s advisers and his reelection campaign were identified as the focus of the bureau’s probe, but not Trump.
Note, this is still two months before Cassidy Hutchinson’s public testimony, which had publicly been viewed as the first focus on Trump.
WaPo suggests that the first subpoenas in the fake elector plot went out on June 21, 2022 (which in any case would still be proof DOJ acted before the public hearing).
On June 21, 2022, the House select committee held a nationally televised hearing on fake electors — a topic the committee had, in contrast to the Justice Department, identified early on as a major target for investigation. Testimony revealed what the committee had learned in nine months: The Trump campaign had requested that fake elector documents be flown to D.C. in time to help pressure Pence.
[snip]
That day, FBI agents delivered subpoenas about electors for Trump to state lawmakers in Arizona. The next day, agents served subpoenas to people who signed documents claiming to be Trump electors in Georgia and Michigan.
But as I note below, the first fake electors subpoenas went out a month earlier, by May 25. This part of the narrative is misleading at best.
WaPo suggests there was an inordinate delay in interviewing fake electors.
In several cases, before the special counsel’s office got in touch, witnesses in the fake electors scheme hadn’t heard from the FBI in almost a year and thought the case was dead. Similarly, firsthand witnesses to Trump’s Jan. 2, 2021, call to Georgia Secretary of State Brad Raffensperger — in which Trump asked him to “find” enough votes to win that state — were not interviewed by the Justice Department until this year, after Smith’s team contacted them.
It’s not clear whether this is true at all. It has persistently taken 6 months or more to exploit cell phones. The Boris Epshteyn interviews in April took place on that schedule, even with complications of claiming work product with Rudy.
This is, rather, consistent with much of the January 6 investigation, or any investigation. All the more so given increasing signs that the January 6 and stolen documents case is intersecting at Trump’s PAC, which is not discussed in the article.
The most damning part of this story for DOJ leaves out the Rudy phones and the May subpoena. Including those two things, though, really undermines the narrative about that prong of the investigation.
The gaps in the WaPo story
There are many things not mentioned in this story, which betray real blind spots in the sourcing. Those include:
- The failure by WFO under Steve D’Antuono to prevent January 6. D’Antuono is good at playing the press, and some quotes in here suggest that he was pushing for more aggressive investigation and Wray was resisting. Tellingly, then, this story doesn’t even mention — much less attempt to explain — why the FBI under D’Antuono failed to act on intelligence predicting January 6 (and indeed, kept Proud Boys on as informants targeting “Antifa” even as they were planning to come to DC for January 6). That’s where this story begins, yet it’s not included here.
- Brandon Straka and similarly other well-connected VIPs. Brandon Straka got credit for cooperating in February and March 2021 interviews; he was in a position (and did) provide evidence about ties to the Stop the Steel investigation and the Willard. But the FBI — led by Steve D’Antuono, who also obstructed the investigation into the stolen documents — proved remarkably credulous with Straka and similar witnesses. A different treatment of Straka may well have led to far different results. Yet Straka is not mentioned here.
- The Proud Boys’ history of teaming with Roger Stone to sow violence. According to the story, Michael Sherwin set his sights on the Oath Keepers and that initiative led to the sedition conviction of Stewart Rhodes and others. At sentencing, the sedition conviction proved important only for Rhodes and Kelly Meggs; everyone else was treated similarly as obstruction defendants, even with terrorist enhancements. But the more obvious starting point to understand Trump’s ties to January 6 — and an absolutely critical one given how bodies led by Alex Jones made the attack successful — is the Proud Boys. Given DC USAO’s treatment of the threats Stone made with Enrique Tarrio against Amy Berman Jackson in 2019, the focus on the Oath Keepers as distinct from the Proud Boys is inexcusable.
- Rudy Giuliani’s phone. In September 2021, DOJ made a decision to do a privilege review on Rudy Giuliani’s phone that would access all information on his phones, not just the Ukraine-related topics the warrants to obtain the phones targeted in April 2021. Rudy has since confirmed that this included all the January 6 related material he admits to have had in his possession when the phones were seized in Lisa Monaco’s first week. It is absolutely certain that this should have produced information on the fake elector plot, starting in November 2021, yet WaPo doesn’t mention it.
- The May 2022 Fake Electors subpoenas. The story implies DOJ first sent out subpoenas in the fake elector plot in June 2022. That’s false: the first subpoenas went out in May 2022. Importantly, there were names on those subpoenas that weren’t the focus of J6C’s public investigation (and in any case, preceded the public hearings). [Update: As Kyle Cheney noted, DOJ also obtained the email accounts of John Eastman and others, three of four lawyers.] That suggests that some of this investigation came from DOJ’s own work, not J6C’s.
- Sidney Powell. The investigation into Sidney Powell, started no later than September 2021, is not mentioned in this piece. It’s unclear what became of that investigation, but DOJ did pursue it as a prong of the investigation at a time when, the story suggests, DOJ was not pursuing any Public Integrity prong of the investigation.
- January 6 Committee’s delayed sharing. Some of this story is told from the perspective of the January 6 Committee. Yet it doesn’t mention that the committee’s decision to delay sharing of its transcripts did real and predictable damage to the Proud Boys case, and withheld tools from DOJ they could have used to flip witnesses six months earlier than they did.
Ultimately, this is a story first and foremost about Steve D’Antuono, who left the FBI in November. And I suspect it is just scratching the surface on the story about him.
Down a Mouse Hole with Bill Clinton’s Cat, Socks
When I first read this WaPo article yesterday, I was struck by two things: first, the revelation that when Judicial Watch’s Tom Fitton appeared before a Jack Smith grand jury early this year, he was asked both about his central role in convincing Donald Trump he could rely on a case he, Fitton, lost, to justify stealing thousands of government documents (that’s the testimony we knew about), but also his role in January 6.
Fitton, who appeared before the grand jury and was questioned about his role in both the Mar-a-Lago documents case and the investigation into the Jan. 6, 2021, attack on the U.S. Capitol, acknowledged he gave the advice to Trump but declined to discuss the details of their conversations.
I wasn’t aware that Fitton had much of a role in January 6.
I was also shocked that, in the spite of the grave damage Fitton’s crackpot advice had already done to Donald Trump’s future, he was nevertheless permitted to be there with the accused felon Monday night, dining on what was undoubtedly overcooked filet mignon, as Trump and his supporters discussed his plans for beating the rap.
In an interview Wednesday, Fitton said he dined with Trump on Monday night at his club, eating filet mignon with the former president one day before his first court appearance on the document charges. “I saw him last night; he’s in a good mood. He’s serious and ready to fight under the law.”
On top of the sheer stupidity of letting Fitton anywhere close to Trump in the wake of his indictment, Fitton’s presence presumably would breach any privilege claim lawyers present could make in the future.
The report that Fitton has been chatting with Trump this week explains some of the insanely stupid things Trump has said on his failing social media site, not to mention Trump’s deceit in claiming he would see everything presented to the grand jury, much less have already seen it before any protective order is signed and discovery is provided.
By invoking Clinton’s Socks, his term for Fitton’s failed lawsuit, Trump was falsely claiming to have inside knowledge of something that would have legal merit, presumably so his followers would believe Trump had some viable defense (that they would send him money to fund).
I was not, however, surprised by the sheer stupidity of the opinions Fitton expressed to WaPo.
“I think what is lacking is the lawyers saying, ‘I took this to be obstruction,’” said Fitton. “Where is the conspiracy? I don’t understand any of it. I think this is a trap. They had no business asking for the records … and they’ve manufactured an obstruction charge out of that. There are core constitutional issues that the indictment avoids, and the obstruction charge seems weak to me.”
Several other Trump advisers blamed Fitton for convincing Trump that he could keep the documents and repeatedly mentioning the “Clinton socks case” — a reference to tapes Bill Clinton stored in his sock drawer of his secret interviews with historian Taylor Branch that served as the basis of Branch’s 2009 book documenting the Clinton presidency.
Judicial Watch lost a lawsuit in 2012 that demanded the audio recordings be designated as presidential records and that the National Archives take custody of the recordings. A court opinion issued at the time stated that there was no legal mechanism for the Archives to force Clinton to turn over the recordings.
For his part, Fitton said Trump’s lawyers “should have been more aggressive in fighting the subpoenas and fighting for Trump.”
It’s not just that Fitton was allowed to share these legally incorrect opinions with Trump. It’s that he badly misunderstands how his own advice about the “Clinton Socks” case might be viewed as an agreement with Trump to enter into a conspiracy to withhold classified documents.
Remember, after Trump fucked up releasing the Crossfire Hurricane documents, Fitton went after them himself, only to reveal that the collection was just one dumbass binder.
Anyway, after puzzling through what role Tom Fitton might have had on January 6, I started reading through a motion to compel that Ruby Freeman’s attorneys served on pardoned felon Bernie Kerik last week. Bernie was the guy who mailed a key strategy document to Mark Meadows on December 28, 2020. In addition to making clear that Bernie was sharing the document to “move legislators,” not win court cases, it included exhibits laying out the claims about Freeman and her daughter Shaye Moss that Rudy Giuliani would subsequently make publicly — that Freeman counted suitcases of votes multiple times after kicking out poll watchers, using a false claim of a water main break as the excuse — claims that Freeman alleges amount to defamation.
To be clear: those claims about Freeman are false, as is the claim she was arrested for her actions. Thus the lawsuit.
Freeman’s lawyers filed a motion to compel because when Kerik first responded to their subpoena last year, his attorney — Tim Parlatore — simply provided a link to the stuff that Kerik had provided to the January 6 Committee. Since then, Freeman’s lawyers argue, Rudy has disclaimed any work privilege claim over materials prepared for legislatures, as opposed to lawsuits. But when Freeman’s lawyers have gone back to Kerik to get the materials he withheld from J6C under a work product privilege claim that (they argue) Rudy has since waived, Parlatore explained there had been a “technical glitch” that creates some difficulties in consulting with Rudy’s attorney on the issue.
Relations between Parlatore and Freeman’s team have been sour for some time. Around the same time in December when Parlatore was telling a DC grand jury that he had done a diligent search of Bedminster — where at least two and probably a bunch of classified records have been sent, never to be seen again — he was telling Freeman’s team that Kerik didn’t have some documents that Freeman had obtained from other sources.
After Plaintiffs spent months negotiating with Mr. Kerik’s counsel and made more than a dozen unsuccessful attempts to effectuate personal service on Mr. Kerik,5 counsel for Mr. Kerik accepted service of the First Kerik Subpoena on November 14, 2022. (See Houghton-Larsen Decl. ¶ 4.) On November 21, 2022, Plaintiffs agreed to narrow the requests and provided examples of emails produced during discovery that were sent to Mr. Kerik but were not present in his production to the Select Committee. (See id. ¶ 5.) On December 21, 2022, Mr. Parlatore responded that “Mr. Kerik has looked and we do not seem to have any additional responsive documents to provide.” (See id. ¶ 6.) Mr. Kerik has never explained why he does “not seem to have” any of the example communications Plaintiffs provided to him, on which he was copied, and which have been produced by other parties.
By the time former Trump attorney Parlatore claimed a “technical glitch” was creating delays on June 7, the day before Trump was indicted, he also explained that, “there are other more pressing matters that have taken priority.”
The motion to compel includes fragments of both Rudy’s and Kerik’s March depositions in this case. In Kerik’s, Parlatore made a series of dickish responses to Freeman attorney Annie Houghton-Larsen’s questions that Parlatore deemed to ask for work product information, precisely the privilege claim that has since started to collapse.
In Rudy’s, there are a slew of hilarious responses showing how dissolute Rudy has gotten, such as when, struggling to come up with Sidney Powell’s name, he called her the Wicked Witch of the East.
Q. I’ll ask you about who was on it, but the team that was assembled at that point in time, is that the team that Ms. Bobb is referring to as the “Giuliani legal team”?
A. Correct.
Q. Now you can tell me, who was on this team?
A. It was myself, Jenna Ellis, Victoria Toensing, Joe DiGenova, Boris Epshteyn, originally.
We added Christina after about two weeks, and we added — oh my goodness, of course, her name will escape me.
Come on guys, help me. The wicked witch of the east.
Q. It’s — really, in this forum, I’m interested in what you remember.
A. Oh, I remember who it is. I just can’t remember the name. I block it out.
Q. We can come back to it.
A. On purpose. Everybody knows who it is.
Q. We can come back to it.
Anyone else aside apart this —
A. Sidney.
Q. Sidney?
A. It was Sidney.
Q. Sidney who?
MR COSTELLO: How could you forget that?
Q. Are you referring to Sidney Powell?
A. Sidney Powell, yeah.
Both men, however, struggled when asked about this passage of the strategy document, showing who, on December 28, its author considered key members of their team (Freedom Caucus members make the list on the following page), both struggled to remember who some of the members were.
There was little doubt that BK was Kerik and both ultimately decided that BE was Epshteyn.
But both simply couldn’t imagine what close Boris associate “SB” might be. Here’s Kerik’s epic struggle with the question:
Q. Okay. This might help you. Can we please turn to page 6.
Okay. So about two-thirds down the page it says, “Key team members. Rudy Giuliani.”
And then, “BK.” I’m assuming that’s you.
A. That’s probably me.
Q. Okay. “KF.” Do you know who that is?
A. Katherine Friess.
Q. And then, “Media advisors. SB.” Who do you think that is?
A. No idea. Well, I went through this before.
THE WITNESS: Who did I do this with? J6?
MR. PARLATORE: Probably.
THE WITNESS: Yeah. Boris Epshteyn would have been the BE. SB, I have no idea what that is.
BY MS. HOUGHTON-LARSEN:
Q. Okay.
Sadly, Rudy dodged the TF question altogether and the excerpt cut off before Kerik was quizzed about the same question.
So we will have to wait to learn whether Tom Fitton is the TF who did influencer outreach on the effort to steal the election.
But it might help to explain why he was still welcome in the Boris Epshteyn-led effort to pursue political grievance rather than a sound legal defense.
Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain
Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.
Garland rightly refused the meeting.
Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.
This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.
When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.
He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.
[snip]
In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”
The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.
[snip]
Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]
Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.
But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.
Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.
Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.
Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.
Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)
There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).
Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.
Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor'” to go after Biden and “the entire Biden crime family.”
The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!
Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.
And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.
It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.
Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.
Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).
Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).
Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.
Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.
Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.
Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.
Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.
Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.
Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.
Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.
Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.
And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.
Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.
I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.
But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.
Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).