January 6 Insurrection Archives - Page 35 of 77

Trump Prosecutions: Making Tea While Awaiting the Post-Election Flood

November 4, 2022/81 Comments/in 2020 Presidential Election, January 6 Insurrection, Leak Investigations /by emptywheel

One of the only citations any of the filings in the Trump stolen document case make to prior 18 USC 793 prosecutions — one of the crimes under investigation — is this reference to a letter that then-NSA Director Mike Rogers submitted in the Nghia Pho case. It was cited to explain that sometimes the government has to kill sensitive intelligence programs based on the mere possibility they’ve been compromised. The letter also talked about how, when things get compromised by people bringing them home from work, US intelligence partners grow reluctant to share information. The letter was cited even though the letter itself was never docketed online (it was liberated at the time by Josh Gerstein).

In other words, someone knew to reference something really obscure to make a highly inflammatory argument about the ways that Trump has already done real harm to US national security.

One of the prosecutors in the Nghia Pho case was Thomas Windom, the MD-based AUSA brought in to lead the investigation into Trump’s attempts to steal the election.

Obviously, lots of people at DOJ’s National Security Division would also know that case, and so presumably the letter, well. I wrote about the important lessons DOJ seemed to take from the compromises that the Shadow Brokers leak (in part, that it doesn’t matter why someone brought classified documents home, they can do catastrophic damage to national security anyway). But I raise it here because of an assertion WaPo made when they broke the news that David Raskin — who prosecuted a number of terrorism cases that faced really difficult classification complications — was involved in some way in the stolen document case.

Just two weeks ago, Raskin won a guilty plea in a case with parallels to the Trump case — a former FBI analyst in Kansas City who authorities say took more than 300 classified files or documents to her home, including highly sensitive material about al-Qaeda and an associate of Osama bin Laden.

It’s actually unclear how much the case of Kendra Kingsbury resembles Trump’s. She was charged over three years after being fired from the FBI for the theft, charged with just Secret documents and only two counts of 18 USC 793e (supported by ten documents each), which made getting the plea far easier than charging her for any Top Secret documents or charging her for all twenty individually. According to the docket, the case never started the CIPA process. Her change of plea documents have not been docketed (and so don’t explain the five month delay in sentencing).

All of which is to say the Kingsbury prosecution, like the Pho one, avoided a lot of the difficulties a Trump case would pose, particularly given how unlikely it is that Trump would plead guilty. The Ahmed Ghailani, Zacarias Moussaui, and other early SDNY terror cases make far better precedents for the classification problems that a prosecution of Trump would pose.

Besides, as the WaPo reported, that’s not why Raskin was first brought to DC; he was brought there, like dozens of other prosecutors, to help with the flood of cases after January 6.

Justice Department officials initially contacted Raskin to consult on the criminal investigation into the Jan. 6, 2021, assault on the U.S. Capitol. But his role has shifted over time to focus more on the investigation involving the former president’s possession and potential mishandling of classified documents, the people familiar with the matter said.

I raise all that because we’re beginning to get a whole bunch of new tea leaves in the various investigations into Trump.

CNN had a detailed report yesterday, describing that DOJ was prepping for post-election activity — as well as the likelihood that Trump will declare his candidacy for 2024 out of a belief it’ll shield him from indictment.

As it describes, in addition to Raskin, DOJ has brought on a former SDNY lawyer with extensive experience on conspiracy cases, David Rody, as well as added a high-ranking fraud and public corruption prosecutor and an appellate specialist, neither of whom they name.

Top Justice officials have looked to an old guard of former Southern District of New York prosecutors, bringing into the investigations Kansas City-based federal prosecutor and national security expert David Raskin, as well as David Rody, a prosecutor-turned-defense lawyer who previously specialized in gang and conspiracy cases and has worked extensively with government cooperators.

Rody, whose involvement has not been previously reported, left a lucrative partnership at the prestigious corporate defense firm Sidley Austin in recent weeks to become a senior counsel at DOJ in the criminal division in Washington, according to his LinkedIn profile and sources familiar with the move.

The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.

A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.

CNN reports that DOJ is even considering whether to appoint a special counsel, though the implication seems to be that that would cover ongoing prosecutorial work, in the same way that John Durham was made a special counsel to shield his work from the snooping of outside oversight (which in Durham’s case led him to pursue ill-considered charges unsupported by his investigation).

I expect as other outlets (especially ones with reporters that have more closely covered the January 6 investigation) will add clarity to all this. But given everything that’s happening, with the exception of the move of the public corruption prosecutor, it’s not clear how much these developments stem from resource allocations that have been a constant feature of the post-January 6 investigation, how much DOJ is putting together a prosecution team, or even whether DOJ has deliberately selected prosecutors (aside from the public corruption one) who weren’t at DC USAO when Billy Barr made all sorts of corrupt moves to help protect Trump. There are DC AUSAs on the team; Mary Dorhmann, who is sort of a Jill of All Prosecutorial Trades, is working with Windom even while she served on the team that won one guilty verdict and one hung verdict against Capitol Police cop Michael Riley and other more pedestrian January 6 cases.

All this is happening as DOJ just locked in Kash Patel’s testimony by compelling his testimony with use immunity. WaPo’s report describes that, in addition to asking him about his claims that Trump declassified documents, prosecutors also asked about Trump’s motive for stealing documents (whether classified or not).

National security prosecutors asked Patel about his public claims this spring that Trump had declassified a large number of government documents before leaving office in 2021. Patel was also questioned about how and why the departing president took secret and top-secret records to Mar-a-Lago,

This story is as useful for its account of former Deputy White House Counsel John Eisenberg’s testimony as for Patel’s; he’s the guy who attempted to bury the Perfect Transcript of Trump’s call with Volodymyr Zelenskyy (remember that witnesses friendly to the subject of an investigation often share their testimony to help others, effectively a way to coordinate stories).

Finally, NYT reported something I’ve been expecting for some time: Trump lawyers are getting fed up with the incompetent advice of Boris Epshteyn, who is not a defense attorney but who claims to be playing a key role in Trump’s defense.

A tirade of a lawsuit that Donald J. Trump filed on Wednesday against one of his chief antagonists, the New York attorney general, was hotly opposed by several of his longstanding legal advisers, who attempted an intervention hours before it was submitted to a court.

Those opposed to the suit told the Florida attorneys who drafted it that it was frivolous and would fail, according to people with knowledge of the matter. The loudest objection came from the general counsel of Mr. Trump’s real estate business, who warned that the Floridians might be committing malpractice.

Nonetheless, the suit was filed.

[snip]

The new 41-page lawsuit against Ms. James was filed in Palm Beach by Timothy W. Weber, Jeremy D. Bailie and R. Quincy Bird, members of a St. Petersburg-based law firm — and was championed by Boris Epshteyn, an in-house counsel for the former president who has become one of his most trusted advisers.

[snip]

Unable to persuade the Florida lawyers to stand down Wednesday, the Trump Organization’s general counsel, Alan Garten, then took aim at Mr. Epshteyn, blaming him in an email to Mr. Epshteyn and other lawyers for the filing of the suit, said the people with knowledge of the discussion. Frustrations with Mr. Epshteyn among some of Mr. Trump’s other aides and representatives have been brewing for months and boiled over with the new legal action.

Another lawyer for Mr. Trump, Christopher M. Kise, a former Florida solicitor general, also objected to the filing of the lawsuit on Wednesday. And Mr. Trump’s legal team in New York expressed concern that the Florida lawsuit would undermine their defense in Ms. James’s case, costing them credibility with both the New York attorney general’s office and the judge overseeing the case, the people with knowledge of the matter said.

It’s fairly astonishing that someone as notoriously paranoid as Trump has not yet begun to wonder whether Epshteyn has Trump’s own interests in mind. Certainly I’ve questioned it.

But pissing off Alan Garten, especially — really one of the only stable legal presences in Trump’s life over the last six years — will not bode well for Trump going forward.

None of these details (not even the shift of the public corruption prosecutor, which I think is one of the more important developments) tell us where a Trump prosecution will start to move next week, after the election. Given all the factors — especially the resource allocations on account of the January 6 investigation and conflicts that may have been created by Trump’s past corruption — it will be impossible for anyone to understand where this is headed for some time.

But the tea leaves have finally convinced the TV lawyers that it is headed, somewhere.

The Roger Stone Convergence at the Winter Palace

November 2, 2022/60 Comments/in 2016 Presidential Election, 2018 Mid-Term Election, 2020 Presidential Election, January 6 Insurrection /by emptywheel

There was a status hearing in the Owen Shroyer case last week that was so short it was over by the time I had entered the dial-in code. Shroyer, you’ll recall, is the Alex Jones sidekick who was charged for violating his specific prohibition on being an asshole at the Capitol. His lawyer, Norm Pattis, happens to be the lawyer who sent a large swath of Alex Jones’ data to the Texas Sandy Hook plaintiffs, and then presided over the $1 billion judgement in the Connecticut Sandy Hook lawsuit. On June 14, Pattis noticed his appearance on Joe Biggs’ legal team, effectively giving him visibility on how badly the discovery in the Proud Boy case implicates Shroyer and Jones and Ali Alexander. Shroyer appears to be stalling on his decision about whether he wants to enter a plea agreement — one that would presumably require some cooperation — or whether he wants to stick around and be charged in a superseding indictment along with everyone else.

Shroyer has until November 29 to make that decision, around which time I expect a Roger Stone convergence to become more clear.

The Roger Stone convergence has been coming for some time (I’ve been pointing to it for at 14 months). Yesterday, NYT reported that one means by which it is coming is in the dissemination of the We the People document laying out plans to occupy buildings — under the code “Winter Palace” — which the FBI found on the Enrique Tarrio phone it took over a year to exploit.

As I laid out here, the document is important because it shows Tarrio’s motive on January 6 in his assertion that “every waking moment consists of” planning for revolution.

41. Between December 30 and December 31, 2020, TARRIO communicated multiple times with an individual whose identity is known to the grand jury. On December 30, 2020, this individual sent TARRIO a nine-page document tiled, “1776 Returns.” The document set forth a plan to occupy a few “crucial buildings” in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol, with as “many people as possible” to “show our politicians We the People are in charge.” After sending the document, the individual stated, “The revolution is important than anything.” TARRIO responded, “That’s what every waking moment consists of… I’m not playing games.”

And an exchange he had with now-cooperating witness Jeremy Bertino that they had succeeded in implementing the Winter Palace plan shows that Tarrio recognized that occupying buildings was part of his plan.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

The NYT story reveals that Eryka Gemma is the person who sent the document to Tarrio, but she was not its author.

As a part of the investigation, prosecutors are seeking to understand whether Mr. Engels has ties to a little-known Miami-based cryptocurrency promoter who may have played a role in the Capitol attack.

A week before the building was stormed, the promoter, Eryka Gemma, gave Mr. Tarrio a document titled “1776 Returns,” according to several people familiar with the matter. The document laid out a detailed plan to surveil and storm government buildings around the Capitol on Jan. 6 in a pressure campaign to demand a new election.

[snip]

The federal indictment of Mr. Tarrio says that the person who provided him with “1776 Returns” told him, shortly after it was sent, “The revolution is more important than anything.” That person was Ms. Gemma, according to several people familiar with the matter.

But Ms. Gemma was not the author of “1776 Returns,” which was written by others, first as a shared document on Google, the people said.

It remains unclear who the original authors were.

It may be unclear or detrimental to the sources for this story who originally wrote the document; it’s probably not to investigators who can simply send a warrant to Google.

And whether because investigators know who wrote the document or for some other reason (such as that they have just a few more weeks of pre-sentencing cooperation with Joel Greenberg), they’re trying to understand whether this document, laying out a plan to occupy buildings, had an analogue in the Florida-based riots that key Roger Stone associate, Jacob Engels, staged in 2018 in an attempt to thwart any delays in certification for Rick Scott (and Ron DeSantis, who gets a positive shout out by name in the Winter Palace document).

On Nov. 9, [2018] a group of about 100 angry protesters, including members of the Proud Boys, descended on the Broward County elections office, carrying pro-Scott and pro-Trump signs and protesting the recount.

The event drew support from several far-right activists in Florida linked to Mr. Stone — among them, Ali Alexander, who later organized Stop the Steal events around the 2020 election, and Joseph Biggs, a leader of the Proud Boys who has since been charged alongside Mr. Tarrio in the Jan. 6 seditious conspiracy case.

The NYT describes this line of inquiry as happening via two different sets of prosecutors, which is a sign of either convergence or simply the networked structure that DOJ’s approach, using parallel and (through Stone) intersecting, conspiracy indictments clearly facilitated (Shroyer’s prosecution team, incidentally, features an Oath Keeper prosecutor and a key assault prosecutor).

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

While the NYT describes (breaking news!) that Engels was one of the people who in 2019, along with Tarrio, crafted an attack on the judge presiding over Roger Stone’s case, Amy Berman Jackson, it does not note that the Stop the Steal effort dates back two years earlier than the 2018 riot, to voter intimidation efforts that Stone pursued that look similar to the current drop box intimidation effort being disseminated via Trump’s shitty social media website (NYT does mention the Brooks Brothers riots in 2000 and notes the participants “apparently work[ed] with Mr. Stone” — more breaking news).

Nor does it describe the backstory to how Biggs showed up in Florida in 2018, fresh off his ouster from InfoWars after playing a key role in both the PizzaGate and Seth Rich hoaxes, both part of a Russian info-op that Stone played a key role in. But it’s part of the prehistory of the Proud Boys that prosecutors are now tracing.

I have no idea whether the very clear 2016 precedent is part of this. DOJ wouldn’t need to do (much) fresh investigation of it because Mueller and DC USAO did quite a bit of investigation before Bill Barr torched the investigation all to hell and then Trump pardoned Stone to avoid being implicated himself. But if it was part of this, no one who would share those details with NYT would know about it unless and until it was indicted. That’s even true of the 2019 incident; DOJ did at least some investigative work into the funding of that, the same questions being asked now about how Engels organized the 2018 riot.

But whether this investigative prong extends no further back than 2018 or whether it includes the Stone Stop the Steal activity that demonstrably paralleled a Russian effort, it does seem that DOJ is investigating how the prior history of the Proud Boys parallels these efforts to undermine democracy and did so in the place — Miami — where the Proud Boys, schooled by the master rat-fucker, are increasingly taking on an official role.

That may not be an investigation about Engels’ actions, directly (though he has long been in the thick of things). Rather, it may be an investigation into resources that were consistent throughout these developments.

Former Secret Cooperator Enrique Tarrio Reveals a Secret Cooperation Deal

November 1, 2022/62 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Last Friday, in the guise of arguing that Enrique Tarrio’s trial should be moved from DC to Miami, one of his attorneys, Sabino Jauregui, revealed that DOJ had gotten a plea agreement with Jeremy Bertino and “Stewart” in June, but only rolled them out recently, which he claimed was proof of politicization. That argument, like Jauregui’s arguments that the national media coverage that Tarrio himself had cultivated and a DC lawsuit against the Proud Boys that the judge presiding over the case, Tim Kelly, had never heard of, meant Tarrio could not be tried in DC was nonsensical and probably false as to motive. It was a painfully stupid argument from lawyers from one of the few people who could make a real case for moving his trial (though not to Miami, where there has been localized Proud Boy coverage).

But it revealed that the person identified as “Person Three” in many of the charging documents, John “Blackbeard” Stewart, had entered a plea agreement in June. After I tweeted that out, WaPo described a June 10 Information charging someone with conspiring to obstruct the vote certification.

The disclosure by Tarrio’s defense aligns with court records showing that prosecutors on June 10 charged a defendant who was expected to plead guilty and cooperate with investigators in a case related to Tarrio and four top lieutenants, who stand accused of planning in advance to oppose the lawful transfer of presidential power by force. The unidentified defendant was charged with conspiring to obstruct an official proceeding of Congress, according to the records — initially posted publicly by the court but removed from public view.

It’s unclear whether Jauregui really meant to argue that the non-disclosure of a June plea would harm his client — or even the early October disclosure of a Bertino plea that was signed in September — or whether this was the kind of happy accident that sometimes exposes a detail that might be useful for others. But it reveals that in the same period when DOJ charged Tarrio and his alleged co-conspirators with sedition, DOJ secretly added a cooperator against them.

That detail isn’t all that surprising — and it’s certainly not cause to move the trial to Miami. The government often keeps cooperation deals secret — indeed, the government kept at least some of Tarrio’s cooperation secret when he was cooperating against his codefendants and other medical fraudsters in the 2010s. They did so, in part, so he could conduct undercover operations.

But it raises other questions, such as what happened with Aaron Whallon Wolkind, who also figured prominently in charging documents as Person 2, but who was not mentioned in Bertino’s statement of offense. The recent silence about AWW’s role in January 6 is all the more telling given that Zach Rehl’s co-travelers, Isaiah Giddings, Brian Healion, and Freedom Vy just had their pre-indictment prosecution continued until February; along with Rehl, they’re the ones that interacted most closely with AWW on and leading up to January 6. We may learn more by Wednesday, which is the due date for the two sides to submit a new sentencing date for Jeff Finley, another co-traveler of this crowd.

There has long been reason to wonder about what was going on in the Proud Boy case behind the scenes. The revelation of hidden plea deals only confirms that.

The silence of most Oath Keeper cooperators

It’s not just the Proud Boys investigation where there’s uncertainty about cooperating witnesses.

A recent status report for Jon Schaffer, who was generally understood to be a cooperator against the Oath Keepers, reveals that his attorney,

has reached out to counsel for the government, Ahmed Baset, Esq., multiple times in regard to the Joint Statius Report as requested by this Court. Unfortunately, as of the filing of this report, undersigned counsel has not been able to reach Mr. Baset.

The status report includes the same description as used in earlier status reports, one that was always weird in conjunction with the Oath Keepers and now is completely incompatible with it.

Multiple defendants charged in the case in which the Defendant is cooperating have been presented before the Court; several are in the process of exploring case resolutions and a trial date has yet to be set.

That doesn’t rule out that his cooperation was for different militia defendants, or for Oath Keeper James Breheny, whose pre-indictment prosecution was recently continued until January (Breheny is most interesting for an event he attended in Lancaster, PA, not far from both John Stewart and AWW).

The continuing lack of clarity about Schaffer’s cooperation comes even as he has successfully hidden from DC process servers for months. He is one of the cooperators whose plea included the possibility of witness protection, but the process servers attempting to notify him of lawsuits against him seem to be chasing real addresses.

Schaffer aside, there are even interesting questions regarding cooperators in the main Oath Keeper conspiracy. After Graydon Young finished testifying yesterday (revealing, among other things, that he had learned that Kelly Meggs had high level ties to the Proud Boys), prosecutor Jeffrey Nestler revealed there is just one more civilian witness. If by “civilian” he includes cooperators, that means at most one more Oath Keeper cooperator — probably Joshua James, whose cooperation on post-January 6 development seems critical for the sedition charge — will testify. That would mean a bunch of the cooperators — Mark Grods, Caleb Berry, Brian Ulrich, and Todd Wilson — would not have taken the stand (Jason Dolan is the only other cooperator, in addition to Young, who has testified so far). While some of these cooperators were likely important for getting others to flip (for example, Grods would have implicated James), there are others, like Wilson, whose testimony might be uniquely valuable.

Or perhaps in the same way DOJ was attempting to hide at least one Proud Boy cooperator, the Oath Keeper team is hiding the substance that some of their cooperators have provided to protect ongoing investigations.

Mystery Green Berets

Then there’s a January 6 cooperation deal that has attracted almost no notice: that of Kurt Peterson. He’s a guy who broke a window of the Capitol and witnessed the shooting of Ashli Babbitt. Last December, DOJ was attempting to use the broken window to leverage him to plead guilty to obstruction as part of a cooperation deal. In September, he pled to trespassing with a dangerous weapon, one of the sweetest plea deals of any January 6 defendant, one that likely means he’ll avoid any jail time (which is consistent with how enthusiastically DOJ was pursuing his cooperation last year). In advance of his plea, the two sides got permission to seal two sentences in Peterson’s statement of offense.

Here, there are compelling interests that override the public’s presumptive right of access because the proposed plea agreement is conditioned upon Defendant’s continued cooperation with the government, and the statement of offense that accompanies the proposed plea agreement describes another individual who is under investigation for criminal wrongdoing on January 6, 2021. Publicly filing this information could lead to the identification of this individual and would be akin to a criminal accusation that could cause serious reputational or professional harm before formal charges are filed. Moreover, the need to protect the integrity of the ongoing investigation justifies the requested partial sealing. See United States v. Hubbard, 650 F.2d 293, 323 (D.C. Cir. 1980) (“As to potential defendants not involved in the proceeding …premature publication can taint future prosecutions to the detriment of both the government and the defense.”). Furthermore, the partial sealing is justified by the need to protect the Defendant’s safety in light of his ongoing cooperation. Washington Post, 935 F.2d at 291 (“the safety of the defendant and his family, may well be sufficient to justify sealing a plea agreement”). See also United States v. Thompson, 199 F. Supp. 3d 3, 9 (D.D.C. 2016) (“sentencing memoranda that include information regarding a defendant’s cooperation are often filed under seal.”).

[snip]

No alternative to sealing will adequately protect the due process rights of an unnamed defendant; preserve the integrity of the government’s investigation; and help ensure the safety of the Defendant.

The two sentences in Peterson’s statement of offense (which follow these two sentences) clearly relate to the three people with whom he traveled from KY to DC.

The defendant, Kurt Peterson, lives in Hodgenville, Kentucky. On January 5, 2021, the defendant drove from his home to the Washington, D.C. area with three other people,

[snip]

After leaving the Capitol Building, the defendant met back up with his traveling companions.

He got separated from them on the way to the Capitol though; his cooperation likely pertains to what he learned they (or one of them) had done on the trip back.

His arrest affidavit describes a recording he made on January 10, 2021, when he had gone on the run. It reveals that his three companions were all former Special Forces guys in their sixties.

To my family and friends who are able to see this, I am writing it with a voice recognition program while driving. I feel the need to keep moving and trying to keep my phone wrapped such that it can’t be traced most of the time. I was at our nation’s capital for the rally and watched the presentations at the ellipse prior to walking to the Capitol building with at least a million and a 1-1/2 to 2 million people.

The people that were there at the ellipse were peaceable and loving and supporting our country. The people that were at the capital were also primarily peaceful and loving our country. But when there are huge crowds and there are people that are inciting violence the crowds will many times be pulled in to this action.

I was with 3 men who had served our country in special forces. All of us in our sixties.

[snip]

Sadly I do not trust many branches or people in our government particularly the federal bureau of investigation. So at this time I am moving continuously and wrapping my phone in such a way that I hope it cannot be tracked. If for any reason I am not available to see you or meet with you again know that my intentions are to keep our country free of oppression by an over zealous government.

Yet no one knows who these three (or one particular) suspects were that made them or him so interesting to DOJ to merit this sweet plea deal or the year of effort to get it.

The thing is, the suspect in question must have already been charged and probably arrested. Before the plea hearing formally started, there was discussion of a “related case” designation, which would ensure that Judge Carl Nichols would preside over it, as well as Peterson’s. That would only happen if there were already another indictment.

Besides, the three guys who were with Peterson know they were with him; redacting that language doesn’t hide the cooperation from them, at all.

The relentless public roll-out of cooperators in the Oath Keeper case is the exception, not the norm (as Amit Mehta noted when Schaffer first pled guilty). Even those of us who follow closely are not seeing all of what’s going on, even in the overt crime scene prosecutions.

And Tarrio, himself a former snitch, knows better than most how useful disclosing such details may be to help others evade justice.

Friends of Sedition: The Networked January 6 Conspiracy

October 23, 2022/88 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

I’d like to look at several developments in recent days in the interlocking January 6 investigations.

First, as I noted Friday, the January 6 Committee subpoena to the former President focuses closely on communications with or on behalf of him via Signal. It specifically asks for communications with the Proud Boys and Oath Keepers (including on Signal). And Roger Stone is the first person named on the list of people all of whose post-election communication with Trump (including on Signal) the Committee wants. Clearly, the Committee has obtained Signal texts from others that reflect inclusion of the then-President and expects they might find more such communications, including some involving Stone and the Proud Boys and Oath Keepers.

Then, on Friday, one of the the main Proud Boy prosecutors, Erik Kenerson, asked to continue Matthew Greene’s cooperation for another 120 days, which would put the next status update in late February, over a month after the Proud Boy leader’s trial should be done. There are, admittedly, a great number of Proud Boy defendants who will go to trial long after that, but Greene doesn’t know many of them (he had just joined the Proud Boys and mostly interacted with other New York members like Dominic Pezzola). Nevertheless, prosecutors seem to think he may still be cooperating after the first big trial.

Those details become more interesting given how DOJ is presenting the Oath Keeper conspiracy at trial. Last Thursday, DOJ added the various communication channels each participant was subscribed to on their visual guide of the various co-conspirators.

It’s not surprising they would do that. To prove the three conspiracies these defendants are charged with, DOJ needs to prove each entered into an agreement to obstruct the vote certification, obstruct Congress, and attack the government. DOJ is relying on the various statements in advance of (and, for sedition, after) January 6 to show such intent. The fact that an intersecting collection of Signal channels incorporated most of the charged defendants will go a long way to show they were all willfully part of these three conspiracies.

But as you can see with Elmer Stewart Rhodes and Kellye SoRelle (circled in pink), DOJ has included Stone’s Signal channel — Friends of Stone — along with the Oath Keeper ones. As DOJ laid out last week, in addition to Rhodes and SoRelle, Enrique Tarrio, Alex Jones, and Ali Alexander were on the FOS channels, in addition to Stone himself.

DOJ has included things Rhodes said on the FOS chat in its timeline leading up to and on January 6. Significantly, at 2:28 on January 6, Rhodes informed the FOS chat that they were at “the back door of the Capitol.” (See the context in Brandi Buchman and Roger Parloff live threads.)

The thing is, many of the participants in FOS that prosecutors have, thus far, identified as participating in the chat (SoRelle, Ali Alexander, and Alex Jones) and most of the Oath Keepers were there on the East side of the Capitol or had only recently left. So was Owen Shroyer, who was also on FOS; he had been on the top of the stairs with Alexander and Jones.

Enrique Tarrio is one exception. He wasn’t present at the East side of the Capitol, but he was following along closely on social media — and likely already knew what was happening on the East side of the Capitol from Joe Biggs, who went through the East doors right along with the Oath Keepers.

Which means the only person mentioned so far who now needed to be told where the Oath Keepers were was Stone, back at the Willard.

We learned one more thing recently, at the last January 6 Committee hearing.

At 1:25PM — after the attack on the Capitol had started — Trump’s Secret Service detail was still planning on bringing him to the Capitol two hours later, around 3:30. That was after, per a video clip in which Nancy Pelosi said she would punch Trump if he showed up, Secret Service told Pelosi they had talked him out of coming.

But 18 minutes after Rhodes told the Friends of Stone list where the Oath Keepers were, at 2:46, Joseph Hackett came out of the Capitol and looked around, as if he was expecting someone to show up.

The fact that Rhodes was updating the FOS list from the Capitol suggests he may have been getting feedback from Stone and whoever else was on the list, including those who may have been coordinating with the then-President.

And whatever else DOJ’s use of the FOS list as part of this conspiracy does, it establishes the basis to argue that those coordinating on the FOS list were, themselves, in a conspiracy together: Rhodes and SoRelle with Tarrio (whom both met in the parking garage) and Alex Jones and Ali Alexander and Stone.

Just as importantly, it would network the conspiracies. That would put all the various Proud Boys taking orders from Tarrio in a conspiracy with those on the FOS list. It would put all the Oath Keepers conspiring with Rhodes and SoRelle in a conspiracy with those on the FOS list.

And it would put those on the FOS list in a conspiracy with those directing the attack on the Capitol.

I laid out over 14 months ago that, if DOJ were to charge Trump in conjunction with the attack on the Capitol, it would likely be part of an intersecting conspiracy with those already being charged.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

In the last two weeks, DOJ has started to show how those conspiracies intersect.

Unsurprisingly, they intersect right through the former President’s rat-fucker.

Update; Corrected Pelosi timing, per Nadezhda.

Update: Tried to clarify that Tarrio was on the chat but was not (as the Oath Keepers, Jones, and Alexander were) on the East side of the Capitol.

Trump Subpoena: The Revolution Will Not Be Signaled

October 21, 2022/134 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The January 6 Committee has released the subpoena it sent to the former President.

It requires document production by November 4 and a deposition starting on November 14. Notably, the first deadline is before the election.

It focuses not just on Trump’s attempt to overturn the election, summon mobsters, and raise money off of it. There are several questions focused on obstruction: both document destruction and witness tampering.

The witness tampering one reads:

All documents, including communications sent or received through Signal or any other means, from July 1, 2021, to the present, relating or referring in any way to the investigation by the Select Committee and involving contacts with, or efforts to contact: (1) witnesses who appeared or who were or might be expected to appear before the Select Committee, including witnesses who served as White House staff during your administration, who served as staff for your 2020 campaign, and who served or currently serve in the United States Secret Service; or (2) counsel who represented such witnesses. The documents referenced in (1) and (2) include but are not limited to any communications regarding directly or indirectly paying the legal fees for any such witnesses, or finding, offering, or discussing employment for any such witnesses, and any communications with your former Deputy Chief of Staff Anthony Ornato or any employee of the Secret Service with whom you interacted on January 6, 2021.

The subpoena mentions Signal at least 13 times. Which strongly suggests the President was in direct communication with some of the coup plotters via the mobile app.

The Trump associates named in the subpoena include:

Roger Stone
Steve Bannon
Mike Flynn
Jeffrey Clark
John Eastman
Rudy Giuliani
Jenna Ellis
Sidney Powell
Kenneth Chesebro
Boris Epshteyn
Christina Bobb
Cleta Mitchell
Patrick Byrne

The subpoena even asks him for communications involving the Oath Keepers, Proud Boys, “or any other similar militia group or its members” from September 1, 2020 to the present.

The subpoena also asks the former President for all communications devices he used between November 3, 2020 and January 20, 2021. In the Stone trial, there were about nine devices identified on which he may have received a call during the 2016 election, and there are several others — such as that of his then bodyguard Keith Schiller — who weren’t discussed in the trial. Tony Ornato also receives a close focus in this subpoena; I wonder if he was receiving calls for the then-President on the Secret Service phone that has since been wiped.

In Both Bannon and Stolen Document Cases, Trump’s Associates Claim He Is Still President

October 21, 2022/64 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection, Leak Investigations /by emptywheel

Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal.

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far. (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)

As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.

John Eastman Emails Show Trump Knowingly Lied in Georgia Lawsuit

October 19, 2022/99 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The January 6 Committee and John Eastman continue to fight over how many of his emails he can withhold from the Committee under a claim of attorney-client (and related) privilege.

Judge David Carter just ruled on what may be the last 500-so emails.

He ordered Eastman to turn over eight additional emails under a crime-fraud exception.

The more interesting set of four involve discussions about whether Trump should fix numbers he knew to be false before he filed a Federal lawsuit in Georgia.

Four emails demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the January 6 vote. The evidence confirms that this effort was undertaken in at least one lawsuit filed in Georgia.

On December 4, 2020, President Trump and his attorneys alleged in a Georgia state court action that Fulton County improperly counted a number of votes including 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.69 President Trump and his attorneys then decided to contest the state court proceeding in federal court, 70 and discussed incorporating by reference the voter fraud numbers alleged in the state petition. On December 30, 2020, Dr. Eastman relayed “concerns” from President Trump’s team “about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.”71 The attorneys continued to discuss the President’s resistance to signing “when specific numbers were included.”72 As Dr. Eastman explained the next day:

Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.73

President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them. 74 President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers “are true and correct” or “believed to be true and correct” to the best of his knowledge and belief.75

The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States. Accordingly, the Court ORDERS Dr. Eastman to disclose these four communications to the Select Committee.76

69 As discussed in the previous orders, President Trump’s own U.S. Attorney General said that his investigators found no evidence of fraud on a scale that would have changed the outcome of the election, but President Trump and his attorneys continued to file dozens of lawsuits in states he lost, seeking to overturn the results. First Order at 5. By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing. Id. at 6. See also J. M. Luttig et al., Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election (July 2022) (examining every count of every case of election irregularities brought by President Trump’s team in six battleground states and concluding that “Donald Trump and his supporters had their day in court and failed to produce substantive evidence to make their case”), https://perma.cc/MKC4-BV3Q.

70 See Trump v. Kemp, 511 F. Supp. 3d 1325, 1330 (N.D. Ga. 2021) (“Plaintiff’s motion for expedited declaratory and injunctive relief asks this Court to take the unprecedented action of decertifying the results of the presidential election in Georgia and directing the Georgia General Assembly to appoint presidential electors.”)

71 59643.

72 59390.

73 60742.

74 See generally Model Rules of Pro. Conduct r. 3.3 cmt. 5 (Am. Bar Ass’n 1983) (noting that the duty requiring “that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes” is “premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence”), https://perma.cc/3PB5-CGRM; see also Christensen, 828 F.3d at 805 (“[C]onduct by an attorney that is merely unethical, as opposed to illegal, may be enough to vitiate the work product doctrine.”).

75 In an attempt to disclaim his responsibility over the misleading allegations, President Trump’s attorneys remove the numbers from the body of complaint (but nonetheless incorporate them by reference) and add a footnote that states President Trump is only relying on information that was provided to him. See 61108. But, by his attorneys’ own admissions, the information provided to him was that the alleged voter fraud numbers were inaccurate. See 60742.

76 59643; 59390; 60742; 61108. For document 59643, only the first page (Chapman059643) requires disclosure. For document 60742, Dr. Eastman may redact emails sent before Thursday, December 31, 2020 12:00 PM MST. For document 61108, Dr. Eastman may redact emails sent before Thursday, December 31, 2020 7:43 AM.

These emails are going to have all sorts of ramifications — in Fani Willis’ investigation and the DOJ investigation. And they’ll likely make it easier for both Willis and Thomas Windom (who is leading the Trump fraud investigation) to obtain related emails that were seized from Mar-a-Lago.

1,500 Investigative Subjects: A Competent Google GeoFence Motion to Suppress for January 6

October 18, 2022/20 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

For some time, I’ve been waiting for a January 6 defendant to (competently) challenge the use of a Google GeoFence as one means to identify them as a participant in January 6. (There have been incompetent efforts from John Pierce, and Matthew Bledsoe unsuccessfully challenged the GeoFence of people who livestreamed on Facebook.)

The motion to suppress from David Rhine may be that challenge. Rhine was charged only with trespassing (though he was reportedly stopped, searched, and found to be carrying two knives and pepper spray, but ultimately released).

As described in his arrest affidavit, Rhine was first identified via two relatively weak tips and a Verizon warrant. But somewhere along the way, the FBI used the general GeoFence warrant they obtained on everyone in the Capitol that day. Probably using that (which shows where people went inside the Capitol), the FBI found him on a bunch of surveillance video, with his face partly obscured with a hat and hoodie.

The motion to suppress, written by Tacoma Federal Public Defender Rebecca Fish, attempts to build off a ruling in the case of Okello Chatrie (and integrates materials from his case) to get the GeoFence used to identify Rhine and everything that stemmed from it thrown out.

The three-step GeoFence Warrant and the returns specific to Rhine are sealed in the docket.

But the MTS provides a bunch of the details of how the FBI used a series of warrants to GeoFence the crime scene.

First, as Step 1, it got a list of devices at the Capitol during the breach, either as recorded in current records, or as recorded just after the attack. At this stage, FBI got just identifiers used for this purpose, not subscriber numbers.

The geofence warrant requested and authorized here collected an alarming breadth of personal data. In Step 1, the warrant directed Google to use its location data to “identify those devices that it calculated were or could have been (based on the associated margin of error for the estimated latitude/longitude point) within the TARGET LOCATION” during a four-and-a-half hour period, from 2:00 p.m. until 6:30 p.m. Ex. A at 6. The target location—the geofence—included the Capitol Building and the area immediately surrounding it, id. at 5, which covers approximately 4 acres of land, id. at 13. Indeed, the warrant acknowledges that “[t]o identify this data, Google runs a computation against all stored Location History coordinates for all Google account holders to determine which records match the parameters specified by the warrant.” Ex. A at 26 (emphasis added). Though not spelled out with clarity in the warrant itself, the warrant ordered that the list provided in step 1 not include subscriber information, but that such information may be ordered at a later step. See id. at 6; see also id. at 25 (“This process will initially collect a limited data set that includes only anonymous account identifiers, dates, times, and locations.”).

This yielded 5,723 unique devices (note, the MTS points to Google filings from the Chatrie case to argue that only a third of Google’s users turn on this location service).

Google ultimately identified 5,653 unique Device IDs that “were or could have been” within the geofence, responsive to the first step of the warrant. Ex. B (step 2 warrant and application) at 6. However, Google additionally searched location history data that Google preserved the evening of January 6. When searching this data, as opposed to the current data for active users at the time of the search, Google produced a list of 5,716 devices that were or could have been within the geofence during the relevant time period. Id. Google additionally searched location history data that Google preserved on January 7. When searching this data, Google produced a list of 5,721 devices that were or could have been within the geofence during the relevant time period. Id. The three lists combined yielded a total of 5,723 unique devices that Google estimated were or could have been in the geofence during the four-and-a-half hour period requested. Id. at 7.

In Step 2, the FBI asked Google to identify devices that had been present at the Capitol before or after the attack — an attempt to find those who were there legally. That weeded the list of potentially suspect devices to 5,518.

In this case, the second step of the geofence warrant was also done in bulk, given the lack of specificity as to the people sought. In the initial warrant, the Court ordered Google to make additional lists to eliminate some people who were presumptively within the geofence and committed no crimes. First, the warrant ordered Google to make a list of devices within the geofence from 12:00 p.m. to 12:15 p.m. on January 6. And second, the warrant ordered Google to make a list of devices within the geofence from 9:00 p.m. to 9:15 p.m. Ex. A at 6.

[snip]

Google provided these lists to the government in addition to the lists detailed above. Google identified 176 devices that were or could have been within the geofence between 12:00 p.m. and 12:15 p.m., and 159 devices that were or could have been within the geofence between 9:00 p.m. and 9:15 p.m. Ex. B at 6. The government ultimately subtracted these devices from those that they deemed suspect. Id. at 7. However, this still left 5,518 unique devices under the government’s suspicion. See id. The original warrant contemplated the removal of devices that were present at the window before and after the primary geofence time because the government asserted that the early and late windows were times when no suspects were in the Capitol Building, but legislators and staff were lawfully present. Ex. A at 27. However, the original warrant also indicated that “The government [would] review these lists in order to identify information, if any, that is not evidence of crime (for example, information pertaining to devices moving through the Target Location(s) in a manner inconsistent with the facts of the underlying case).” Ex. A at 6.

Aside from comparing the primary list with the lists for the early and late windows, the government appeared to do no culling of the device list based on movement. Rather, the government used other criteria to decide which devices to target for a request for subscriber information. 3.

The government then asked for the subscriber information of anyone who showed up at least once inside the Capitol (as the MTS notes, Google’s confidence levels on this identification is 68%). That identified 1,498 devices.

In step 3, as relevant to this case,4 the government sought subscriber information—meaning the phone number, google account, or other identifying information associated with the device—for two different categories of people. First, the government sought subscriber information for any device for which there was a single data point that had a display ratio entirely within the geofence. Ex. B at 7. In other words, the government sought identifying information for any device for which Google was 68 percent confident the device was somewhere within the geofence at a single moment during the four-and-a-half hour geofence period. Again, the government equated presence to criminality. The government sought and the warrant ordered Google to provide identifying information on 1,498 devices (and likely people) based on this theory. See id.

It also asked for subscriber information from anyone who had deleted location history in the week after the attack, which yielded another 37 devices.

Second, the government sought identifying subscriber information for any device where location history appeared to have been deleted between January 6 or 7 and January 13, and had at least one data point where even part of the display radius was within the geofence. See Ex. B at 7–8. The government agent asserted that such devices likely had evidence of criminality because: “Based on my knowledge, training, and experience, I know that criminals will delete their Google accounts and/or their Google location data after they commit criminal acts to protect themselves from law enforcement.” Id. at 8.

[snip]

The theory that potentially changed privacy settings or a deleted account as indicative of criminality led the government to request identifying information for 37 additional devices (and likely people). Ex. B at 8.

The MTS notes that at a later time, the FBI expanded the scope of the GeoFence for which they were seeking subscriber information, but that’s not applicable to Rhine.

4 Discovery indicates that the government later sought substantially more data from geofences in areas next to, but wholly outside of, the Capitol Building. However, Mr. Rhine addresses here the warrants and searches most relevant to his case.

The GeoFence was one of a number of things used to get the warrant to search Rhine’s house and digital devices.

I’ll hold off on assessing the legal merit of this MTS (though I do plan to share it with a bunch of Fourth Amendment lawyers).

For now, what is the best summary I know of how the known Google GeoFence reveals how the FBI used it: first obtaining non-subscriber identifiers for everyone in the Capitol, removing those who were by logic legally present before the attack, and then obtaining subscriber information that was used for further investigation.

And that GeoFence yielded 1,500 potential investigative subjects, which may be only be a third of Google users present (though would also by definition include a lot of people — victims and first responders — who were legally present). Which would suggest 4,500 people were inside the Google GeoFence that day, and (using the larger numbers) 15,000 were in the vicinity.

As I keep saying, the legal application here is very different in the Chatrie case, because everyone inside the Capitol was generally trespassing, a victim, a journalist, or a first responder.

To make things more interesting, Rudolph Contreras, who is the FISA Court presiding judge, is the judge in this case. He undoubtedly knows of similar legal challenges that are not public from his time on FISC.

Which may make this legal challenge of potentially significant import.

On Steve Bannon’s Epically Bad Faith

October 17, 2022/56 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The government’s sentencing memo for Steve Bannon, which asks Judge Carl Nichols to sentence Bannon to six months in prison for blowing off the January 6 Committee subpoena, mentions his bad faith thirteen times (and his failure to make any good faith effort once).

From the moment that the Defendant, Stephen K. Bannon, accepted service of a subpoena from the House Select Committee to Investigate the January 6th Attack on the United States Capitol (“the Committee”), he has pursued a bad-faith strategy of defiance and contempt.

[snip]

The factual record in this case is replete with proof that with respect to the Committee’s subpoena, the Defendant consistently acted in bad faith and with the purpose of frustrating the Committee’s work.

[snip]

For his sustained, bad-faith contempt of Congress, the Defendant should be sentenced to six months’ imprisonment—the top end of the Sentencing Guidelines’ range—and fined $200,000—based on his insistence on paying the maximum fine rather than cooperate with the Probation Office’s routine pre-sentencing financial investigation.

[snip]

When his quid pro quo attempt failed, the Defendant made no further attempt at cooperation with the Committee—speaking volumes about his bad faith.

[snip]

Throughout the pendency of this case, the Defendant has exploited his notoriety—through courthouse press conferences and his War Room podcast—to display to the public the source of his bad-faith refusal to comply with the Committee’s subpoena: a total disregard for government processes and the law.

[snip]

The Defendant’s contempt of Congress was absolute and undertaken in bad faith.

[snip]

The Defendant’s claim for acceptance of responsibility is contradicted by his sustained bad faith.

[snip]

As Mr. Costello informed the Select Committee on July 9, 2022, “[the Defendant] has not had a change of posture or of heart.” Ex. 17. Mr. Costello could not have put it more perfectly: the Defendant has maintained a contemptuous posture throughout this episode and his bad faith continues to this day.

[snip]

Not once throughout this episode has the Defendant even tried to collect a document to produce, and he has never attempted in good faith to arrange to appear for a deposition.

[snip]

The Defendant hid his disregard for the Committee’s lawful authority behind bad-faith assertions of executive privilege and advice of counsel in which he persisted despite the Committee’s—and counsel for the former President’s—straightforward and clear admonishments that he was required to comply.

[snip]

Here, the Defendant’s constant, vicious barrage of hyperbolic rhetoric disparaging the Committee and its members, along with this criminal proceeding, confirm his bad faith.

[snip]

The Defendant here, by contrast, has never taken a single step to comply with the Committee’s subpoena and has acted in bad faith throughout by claiming he was merely acting on former President Trump’s instructions—even though former President Trump’s attorney made clear he was not.

[snip]

And any sentence below the six-month sentence imposed in Licavoli would similarly fail to account for the full extent of the Defendant’s bad faith in the present case.

[snip]

The Defendant’s bad-faith strategy of defiance and contempt deserves severe punishment

To substantiate just how bad his bad faith is, the memo includes a list of all the public attacks he made on the process, just three of which are:

On June 15, 2022, after a motions hearing, the Defendant exited the courthouse and announced that he looked forward to having “Nancy Pelosi, little Jamie Raskin, and Shifty Schiff in here at trial answering questions.” See “Judge rejects Bannon’s effort to dismiss criminal case for defying Jan. 6 select committee,” Politico, June 15, 2022, available at https://www.politico.com/news/2022/06/15/judge-rejects-bannons-effortto-dismiss-criminal-case-for-defying-jan-6-select-committee-00039888 (last viewed Oct. 16, 2022).

Shortly before trial, on a July 12 episode of his podcast, the Defendant urged listeners to pray for “our enemies” because “we’re going medieval on these people, we’re going to savage our enemies. See Episode 1996, War Room: Pandemic, July 12, 2022, Minute 16:37 to 17:46, available at https://warroom.org/2022/07/12/episode-1996- pfizer-ccp-backed-partners-elon-musk-trolls-trump-alan-dershowitz-on-partisanamerica-and-the-constitution-informants-confirmed-at-j6/ (episode webpage last accessed Oct. 16, 20222 ).

During trial, on July 19, the Defendant gave another courthouse press conference, in which he accused Committee Chairman Rep. Bennie Thompson of “hiding behind these phony privileges,” ridiculed him as “gutless” and not “man enough” to appear in court, and mocked him as a “total absolute disgrace.” The Defendant also teased Committee member Rep. Adam Schiff as “shifty Schiff” and another member of Congress, Rep. Eric Swalwell, as “fang fang Swalwell.” He went on to say that “this show trial they’re running is a disgrace.” See “Prosecutors say Bannon willfully ignored subpoena,” Associated Press Archive, July 24, 2022, available at https://www.youtube.com/watch?v=3SR_EJL5nkw (last accessed Oct. 16, 2022).

It also describes how Bannon refused to tell the Probation office how much money he had; DOJ used that refusal to ask for a $200,000 fine as a result.

Even now that he is facing sentencing, the Defendant has continued to show his disdain for the lawful processes of our government system, refusing to provide financial information to the Probation Office so that it can properly evaluate his ability to pay a fine. Rather than disclose his financial records, a requirement with which every other defendant found guilty of a crime is expected to comply, the Defendant informed Probation that he would prefer instead to pay the maximum fine. So be it. This Court should require the Defendant to comply with the bargain he proposed when he refused to answer standard questions about his financial condition. The Court should impose a $100,000 fine on both counts—the exact amount suggested by the Defendant.

The most interesting details about the memo, however, are the inclusion of an effort Bannon made in July to get the Committee to help him delay the trial for immediate cooperation. DOJ included both an interview report and the notes Committee investigative counsel Tim Heaphy took after Evan Corcoran — the lawyer Bannon shares with Trump — tried to get the Committee to help him out in July.

HEAPHY described the overall “vibe” of his conversation with CORCORAN as defense counsel’s attempt to solicit the Select Committee’s assistance in their effort to delay BANNON’s criminal trial and obtain a dismissal of the Contempt of Congress charges pending against him.

In his notes, Heaphy suggested that DOJ might offer Bannon a cooperation plea in July.

My takeaway is that Bannon knows that this proposal for a continuance and ultimate dismissal of his trial is likely a non-starter, which prompted him to call us to explore support as leverage. I expect that DOJ will not be receptive to this proposal, as he is guilty of the charged crime and cannot cure his culpability with subsequent compliance with the subpoena. I won’t be surprised if DOJ is willing to give Bannon a cooperation agreement as part of a guilty plea. In other words, DOJ may allow Bannon to plead to one count and consider any cooperation in formulating their sentencing recommendation.

What I find most interesting about this is the date: the interview was October 7. Either DOJ did this interview just for sentencing. Or they conducted the interview as part of an ongoing investigation.

Update: Here’s Bannon’s memo. His bid for probation is not good faith given the mandatory sentence. But his request for a stay of sentence pending appeal is virtually certain to work because, as Bannon quotes heavily, Nichols thinks Bannon has a good point about relying on advice from counsel.

“I think that the D.C. Circuit may very well have gotten this wrong; that makes sense to me, what you just said. The problem is, I’m not writing on a clean slate here.” Hr’g Tr. 35:25-36:3, Mar. 16, 2022.

“The defendant was charged with violating 2 US Code Section 192. As relevant here, that statute covers any individual who “willfully makes default” on certain Congressional summonses. The defendant argues he’s entitled to argue at trial that he cannot have been “willfully” in default, because he relied in good faith, on the advice of counsel, in not complying with the Congressional subpoena. He points to many Supreme Court cases defining “willfully,” including Bryan v. United States, 524 U.S. 184, 1998, to support his reading of the statute. If this were a matter of first impression, the Court might be inclined to agree with defendant and allow this evidence in. But there is binding precedent from the Court of Appeals, Licavoli v. United States, 294 F.2d 207, D.C. Circuit 1961, that is directly on point.” Id. at 86:25-87:15.

“Second, the defendant notes that in the sixth [sic] decade since Licavoli, the Supreme Court has provided clarity on the meaning of “willfully” in criminal statutes. Clarity that favors defendant. That might very well be true. But none of that precedent dealt with the charge under 2 U.S. Code, Section 192. Licavoli did. Thus, while this precedent might furnish defendant with arguments to the Court of Appeals on why Licavoli should be overruled, this court has no power to disregard a valid and on-point or seemingly onpoint holding from a higher court.” Id. at 89:3-12.

“I noted in my prior decision that I have serious questions as to whether Licavoli correctly interpreted the mens rea requirement of “willfully”, but it nevertheless remains binding authority.” Hr’g Tr. 126:6-9, June 15, 2022.

On Trump’s Subpoena and Marc Short’s Testimony

October 14, 2022/131 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

The January 6 Committee conducted what may be the last of their hearings (barring new disclosures from witnesses they intend to recall, including, implicitly, Tony Ornato and Robert Engel) by voting to subpoena Trump, for both documents and testimony. The subpoena was proposed by Liz Cheney, who learned a thing or two about bureaucratic genius from her father.

I think the most likely outcome of that will be the expiration of the subpoena with the next Congress. With the likelihood Republicans will take the House, it will not be renewed. It will, however, give the Committee opportunity to package up their findings against Trump in something that’s not a referral.

And the full House may have to vote on the subpoena before the expiration of this Congress.

The subpoena is more interesting, in my opinion, for the way it might intersect with other investigations. For example, a subpoena to Trump for January 6 documents might cover some of the documents initially seized on August 8. As I have noted, there appear to be documents in both the materials already returned to Trump and those currently under dispute before Raymond Dearie that pertain to Trump’s big lies pertaining to Georgia.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

A subpoena for these documents may change the legal status of them — and Trump’s hoarding of them at his beach resort. It may also make them easier for others to obtain.

As it happens, though, the subpoena news also came on the same day that Marc Short testified to a grand jury about topics he (and his Executive Authority maximalist lawyer Emmet Flood) originally declined to answer.

A former top aide to Vice President Mike Pence returned before a grand jury Thursday to testify in a criminal probe of efforts to overturn the 2020 election after federal courts overruled President Donald Trump’s objections to the testimony, according to people familiar with the matter.

In a sealed decision that could clear the way for other top Trump White House officials to answer questions before a grand jury, Chief U.S. District Judge Beryl A. Howell ruled that former Pence chief of staff Marc Short probably possessed information important to the Justice Department’s criminal investigation of the Jan. 6, 2021, attack on the Capitol that was not available from other sources, one of those people said.

[snip]

According to people familiar with the matter, Short had appeared before a grand jury in downtown Washington in July, but declined to answer certain questions after Flood argued the communications of top White House advisers are protected — and presented written documentation from Trump’s lawyers that they were asserting executive privilege.

The Justice Department asked the court to intervene, urging Howell to override Trump’s claim and to compel Short to answer questions about his communications with Trump, one person said. After arguments Sept. 22, Howell granted the government’s motion, the people said, but because the investigation and an appeal are ongoing, it is unclear if or when a redacted opinion will become public.

Short and Windom were spotted at court again on Thursday, as was former Trump national security and defense aide Kash Patel.

SCOTUS has already ruled against Trump’s Executive Privilege claims before the January 6 Committee. If they were able to obtain his testimony — or if DOJ took his 14-page conspiratorial rant authored by former OAN hostess as a false statement to Congress — then it would create interesting tension between these two investigations.

As DOJ gets testimony from Short and, after him, others who invoked Executive Privilege, this subpoena to Trump will be in the background, a (very distant) possibility that Trump would be required to testify — as a witness, as opposed to the subject Trump is in the DOJ investigation — to the very same topics that his top aides are now testifying to.

It’s one more moving part that may get increasingly difficult to juggle.