Last night, along with a previously scheduled Motion for Discovery, Steve Bannon filed a Motion to Compel disclosure regarding some records requests DOJ made targeting Bannon’s attorney, Robert Costello. In it, he revealed that the government had obtained phone and Internet toll records (that is, metadata, not content) of his attorney spanning the period between the last event in Bannon’s prosecution in the Build the Wall fraud case, March 5, 2021, through the day he was indicted, November 11, 2021.
Predictably, the filing wails a lot about his lawyer being spied on and misrepresents what happened.
While Bannon included two exhibits with his Motion to Compel (a letter asking for information about the Costello material and the government response), Bannon included the most important information pertaining to the Costello records with his Motion for Discovery, not his Motion to Compel: reports of two interviews (302s) he did with DOJ and FBI, one on November 3 and the other on November 8, 2021.
At the time Costello gave the interviews, his representation of Bannon before the January 6 Select Committee was ended and Bannon had not yet been indicted. And as the first 302 notes, “there were no agreements or conditions governing the conversation between COSTELLO and representatives of USAO-DC or FBI.” Effectively, those interviews made Costello a voluntary fact-witness in the criminal case against Bannon, one exacerbated when Bannon belatedly added Costello to his criminal defense team and grew squishy about whether Bannon would invoke Costello’s advice in his own defense.
And Costello made so many contradictory claims in his 302s (to say nothing of providing evidence that Bannon knew well he had no privilege claim with which to refuse to testify entirely), that it is unsurprising that the FBI made records requests to test whether Costello lied in those interviews to the FBI. Among the claims Costello made about communications he had or did not have are:
J6 sent the subpoena to Costello (on September 23) before he had been able to consult with Bannon
Costello did not know who was representing the other people subpoenaed — Dan Scavino, Kash Patel, Mark Meadows, or Donald Trump — at the time of the subpoena
Through the entire subpoena response, Bannon and Costello have “operated independently of the others subpoenaed”
Costello was not told who was representing Trump, Meadows, or the others subpoenaed, but he found out on his own who represented Trump and Meadows
Costello sent the subpoena to Bannon to review
Costello’s advice to Bannon that he didn’t have to respond was verbal
Costello was sure he sent the J6 letters to Bannon; he wasn’t sure whether Bannon read the letters but Costello did quote lines from the letters to him
Costello sent Bannon an email that he ended with the word BEWARE because defying the subpoena could result in a referral to DOJ
Costello’s only contact with J6 Chief Counsel Kristin Amerling came the day before and the day of the subpoena service [the record shows she sent him at least one letter after that]
Costello tried to contact the attorney he believed was representing Trump (whom he didn’t name) but that attorney referred Costello to Justin Clark
Costello reached out to Clark a few days before October 6, though their first substantive conversation came when Clark responded
Costello did not provide any documents to attorneys for Trump for an Executive Privilege review
Justin Clark was vague but Costello was sure Trump asserted Executive Privilege with regards to Bannon
Clark would not ID for Costello what would be covered under Executive Privilege
In spite of Costello’s claims not to have consulted with any Trump lawyer, he also claimed that Clark told him not to respond to item 17 on the subpoena (covering Mike Flynn), because lawyers like Rudy Giuliani might have been present when Bannon communicated with Flynn
In spite of his admitted conversations with Justin Clark, Costello claimed he had not had communications with attorneys for Trump prior to October 18, 2021 (when Trump filed a lawsuit challenging the privilege waivers on materials from the Archives)
Costello had “an email or two” with Clark, who he believed filed the lawsuit, but he did not learn until later that Jesse Binnall filed the lawsuit
Costello sent copies of Bennie Thompson’s letters to the VA lawyer representing Trump (probably Binnall)
Costello had no advance knowledge of Trump’s lawsuit and would have handled things differently if he had
Attorneys representing Trump (Costello doesn’t name him or describe when this was) told him everyone who got a subpoena would get Executive Privilege
Costello did not talk about “disposing of any documents requested in the … subpoena with any attorneys who represented former President TRUMP”
Costello said he’d sent to USAO all memorializations of communications he had with the Committee, Clark, and Trump’s attorneys
Effectively, these claims only make any sense if he had extended discussions with an attorney who did not represent Donald Trump, on whose representation he advised Bannon that Trump wanted Bannon to invoke Executive Privilege. But even there, there are still all sorts of temporal problems with Costello’s claims (and probable inconsistencies regarding the timing of events on October 18, though I need to unpack what those are further).
Costello’s interviews were all over the map on other topics as well, topics that affect both Rudy Giuliani (whom Costello also represents) and Bannon: that he could and could not claim Executive or Attorney Client privilege over certain topics, that he advised or did not advise Bannon to do so, that he admits that Bannon provided no response about issues — most damningly, his public podcasts — that could in no way be covered by Executive Privilege.
But the key detail is that Costello’s claims about communications he had and did not have defy belief and (particularly with regards to Justin Clark) may be physically impossible.
So, in response to these interviews (and probably in possession of contradictory evidence from J6), DOJ obtained all the records they would need to test Costello’s claims.
As I’ve noted, Costello has played a key role in past obstruction efforts, going back to 2018. It’s certainly conceivable DOJ has an open investigation into Costello (and Rudy) for those activities.
Whether or not they already did, Costello gave them far more reason to question his role in obstructing investigations into Donald Trump in his two interviews.
Update: Here’s Bannon’s subpoena (h/t Kyle Cheney). It confirms that Item 17, which Clark told Costello to tell Bannon not to respond to, included Mike Flynn.
Timeline
March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)
September 22: First contact between J6 and Bannon
September 23: Bannon subpoena
September 24: Costello accepts service
October 6: Costello claims Clark invoked privilege
October 7, 10AM: Original deadline for document production
October 7, 5:05PM: Costello letter claiming Trump invoked privilege
October 8: Thompson letter to Bannon rejecting non-compliance
October 13: Second Costello letter, demanding accommodation with Trump
October 14, 10AM: Original date for Bannon testimony
October 15: Letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM
October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues
October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt
October 20: Rules committee meeting to hold Bannon in contempt
October 21 Bannon held in contempt
October 28: Matthew Graves confirmed as US Attorney
January 28: Government response to discovery demand
February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello
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https://www.emptywheel.net/wp-content/uploads/2020/05/Steve_Bannon_by_Gage_Skidmore.jpg587440emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-05 10:46:332022-02-07 05:52:06Steve Bannon’s Lawyer Made Himself a Witness and Now Wants To Be Just a Lawyer
According to this Josh Dawsey piece on the GOP’s vote to censure Liz Cheney and Adam Kinzinger, Ronna Romney McDaniel claims she decided to support this censure effort after a little old lady friend of hers was subpoenaed by the January 6 Committee.
McDaniel said she was particularly upset when an elderly, recently widowed friend of hers was subpoenaed by the Jan. 6 committee after it was reported the friend was an alternate elector at the campaign’s behest. She declined to name the friend.
It took me 3 Google searches to find Berden’s name and Dean’s obituary, and unlike me, Dawsey has the support of an entire newsroom. But rather than ask a follow-up question about the most likely person that McDaniel was discussing, Dawsey just accepted McDaniel’s refusal to name the person and published the GOP Chair’s spin with absolutely no pushback.
That let Dawsey off easy.
Rather than explain that, if it is Berden, she is someone whom Michigan Attorney General Dana Nessel has said obviously broke Michigan law.
There’s no question a troop of faux GOP electors violated the law when they signed on to phony documents and tried to barge into the Michigan State Capitol in an effort to fraudulently award the state’s electoral votes to former President Donald Trump, says Attorney General Dana Nessel.
But, given the scope of what Michigan’s top law enforcement official called a “conspiracy,” Nessel says the criminal prosecution of at least the 16 sham Republican delegates is better suited for federal authorities.
“Seemingly there’s a conspiracy that occurred between multiple states. So if what your ultimate goal is, is not just to prosecute these 16 individuals, but to find out who put them up to this, is this part of a bigger conspiracy at play in order to undermine the legitimate results of the 2020 presidential election, not just in Michigan but nationally? … It creates jurisdictional issues,” Nessel said Tuesday during a virtual news conference.
“I feel confident we have enough evidence to charge if we decide to pursue that. Again, I want to make it clear, I haven’t ruled it out. But for all the reasons I stated, I think that it’s a better idea for the feds to pursue this.”
More importantly, Nessel described this as a “multi-state conspiracy,” something criminally implicating those beyond just the fake electors. Given McDaniel’s position in both Michigan and national politics, McDaniel likely at least knows key details of any such conspiracy, if she wasn’t an active part of it herself.
And it’s not just Michigan. Deputy Attorney General Lisa Monaco has confirmed that federal prosecutors are also investigating suspected crimes associated with the fake certificates.
So Dawsey let McDaniel’s claim that she was taking action to censure (and possibly fund the opponent of) Liz Cheney because of some nice little old lady, without mentioning that that nice little old lady is by definition someone being criminally investigated by the FBI for her role in an effort to steal the election. Dawsey also didn’t mention that that nice little old lady might also have information that would implicate McDaniel personally in that crime.
This is in a larger article that frames this all as some horserace politics — even if “unprecedented” — and not a fight about the aftermath of an attack on the peaceful transfer of power.
Dawsey published text from the resolution against Cheney and Kinzinger, describing them as “two members engage[d] in a Democrat-led persecution of ordinary citizens who engaged in legitimate political discourse,” in paragraph five.
He doesn’t get into the substance of what Republicans are defending with this vote until paragraph nine, which quotes Cheney.
“The leaders of the Republican Party have made themselves willing hostages to a man who admits he tried to overturn a presidential election and suggests he would pardon Jan. 6 defendants, some of whom have been charged with seditious conspiracy. I’m a constitutional conservative and I do not recognize those in my party who have abandoned the Constitution to embrace Donald Trump. History will be their judge. I will never stop fighting for our constitutional republic. No matter what,” Cheney said.
Dawsey never considers what it means that the Chair of the Republican Party says that Democrats may keep the House if a full investigation of these alleged crimes occurs, or even what it means that McDaniel intervened to turn David Bossie’s motion to expel Cheney and Kinzinger from the caucus entirely into one calling for censure, a pretty important point if, like Dawsey, you’re pretending this is just boring old horse race politics.
The RNC will vote today to say that if the Select Committee investigation into January 6, including into Kathy Berden and those suspected of conspiring with her, is allowed to continue, the Democrats may to keep the House, a fairly stunning concession that hints at the depths of the conspiracy.
But instead of telling that story, horse race journalist and WaPo’s full-time Mar-a-Lago stenographer wants to tell the story about nice little old ladies.
McDaniel was reelected as chair of the RNC in January 2019, with Trump’s endorsement. Two days earlier, her PAC paid $5,000 to Kathleen Berden, a voting member of the RNC, a volunteer position. Reed said the PAC paid Berden because she “whipped votes” for McDaniel’s reelection. He would not address why McDaniel needed Berden’s services or whether it was appropriate for McDaniel to pay a volunteer RNC voting member to influence fellow voters.
When reached for comment, Berden declined to elaborate on her work for McDaniel.
https://www.emptywheel.net/wp-content/uploads/2020/03/Screen-Shot-2020-03-17-at-8.36.55-AM.png8341014emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-04 06:08:032022-02-05 11:08:12She’s “No Angel:” Josh Dawsey’s Nice Little Old Lady Suspected of Crimes to Steal an Election
In an analysis piece earlier this week, the NYT reported as newsworthy that,
Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.
Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.
“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”
Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.
Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?
A Yes.
Q How many conversations did you have with him about pre-pardoning
A One or two.
Q And what did he say to you?
A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.
Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?
A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.
Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?
A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –
Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?
A No.
Q Okay. What do you mean by a global pardon?
A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.
Q So when you say everyone, who do you mean?
A I guess whoever it is that you started to request to come in, testify, subpoenaed.
It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.
This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.
It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.
It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:
December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee
What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.
So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.
Michael Cohen pardon dangle
This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.
On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.
But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.
Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.
Roger Stone commutation
Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.
While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.
That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.
53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.
54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”
In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.
But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.
Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.
Mike Flynn pardon
As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.
Replaced competent lawyers with incompetent TV grifters
Released evidence he lied to his lawyers doing the FARA filing
Consented to waive privilege so DOJ could find more proof he lied
Debunked a slew of conspiracy theories
Got really damning transcripts released
Served 708 days of supervised release
Joined a gang
Got one of his gang members prosecuted for death threats against Judge Sullivan
Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
Exposed his son to further prosecution
Exposed DOJ to further scrutiny
Proved Judge Sullivan’s point about selling the country out
After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.
Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.
That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.
More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.
THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?
MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.
THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.
MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.
THE COURT: What’s the reason why you can’t discuss that?
MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.
THE COURT: Well, you don’t work for the government.
MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.
THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?
MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.
THE COURT: How did you provide that update? Was it in writing?
MS. POWELL: No, sir.
THE COURT: How did you provide that update? Who did you speak with?
MS. POWELL: I provided it in person to counsel for the President.
THE COURT: I mean the White House counsel or a deputy or who did you speak to?
MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.
THE COURT: And did you make any request of the President?
MS. POWELL: No, sir. Other than he not issue a pardon.
THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?
MS. POWELL: That’s the only one I recall.
THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?
MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.
THE COURT: Are the New York Times’ representations erroneous?
MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.
THE COURT: All right. About this case. But there’s been more than one though.
MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.
THE COURT: And was that within the last two weeks?
MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.
THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?
MS. POWELL: Oh, heavens, no.
THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?
MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]
On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.
President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.
This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.
And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.
At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.
Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.
Roger Stone pardon
During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.
Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.
On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).
On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.
On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.
On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”
Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”
[snip]
Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”
The next day, Stone deleted the pictures of his face-to-face meeting with Trump.
On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.
Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)
Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.
Steve Bannon
Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.
It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.
December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.
In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.
“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.
Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”
So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.
But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.
Rudy Giuliani left dangling
Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.
While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.
It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.
But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.
Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.
But he didn’t.
That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.
Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion
https://www.emptywheel.net/wp-content/uploads/2022/02/Stone-a-Guilfoyle.jpeg422415emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-03 09:51:172022-02-03 15:00:23Trump’s Coup Attempts: A Tale of Five Pardon Dangles
Because TV lawyers continue to wail that DOJ isn’t doing enough to investigate Donald Trump, I want to dumb down this post.
While TV lawyers have been wailing impotently that DOJ has been doing nothing to investigate Donald Trump, DOJ and the National Archives have been acquiring the communications behind some of the most damning events leading up to January 6. DOJ has been doing so even as the TV lawyers guaranteed us they would know if DOJ were doing such things, yet insisting that DOJ was not.
Consider just the events leading up to the December 18, 2020 series of meetings at the White House, involving Sidney Powell, Rudy Giuliani, and Mark Meadows, which some of the same reporters that reported it in real time are reporting as if it were new news.
Sidney Powell
According to the WaPo story on the grand jury investigation into Sidney Powell, a subpoena in that investigation issued in September asked for “communications and other records related to fundraising and accounting” related to Powell’s grift.
Federal prosecutors have demanded the financial records of multiple fundraising organizations launched by attorney Sidney Powell after the 2020 election as part of a criminal investigation, according to a subpoena reviewed by The Washington Post.
The grand jury subpoena, issued in September by the U.S. attorney’s office for the District of Columbia, sought communications and other records related to fundraising and accounting by groups including Defending the Republic, a Texas-based organization claiming 501(c) 4 nonprofit status, and a PAC by the same name, according to the documents and a person familiar with the investigation who spoke on the condition of anonymity to share details of the probe.
As part of the investigation, which has not been previously reported, prosecutors are seeking records going back to Nov. 1, 2020.
The subpoena reviewed by The Post was signed by Assistant U.S. Attorney Molly Gaston, who is also handling politically charged matters related to the Jan. 6 attack on the Capitol, including contempt of Congress charges brought against former Trump adviser Stephen K. Bannon for refusing to testify in front of the House committee investigating the pro-Trump riot. [my emphasis]
While the predication of that investigation seems to be based on Powell’s fundraising — soliciting money from dupes who believe her false claims of a stolen election — because proving that she knew those claims were false would require collecting everything about her efforts to manufacture false claims, it would get the communications explaining how to exploit those false claims as well. Plus, this September subpoena reveals just what DOJ did after moving to an overt phase. Prior to that, DOJ presumably obtained — first — preservation orders and — then — warrants on the emails that, according to Patrick Byrne, Powell claims she sent Rudy about her schemes.
On January 21 (a week before Trump started dangling pardons again), Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.
A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.
Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.
[snip]
Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.
He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.
“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.
Any emails obtained with a non-public warrant would be sent to a taint team that would review Sidney Powell’s privilege claims independently. Of particular interest, after Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”
With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of that December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.
Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. So she may want to claim privilege, but after November 25, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.
As I previously noted, the prosecutor in charge of that investigation dropped off three other January 6 prosecutions by March 29 of last year (though there is at least one other investigation, the obstruction investigation into Capitol Police Officer Michael Riley, on which she was also working in the interim).
Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.
There continue to be some curious moves that suggest DOJ is shifting prosecutorial resources to unseen investigations in fairly urgent fashion.
Rudy Giuliani
Meanwhile, on January 21 (the same day that CNN reported that Powell was “cooperating” in the DOJ investigation, and so also a week before Trump started dangling pardons again), Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.
Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:
Because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.
But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.
Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.
And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.
Mark Meadows
On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.
But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.
Among the things included in the referral are:
A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too
This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.
If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.
As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.
Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.
So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.
In other words, while TV lawyers have been wailing that DOJ has been doing nothing, DOJ has been acquiring the communications from at least two of the key participants in that December 18 meeting, and the Archives have been acquiring the communications of a third.
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In Patrick Byrne’s February 1, 2021 telling of a series of December 18, 2020 meetings that was just retold by the NYT, Sidney Powell — who is currently under grand jury investigation — told Rudy Giuliani — who is currently under grand jury investigation– that she hadn’t been leaving him out of the loop. On the contrary, Powell explained as she tried to convince Rudy and with him the former President to adopt the plan she and Mike Flynn concocted to seize the voting machines, Powell had sent Rudy this information via email and text.
Finally, Trump stopped and scanned the three of us, and asked simply. “So what are you saying?” Thinking of the difference between the highly organized and disciplined approach I had experienced with Flynn and Sidney, versus the college sophomore bull-session approach of the Campaign and Rudy-World, I spoke up again: “Mr. President, I think you should appoint Sidney Powell your Special Counsel on these election matters and make General Flynn your Field Marshall over the whole effort. I know Rudy’s your lawyer and friend, and he can have a great role in this. Rudy should be personally advising you, and we don’t want to do anything to embarrass him. But it needs to be Sidney taking point legally on this. And if you really want to win, make General Flynn here the Field Marshall. If you do I put your chances at around 50-75%. You should see how he well he has this planned, it would run like clockwork…”
The President shook me off, saying, “No no, it’s got to be Rudy.”
[snip]
The three male [White House Counsel] lawyers edged closer to the front, and then as though as some hidden signal, they all started being bitches.
First was some comment about it not being right to use the National Guard. “The optics are terrible, Mr. President,” said one. “It would have to be the DHS.” I liked the National Guard idea because we needed to reestablish trust of the American people in the electoral process, and the US institution with the most trust is the one where people dress in military uniforms. Yet the National Guard is local, they are all around us, our colleagues at work, our “Citizen Soldiers”. But perhaps in a sign of flexibility, Flynn and Sidney allowed as how one could use the DHS instead of the National Guard.
[snip]
I took another shot at it with the President. “Again Sir, I know that Rudy is a friend of yours, he’s wonderful. He’s America’s Mayor. I love Rudy, I don’t want to embarrass him. But you should see how what Mike and Sidney have got going. It is so organized, so well-planned-” Again he cut me off, saying, “No no, it’s got to be Rudy…” On the inside I slumped.
[snip]
Eventually President Trump said that we would all meet in 30 minutes in the living quarters, in the “Yellow Oval” (I believe the room is called). In the meantime, Rudy was coming in and we had to find a way to make things work between Rudy and Sidney. As we parted he said, “You know, in 200 years there probably has not been a meeting in this room like what just happened…”. As he was leaving he brushed past me, stopped, and speaking low and quiet, said something quite kind and meaningful, showing me that he knew a lot more about me than I had guessed.
A few minutes later Sidney, Mike, Alyssa, and I were in the Cabinet Room. waiting for Rudy. It was dark, and we had to find a couple lamps to turn on. Mike and I were intent on making sure the meeting went well between Sidney and Rudy, so everyone could work happily together.
After 10 minutes Rudy came in, tying his tie, and said in not too gruff a manner, but with perhaps the gruffness of a man disturbed from his evening meal, “You know Sidney, if we are going to work together you have to share information.” I did not take his tone as being too aggressive, but one of trying to turn over a new leaf in a relationship, perhaps.
Sidney immediately told him, “I do share information Rudy. You never read your emails, you never read your texts.”
“That’s not true Sidney! I just need you to stop keeping me in the dark-“
“”Rudy I don’t keepo [sic] you in the dark! You-”
“Sidney you have to stop keeping everything to yourself! I cannot work with you if you don’t share with me!”
Within moments the conversation had spiraled out of control. After a minute of squabbling I tried to interject something helpful. “Mr. Mayor, it is true that since I arrived, everything we ever brought Sidney, she always said, ‘Get this to Rudy right away.’ It’s true. Absolutely everything we turned up, she told us to share with you. She never asked us to keep you in the dark about anything.” [my emphasis]
Six weeks after Election Day, with his hold on power slipping, President Donald J. Trump directed his lawyer, Rudolph W. Giuliani, to make a remarkable call. Mr. Trump wanted him to ask the Department of Homeland Security if it could legally take control of voting machines in key swing states, three people familiar with the matter said.
Mr. Giuliani did so, calling the department’s acting deputy secretary, who said he lacked the authority to audit or impound the machines.
Mr. Trump pressed Mr. Giuliani to make that inquiry after rejecting a separate effort by his outside advisers to have the Pentagon take control of the machines. And the outreach to the Department of Homeland Security came not long after Mr. Trump, in an Oval Office meeting with Attorney General William P. Barr, raised the possibility of whether the Justice Department could seize the machines, a previously undisclosed suggestion that Mr. Barr immediately shot down.
[snip]
Mr. Giuliani was vehemently opposed to the idea of the military taking part in the seizure of machines, according to two people familiar with the matter. The conflict between him and his legal team, and Mr. Flynn, Ms. Powell and Mr. Byrne came to a dramatic head on Dec. 18, 2020, during a meeting with Mr. Trump in the Oval Office.
At the meeting, Mr. Flynn and Ms. Powell presented Mr. Trump with a copy of the draft executive order authorizing the military to oversee the seizure of machines. After reading it, Mr. Trump summoned Mr. Giuliani to the Oval Office, according to one person familiar with the matter. When Mr. Giuliani read the draft order, he told Mr. Trump that the military could be used only if there was clear-cut evidence of foreign interference in the election.
Ms. Powell, who had spent the past month filing lawsuits claiming that China and other countries had hacked into voting machines, said she had such evidence, the person said. But Mr. Giuliani was adamant that the military should not be mobilized, the person said, and Mr. Trump ultimately heeded his advice.
Shortly after the Oval Office meeting, Mr. Waldron amended the draft executive order, suggesting that if the Defense Department could not oversee the seizure of machines then the Department of Homeland Security could, the person said.
Around that time, Mr. Trump asked Mr. Giuliani to call Kenneth T. Cuccinelli II, the acting deputy secretary at the Department of Homeland Security, to ask about the viability of the proposal, according to two people familiar with the matter. Mr. Cuccinelli said that homeland security officials could not take part in the plan.
[snip]
Even Mr. Giuliani, who had spent weeks peddling some of the most outrageous claims about election fraud, felt that the idea of bringing in the military was beyond the pale.
After Mr. Flynn and Ms. Powell left the Oval Office, according to a person familiar with the matter, Mr. Giuliani predicted that the plans they were proposing were going to get Mr. Trump impeached. [my emphasis]
Reached earlier this month, Cuccinelli said his discussion with Giuliani “never developed to the point of talking about an executive order including such action that I recall.”
When asked about the executive order involving the military, Giuliani’s attorney, Robert Costello, said his client also shut that idea down when he became aware of it.
“As soon as he heard about this idea, he was vehemently against it, as was White House Counsel Pat Cipollone and then-President Trump,” Costello said.
But Giuliani and his team did continue to pursue other avenues for overturning the election based on the same conspiracies about election fraud cited in the draft executive order to justify the seizure of voting machines.
Trump also continued to entertain some of the same core elements of those executive orders, including the idea of installing a special counsel to investigate election fraud.
Nearly two weeks after White House aides pushed back on the suggestion of naming Powell to such a role, Trump raised the idea again during another Oval Office meeting, but this time floated Cuccinelli as a possible candidate, according to testimony provided to the Senate Judiciary Committee by former senior Justice Department officials who were present.
Meanwhile, Flynn remained adamant that election equipment was going to be seized and personally reached out to at least one senior defense official in mid-December attempting to enlist their help with his cause, according to a source familiar with the outreach. [my emphasis]
There’s really not all that much new in the story as laid out here, except that a bunch of people who know their communications are in the FBI’s hands (and, in the case of Costello, who has spent the last nine months reviewing the content of those communications, including those Byrne describes Powell claiming to have sent Rudy) providing updated versions of the least-damning story they can tell here.
Just one more key part of the story that has changed.
As CNN described it in the 2020 version of the story (but NYT did not), Mark Meadows was also involved.
White House aides who participated in the meeting, including White House chief of staff Mark Meadows and counsel Pat Cipollone, also pushed back intensely on the suggestion of naming Powell as a special counsel to investigate voter fraud allegations Trump’s own administration has dismissed (or, as seems more feasible, hiring her in the administration for some kind of investigatory role).
Meadows shows up in yesterday’s NYT story only as not being the one who let Powell and Flynn and Byrne in the White House.
When Mr. Flynn, Ms. Powell and Mr. Byrne arrived at the White House to discuss their plan to use the military to seize voting machines, they were not let into the Oval Office by a typical gatekeeper, like Mark Meadows, Mr. Trump’s chief of staff. Rather, they were escorted in by Garrett Ziegler, a young aide to another Trump adviser, Peter Navarro, according to Mr. Ziegler’s account.
“I waved in General Flynn and Sidney Powell on the Friday night of the 18th — for which Mark Meadows’s office revoked my guest privileges,” Mr. Ziegler said on a podcast, adding that he had done so because he was “frustrated with the current counsel” Mr. Trump was getting.
That guy — the former Chief of Staff who also was getting and sending a bunch of texts on his phone — that guy has also spent some time recently reviewing his communications. Not only did he review — and withhold — a bunch of communications before sharing some with the Select Committee, but once the Select Committee figured out that Meadows had violated the Presidential Records Act by failing to turn over those communications he conducted on his personal — but his emails! — devices, Meadows has been spending time trying to find such communications so he can share them with the National Archives to uncommit some crimes.
NARA, of course, has been ordered by a court to share such communications, even the ones that Trump might otherwise have invoked Executive Privilege over, with the Committee.
We’re going to get a lot of revised least-damning versions of these stories as more and more people review the communications that will be handed over to investigative bodies.
It’s worth comparing, then, the versions we’re getting now with those people were telling when they thought none of the emails and texts Sidney Powell sent would come out.
Update: Harpie is right. The Jonathan Swan version of this exchange, published exactly a year ago, is worth reading as well.
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I’ve already written three posts about last week’s remarkable filings (one, two) by John Durham. First I showed that John Durham didn’t even know about a prior anonymous tip Michael Sussmann shared with DOJ (in this case, the Inspector General) on behalf of Rodney Joffe, showing that four months after Durham indicted Sussmann, he still has no understanding of the normal relationship between Sussmann, Joffe, and DOJ. Then I marveled that Durham would take a junket to Italy to get Joseph Mifsud’s dated phones but never walk across DOJ to get the James Baker phones he had forgotten that DOJ IG had. Finally, I offered a possible explanation for Durham’s confession that April Lorenzen thinks his lawyers have been bullying her.
But in spite of the multiple ways I’ve covered these serial confessions of some weaknesses to Durham’s case, I’ve gotten multiple requests for something else: A comparison of how Durham now describes his own frail memory with what he claims about Baker’s.
As I laid out here, Durham is forced to deal with the fact that his single witness against Sussmann gave sworn testimony that materially conflicts with the allegations against Sussmann. To do so, Durham will (and already has) argued that Baker’s descriptions of the a September 2016 meeting he had with Sussmann closer to the date of the meeting are less reliable than the ones after more time passed.
As an initial matter, the defendant’s motion provides a skewed portrayal of the purported Brady evidence at issue by cherry-picking excerpts from the substantial discovery the Government has already provided to the defense. The defendant, for example, alleges that FBI General Counsel James Baker “contradict[ed] the Special Counsel’s allegation that Mr. Sussmann affirmatively [said] he was not meeting with him on behalf of any clients” in (i) a 2019 interview with the U.S. Department of Justice’s Office of Inspector General, and (ii) a 2020 interview with the Special Counsel team. (Mot. at 3). But as the defendant is aware from discovery, both of those interviews occurred years after the events in question, and Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.
Durham is actually soft-pedaling the extent of the problem. He’s saying that Baker’s memory in two separateappearances in 2018 (two years after the meeting), an appearance in 2019 (three years after the meeting), and the first meeting with Durham in 2020 (almost four years after the meeting) is less reliable than four later interviews, conducted under threat of prosecution, with Durham’s team.
Whatever: According to Durham — at least when it comes to key witnesses whose testimony you need to say a certain thing to fit your conspiracy theory — refreshed memory is better than memory closer to the events.
Paragraph 10(a)(ii) states: “[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones.” Id. The Government wishes to provide some additional context for this statement.
After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the thenFBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durhamcurrently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022. [my emphasis]
For witnesses under threat of prosecution, Durham says, refreshed memory is better than the original.
For Special Counsels caught in a false statement, however, that kind of refreshment is useless for reminding someone of inconvenient facts.
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As background for some other things, I’d like to lay out some of the information sharing DOJ has been doing since charging some of the the Oath Keepers with sedition on January 12.
After mistakenly asking to share information with defendants in the previously charged caption (US v. Caldwell) on January 13, on January 14, DOJ asked to share grand jury material with Jon Schaffer and also asked to share sealed material from the Schaffer case with the defendants in the Rhodes, Crowl, and Walden cases, the newly spun out captions after the sedition charges (I describe how those cases got spun out here). Judge Amit Mehta approved that sharing request on January 14.
Prosecutors got a protective order with Schaffer in April, just days before he pled guilty.
This seems to confirm that Schaffer’s cooperation was regarding some aspect of the Oath Keeper’s actions, which is consistent with a discovery letter DOJ sent in April (at that time, defendants included the Stack, plus Joshua James and Roberto Minuta) saying that defendants had been informed, “about whether Mr. Schaffer has had communications with your clients.” But there still seems to be some aspect of his cooperation that is hidden. A November status update on Schaffer’s cooperation explained that,
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.
At the time, there were trial dates set for the main Oath Keepers case and several people charged in it had already flipped, suggesting Schaffer’s cooperation didn’t pertain directly to the main Oath Keeper conspiracy. One possible explanation is that the description is just inaccurate. Another is that Schaffer is directly cooperating against different Oath Keepers who were charged sometime before November 12 under seal, or someone like Jeremy Brown, not charged in the January 6 conspiracies, but potentially facing new weapons charges in Florida.
On January 25, also for the first time, DOJ asked for a protective order and permission to share grand jury materials with Mark Grods. Mehta approved those requests the next day, January 26.
(The other two known Oath Keeper cooperators, Graydon Young and Jason Dolan, would be covered by existing protective and grand jury sharing orders, so we wouldn’t know if they were newly seeing existing discovery.)
This seems to suggest that, for the entirety of the time Berry and Grods have been cooperating with DOJ, seven months, they’ve only been shown information that they themselves brought to the table. There would have been real limits on what was available, too, because both Berry and Grods admitted to deleting evidence about Oath Keeper organizing leading up to and on January 6. So for the first time since they deleted this evidence more than a year ago, they may be shown the specific comments not otherwise included in public charging documents from those organizing chats.
Perhaps prosecutors are just moving towards follow-up interviews in preparation for April and July trials.
That suggests those topics — topics directly implicating Roger Stone — remain an active part of the investigation, one that cooperating Oath Keepers may get new questions about now that DOJ has obtained all the other assistance necessary to wrap up their more obvious co-conspirators in a sedition conspiracy.
In the recent round of indictments, DOJ purposely hid what they’ve learned about Roger Stone from witnesses whose testimony they needed to finalize the sedition conspiracy. And for the first time, overt cooperators may get more questions about that.
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Brandon Straka released a post-sentencing statement announcing that he is self-deplatforming to Rumble and GETTR and claiming that the “left wing media” turned DOJ’s discussion of Straka’s cooperation into a narrative that “Trump Ally Turning Over Significant Information About January 6th.” [emphasis Straka’s] The closest to that phrase I can find (aside from Straka’s own comments posted to 4chan) is Politico, which is owned by right wingers, as well as the gay press.
Straka may in fact be more worried that the right wing press labeled him a snitch, not least because he uses the phrase later in his own statement.
The statement is interesting for several reasons.
First, Straka doesn’t deny the obstruction of the vote count that he should have been charged with. He explains asking his followers to “HOLD. THE. LINE” after he had been instructed by Ali Alexander, ““Everyone get out of there … The FBI is coming hunting,” that this was just about a peaceful protest, not physically occupying the Capitol to prevent Joe Biden’s win from being certified.
Some of my comments on January 6th and the following days have been highly scrutinized and my intent speculated. In particular, one stated to “HOLD. THE. LINE.” in addressing the people at the Capitol. You should all know that I was present on the East side of the Capitol and never witnessed any of the violence taking place on the West side that day. I shot video of the thousands of peaceful protestors standing on the East side singing songs and holding signs. This was the scene when I left the grounds. My statement was to encourage the thousands of peaceful protestors to stand their ground- after all, peaceful protests are still protected by our constitution, right?
Straka doesn’t deny being told about the violence on the west side. He falsely claims to have filmed only peaceful activities, when he in fact filmed himself encouraging rioters as they stole a cop’s shield.
More importantly, he doesn’t address that he was encouraging these “protestors” to continue to obstruct the vote certification.
And, again, he was doing so after he himself had left after having been warned about an incoming FBI presence.
Particularly given something that Straka said to Trump appointee Dabney Friedrich at sentencing (which I’ll return to once I find the best video), I find this comment from Straka of particular interest.
In the three and a half years that I have been working in the world of politics, I have not attained ANY INFORMATION of ANY KIND about any criminal wrongdoing of any person in the MAGA movement. That includes every person from the very bottom of up to Donald Trump and every person in between. It would be impossible for me to “snitch” or “turn people over” because I have NOTHING to share.
I do not believe that there was any kind of plot or scheme to initiate violence on January 6th. I do not believe that any kind of plot or plan or scheme will ever be discovered because I feel 100% certain no such thing exists. Like most of you, I’ve employed common sense and come to the conclusion that a very small percentage of people did some very bad things that day, and that this was a spontaneous riot that broke out without planning. If any evidence of anything ever comes to light, I will be as shocked as anybody else.
I have NO INFORMATION of any kind of share about any crime others in the MAGA movement have committed at any point, even prior to January 6th.
But he, again, does not deny there was a plot to obstruct the vote certification.
More interesting, given DOJ’s apparently belated discovery of Straka’s activities leading up to January 6, is his statement denying knowledge of crimes “prior to January 6th.”
Particularly given the way Straka sees what came earlier as separate from January 6th, Straka’s plea deal might not cover crimes he committed in that earlier period.
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In his (successful) letter to John Bates asking for leniency, QAnoner Nicholas Languerand attributed his involvement in the dangerous cult to prominent people, most notably Mike Flynn.
During this time, I was introduced to what has been dubbed “QAnon.” I cannot deny my involvement with this group or the profound impact it has had on my life. Unfortunately, there is a great deal of misinformation related to the beliefs and motives of this group within the public discourse. In regards to my case, I believe the most important aspect of this controversial topic is the fact that those individuals were consistently encouraged by highly respected members of society such as President Trump, Lt General Michael Flynn, General Flynn’s attorney Sidney Powell, and Lt General Thomas McInerny.
[snip]
There is absolutely no doubt, and I have every intention of showing to the court, that these individuals promoted and in effect facilitated and took responsibility for what I call the Q information network. The evidence of this is substantial to say the least. I think it is only fair that the court and Americans at home understand that this phenomenon went on for 4 years and culminated in the “Stop the Steal” movement between November 2020 and Janaury 6th 2021. It is also important to understand that it was lead [sic] by retired senior military intelligence officers who attained one of the highest possible statuses within the U.S. military.
Languerand pled guilty to assaulting cops, throwing a large orange bollard and some sticks at the officers in the Tunnel on January 6, then stealing a riot shield.
Languerand invoked that Lieutenant General again today at his sentencing. Bates, showing the same deference to other white January 6 defendants he has in the past, gave him a below guidelines sentence, 44 months.
Whatever excuses he made for himself, the key one is that Languerand believes Flynn and others mobilized his best motivations and turned it to violent effect on January 6.
Languerand will not the be the last January 6 defendant who attributes his radicalization to Mike Flynn. But he is the most serious defendant thus far who will spend three years of his life paying for the actions he says Flynn inspired him to take.
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It should be absolutely crystal clear the language used by Individual-1 in reference to these persons aged 44, 40, and 38 is pure propaganda.
(source: Wikipedia.org)
These are graduates of pricey universities who are old enough to have adult children. One of them was an advisor to the former White House occupant.
They may be the progeny, descendants, and heirs of Donald J. Trump but they are not juveniles, youngsters, or children.
His reference to Donald Jr., Ivanka, and Eric as children is subtly racist as well, because in 1989 Trump would never have referred to these persons:
Kevin Richardson, 14
Antron McCray, 15
Raymond Santana,14
Korey Wise, 16
Yusef Salaam, 15
as children.
Yes, racist, though Trump is hardly the first and only to use the white supremacist convention which allows any white adult with a living parent to be called a child while Black persons of any age are labeled in terms which erase any any and all innocence no matter the situation.
Innocence is exactly what Trump wants to convey and it’s fallacious bullshit.
Trump will continue to spew this manipulative crap to skew the public’s sentiment, but every bit of it must be rejected and set straight with the truth.
This is hardly the stuff of children who can’t knowingly enter contracts. The NYAG’s brief profiles of Trump’s adult progeny describe people who are quite capable of managing contracts:
Donald Trump, Jr. runs the Trump Organization with Eric Trump. He is also a trustee of the Donald J. Trump Revocable Trust and has certified annual financial statements regarding the assets the Trust holds for Donald J. Trump.
…
Ivanka Trump was the Executive Vice President for Development and Acquisitions of the Trump Organization through at least 2016. Among other responsibilities, Ms. Trump negotiated and secured financing for Trump Organization properties. Until January 2017, Ms. Trump was a primary contact for the Trump Organization’s largest lender, Deutsche Bank.
These are adults who need to cooperate with law enforcement because their father isn’t going to make this any better. He’s clearly not stepped up to respond to the subpoena and instead thrown “children” in front of the NYAG’s bus.
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