John Durham Wants Permission to Delay Providing Evidence of How Weak His Michael Sussmann Case Is

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Donald Trump’s insurrectionists may be the only thing that can save John Durham’s indictment of Michael Sussmann.

That’s because Durham seems to think he’ll need to have two extra months over what Sussmann gauges should be necessary, and permission to delay production of Brady materials, to sustain the single false statement charge over Sussmann. As a Sussmann motion to set a trial date submitted yesterday revealed, his team and Durham’s are having a significant disagreement over when the trial should be scheduled. Durham wants four months from now to turn over discovery and wants to schedule the trial for July, whereas Sussmann thinks the trial should be held in May.

Given two exhibits Sussmann included with this motion (and other publicly available documents), it’s easy to see why Durham wants more time.

That’s because Jim Baker has said at least four different things that conflict with the alleged lie that Durham claims Sussmann told in a September 19, 2016 meeting with then-FBI General Counsel Baker:

On or about September 19, 2016, SUSSMANN met with the FBI General Counsel at FBI Headquarters in the District of Columbia to convey the Russian Bank-1 allegations. No one else attended the meeting. During the meeting, the following, in substance and part, occurred:

SUSSMANN stated falsely that he was not acting on behalf of any client, which led the FBI General Counsel to understand that SUSSMANN was conveying the allegations as a good citizen and not as an advocate for any client;

SUSSMANN stated that he had been approached by multiple cyber experts concerning the Russian Bank-1 allegations;

SUSSMANN provided the names of three cyber experts, but did not name or mention Tech Executive-1, the Clinton Campaign, or any other person or company referenced [in Durham’s indictment];

Durham has charged Sussmann with affirmatively lying about representing a client in that meeting.

In an earlier post, I argued that Durham probably hadn’t actually quoted what transpired in this meeting because his sources (meaning Baker, Bill Priestap’s hearsay notes of Baker’s account of the meeting, and some CIA personnel Sussmann met at a later meeting) offered different versions of what Sussmann actually said.

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

But it’s far worse than that.

Jim Baker doesn’t agree with Jim Baker about what happened in the meeting. Baker has provided at least four different versions of his understanding of why Sussmann shared the Alfa Bank information with him (I’ve got longer excerpts below). At an October 3, 2018 interview with the Oversight Committee (where Baker brought it up), he said, “I don’t recall [Sussmann] saying that,” he worked for the DNC. At an October 10, 2018 interview with the Oversight Committee, he told Jim Jordan he didn’t “remember [Sussmann] saying that he was acting on behalf of a particular client.” In a July 15, 2019 interview with DOJ IG, Baker explained that Sussmann said their meeting “related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank.” In a June 2020 interview with Durham’s team (which as a 302 may be less reliable than the other sources), Baker said, “it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting.” Presumably, Baker testified to the grand jury, too, but that interview would have been after all of these earlier versions. In none of the publicly available versions of Baker’s story does Sussmann affirmatively say he was not representing the DNC or any other client, and in one case — the DOJ IG interview — Baker remembered Sussmann commenting that he had a client; and that version (which Sussmann wouldn’t have had access to before getting it in discovery) matches Sussmann’s public story.

As Sussmann noted in his filing, Durham dumped a whole bunch of discovery on him shortly after the indictment, but it has taken over two months to turn over the conflicting evidence that goes to the core of the alleged false statements.

While the Special Counsel has produced significant discovery since Mr. Sussmann’s Indictment, the Special Counsel has delayed in producing key evidence, which the Special Counsel was required to timely disclose under Brady v. Maryland, 373 U.S. 83 (1963). Indeed, it was only last week—nearly two and a half months after Mr. Sussmann’s indictment, and in the face of persistent demands by Mr. Sussmann’s counsel—that the Special Counsel for the first time disclosed some (but not all) of Mr. Baker’s statements about the September 19, 2016 meeting.1

[snip]

1 Moreover, significant portions of the statements that were disclosed were redacted, an issue which defense counsel has raised with the Special Counsel.

Durham seems intent on similar delays in producing evidence undermining his case. Besides the two month date discrepancy, there are a few subtle but significant differences in their proposed schedules. In the proposed order scheduling order Sussmann has submitted, Durham would be, “under a continuing and ongoing obligation to provide defense counsel any favorable or exculpatory information (Brady), whether or not admissible in evidence, as soon as reasonably possible.” [my emphasis] Durham’s proposed version takes out the words, “as soon as reasonably possible.” Durham, of course, has already violated that part of Sussmann’s proposed scheduling order by sitting on multiple pieces of proof that have been in his and DOJ’s possession for over a year that undermine the claim Sussmann lied.

Durham may suspect the Brady discovery will make this indictment unsustainable. Durham’s more extended schedule would give Sussmann just two weeks after the final deadline for Brady discovery, from March 25 to April 8, to file the motion to dismiss he has already said he’d file. Sussmann’s more condensed schedule nevertheless gives himself three weeks, from January 28 to February 18, to incorporate classified Brady discovery into his motion to dismiss, and over a month, from January 14 to February 18, to incorporate unclassified Brady discovery.

From the start, I noted that this indictment really isn’t about the alleged false statement. Rather, Durham clearly wants to wrap this up into a grand Conspiracy to Defraud the US charge, incorporating Rodney Joffe, the researchers, Fusion GPS, and maybe Christopher Steele.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

So one thing Durham is likely trying to do with his delayed schedule is to buy time to try to make that claim stick. There are already several details that have been made public that show Durham will struggle to make this claim. Durham left out exculpatory details about the researchers in his indictment. The Federalist obtained — but downplayed — evidence that the researchers were not (as Durham insinuated in his indictment) involved with Fusion GPS.

Further, unlike Joffe, who worked hand-in-hand with Sussmann, according to Fusion GPS employee Laura Seago, who had worked on the Alfa project, she was not aware of anyone at Fusion GPS communicating with either [David] Dagon or [Manos] Antonakakis. And while she had heard Dagon’s name before, Seago first came across Antonakakis’s name in a newspaper article.

Antonakakis has not had any contact with Sussman, Marc Elias, or Fusion GPS, his lawyer Mark Schamel told The Federalist. “In this case,” Schamel added, “he reviewed a narrative presented to him by a well-known and respected researcher and provided his feedback, as he does for more than 100 unpublished research articles he receives every year.” Attorneys representing Lorenzen and Dagon did not return requests for comment.

Durham already confessed that he had no evidence Sussmann was working directly with the Hillary campaign on this. Most importantly, all the researchers believed and still believe that the Alfa Bank DNS data showed a real anomaly, and they first discovered it in a legitimate attempt to identify further attempts Russia made to tamper in the 2016 election. If that case were made to the jury, then Sussmann will be able to explain why Baker didn’t apparently think it all that important to ask who Sussmann was representing: because it was an alarming anomaly, no matter who brought it to the FBI.

Still, Durham is likely to get the time he wants. The backlog of trials for incarcerated pre-trial defendants in DC (including 70 or so January 6 defendants) will more likely dictate the trial date for Michael Sussmann than the substance of the dispute between the two of them.

Update: I should have also noted that Beryl Howell’s order tolling Speedy Trial because of COVID protocols will give Durham a way to get out of the 70 day Speedy Trial rule.

October 3, 2018 Oversight/HJC Interview

Mr. Baker. He told — he said that there had been — I’m not sure exactly how they originally learned about that information, but what he told me was that there were cyber — Mr. Meadows. I mean, is he a normal intel operative? How would he have come by this? Mr. Baker. He told me that he had cyber experts that had obtained some information that they thought they should get into the hands of the FBI.

[snip]

[Shen] Okay. So when Mr. Sussman came to you to provide some evidence, you were not specifically aware that he was representing the DNC or the Hillary Clinton campaign at the time? A I don’t recall, I don’t recall him specifically saying that at that time.

[snip]

Q Okay. So I guess it is just my interpretation, but I believe last round it was somewhat implied that if he did have an association to the Democratic National Committee and the Hillary Clinton campaign that that might lead someone to believe that something improper was done. And I wonder if you could just explain to me, you know, why your view is that it was not improper because, just the mere notion that someone who is a Democrat or Republican, you know, comes to you with information, should that information somehow be discounted or considered less credible because of, you know, partisan affiliation? A Well, the FBI is responsible for protecting everybody in this country. Period, full stop. And we do that, without regard to who they are or what their political background is or anything else. If they believe they have evidence of a crime or believe they have been a victim of a crime, we will do what we can within our lawful authorities to protect them. And so when a citizen comes with evidence, we accept it. That is my, just general understanding over many, many years. We, the Bureau, we, the Department of Justice. And so that is how I construed what Michael was doing. It was, he believed he had evidence, again, either of a crime or of a national security threat, and he believed it was appropriate to provide it to us. When he did, I didn’t think there was anything improper about it whatsoever.

[snip]

Mr. Jordan. Okay. Do you know how Sussman got this material? Mr. Baker. What I recall is he told me that there were some cyber experts that somehow would come across this information and brought it somehow to his attention, and that they were alarmed at what it showed, and that, therefore, they wanted to bring it to the attention of the FBI. Mr. Jordan. Did he — Mr. Baker. They and Sussman. Mr. Jordan. They. Any names? Mr. Baker. I don’t think I ever found out who these experts were. Mr. Jordan. Did he indicate that he got this — may have got some of this information from the Democratic National Committee? Mr. Baker. I don’t recall him saying that. Mr. Jordan. Did you know when he was giving this information did you know he was working for — that he did extensive work for the DNC and the Clinton campaign? Mr. Baker. I am not sure what I knew about that at the time. I remember hearing about him in connection — when the bureau was trying to deal with the hack and investigating the hack, that my recollection is that Michael was involved in that process to some degree. I didn’t interact with him on that, so I am not sure if I knew that before this meeting or after, but I don’t recall him specifically saying —

October 18, 2018 Oversight/HJC Interview

Mr. Baker. To the best of my recollection, he told me that it had been obtained by some type of cyber experts, and I don’t know who — how they started their inquiry into this. But that is what he told me, that some certain cyber experts had obtained information about some anomalous looking thing having, to my knowledge, nothing to do with the dossier. But anyway — Mr. Jordan. Did he mention — did Fusion GPS play a role in him getting information that he subsequently gave to you? Mr. Baker. I don’t remember him mentioning Fusion GPS in connection with this material. Mr. Jordan. Did he mention at all when he was talking to you? Mr. Baker. Not to my recollection, no. Mr. Jordan. What about Glenn Simpson? Mr. Baker. Not on this thing, no. Mr. Jordan. How about Christopher Steele? Mr. Baker. No. Mr. Jordan. Okay. Did you meet with anyone else at Perkins Coie relative to this issue, Russia investigation issue?

[snip]

Mr. Baker. Yes, sir. And there was some effort — there was some belief that this was a — being conducted in a way so as to make it a covert communications channel. Mr. Jordan. Okay. And my first question would be how’d you get this? Did you ask that question? Mr. Baker. I did ask that question at a high level, yes. And he explained that he had obtained it from, again, cyber experts who had — who had obtained the information, and he said that the details of it would explain themselves. That’s my recollection. Mr. Jordan. And was he representing a client when he brought this information to you? Or just out of the goodness of his heart, someone gave it to him and he brought it to you? Mr. Baker. In that first interaction, I don’t remember him specifically saying that he was acting on behalf of a particular client. Mr. Jordan. Did you know at the time that he was representing the DNC in the Clinton campaign? Mr. Baker. I can’t remember. I have learned that at some point. I don’t — as I think I said last time, I don’t specifically remember when I learned that. So I don’t know that I had that in my head when he showed up in my office. I just can’t remember. Mr. Jordan. Did you learn that shortly thereafter if you didn’t know it at the time? Mr. Baker. I wish I could give you a better answer. I just don’t remember. Mr. Jordan. I mean, I just find that unbelievable that the guy representing the Clinton campaign, the Democrat National Committee, shows up with information that says we got this, and you don’t ask where he got it, you didn’t know how he got it. But he got it from some, you know, quote, expert. Mr. Baker. Well, if I could respond to that. Mr. Jordan. Sure. Mr. Baker. I mean, so I was uncomfortable with being in the position of having too much factual information conveyed to me, because I’m not an agent. And so I wanted to get this — get the information into the hands of the agents as quickly as possible and let them deal with it. If they wanted to go interview Sussmann and ask him all those kind of questions, fine with me. Mr. Jordan. Did that happen? Mr. Baker. I don’t know that. But I — I mean, I — well, A, I did hand it off to the — to the investigators. Mr. Jordan. I think you told us you handed it off to Mr. Strzok and Mr. Priestap? Mr. Baker. My recollection is Mr. Priestap. Mr. Jordan. Okay. And you don’t know if they followed up or not? Mr. Baker. Bill Priestap told me that they did follow up extensively.

July 15, 2019 OIG interview

Did you generally have a sense that they represented, that their political law practice had a Democratic clientele?

MR. BAKER: Maybe I should have, but I didn’t really understand it at the time.

MS. TERZAKEN: Is that right?

MR. BAKER: I did not, no.

MS. TERZAKEN: Okay.

MR. BAKER: I came to understand, you know, that, that Perkins-Coie was playing a role with respect to the DNC hack. But the, the extensiveness of their contacts with the Democratic Party, I did not, at the time, have an understanding about, that I recall.

[snip]

MS. TERZAKEN: Okay. With Michael Sussman, your conversations with him before the election, if you could briefly describe how the conversations came about, what information he provided to you.

MR. BAKER: So, I’ll go into the Sussman stuff, yeah, okay. So he came in, he, he, all of this is gone over in the transcript with the committee, so I won’t, I’ll try to just summarize briefly. My basic recollection is, in some way, shape, or form, Michael reached out, and wanted to come in and meet with me. And so we scheduled that. So Michael came in and met with me. And he had some amount of information, physical evidence, printed out, and also a thumb drive or two, that he said related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank, which was described as being controlled by the Kremlin. And that it appeared to be the case that this was a, it was, it, it was surmised that this was a back-channel, what do you call it, a back-channel of electronic communications. That, that somehow the Trump organization and Alfa Bank were using this, what looked like a, basically a surreptitious channel to communicate with each other.

June 2020 Durham interview (302)

Sussmann arrived at Baker’s office alone and gave Baker some electronic media and some paper approximately one inch thick. He and Baker met alone in Baker’s office, with no one else present. Sussmann advised Baker that some cyber security researchers had discovered the information and brought it to Sussmann’s attention. The information purported to describe a digital relationship between the Trump organization and Alfa Bank, and Sussmann gave Baker a technical description of that relationship. Sussmann also told Baker he thought it was important for the FBI to have the information. Sussmann also told Baker that the press had the information. Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client. Baker said it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting. Baker also said he did not know Sussmann’s firm, Perkins Coie, represented the Hillary Clinton campaign. Baker does not recall Sussmann advising him of the rationale for the cybersecurity researchers bringing the information to him. Additionally, Baker recalls Sussmann telling him that he believed the information was serious and credible. Baker said the meeting with Sussmann lasted approximately 15-20 minutes and he described it as short and cordial. He did not feel there was anything inappropriate about Sussmann meeting with him and providing the information to him.

[snip]

Baker said he could not recall telling Priestap at that time that Sussmann represented the DNC and the Clinton Foundation, but he (Baker) may have known it at the time.

 

How One CCTV Camera Was Rendered Ineffective Over Two Hours on January 6

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This is a screen cap from the first CCTV video successfully released by a January 6 defendant.

It shows the Tunnel as it appeared at 2:53 on January 6.

In June, accused assault defendant John Anderson’s attorney, Marina Medvin, argued that Anderson needed the video to show — and argue publicly — that, contrary to showing an older man lunge to the front of violent mob, the video instead showed a man suffering from the effects of tear gas and moving up towards a line of officers to ask for help.

The government’s evidence, instead, shows a man approaching police to seek medcial [sic] attention after being chemically prayed by a member of the crowd and after being subjected to additional chemical spray released into the crowd by law enforcement. The video sought for release, and being blocked by the government, establishes Mr. Anderson’s defense.

[snip]

Furthermore, the defense should be free to utilize this highly exculpatory short video to defend Mr. Anderson just as the government uses their discretion to publicize videos and screenshots to accuse this defendant, and every other, of very serious crimes. And, Mr. Anderson should be free to utilize CCTV video publicly just as the government has utilized CCTV video publicly to benefit their position in other prosecutions. See discussion infra. The defense should not need to explain how or why we need this evidence when the exculpatory nature of the evidence is clear on its face. The subjection of this 30-second CCTV clip to a Protective Order prejudices the defendant immensely. The government’s position on preventing the release of a 30-second recording is unreasonable and fails to meet the burden that is on the government to prevent release.

The government argued against that release, describing that unnamed people were using the aftermath of the January 6 attack to gather non-public information about the interior of the Capitol to identify vulnerabilities.

The USCP’s concern with release of the footage is based on an awareness of efforts made by individuals, whether participants in the Capitol riots or not, to gather information about the interior of the U.S. Capitol which is generally not publicly available. The USCP is concerned that release of the footage without protection, especially to defendants who have already shown a desire to interfere with the democratic process, will result in the release of information regarding the vulnerabilities and security weaknesses of the U.S. Capitol which could be used in a future attack.

After weeks of litigation, Chief Judge Beryl Howell ordered that the “Highly Sensitive” designation on the video be lifted, freeing Medvin to share the video publicly.

Medvin will never use this video at trial. Anderson is one of the January 6 defendants who passed away since he was charged. Still, the release of that video marked the first step in the subsequent release of far more video of which Capitol Police had initially tried to restrict the widespread release.

This is a screen shot of a video seemingly taken from the same (or an adjacent) camera around 4:20PM on January 6.

The screen cap appeared in a filing opposing the release of James McGrew. McGrew is accused of “position[ing a] pole [handed to him by another rioter] over his head and launch[ing] the pole into the tunnel” at a line of police officers. While some substance got splattered onto the lens of the camera in the ensuing 87 minutes, the camera still proved useful in identifying participants in the hours-long struggle that it filmed.

The video was released just weeks ago, after Beryl Howell ruled against McGrew’s bail motion on November 2.

This is a screen cap from the same camera taken 32 minutes later.

The same splatters that had made the video less useful at 4:20, made the video almost useless at at 5:02PM, the moment the sun set on January 6, as artificial lights turned on, rendering the splatters more opaque.

The screen cap appears in the arrest affidavit for Josiah Kenyon, whom the FBI claims can be seen in these videos, beating cops with a table leg with nails exposed.

The affidavit reveals that the FBI first got a tip on January 9 in response to photos of Kenyon released in some of the earliest Be On the Lookout photos released. By April 6, the FBI had obtained positive ID for Kenyon based off that wanted poster from two family members of Kenyon.

And yet it wasn’t until last week that he was arrested, on charges of assault and damaging a $41,315 Capitol window that make Kenyon a good candidate for a terrorism enhancement if he is ever convicted.

The affidavit makes clear that in the eight months since the FBI first identified Kenyon, they’ve been tracking his movements and spending from when he was in DC, perhaps to see if he had any accomplices. For example, the FBI pulled Metro surveillance video showing Kenyon entering the L’Enfant Metro station at 6PM, less than an hour after he was allegedly beating cops in the Tunnel and literally the moment that Muriel Bowser’s curfew went into effect on January 6. Further Metro surveillance video shows him getting off the Metro in Franconia-Springfield at 6:48PM.

Still, it’s hard to believe the process of tracking his movements on January 6 took eight months.

What may have taken eight months, however, was the replacement of the CCTV cameras in the Tunnel. The release of this screen cap, after all, shows how over the course of several hours on January 6 the rioters made the camera — a camera surveilling the Tunnel through which Joe Biden would walk, two weeks later, to be sworn in as President — almost useless.

The release of these videos not only make clear the assaults captured by the cameras on the day of the insurrection. They also show how to render them useless.

That may be one of the reasons supporters of the insurrection are demanding all the video be released.

Rudy’s Phones Defy Guarantees We’d Know of an Investigation into Trump

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I’m certain, when people assert that if DOJ were investigating Donald Trump, there would be some visible sign, they’re wrong.

I say that because I’m among the people who have followed the proceedings surrounding the Special Master review of Rudy Giuliani’s phones most closely. And I can’t even tell you what the status of that review is, much less whether DOJ obtained warrants for phone-based content for investigations beyond the foreign influence-peddling investigation for which the phones were first seized.

I’m not saying that has happened. I’m saying that if it had happened, none of us would know.

We know Rudy was Trump’s key facilitator in several other crimes Trump committed besides the foreign influence peddling described on the warrants: both obstruction of the Mueller investigation and Trump’s attempt to overthrow the election. There is already public evidence that Rudy would be a subject in any investigation into both those crimes. After all, he (and his current lawyer) dangled a pardon in an attempt to buy Michael Cohen’s silence in April 2018, and in the days after the insurrection, Rudy appears to have been in contact, using his phone, with a Proud Boy associate, James Sullivan, who coordinated with some of the perpetrators.

If Rudy were a subject in these investigations, prosecutors could obtain the content of his phones with no public notice. The people keeping that secret would be the same people who kept the warrants targeting his cloud accounts in 2019 secret for 18 months, and the same people who kept warrants targeting Cohen secret for three months, including one of the very same prosecutors, Nicolas Roos.

Before I explain what we know about Rudy’s phones, let me explain what we learned from Michael Cohen’s investigation, Rudy’s predecessor as Trump’s fixer whose phones got seized by SDNY (Cohen’s criminal docket is here and the Special Master docket is here).

The very first warrant targeting Michael Cohen — a warrant for his Google email that Mueller’s team obtained on July 18, 2017 — described how he set up Essential Consultants not for real estate purposes, as he had claimed to his bank, but instead to pay off Stormy Daniels. But the campaign finance crime that Cohen eventually pled guilty to was not among the crimes listed on that original warrant. Instead, the warrant focused on his lies to his bank, which would be included in his eventual charges, and foreign agent charges, which were not. It wasn’t until April 7, 2018 that the hush payment was included in a warrant for the campaign finance crime to which Cohen eventually pled guilty. Importantly, that warrant, obtained by SDNY, asked to access content obtained with most (but not all) of the warrants targeting Cohen up to that date (the exception was a warrant for Cohen’s Trump Organization email). Those warrants included:

What that April 7 warrant asked to do, then, was to access three devices on which Cohen’s previously-seized content was stored, but to do so in search of evidence of  campaign finance crimes not covered by the earlier warrants. (SDNY had expanded the crimes included on the warrants once already in February 2018.) It was only two days later, when SDNY executed searches on Cohen’s residences and phones, that anyone would discover that the government had shown probable cause to obtain warrants targeting Trump’s personal lawyer for crimes including conspiracy, lying to a bank, and campaign finance violations. It was over a year later before the foreign agent warrant searches were publicly disclosed.

This process offers several lessons for this discussion about Rudy’s phones and therefore for discussions about whether DOJ is investigating Trump. First, the government can — and did in the case of two of Donald Trump’s personal lawyers — obtain probable cause warrants without news of the warrants leaking. It’s only when the government conducts an overt search that an investigation would become public. In the interim, and even after the overt search, the government can simply conduct a filter team review of the seized material and store it at FBI. If prosecutors find probable cause to access the already collected content for different crimes, they can do that. They just need to get another warrant. In Michael Cohen’s case, they did that twice.

These three posts — one, two, three — explain how what we’ve learned of the searches on Rudy thus far; this is the docket for the Special Master review of Rudy’s phones).

They show that the government is currently in possession of the contents of Rudy’s email and his iCloud account from roughly May 1, 2018 (three months before the August 1, 2018 start date of the warrants targeting his phone) through November 4, 2019. The FBI did a filter team review of this content that was almost completed in April when they seized Rudy’s phones. So not only has FBI been reviewing that content for evidence of illegal foreign influence peddling with Ukraine since April, if SDNY or some other unit of DOJ could show probable cause that those emails or that iCloud content probably included evidence of other crimes, they could have obtained and executed a search warrant for that, too. We wouldn’t know if they had.

That information would slightly post-date the period in April 2018 when Rudy Giuliani’s (and Steve Bannon’s) own current lawyer, Robert Costello, was writing Michael Cohen implying that Trump would pardon him to buy his silence; because those conversations were with a then-third party, Costello,  and preceded the time Rudy was formally representing Trump, they likely would not have been filtered. The discussions that Rudy Giuliani had with Paul Manafort’s attorney in fall 2018 that led Manafort to renege on his cooperation agreement would be covered in that time period, though probably would have been filtered as privileged. Discussions Rudy had with Manafort about Ukraine when he was in prison likely would not be privileged.

If Lev Parnas’ redaction fail is to be believed (and thus far his claims have been utterly consistent with what prosecutors and Judge Paul Oetken have said), on April 13, 2021, DOJ also obtained historic and prospective cell site data for Rudy, as well as Victoria Toensing. While this was probably done to pinpoint the location of the phones targeted in the overt search conducted on April 28, in Rudy’s case that cell site data might have useful information about where Rudy was during or in the aftermath of the January 6 attack. (This is likely to be a fairly circumscribed time period tied to specific events shown in the still-sealed affidavit, but when Mueller obtained historic cell location data on Roger Stone in 2018, it covered a five month period.) This warrant, covering whatever period, would also provide information about with whom Rudy was in contact, though the government would have had some of that without even requiring a warrant.

It’s Rudy’s phones where things begin to get interesting. The FBI seized 16 devices from Rudy. Once he got to review the material extracted from his phones, Rudy claimed that the content dates back to 1995, though the government relayed that Special Master Barbara Jones reported that the bulk of the data dates to 2010 and later. Both Rudy and Toensing pointed to the vast scope of initial data obtained and asked Jones to limit her review to the materials dated within the scope of the warrant, which for Rudy is August 1, 2018 through December 31, 2019. The government responded that this would put Jones in the role of conducting not a privilege review, but also a responsiveness review, something which is a clear government role.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)).

The government noted that under the terms of the (known) warrants, they are entitled to anything created, accessed, or deleted in that time frame (the government knows from the Parnas investigation that he deleted information from his iCloud in 2019 and Parnas predicted that Rudy and Toensing did as well). And so the government generously offered to have Special Master Jones limit her privilege review to files created on or after January 1, 2018, arguing that such a limitation is akin to the initial scoping that FBI would do.

SDNY further argued that there is no basis, at this time, to delete any of the older material, because the government might later discover that the material is actually responsive to the investigation.

This Court should not, however, grant the Letters’ requests to destroy or return any data at this time. The Court has already rejected motions for exactly that relief. (See Dkt. 20 at 3-6). Moreover, the Government is entitled to retain a complete copy of the seized data, so that it can authenticate any portion of the data ultimately offered in evidence. See Ganias, 824 F.3d at 215. Data that clearly predates January 1, 2018 should thus simply be put aside, and not reviewed by the Special Master or the Government. It may be that the Government’s eventual review of the materials post-dating January 1, 2018 reveals reason to believe that some of the segregated material is in fact responsive. If that is so, then the Government would have reason to search it—just as an FBI agent might return to that 2013 filing cabinet if his search of other files revealed that documents in the searched office were often filed under the wrong dates. At that point, the Government could then request the privilege review which it is now willing to forego for efficiency’s sake.

Without asking for this explicitly, DOJ’s argument had the effect of asking that Jones conduct a privilege review of content that includes the foreign influence peddling for which SDNY showed probable cause occurred between August 1, 2018 and December 31, 2019, but also content that would cover the entirety of the time that Rudy Giuliani was helping Trump obstruct the Mueller investigation and the entirety of the time that Rudy played the leading role in helping Trump attempt to overthrow an election.

As I have shown, the government sought (and is paying for) a Special Master review in this case because they have reason to believe, presumably based on their earlier search and the investigation into Parnas, there are crime fraud-excepted communications in this content. This very same Special Master, Barbara Jones, provided SDNY with a way to access to Michael Cohen’s communications discussing a campaign finance crime with Trump, and SDNY seems to believe they will obtain communications of Rudy discussing crimes with Trump, as well.

Let me interject and note that Judge Paul Oetken knew of the earlier search on Rudy’s cloud content — indeed, he authorized the gag keeping it secret. And in the 18 months between that search and the time Rudy got notice of it, Oetken likewise issued orders that helped the government cordon off parts of the investigation, such as the initial foreign influence peddling charge against Parnas and Igor Fruman tied to their efforts to fire Marie Yovanovitch, until such time as SDNY was able to access the information in question. That is, Oetken has been persuaded to allow SDNY to protect their investigation into Rudy, even during a period when Billy Barr was actively trying to thwart it, and part of that involved keeping warrants secret not just from the public, but from Rudy, as well.

If SDNY or some other component of DOJ obtained additional warrants for this same content, Oetken would undoubtedly know of it and probably would have had to approve it.

Whether or not there are other warrants and whether or not Oetken knows of them, though, he ruled to give the government access to the content that spans Rudy’s involvement in Trump’s obstruction, his own foreign influence peddling, as well as Rudy’s lead role in attempting to overthrow the election. In mid-September, Oetken ordered Jones to limit her review to materials post-dating January 1, 2018, which is tantamount to ordering her to include in her review everything covering all the potential Trump-related exposure that might be under investigation. And he explicitly denied, for a second time, Rudy and Toensing’s request to delete or return everything else.

That means that at the end of Special Master Jones’ review, the government will have all the unprivileged or crime fraud-excepted contents from Rudy’s 16 devices covering the period when he helped Trump obstruct justice, when he solicited campaign help from foreigners, and when he attempted to overthrow the election (as well as any pardon-related discussions from the post-election period). That doesn’t mean they’ve gotten warrants targeting that content. We would not know whether they had, one way or another. But the content would be available, having already undergone a privilege review, if they did get those warrants.

What we do know is this: Of 2,226 items found on seven of Rudy’s 16 seized devices reviewed by Jones thus far, he claimed privilege over just three items. But even with respect to his privilege claim over those three items, Jones has reserved judgment, meaning she may doubt his claim they can be withheld (perhaps because they are crime fraud-excepted).

The Government has provided Seized Materials from 16 electronic devices seized from Mr. Giuliani. On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Additional documents for review have been assigned to counsel for Mr. Giuliani, with the next set of designations due to me on November 5, 2021.

So as of a month ago, the government had started getting materials — covering the period from January 1, 2018 through April 21, 2021 — from Rudy’s phones.

Jones and her staff were able to conduct privilege review on that content over two weeks time, and they were supposed to have had a second tranche of materials to review a month ago, meaning they likely have reviewed an even larger quantity of material since.

But that’s it! That’s all we know. Jones has reported less frequently than she did during her Cohen review, though assuming she will issue monthly reports now that she is reviewing in earnest, one should be due shortly.

We don’t know how much of the content on Rudy’s phones is evidence of a crime and how much is evidence of drunken blathering to reporters. We don’t know if any entity of DOJ has obtained warrants for those other Trump crimes in which Rudy was centrally involved. We don’t know why Jones has reserved judgement on the few privilege claims that Rudy has made thus far, six months into a Special Master review.

We know just two things. First, if there is evidence of crimes on Rudy’s 16 devices, DOJ will have a way of getting to it. And we would not have anyway of knowing that they had.

Update: In related news, a pre-taped interview I did for NPR was on Weekend Edition this morning.

Release the Kraken!! Two Degrees of Donald Trump at the East Doors

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It was probably happenstance that Jimmy Haffner, who was arrested the other day for assaulting the cops guarding the East door of the Capitol on January 6, met “Sidney FRICKIN’ Powell” while she was on a bus tour spreading the Big Lie. The FBI included a picture of him apparently pictured with Powell (her face is redacted because she has not been arrested) purportedly to add validation for their identification of him.

The rest of his networking, however, seems absolutely central to the evidence the government is collecting to explain how the Proud Boys, the Oath Keepers, and a mob led by Alex Jones all converged on the East steps of the Capitol just before it was breached, with the involvement of a number of Marines.

As the FBI explains, Haffner and his buddy Ron Loehrke — who lived in Washington State on January 6 but both of whom have moved since — were recruited to go to DC by then head of the Proud Boys in the Northwest, Ethan Nordean. On December 27, the complaint explains, Nordean texted Loehrke saying he wanted him “on the front line” with him. In response, Loehrke told Nordean he was bringing three “bad mother fuckers” with him.

Loehrke and Haffner’s phones were in contact 106 times between December 19 and January 7. Sometime on January 5, Nordean’s phone called Loehrke’s.

On the morning of January 6, Loehrke showed up at the Washington Monument, where Telegram chats sent the day before said the Proud Boys were meeting up. He and Haffner marched with Nordean and others towards the Capitol (though Haffner was pretty disciplined in keep his face hidden). Loehrke helped people over the initial barricades and waved people forward. He later encouraged rioters: “Don’t back down, patriots! The whole fucking world is watching. Stand the fuck up today!”

Both Loehrke and Haffner then moved to the East side of the Capitol, where Joe Biggs, the Oath Keepers, and Alex Jones would also go. The two men helped dismantle the barricades that enabled a mob to crowd the stairs in advance of the East doors being opened. “Let’s go! Get in there!” Loehrke exhorted.

The government alleges that Haffner sprayed the officers guarding the East doors with some kind of aerosol, which played a key role, they suggest, in the cops losing control of that entrance. Minutes later, the rioters breached the Capitol.

The arrest affidavit doesn’t say it, but Joe Biggs and the Oath Keepers were in the immediate vicinity as this happened; Alex Jones had been or was just yards away riling up the crowd he had lured there by falsely claiming that Trump would speak there, chanting “1776!” with his blowhorn.

The affidavit explains that Loehrke went to Merkley’s office once he breached the Capitol; it doesn’t say whether he met with Zach Rehl there.

There are lots of other details the FBI doesn’t provide either: the time on January 5 when Nordean called Loehrke, the hotel in downtown DC that Haffner checked into on January 5, the hotel at which Loehrke’s tattooed hand was videoed outside. It doesn’t reveal whether Haffner or Loehrke were at a meeting on January 5 that Nordean and Biggs — but not their alleged Proud Boy co-defendants — attended.

Even without those details, however, the arrest affidavit strongly suggests that guys Nordean personally recruited to attend the January 6 riot not only knew to converge on the East doors at the same time that Biggs, the Oath Keepers, and Jones were also doing so, but played a key role in successfully breaching that door.

Update: Here’s a video of Loehrke’s activities that day (look for his maroon hood) put together by online researchers. They also note he’s a Marine, just like many of the other key figures behind the breach of the East doors.

The Executive Privilege Puzzle: The Co-Equal Branch of Government

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As I noted during the summer, DOJ did two things in close succession.

On July 21, it rolled out the contacts policy that codifies that, “the Justice Department will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases unless doing so is important for the performance of the President’s duties and appropriate from a law enforcement perspective.” At least from that point forward, Joe Biden would learn no details of the investigation into his predecessor unless absolutely necessary.

On July 26, DOJ wrote Jeffrey Rosen and several other former senior DOJ officials — including Jeffrey Clark —  informing them that DOJ was waiving privilege for interviews the House and Senate wanted to conduct on, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” As the letter from Bradley Weinsheimer laid out, this permission arose from a balancing of Legislative and Executive branch interests and determining that the Legislative interest was so significant as to warrant the waiver.

After balancing the Legislative and Executive Branch interests, as required under the accommodation process, it is the Executive Branch’s view that this presents an exceptional situation in which the congressional need for information outweighs the Executive Branch’s interest in maintaining confidentiality.

The letter continues by explaining that DOJ consulted with the White House Counsel’s Office to get their approval for waiving Executive Privilege.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

These events seems to have set up the series of developments — including Trump’s lawsuit to attempt to prevent the Archives from turning over documents to Congress, and aborted attempts by Jeffrey Clark, Steve Bannon, and Mark Meadows, among others, to shield their own testimony by invoking Executive Privilege.

As was laid out in the DC Circuit hearing the other day, this put the Executive Branch and the Legislative Branch in agreement that the documents Congress requested from the Archives should be released.

You’ve got Biden insulated from investigative details, making decisions about Executive Privilege for an investigation being conducted by a coequal branch of government.

Which is one of the reasons why I find Adam Schiff’s comments from the other day so interesting. When asked if he wanted DOJ to be more aggressive, Schiff did not assent. Instead, he said that “it is certainly possible” Congress’ effort to “expose the malefactors” “will inform the Justice Department of other facts that they may not yet be aware of yet.”

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

There’s a high likelihood the January 6 Commission will discover things DOJ has not found on its own. After all, Biden is waiving privilege for their inquiry, not for DOJ’s criminal investigation. So the Jan 6 is (or soon will be) examining a set of materials that are — as far as we know — otherwise inaccessible to DOJ. But, Schiff assures us, if they find something that DOJ doesn’t know about, they’ll inform DOJ.

As I’ve noted and as Schiff knows well, Mueller relied on the Intelligence Committee investigations for key evidence in his investigation. But here, it seems like the dual investigations provides a way to free up otherwise privileged materials involving Trump without having Biden violate contact rules prohibiting him learning about the ongoing criminal investigation.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

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I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

237 Days: Cooperation in Criminal Investigations Takes a Long Time

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Earlier this week, I pointed out that the complaints about Merrick Garland’s approach to the January 6 investigation simply don’t account for how long competent investigations take. On Twitter, I noted that it took almost a full year after the Russian investigation was opened for George Papadopoulos to be arrested and another two months before he pled guilty, making 14 months for a simple false statements charge in a lightning fast investigation. With a purported cooperator like Mike Flynn, it took 15 months to plead guilty and another year for the cooperation, and that, again, was considered lightning fast (and was assisted by the criminal exposure Flynn had for secretly working for Turkey).

In the January 6 investigation, prosecutors got their first public cooperating witness on April 16, when Jon Schaffer entered into a cooperation agreement. Since then, four additional Oath Keepers (Graydon Young on June 23, Mark Grods on June 30, Caleb Berry on July 20, and Jason Dolan on September 15), Josiah Colt (on July 14), and Klete Keller (on September 29; and no, I have no clue against whom he’d be cooperating) also publicly entered into cooperation agreements. That’s what DOJ has formally revealed, though there are several cases where the government clearly has gotten cooperation from other defendants, but hasn’t shared that formally.

But even with cooperators, investigations take time. There are three recent developments that provide a sense of how time-consuming that is.

Jon Schaffer’s still unresolved cooperation

As I previously noted, the four main Oath Keeper cooperators have a harmonized status deadline for December 17. I had been waiting to see whether Jon Schaffer, who has ties to the Oath Keepers and communications with whom were noticed to Oath Keeper defendants, would be put on that same reporting schedule.

He hasn’t been.

In fact, a recent status report in his case suggests the main Oath Keeper conspiracy may not be the primary focus of his cooperation. That’s because two details in it are totally inconsistent with the progress of the Oath Keeper case.

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.

As Judge Mehta well knows, four of the Oath Keepers already have “explor[ed] case resolutions.” And Mehta has set the first trial date for April 19, 2022.

So unless Schaffer’s attorney is entirely in error, it seems there’s some other multiple defendant case in which Schaffer is cooperating.

Swedish Scarf still at large?

Earlier this month, Gina Bisignano may have pushed the government to indict a conspiracy in which she’s a key witness earlier than they might have.

On November 4, she filed a motion to modify her release conditions, to get out of home arrest so she can try to salvage her salon business. In it, her lawyers revealed that back in July, Bisignano had entered into a sealed plea agreement.

10. On July 28, 2021, Defendant signed a plea agreement in the above captioned case UNDER SEAL.

11. On August 4, 2021, Defendant appeared before this Court and entered a guilty plea in the above captioned case, UNDER SEAL, to multiple counts of the indictment.

12. On September 16, 2021, a Zoom hearing was held before this Court, and Your Honor advised that you would entertain the Defendant’s motion in three (3) weeks to see whether the Defendant had any infractions during that time.

The only reason to seal the plea would be to hide a cooperation component.

There has long been chatter about a conspiracy indictment against members of the Southern California anti-mask community that traveled to the insurrection together. In response to Amy Berman Jackson’s questions about why Danny Rodriguez was not charged with three other defendants for assaulting Michael Fanone, prosecutors kept giving her vague answers for months, until they filed what must have been a sealed update on November 5. And a transcript of Rodriguez’ FBI interview at least suggested that the FBI had spoken to Bisignano before Rodriguez’ March 31 interview.

Is there any reason why Gina would tell us that you told her not to say anything to — about you being at the Capitol?

Videos of this interview, which are engaging TV, are here.

In mid-November, the government finally rolled out the long-awaited conspiracy indictment, which was more narrowly tailored than originally expected, charging Rodriguez, his estranged friend Ed Badalian, and someone referred to in the online community as “Swedish Scarf,” but whose identity remains sealed. The indictment charges two objects of the conspiracy: to halt the vote count on January 6, but also to “mutilate or destroy photographs and videos taken by” Bisignano (who is referred to as Person One in the indictment).

But there’s still no sign of an arrest of Swedish Scarf.

That could mean several things, one of which is that he’s on the lam.

The minute order from Judge Carl Nichols granting Bisignano some but not all of the release conditions she requested revealed that the government opposition to that request, which was due on November 24 (and so after the indictment against Badalian was unsealed) remains sealed.

There’s something else going on with this case. What, it is not entirely clear.

That said, what the public record suggests is that Bisignano had at least one interview prior to March 31, she pled guilty in August, but it still took three more months to obtain the indictment against Badalian and Swedish scarf.

Indicting a cop for fun and probation

Meanwhile the sentencing memos (government, defense) for Jacob Hiles reveal that not all cooperation comes with a cooperation agreement.

As the government describes, Hiles’ actions on January 6 include a number of the factors that would normally lead them to ask for a sentence including jail time: calls for revolution in advance, mockery of police efforts to defend the Capitol, and long boasts posted to Facebook after the fact.

But those Facebook posts play a key role in a more important prosecution, that of former Capitol Police Officer Michael Riley, who friended Hiles on Facebook before the insurrection and tried to protect him afterwards. After they first initiated contact, Riley warned Hiles to delete his posts, but he did not.

On January 7, 2021, a sworn U.S. Capitol police officer, Michael Angelo Riley, sent the defendant a private direct message on Facebook—the first message between the two, who had never met but shared an avid interest in fishing. The message stated as follows:

“Hey Jake, im a capitol police officer who agrees with your political stance. Take down the part about being in the building they are currently investigating and everyone who was in the building is going to be charged. Just looking out!”

Hiles responded to this message with a shorter version of the narratives posted on his public page and detailed above. He further stated, in part, “Investigate me however youd like and thank you for the heads up. . . . If what I did needs further investigation, I will gladly testify to this. There are some people who were violent. They attacked officers. They destroyed property. They should be fully prosecuted.”2 In the course of an extended conversation that ensued between the two, Hiles also said, “I don’t think I did anything wrong at all yesterday and I am very sorry things turned out the way that they did. I dont like the way that a few bad apples in a massive crowd are making the entire crowd be portrayed as violent terrorists,” and “I think when the fbi gets to investigating, they will find that these terroristic acts were committed in false flag attacks by leftists.”

The government’s investigation revealed that these communications between Riley and the defendant had been deleted by Riley, but not by the defendant, from whose Facebook account they were recovered. The communications included further corrupt conduct by Riley, as detailed in part in the Indictment, ECF No. 1, in United States v. Michael Angelo Riley, 21-CR-628 (ABJ). Indeed, according to Hiles, and consistent with the evidence recovered in the government’s investigation of Michael Riley, Hiles deleted no information in response to Riley’s suggestion that he do so.

And when FBI Agents interviewed Hiles after they arrested him on January 19, he told them enough about his contact with Riley such that they knew to look for those communications once they exploited his phone. That led to another interview and, ultimately, to the indictment of Riley.

Hiles further indicated that following the riot he had become friends with a Capitol police officer, although he did not at that time describe the content of then-Officer Riley’s initial contact. Later, a search of Hiles’ cell phone revealed a screenshot of the Facebook message detailed in the government’s Sentencing Memorandum from Riley to Hiles on January 7, 2021. Upon discovery of the message, the government requested through counsel that Hiles participate in a debrief with prosecutors and federal agents. Through counsel, Hiles agreed to do so and appeared for the debrief (held virtually) within 24 hours, and with no promise of any benefit from or agreement of any kind with the government.3

After his initial interview, Hiles told Riley that the FBI had expressed an interest in their communications. That led Riley to delete his own Facebook communications with Hiles.

15. RILEY and Person 1 continued to exchange friendly messages until January 20, 2021. On that date, Person 1 sente RILEY Facebook direct messages regarding having turned himself in to the FBI, including telling RILEY, “The fbi was very curious that I ha been speaking to you if they havent already asked you about me they are gonna. They took my phone and downloaded everything.” RILEY responded, “Thats fine”.

16. On January 20, 2021, RILEY deleted all his Facebook direct messages to and from Person 1.

Because of this cooperation against Riley (and because he offered up that he had gone to insurrection with his cousin, James Horning, who was arrested on obstruction and trespassing charges a month later), the government recommended probation.

Indeed, without the defendant’s significant, useful assistance to the government with respect to two felony prosecutions, the factors would require the government to recommend a sentence involving incarceration. Yet, upon consideration of the defendant’s exceptional cooperation with the government, the scale tips in favor of probation.

Hiles is due to be sentenced on Monday.

Hiles’ role in the prosecution of Riley is instructive for several reasons. First, these misdemeanants are not just defendants, but they are all witnesses to a crime. And some of them are going to provide important testimony without the formal trappings of a cooperation plea those indicted with felonies would have (even assuming those cooperation pleas were made public).

But the Hiles sentencing also gives a sense of the time necessarily involved. Riley’s indictment reveals how long even simple cooperation prosecutions can take. While union protections and internal investigations probably delayed things somewhat, it still took over 235 days between when the FBI first learned of Hiles’ communications with Riley and Riley’s arrest.

That’s for a cop. You can be sure it would take longer to indict those close to Donald Trump, even assuming the FBI has identified cooperators with useful testimony directly pertaining to those in Trump’s orbit, rather than identified those once or twice removed from Trump’s closest aides.

The government is getting more cooperation from January 6 defendants and witnesses than is publicly admitted. But that doesn’t mean we’ll see the fruit of such cooperation anytime soon.

Update, December 23: Adding the cooperation agreements for Gina Bisignano (August 4) and Matthew Greene (December 22).

How Google’s GeoFence Captured “Lions Not Sheep” Lisa Homer

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Over the course of the January 6 investigation, I have repeatedly looked at the role several geofences — warrants collecting the identifiers of those who accessed cell sites in the vicinity of a crime — have played in the investigation. The FBI has relied on such geofence data from at least AT&T and Verizon (a recent arrest affidavit revealed that there were “significantly fewer devices in the T-Mobile data” from that day “than the company would expect”), as well as Google. There’s reason to believe the FBI obtained similar data from Facebook, perhaps identifying all those who livestreamed from inside the Capitol, but the scope of the collection time and place of that data remains obscure.

I’d like to revisit that discussion as part of a review of the arrest affidavit for Lisa Anne Homer/Boisselle. She was charged on November 15 with just trespassing, and arrested Monday, two weeks during which she may have been under close surveillance.

A word about her trespassing charges. In the initial days after the riot, FBI was arresting the people who most visibly mugged in videos, whether or not they had engaged in violence. In the days after the riot, FBI Director Christopher Wray explained that they were using arrests to understand the extremist networks they had missed before the attack.

The more arrests we make, the more from those cases we learn about who else their contacts are, what their tactics are, what their strategies are, et cetera. And that makes us smarter, better able to get in front of the threat going forward.

In many cases, those initial trespassing charges would lead to far more serious charges.

The number of trespassing arrests has significantly tailed off since then (and if DOJ believes these misdemeanors have a one-year statute of limitation, it will stop altogether next month). Indeed, for many of the more recent trespassing arrests, the FBI seems to have a specific purpose in arresting the people. Very often, the arrest affidavits focus on photos or videos the defendant obviously took during the insurrection. In some cases, the FBI seems to be looking for footage that might show what more serious participants did that wasn’t fully captured by CCTV. That’s definitely true of the events leading up to Ashli Babbitt’s shooting, and seems to be true for Kelly Meggs’ hunt for the Speaker after he broke into the Capitol.

In other cases, DOJ is arresting friends or accomplices of existing defendants on trespassing charges. That may be an attempt to be thorough, or it may be an effort to collect evidence about a primary target that accompanied the person to insurrection.

In some cases, such as with InfoWars personality Owen Shroyer, the government seems to have arrested people because they are key witnesses in the larger plot and DOJ can easily sustain a trespassing prosecution against them.

There are probably a slew of reasons why the FBI prioritized arresting Homer (who in June, legally changed her last name back to her maiden name, Boisselle, after a divorce). She did, in fact, film key scenes at the riot and she was wearing a GoPro under her chin.

She must also be someone of interest from a networking standpoint. For example, she lives or lived in AZ (indeed, the sole AUSA on her case right now, a detailee on Jan 6 cases who first filed notices of appearance on September 30, is located there), whence the siblings Konold traveled to insurrection; like Felicia Konold, Homer was standing next to Billy Chrestman as he riled up the crowd.

But the FBI suggests there may be a far more significant reasons for their interest later in her arrest affidavit. More than with virtually any of the Proud Boy or even Oath Keeper defendants, the FBI focuses on Homer’s attendance (and photography at) the November 2020 Proud Boys protest in DC.

The events of the November and December events in DC are undoubtedly central to the government’s investigation of the planning and networking that made January 6 happen. The government must be focused closely on it. They’ve just been very coy about sharing details of the key players at those earlier events., which seems a deliberate effort to shield what they know of those lead-up events from defendants (who, after all, are not charged for crimes committed in November and December). Nevertheless, in this case, FBI makes the November 2020 Proud Boy event central to the story they tell about Homer.

Indeed, the big reveal at the end of her arrest affidavit is a photo, which the FBI says was taken at the November 2020 Proud Boy event, that Homer posted on Instagram just weeks before she was charged. Her caption for the photo suggests that some guy — whose identity the FBI obscures but who surely can ID himself in the picture — “took my hand that night” is proof for her that “miracles can happen.”

It appears to be a love story wrapped inside an insurrection — a compelling story indeed.

But it starts (or at least, the FBI claims it started) with the Google GeoFence.

To be clear: The FBI likes to “parallel construct” investigative stories. To hide a sensitive investigative source (something like sensitive investigative methods, classified intelligence, or a cooperating witness), the FBI will often tell a story that suggests their investigation that ended with a big reveal — a love story wrapped inside an insurrection, perhaps — started with something totally innocuous, like a Google GeoFence that collected on everyone who trespassed on January 6.

And that’s how, the FBI suggests, this story started, with Homer tripping the Google GeoFence by entering the Capitol on January 6.

Again, there’s no reason to believe this is what really happened, but the FBI suggests they found Homer’s ID in the Google GeoFence, that led to “additional investigation,” that provided her phone and email information, which led to discovery of her travel records (which might have led to discovery of her trip to the November 2020 event), which made it very easy for the FBI to know where in all the video of from January 6 to find the photos that proved the figure whose face was hidden by a gaiter and glasses while inside the Capitol was the same person who showed her face freely outside of it.

One reason I’m amused by this story is that, for whatever reason, the FBI Agent failed to obscure what most affidavits including Google GeoFence Reports hide, which is that the GeoFence includes in the report the information that FBI claimed required “additional information:” Homer’s email, her Google ID, her SMS recovery number, her recovery email, her account creation date, as well as the map itself showing the points both in and outside the Capitol itself where she tripped the GeoFence. Normally, the FBI can obtain all this information with a subscriber request (or an NSL, in the case of national security cases), so it’s not treated as very sensitive and would require just one additional step to get in any case. But if the government has obtained a GeoFence including everyone recognizable to Google who trespassed that day, along with selectors that would form part of the subscriber information for other social media providers, such as the Instagram account that forms a key part of the rest of Homer’s affidavit, then it is really powerful data.

To date, we don’t know how much of this GeoFence data Google collected and included in individualized reports in response to a request in the immediate aftermath of January 6, how much these reports reflect reports done in response to individualized requests after the fact, based on preserved data, or whether it’s a mix (such as that Google provided the initial identifiers to the FBI, which the FBI then used to cross-reference with other investigative materials, leading them to prioritize certain requests for more detailed reports). The FBI could obtain this information via a warrant for the GeoFence or via individualized warrants served months later (and Google surely has carefully preserved all investigative information tied to the event).

But this report provides a clue: it says that Homer last logged into Google on January 19, 2021.

It would take unbelievable amounts of discipline for someone to go ten months without logging into Google one way or another, the kind of discipline not exhibited by a person who doesn’t delete user location and who also posts incriminating photos to Instagram from a year earlier. So this report was presumably finalized much closer to January 19, not long after she had logged into Google, than November.

Maybe that Google GeoFence really is where this apparent love story started.

Three Things: A Three-Ring Circus

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

Under the enormous canvas tent of the United States, come see the mightiest extant amusement organization, superior in character, regal in appointment, magnificent in conception, omnipotent in strength, with hundreds of witnesses, a plethora of attorneys and paralegals, the promise of the wild beast-like Chansley, multiple frustrated judges…

And one orange-tinted slack-bottomed kack-handed clown unseen off the stage entantrumed in the wings.

Ladies, Gentlemen, and those of pronouns without and within, welcome to the American circus.

I can’t even begin to imagine what all of this looks like from abroad.

~ 3 ~

Arguments just wrapped up in the U.S. Court of Appeals for the DC Circuit regarding former president Trump’s claim of executive privilege over testimony and materials subpoenaed by the House January 6 Committee. Twitter threads covering the hearing’s progress:

For BuzzFeed:


For DailyKos:

Stream the audio of the arguments on YouTube at: https://youtu.be/DcMnkpZOpxo

I have to admit this hearing is making me grit my teeth. No one is above the law; the executive’s job is to execute what Congress legislates, and Congress cannot do its job effectively without oversight of the executive’s work when its work product is not related to classified national security issues. There’s zero executive privilege for testimony and materials related to campaigning if performed in and by the White House.

~ 2 ~

Convicted shaman insurrectionist perp Jacob Chansley filed an appeal today.

Good luck with that, buddy. What a waste of a lengthy mea culpa in court.

Chansley wasn’t the only lower level perp on the agenda today — check Scott MacFarlane’s Twitter feed for more including another perp charged and another arraigned today.

~ 1 ~

Washington Post published an article today about Trump’s former chief of staff Mark Meadows, who until now has completely resisted compliance with a House January 6 Committee subpoena. Here’s the timeline of related events:

September 23, 2021 — House January 6 Committee issued a subpoena to Meadows;
October 7, 2021 — Due date for records subpoenaed;
October 15, 2021 — Deposition deadline;
November 11, 2021 — White House Deputy Counsel sent a letter to Meadow’s attorney advising that President Biden would not exert executive privilege over any testimony or records the House January 6 Committee subpoenaed;
November 11, 2021 — U.S. Court of Appeals for the D.C. Circuit blocked handover of National Archives’ presidential records responsive to a January 6 committee’s subpoena;
November 12, 2021 — Meadow’s attorney issued a statement which said Meadows would not cooperate with the committee until after the legality of the subpoenas was settled in court;
November 30, 2021 — See Thing 3 above, Court of Appeals for the DC Circuit hearing today regarding subpoena of testimony and records over which Trump claims executive privilege.

Hed and subhed of WaPo’s article today:

Former White House chief of staff Mark Meadows cooperating with Jan. 6 committee
Meadows has provided records to the committee investigating the attack on the Capitol by a pro-Trump mob and will give a deposition.

“Cooperating” is rather broadly used. Committee chair Bennie Thompson issued a statement today about Meadows:

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition. The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

“has been engaging” isn’t the same as cooperating; an “initial” deposition doesn’t mean anything until Meadows has actually answered questions put to him without prevarication.

As Marcy tweeted, “Meadows could invoke a bunch of things and avoid testifying and avoid contempt that way.”

Betting this “cooperating” is a stall tactic which won’t end until the Department of Justice indicts Meadows for contempt of Congress as they did Steve Bannon.

But perhaps there will be more than two charges if Meadows “has been engaging” in a little light obstruction.

Sure hope for his own sake Meadows turned information related to his phone records.

~ 0 ~

What other hearing(s) did I miss? Share in comments.

Where to Look (or Not) for Signs of Life in Rule of Law

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According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.