Since the beginning of the Proud Boys case, there has been an ongoing dispute about the government’s “tools” theory of the conspiracy, which argued that there were a bunch of people (which was trimmed after pre-trial hearings) whom Proud Boy leaders used to execute their conspiracy. This post explains that dispute.

These people are not accused or alleged to be part of one of the parallel conspiracies charged against the Leaders, and so normal hearsay rules will not apply as normal. But they are people who, the government alleges, the Leaders pulled together as recruits to make the attack happen.

Part of this dispute pertains to whose actions at the Capitol can be shown, as video evidence, to the jury in association with the Proud Boy Leaders. I think the case presents what I call a “view-say” exception, in which assaults committed by associates in places at the Capitol where no Leader was present, may or may not be shown to the jury. On the first day of trial, for example, Judge Kelly deferred on whether assaults that took place in the Tunnel should be shown, since no Leader was present.

But a big part of the debate pertains to how many of the communications on one or another of the Telegram threads the Leaders used to organize the Proud Boys can be introduced as evidence.

Last Friday, Judge Kelly issued his order on the issue verbally in what takes up about 80 pages of transcript. I wanted to lay out his logic here, so it is broadly accessible.

First, let me clarify an issue that came up on Monday, as we argued this, about who might count as a tool. On the one hand — it seems to me that the tools fall into two buckets for purposes of this case generally, as the Government has argued it. On the one hand, you have people whom the defendants or their cooperator — or their co-conspirators marched toward the Capitol on January 6th to whom they had some alleged nexus or relationship in the, sort of, physical effort of what happened that day on January 6th. And in — separately, you have the group we’re dealing with here, which is Proud Boys whom the defendants and their co-conspirators hand-selected to join the MOSD. Of course, there’s some overlap between these two groups of people. But I certainly don’t think, over the argument of some defendants, that someone ultimately had to be in one group for their statement to — or their conduct to be relevant for the — to this case. In other words, to be a tool, you didn’t have to necessarily believe — belong to both of those, sort of, groups.

I’ll next note that, again, by and large with regard to the tools evidence, I didn’t see any true hearsay issues there. It’s clear to me that the bulk of these statements, at least, were not offered as assertions but rather as circumstantial evidence of the tools’ motive and intent in the days leading up to January 6th. And to the extent they are assertions of the tools, they would fall under Rule 803(3) which allows statements expressing the declarant’s motive, intent, or plan to be admitted for the truth of the matter asserted.

But, of course, after clearing the hearsay bar, statements must still be relevant and satisfy Rule 403 balancing. So here’s the line I drew on that front. Where a purported MOSD tool’s statement expressed a more specific, concrete intent to use force or to act unlawfully on January 6th, I admitted them. But — or at least where the statement could — where you could infer that. But where, in my view, a statement was less specific, or tended to be more — a general reference to violence or perhaps even to a joke, I excluded them.

For — as for those I admitted, I think the statements are relevant/admissible because they do shed light on what the purpose of the MOSD was, which is a central issue in the trial. As I mentioned, the defendants have consistently argued — and even opened on the idea — that the MOSD was intended to create more of an organizational structure and a hierarchy at rallies for defensive purposes. And in short, the Government’s theory is that, at least with regard to January 6th, it was intended for an offensive purpose.

Thus, I think that the state of mind, in the days leading up to January 6th, of those that the co-conspirators and the defendants in this case vetted to be in the MOSD is relevant. And it’s an important factor supporting — and it is an important factor that, sort of, reinforces their relevance that the evidence shows that the defendants and their co-conspirators did select them. In fact, as Mr. Rehl says in Exhibit 503-10, everyone in the group was, quote, Represented by someone who trusted them to be there. That’s a little bit of a butchering of that quote, but I think that’s the essence of it.

The relevance of these exhibits is further buttressed by the fact that these statements were not rebuked by any of the defendants or their co-conspirators that were present in these chats as MOSD organizers. Now, we’ve talked about this a lot. I think, ordinarily, the idea that a single individual’s failure to respond to a comment in a chat — the idea that that can be relevant or some kind of adoptive admission in some way is a stretch in general, and it’s probably not a theory that would fly in a typical situation. Certainly, the bigger the chat that there is, the more public it is, and all the rest. But I think, here, that the failure to do so — not of one person, but collectively of all the people at issue, the four defendants here who were in those chats, plus their alleged co-conspirators — all those people’s non-responsiveness to some of these things is relevant, and it bolsters the overall relevance of the exhibits I decided to admit, especially because it’s clear that at least some of the defendants — again, there is evidence here — some of the defendants were monitoring the MOSD chats to ensure they stayed on topic.

Indeed, the stated rules of the MOSD chat made clear that the members had to stay on topic, and on a couple of occasions to which the Government has directed me, defendants or co-conspirators did, either in the group or amongst themselves, rebuke members’ suggestions that they viewed as outside the MOSD’s parameters. For example, in Exhibits 505-20 and 505-21, Mr. Stewart, Mr. Bertino, and Mr. Tarrio criticize an MOSD member in the MOSD Op group for suggesting that the group discuss what to do about, quote, Unaffiliated Proud Boys wearing colors, closed quote. Stewart admonished that there was nothing to talk about because the MOSD has a mission; either get with it or eff off, and that they were there for a reason. And Mr. Tarrio followed up by instructing everyone to focus. Mr. Bertino stepped in to emphasize that the member’s comment was not appropriate in the MOSD chat because the group had a mission and they didn’t want to be distracted from it. And in Exhibit-525-7, Defendant Biggs messaged Defendant Tarrio expressing in the — that the MOSD chat had already become annoying because members were talking about other events.

So importantly, in weighing whether to admit certain tools exhibits and drawing the line I did, I admitted only those exhibits where I thought there was a stronger inference that the comment would have drawn a rebuke from one of the defendants or one of their co-conspirators if the mission of the MOSD had truly only been defensive in nature.

So for all those reasons, I found the handful of the exhibits I admitted on this theory — the tools theory — were relevant, and also, satisfied Rule 403.

Before I move on to the categories of the documents, as one more offshoot of the tools issue — it doesn’t go to the admissibility of these documents, but it goes to the grounds for admissibility of statements made to — by other people, including the defendants, to the tools — I want to address one additional point that came up on Monday. Counsel for Mr. Nordean argued to me that several exhibits that the Government offered as co-conspirator statements could not have been in furtherance of the conspiracy simply because the statements at issue were made to non-co-conspirators, including tools. But in the United States v. Tarantino, the D.C. Circuit explained that if a statement, quote, Can reasonably be interpreted as encouraging a co-conspirator or another person to advance the conspiracy, or as enhancing a co-conspirator or another — or other person’s usefulness to the conspiracy, then the statement is in furtherance of the conspiracy and may be admitted. That case is 846 F.2d 1384 at 1412, a D.C. Circuit case from 1988. So to the extent that Mr. Nordean objected on that basis to several of the exhibits I’m about to discuss, particularly those involving the defendants’ or the co-conspirators’ statements to tools, that argument is foreclosed by Circuit precedent.

On Friday, lawyers for Proud Boy Dominic Pezzola (who are among the more conspiratorial of the Proud Boy defense attorneys) filed a motion for a mistrial claiming that the “Winter Palace” document Enrique Tarrio received from one of his at least three girlfriends was created by the government. Here’s how the document was admitted as evidence last Thursday.

At issue is testimony that Samuel Armes provided to the January 6 Committee (and, as we’ll see, a grand jury) regarding his recognition that a document he created as part of imagining how an attack on the electoral certification would happen was altered to become the Winter Palace document.

Pezzola’s lawyer, Robert Root (who joined his team days before trial started) argued that when Judge Kelly ruled the document was admissible back in December, defense attorneys had not yet seen Armes’ testimony, and so could not argue that Armes — who claimed he had been trained to be a spook — was a government agent framing the Proud Boys.

According to the Politico article, Ms. Flores also gave an interview to the Jan. 6 Committee. And Ms. Flores reportedly testified that Armes was the author of the entirety of “1776 Returns” and that this FBI and CIA member or associate asked her to share it with Tarrio.

If true, this means that the most damning document in this trial was authored by the intelligence community—someone “groomed” by the FBI itself. And this CIA and FBI asset requested Tarrio’s friend to share the document with Tarrio just prior to January 6. [emphasis original]

The filing relies heavily on this Politico story, which extrapolates about a communication the January 6 Committee had with the girlfriend in question, Eryka Flores, but which was not released as a transcript.

In my opinion, this filing was designed first and foremost as bait for Jim Jordan to claim that even the Proud Boy prosecution is just the Deep State trying to frame Donald Trump, and only secondarily as yet another of the often frivolous motions for a mistrial defense attorneys have lodged in this case.

But the government has responded in here, partly by (inappropriately, in my opinion) mocking the illogic of Pezzola’s challenge, before going on to explain how the testimony of Armes, at least, totally rebuts Pezzola’s claims.

The government strongly disagrees with Pezzola’s characterization of both the facts and the record with respect to these assertions. The government robustly agrees with defendant Pezzola that it would have been egregiously improper for a member of the U.S. Intelligence Community to have conducted a domestic intelligence operation targeting Enrique Tarrio, a U.S. Person, and providing him with a plan to “storm” (or “occupy” or “sit in”) House and Senate Office Buildings on January 6. It would have been even more improper for a member of the U.S. Intelligence Community to send this plan to the leader of the Proud Boys when, just months before, then-President Trump had exhorted the Proud Boys to “stand back and stand by” during a nationally televised debate. And it would have been egregious indeed for a member of the U.S. Intelligence Community to send such a document to the leader of the Proud Boys in advance of January 6, in the wake of the violent attacks the Proud Boys were associated with in Washington, D.C., on November 14, and December 12, 2020. Surely, had the government planted such a document in the inbox of defendant Tarrio (ECF 660 at 5), one would hope that the U.S. Intelligence Community would have hewed to the truth of what happened on January 6 and included the Capitol as one of the targeted buildings.

The filing notes that, contrary to the claimed late notice with the release of the transcripts, the Proud Boys already received October 7 grand jury testimony from Armes that tracks his J6C testimony, a transcript from Flores’s May grand jury testimony showing her invoking the Fifth repeatedly, and a third witness describing receiving the document from Flores on a date that would be before she sent it to Tarrio on December 30.

The information that Samuel Armes drafted a document that inspired portions of the Government Exhibit 528-1 was disclosed to defense counsel by the government on November 16, 2022, when it provided counsel with a copy of Armes’ October 7, 2022, grand jury testimony.

[snip]

Armes testified that he shared his “wargaming” exercise in the form of a three- to five-page Google document with “Erika Flores” sometime between August 2020 and January 2021. 7/18/2022 HSC Tr. at 12; 10/6/2022 Grand Jury Tr. at 26. When asked why Flores told the House Select Committee that Armes had drafted the document, he testified “I guess she is just blame shifting.” 7/18/2022 HSC Tr. at 20. Armes surmised that Flores had taken his “ideas as an inspiration, and her or some group of people then turned it into ‘1776 Returns.’” Id. Indeed, when subpoenaed to testify before the Grand Jury in this case on May 3, 2022, Flores answered only brief biographical questions and then invoked her fifth amendment right not to testify repeatedly in response to more than 50 transcript pages worth of questions by the government about the “1776 Returns” document. That transcript was provided to defense counsel on November 16, 2022.1

1 On that same day, counsel were provided with the grand jury transcript of another witness who testified that a girlfriend of Enrique Tarrio known as “Erika” had messaged a document to the witness about two weeks before January 6 and asked the witness to fill in the names of people to participate in an “infiltration plan.” The witness further recalled that the individuals were to dress like they belonged in the buildings and to have set up prior meetings to gain access. Compare Government Ex. 528-1 at pages 3, 6.

The third witness may be Jeremy Liggett, whom J6C investigators suggested had some tie to the document as well.

There are just three problems with this.

First, as Politico reported today, Flores didn’t invoke the Fifth to the J6C.

Two investigators familiar with her interview — an informal, untranscribed appearance in early 2022 — say that while she was a reluctant witness and initially planned to plead the Fifth, she ultimately agreed to answer some questions about the document.

“Instead of pleading the Fifth, we did an interview with her,” one of the investigators said, speaking on condition of anonymity to describe information the committee had not publicly released. “She gave us the name of Samuel Armes as the name of the individual who wrote the document.”

[snip]

The select committee investigators said they found Armes to be more forthcoming than Flores, who they said exhibited a “general apprehension.” Flores didn’t respond to messages and emails seeking comment.

“She acted like she didn’t know what it was at all,” said one of the investigators.

The two investigators said Flores indicated she had shared the document with Tarrio to impress him during a sensitive phase in their relationship and disclaimed specific knowledge about its contents.

The Stone-related witnesses very carefully manipulated the J6C, and Flores’ decision to testify may be an example. At the very least, Pezzola may have basis to demand that Kelly immunize Flores.

Another problem is that Jocelyn Ballantine is formally on the government response. I’ve noted before how insanely stupid it is for DOJ to have her in an increasingly senior role in the January 6 committee, and discovery disputes like this are precisely why.

The third problem with all this is that DOJ should be able to get Google metadata associated with the document to provide more clarity about the document. Perhaps a later witness will explain efforts to do so (thus far, it has just been introduced as an attachment to a Telegram text). But there are outstanding questions that may have answers.

In any case, this is now the second time that J6C’s refusal to turn over transcripts has endangered this prosecution.

[NB: check the byline. Updates to appear at the bottom of this post. /~Rayne]

12:28 A.M. ET —

Suspect has been found off campus; they are confirmed dead of a self-inflicted gunshot wound.

MSU Police spokesperson Chris Rozman confirmed there were three fatalities and five injured.

Active Shooter status has now ended.

More information and updates will appear at the bottom of this post. Content posted earlier will remain in place.

~ ~ ~

11:33 p.m. ET — Michigan State University still has an active shooter situation.

Students should continue to monitor the MSU Emergency page for updates:

https://msu.edu/emergency

Local news station reported MSU issued another bulletin at 10:05 p.m. ET advising students should run, hide, fight — run away if possible, hide if possible, fight as a last resort as necessary.

The events appeared to begin at Berkey Hall on the northeast side of campus, move to the Student Union toward the northwest, and then to IM East on the southeast side of campus.

Campus police as well as Lansing city, Ingham County police departments are on site along with Michigan State Police and surrounding counties.

Campus has been shut down; persons moving around on campus are subject to search. A SWAT team has arrived and is currently clearing Berkey Hall.

There have been multiple injuries and one reported death. Ambulances are on hand; victims are being taken to Sparrow Hospital.

In other words, this is students’ and parents’ nightmare in progress.

~ ~ ~

10:31 p.m. ET —

Local live coverage at:

WILX-TV NBC affiliate
https://www.wilx.com/2023/02/14/shelter-place-shots-fired-michigan-state-university/

WLNS-TV CBS affiliate
https://www.wlns.com/news/local-news/shots-fired-at-msu-students-instructed-to-hide-run-hide-fight/

Lansing State Journal – USA Today network member
https://www.lansingstatejournal.com/

City Pulse – does not yet have live reporting but will likely have reports in the morning.
https://www.lansingcitypulse.com/

The State News – MSU student newspaper
https://statenews.com/article/2023/02/students-staff-describe-experiences-on-campus-with-shooting

Michigan State Police just told WLNS-TV they are not confirming any deaths.

A news briefing is expected at 11:00 p.m. ET.

~ ~ ~

10:47 p.m. ET —

From WNYC’s On The Media, here is a handy consumer media guide for use in Active Shooter events and other breaking news situations:

See their The Breaking News Consumer’s Handbook: Active Shooter Edition for more.

~ ~ ~

11:02 p.m. ET —

MSU Police spokesperson Chris Rozman addressed media, public.

Incident began at Berkey Hall at 8:18 p.m.

Several victims at Berkey Hall found by police responding minutes after the initial call.

Another shooting followed at Michigan State Union building.

Five victims so far, several with life-threatening injuries.

Suspect left MSU Union building on foot; believed to be a short Black male wearing red shoes, jean jacket, ball cap.

Police are checking security camera video at this time; the shooter has not yet been found.

Parents have been asked not to come to campus.

Police spokesperson asks interested persons to follow their Twitter account.

There have been false reports of additional shooters/shootings.

Next update will be at 12:00 a.m.

~ ~ ~

11:15 p.m. ET —

MSU Police did not confirm this during the presser, but MSU spokeswoman Emily Guerrant has informed WILX-TV there was one death.

WILX-TV now says they’re not providing any more details not shared by police.

~ ~ ~

11:25 p.m. ET —

Still images from security cameras believed to be of the suspect have been released to the media and on Twitter:

Grand River Avenue along the north edge of MSU campus has been shut down. It is normally very busy due to the number of retail and food businesses located on Grand River which serve campus.

~ ~ ~

11:40 p.m. ET —

A WILX reporter confirmed there are three dead in addition to five hospitalized at Sparrow Hospital at this time.

~ ~ ~

12:03 a.m. ET — 14-FEB-2023 —

MSU Police have pushed back the next update to 12:20 a.m. ET. No additional information has yet been received.

~ ~ ~

12:28 a.m. ET — 

MSU PD spokesperson Rozman provided a phone number and an email address for any tips related to the shooter.

Call: (844) 99M-SUPD or email: [email protected]

Please note the shootings appeared to have been confined to two locations on campus — Berkey Hall and the MSU Union.

A WILX reporter is at another off-campus location near the Larch and Lake Lansing Road intersection where police have cordoned off the road where they are working. This intersection is about three miles to the west of campus. This scene may be related to the shooter’s demise.

MSU Police have planned another update at 1:30 a.m.

~ ~ ~

8:50 a.m. —

The shooting suspect has been identified as 43-year-old Anthony McRae (spelling subject to confirmation). He was unaffiliated with MSU. A tip was called in by someone who knew him immediately after they recognized him from the still images from the security camera shared by police last evening.

All of the shooting victims both deceased and currently hospitalized are students at MSU.

There is no known motive at this time.

The victims will be identified later today after next of kin have been notified.

All classes are canceled until next Monday at MSU though the campus may be open. Counseling services will be available to students.

As former National Security Adviser Robert O’Brien tells it — or told it, in his August 2022 interview with the January 6 Committee — he responded to an attack on the Capitol by sending personal tweets.

CNN reported last week that O’Brien will soon have the opportunity to tell a more credible story to both of Special Counsel Jack Smith’s grand juries, which is why I decided to read the transcript of O’Brien’s interview with the January 6 Committee.

Presumably, Smith wants to ask O’Brien about Trump’s firing of people who questioned his authority to invoke the Insurrection Act, a topic that like recent witness Johnny McEntee, O’Brien addressed in his January 6 interview. Perhaps Smith wants him to explain the plot to seize voting machines and other details surrounding the December 18 meeting, which recent witness Ken Cuccinelli addressed. O’Brien may be asked about his challenge to Cassidy Hutchinson’s credibility in his own January 6 testimony, perhaps the only person who has questioned her testimony who hasn’t since been discredited.

Given the CNN report that he would testify before both the January 6 and the stolen document grand juries, he may be asked about his knowledge of plans to take documents pertaining to topics Trump obsessed about, not just the Russian investigation (which O’Brien calls, “Russiagate hoax documents”), but also specific intelligence about Venezuela; O’Brien claims not to remember anything about the efforts to declassify documents to take.

But the most striking aspect of O’Brien’s transcript was his admitted failure to do much of anything as the Capitol was attacked.

To be fair, the appearance of O’Brien’s almost complete inaction as the Capitol was attacked stems, in part, from his own forgetfulness. He claims to remember only one interagency planning meeting in advance of January 6, even though other witnesses testified to several. He only recalls a concern about threats to the White House in advance, not the Capitol. He doesn’t recall briefing the President, the Chief of Staff, or the White House Counsel of intelligence in advance of the attack. He doesn’t recall any talk of Trump marching to the Capitol.

He recalls speaking to Mike Pence during the attack, but can’t recall most details about the conversation.

He recalls speaking to Biden National Security Adviser Jake Sullivan, who would not assume power for another two weeks. But he can’t recall whether he spoke to Chief of Staff Mark Meadows during the attack.

He recalls that his Deputy Matthew Pottinger called him and told him he had to resign, but can’t recall that he did so specifically in response to Trump’s text targeting Mike Pence.

He’s certain he made no effort to speak to the President as a mob of his supporters attacked a co-equal branch of government. He did not do so, he explained, because he was in Miami and wanted to speak to the President in person.

The story O’Brien told of his actions leading up to and on January 6 was of breath-taking dereliction of duty.

When asked specifically how he responded to learning that the President’s supporters were attacking the Capitol, he explained he sent some personal Tweets.

Q Okay. All right. So let’s talk about then what you did after receiving that information. What steps did you take now that you’re aware of this violence at the Capitol and had this conversation with the [Vice, sic] President? What did you do next?

A So I did a couple of things. I’m not sure the exact order in which I did them.

Q Okay.

A One is I put out a series of tweets on my personal Twitter account.

[snip]

Q Okay. All right. So, again, you didn’t take any action in particular response to this [Trump’s tweet].

Your tweets don’t start until a bit later, your personal tweets that you sent out.

A Yeah, I’m not sure what time my tweets came out, but I wouldn’t say it’s in direct response to this, but I did tweet that I thought the Vice President was courageous.

Q Yeah, you did.

[snip]

All right. The next one up says, “My first experience in government was serving as an intern for Senator Hayakawa of California. What the mob did to our Senate chamber today was an utter disgrace.”

Again, what motivated you to put that out? And do you remember roughly when that was?

A So, again, I don’t recall — and I don’t have a time or a date stamp on this. I think that was the first tweet that I put out on my personal account.

Q I think this is — you’re right — from your personal account, not the official NSA account.

A Correct. And I wanted to get some tweets out on my personal account because I didn’t have to go through a White House clearance process or get others involved. I wanted to try and act, you know, somewhat quickly and make sure the people that — to the extent anyone followed it or was interested, that was my view.

There were some other calls — to Mike Lee and Mitt Romney, for example. But seemingly no coordination of any response. Just tweets about the internship he had when he was 14.

There are certainly reasons to doubt his forgetfulness. At other times, he uses other tactics to avoid discussing whether he had direct contacts with Trump or anyone else of substance, like invoke Executive Privilege over his own feelings.

Q Were you frustrated, Ambassador O’Brien, with the President’s conduct on January 6th?

Mr. Larson. I think this starts to get into — invariably gets into communications with the President and impressions of the President and all that. So I’m going to assert executive privilege here.

And there’s good question of how diligently O’Brien searched for communications relevant to his testimony.

For example, there was a damning document: a draft concession speech that O’Brien wrote for Trump on December 21. O’Brien sent it from his home email account to his White House email account — because maybe his printer was out of paper, he mused.

Q 9 o’clock at night on the 21st.

A Yeah. So I was obviously at home. I probably sent it because I didn’t have a printer. I probably didn’t want to print it or didn’t have a printer at home or it may have been out of paper or something.

And this is something I did on what I considered was my own time. I thought it was — I think by this time the electoral college had already voted, and I think that the primary lawsuits that the President’s legal team had brought had been decided. You know, I can’t be certain, but I’d probably seen that on the news.

And I thought it would be — I thought I’d draft up what was in essence a concession speech, but put it in language that might appeal to the President and I thought might be something that the President could — the type of speech that the President would feel comfortable giving, but at the same time would convey the message that he conceded the election. And I thought it would be good for him and for the country.

O’Brien claims the only one he shared it with at the White House was his own Chief of Staff, not Trump’s or not Trump himself.

Q Did you share this with anyone after you sent it to your own official White House account?

A Yes.

Q With whom?

A I believe I shared it with Alex Gray, my chief of staff.

Q Your chief of staff. I see.

A Right.

Q How about Mark Meadows or the President himself?

A No. I don’t believe I did.

What’s interesting is not just that O’Brien sent it, but that he didn’t turn over an email sent from his own account in his production to the committee. The document should have been turned over to the committee by both O’Brien himself and the Archives. The committee only got the Archives copy

Q Okay. Let me show you another exhibit, this is No. 9, that is an email from your personal account to your official account. I don’t recall if this came from your production or from the Archives.

A I think this came from your production.

Q Yeah. I think that’s right. This is a record produced by the National Archives.

O’Brien wasn’t giving anything up.

And that’s why I find this exchange showing the National Security Adviser — the National Security Adviser!!! — explaining how he was doing business on Signal and WhatsApp and no, he’s not entirely sure whether all his texts got archived properly so suspect.

Q Ambassador O’Brien, how about any other messaging applications, like Signal or Telegram or WhatsApp? Did you use any of those platforms to conduct any official business when you were National Security Advisor?

A I did.

Q Okay. Which of those platforms did you use?

A I think I received some messages from people on WhatsApp and on Signal.

Q All right. And again, tell us what the circumstances would be that would trigger the use of those platforms versus the White House email account or your official device.

A So on the official devices, there was no ability, I don’t think, to put on Signal or any of the other applications.

There were some foreign ambassadors or foreign ministers that would want to get in touch with you and they tended to us Signal or WhatsApp.

[snip]

Q  I’m just wondering sort of the general circumstances that would cause you to go to WhatsApp or Signal. Was it just, hey, it’s a foreign leader, so that’s the platform that he or she uses? Or would you, beyond that, use it for other reasons as well?

A Yeah. So I’m not a consumer of social media or those sorts of applications for the most part. There were some foreign leaders that asked for my cell phone number so that they could connect via Signal, because I think some foreign leaders from time to time would reach out and they were concerned about intercept and they felt there was some safety — that was their opinion — there was some safety. My opinion was different. But they wanted to communicate by Signal or WhatsApp, but it was on rare occasions.

Q I see. Okay. And beyond that, Ambassador O’Brien, would you use WhatsApp or Signal to talk to someone on a personal matter or campaign related or things that you wanted to ensure were kept off of the official government channel?

A Yeah, not that I recall. That was not my practice.

Given how little else he recalls about his job, suffice it to say this “do not recall” whether he used Signal or WhatsApp for other purposes deserves some skepticism, particularly given that everywhere he relies on the committee to pull up call records. Especially given his lackadaisical attitude about preserving whatever Signal texts he sent, at least with foreign ambassadors.

Q Got it. All right. Now, on the subject of these personal devices or accounts, did you provide all [inaudible] with the official communications from these personal accounts to the National Archives when you completed your tenure as National Security Advisor?

A So I don’t know if I had any information on those devices. I do know that when I left the job at the State Department there were some conversations I took screenshots of and I left those behind for the State Department for my files. So that was my practice there.

When it comes to the leaving as NSA, I may have had — you know, I don’t recall, I don’t recall if I screenshotted. I know I screenshotted a few things. I don’t know if they were left behind for the Archives. That would have been my practice. But again, I can’t recall.

It is undeniably true that Robert O’Brien responded to an attack on the Capitol by Tweeting, on his personal account, that Mike Pence was courageous.

But it is also the case that there’s a whole lot of forgetting going on here that looks more like a gap in communications records than anything else.

Which may be on of the biggest things for which Jack Smith would like to get O’Brien on the record.

When DOJ first announced the extradition of Alex Saab from Cabo Verde to the US in October 2021, they described him as a Colombian businessman accused of laundering money through Venezuela.

Alex Nain Saab Moran (Saab), 49, a Colombian citizen, will make his initial appearance in federal court in Miami, Florida, today after being extradited from the Republic of Cabo Verde. Saab is charged in an indictment with laundering the proceeds of violations of the Foreign Corrupt Practices Act (FCPA) in connection with a scheme to pay bribes to take advantage of Venezuela’s government-controlled exchange rate. He is expected to make his initial court appearance today at 1:00 p.m. before U.S. Magistrate Judge John J. O’Sullivan of the U.S. District Court for the Southern District of Florida.

Specifically, on July 25, 2019, Saab was charged along with Alvaro Pulido Vargas, aka German Enrique Rubio Salas, 55, also a Colombian citizen, in an eight-count indictment with one count of conspiracy to commit money laundering and seven counts of money laundering. The indictment alleges that beginning in or around November 2011 and continuing until at least September 2015, Saab and Pulido conspired with others to launder the proceeds of an illegal bribery scheme from bank accounts located in Venezuela to and through bank accounts located in the United States. According to the indictment, Saab and Pulido obtained a contract with the Venezuelan government in November 2011 to build low-income housing units. The defendants and their co-conspirators then took advantage of Venezuela’s government-controlled exchange rate, under which U.S. dollars could be obtained at a favorable rate, by submitting false and fraudulent import documents for goods and materials that were never imported into Venezuela and bribing Venezuelan government officials to approve those documents. The indictment alleges that the unlawful activity was a bribery scheme that violated the FCPA and involved bribery offenses against Venezuela. It also alleges that meetings in furtherance of the bribe payments occurred in Miami and that Saab and Pulido wired money related to the scheme to bank accounts in the Southern District of Florida. As a result of the scheme, Saab and Pulido transferred approximately $350 million out of Venezuela, through the United States, to overseas accounts they owned or controlled.

But four months after that, in February 2022, the judge in his case in Miami, Robert Scola, ordered a document submitted before the extradition be unsealed. That revealed he had been a DEA informant, largely confirming the details behind his indictment.

[O]ver the course of nearly twelve (12) months, SAAB MORAN cooperated with agents from the Drug Enforcement Administration (“DEA”), provided DEA with information about his criminal activity, engaged in proactive cooperation as a confidential source for the DEA, and forfeited money to the United States and DEA as part of an agreement to self-surrender in the United States in order to face charges for his criminal conduct. In light of SAAB MORAN’s cooperation, which included providing law enforcement with information about the bribes that he paid and the crimes that he committed, the United States has concerns regarding the safety and security of SAAB MORAN and/or his family were this information to be disclosed to the Maduro Regime in Venezuela. See “Venezuelan charged in Miami money laundering case gunned down by motorcycle assassin,” Sept. 2, 2020, available at https://www.miamiherald.com/news/local/article245436795.html.

[snip]

On August 8 and August 10, 2016, SAAB MORAN, represented by criminal counsel in the United States and his Colombian lawyer, 1 met with special agents from the DEA and the Federal Bureau of Investigation (“FBI”) in Bogota, Colombia. During these meetings, SAAB MORAN was debriefed and provided information relating to certain of his companies that contracted with the Government of Venezuela to build low-income housing, including how those companies were paid in connection with the contracts and how the money flowed after his companies received the funds. On November 28, 2017, SAAB MORAN, joined by his Colombian counsel, met with special agents from the DEA and an Assistant United States Attorney for another debriefing.

[snip]

On June 27, 2018, SAAB MORAN signed a cooperating source (“CS”) agreement with the DEA and became an active law enforcement source shortly thereafter, communicating with special agents from the DEA via telephone, text, and voice messaging. As part of his cooperation, SAAB MORAN also engaged in proactive cooperation.

[snip]

On April 4, 2019, SAAB MORAN, represented by his U.S. counsel, met with special agents from the DEA and prosecutors from the U.S. Attorney’s Office and the Department of Justice in Europe. At that meeting, SAAB MORAN was provided a deadline by which to surrender to U.S. authorities in the Southern District of Florida in connection with his criminal conduct. SAAB MORAN was further advised that, if he failed to surrender by May 30, 2019, he would no longer remain a cooperating source and would be charged criminally in the Southern District of Florida.

Then, last October, Saab made an unsuccessful bid to claim that on top of being a businessman and sometime DEA informant, he was also a Venezuelan diplomat, the country’s Special Envoy to Iran.

For the two years following his appointment in April 2018, Mr. Saab fulfilled his role as a Venezuelan Special Envoy. To that end, he was issued a diplomatic passport that specifically identified him as a Special Envoy (“Enviado Especial”). See Exhibit 1.3 This activity culminated in spring 2020, in response to the global COVID-19 pandemic that shattered Venezuela’s already fragile social and economic condition when there was a need for Mr. Saab to negotiate for gasoline, food, and medical supplies.4 Even before the pandemic, Venezuela was facing an emergency shortage of gasoline and medicine due to crippling external economic sanctions.

The Venezuelan government tasked Mr. Saab with three official diplomatic missions to Iran, in March, April, and June 2020, to procure equipment to maintain and repair Venezuela’s oil refineries, as well as to obtain gasoline, goods, foodstuffs, and medicine that the country desperately needed. Mr. Saab also met with an Iranian diplomatic delegation in Venezuela. He was Head of Mission on each trip. Two missions were successfully completed, but the third was interrupted by Mr. Saab’s interception and detention while he was in transit through Cape Verde.

Judge Scola was unpersuaded. He noted, among other things, that Saab was unable to present a diplomatic passport in Cabo Verde. Saab will appeal that decision.

But in December, the January 6 Committee revealed Saab may be something else.

In August 23, 2022 testimony to the January 6 Committee, former National Security Adviser Robert O’Brien listed a bunch of reasons he didn’t think Mark Esper was a helpful Secretary of Defense. By far the most interesting of those is that, after Saab was arrested in Cabo Verde, Esper was unwilling to provide DOD resources to stave off a rescue attempt.

We had another situation where we had Alex Saab, who was Vladimir Putin’s finance laundry man and the financial go-between between Venezuela and the Kremlin and Iran. And he was arrested in Caba Verde, a small island off of Africa.

We were concerned that there may be a rescue attempt mounted, and we wanted to put — and the Caba Verdeans are good people, but they lack capability to defend against a — especially if there was a great power intervention to either kill or rescue Saab.

We needed a naval ship to get on post off the island to send a message of deterrence. Secretary Esper resisted that effort. And we ended up having to get a Coast Guard cutter, some poor guys who had just gotten back in off deployment, to cross the Atlantic to get there in time.

And Gina Haspel and Chris Wray and I and others had to do a few things to deter a  rescue operation there because we didn’t have help from the DOD.

The efforts to thwart any rescue attempts — presumably including the “few things” that O’Brien and CIA Director Gina Haspel and FBI Director Christopher Wray had to do to deter a rescue mission — were publicly reported in December 2020, as background to Esper’s firing.

The mission was set in motion in early June, when Alex Saab, a Colombian businessman who is widely believed to be the architect of the economic deals that are keeping the Maduro government afloat, was arrested in Cape Verde when his private plane stopped to refuel en route to Iran from Venezuela. The United States sought his extradition under American money laundering charges, and judicial proceedings began.

“Saab is critically important to Maduro because he has been the Maduro family’s frontman for years,” said Moises Rendon, a Venezuela specialist at the Center for Strategic and International Studies in Washington. “Saab has access to privileged information to Maduro’s corruption schemes in and outside Venezuela.”

The subsequent stealthy arrival of the American warship coincided with President Trump’s firing of Defense Secretary Mark T. Esper in early November. For months, Mr. Esper had fended off pleas from the State and Justice Departments to deploy a Navy vessel to Cape Verde to deter Venezuela and Iran from plotting to spirit Mr. Saab away from the island. Mr. Esper scoffed at concerns over a cloak-and-dagger jailbreak, and said sending in the Navy was a misuse of American military might. A Coast Guard cutter was dispatched in August instead.

With Mr. Esper out of the way, however, his replacement, Acting Defense Secretary Christopher C. Miller, a former White House counterterrorism aide, quickly approved the San Jacinto’s deployment from Norfolk, Va. The ship sailed across the Atlantic to keep a close eye on the lone captive.

But not the claim that he was, “Vladimir Putin’s finance laundry man.” Saab’s alleged tie to Putin gets more interesting when you consider allegations that Oleg Deripaska was laundering funds through Venezuela. I’ve asked both SDFL and Saab’s attorneys at Baker Hostettler for comment on the allegation, but have not yet gotten a response.

The longer Alex Saab sits in one or another jail cell, the more interesting he becomes, it seems.

As you may have heard, Super Bowl LVII is today and is here in Phoenix. The last time the SB was here, which was Super Bowl XLIX I went to a lot of the SB week festivities and live reported on it for all you fine friends. No opportunity to do that this time out. But game day is here now, so let’s get down to it.

Today’s game features the Kansas City Chiefs and the Philadelphia Eagles, and should be an excellent game. Both teams come in with the same record and same amount of relative dominance in their respective conferences. They appear on paper to be quite evenly matched.

The weather here, all week, has been beyond gorgeous, and looks to continue today with temps in the mid 70’s and maybe light clouds moving in very late afternoon. Perfect. Not that it matters because State Farm Stadium has a roof that can be closed if necessary.

As to the game itself, my eye says the Eagles are a better team overall, but the Chefs have Patrick Mahomes. Mahomes is an absolute wizard. So, it is a pick em, who you got?

Today’s music is by Floyd.

Also the evil balloons we keep downing out of the sky, discuss the balloons! Frankly, I think this is some way overblown and overhyped stuff but the news is all over it.

I’d like to situate the details about an empty folder marked, “Classified Evening Briefing,” from this Guardian story into what we know about the searches of Mar-a-Lago. It describes that the folder was first observed, in Trump’s residence, and recorded in a report shared with DOJ by the investigators who did the search of Trump’s properties. But Trump didn’t return the folder because it, itself, was not classified information.

The folder was seen in Trump’s residence by a team of investigators he hired to search his properties last year for any remaining documents marked as classified. The team transparently included the observation in an inventory of Mar-a-Lago and Trump properties in Florida, New Jersey and New York.

[snip]

The folder is understood to have not been initially returned because the lawyers thought “Classified Evening Briefing” did not make it classified, nor is it a formal classification marking.

“Weeks after” DOJ got the report on Trump’s properties in December, DOJ subpoenaed the folder in January.

Donald Trump’s lawyers turned over an empty manilla folder marked “Classified Evening Briefing” after the US justice department issued a subpoena for its surrender once prosecutors became aware that it was located inside the residential area of the former president’s Mar-a-Lago resort, two sources familiar with the matter said.

The previously unreported subpoena was issued last month, the sources said, as the recently appointed special counsel escalates the inquiry into Trump’s possible unauthorized retention of national security materials and obstruction of justice.

[snip]

Weeks after the report was sent to the justice department, the sources said, federal prosecutors subpoenaed the folder.

Here’s the story Trump told to DOJ about the empty classified folder:

The backstory the justice department was told about the folder was that Trump would sometimes ask to keep the envelopes, featuring only the “Classified Evening Briefings” in red lettering, as keepsakes after briefings were delivered, one of the sources said.

It’s just some kink that Trump has, his lawyers want DOJ to believe, that he wants to have “Classified Evening Briefing” folders strewn around his personal residence.

It’s not entirely ridiculous. After all, just two days after the search of Mar-a-Lago, reporters found a folder just like that one at a shrine to the Donald in Trump’s Wine and Whiskey Bar in Manhattan.

There are several problems with this story, though.

Let’s review some chronology of Trump’s stolen document scandal. In May, Trump’s lawyer Evan Corcoran accepted a subpoena for all documents with classified markings at any Trump property. Trump stalled for almost a month, but then the day before Trump was set to leave for Bedminster, Corcoran told the FBI to come to Mar-a-Lago the next day to retrieve documents. On June 3, Jay Bratt showed up with some FBI agents, and Corcoran handed over a folder of documents — certified by Christina Bobb, not himself — and also showed the people from DOJ the storage room where many, but not all, of Trump’s presidential records were stored. Trump’s story does not match DOJ’s story about whether Trump interacted with Jay Bratt when the senior DOJ official was at Mar-a-Lago.

On June 24, DOJ subpoenaed surveillance footage that, subsequent reporting has made clear, showed Walt Nauta moving boxes out of the storage facility, thereby preventing Corcoran from finding the documents inside in the search he did in advance of June 3. Prior to obtaining the video, Nauta had testified that he didn’t move any documents; afterwards, he testified he had moved boxes to Trump’s residence.

Then, on August 5, DOJ obtained a warrant to search Mar-a-Lago. The affidavit for the search specifically mentioned Trump’s residence, “Pine Hall.” And the search warrant authorized the search of “the ’45 Office,’ all storage rooms, and all other rooms or areas within the premises used or available to be used by FPOTUS and his staff and in which boxes or documents could be stored,” which particularly given DOJ’s knowledge that Trump already had hidden stolen documents in his residence, surely would include the residence. In the weeks after the search, Trump claimed publicly that the FBI had searched Melania’s closet, implying that the FBI did search the residence. But the only way Trump would know what the FBI searched or not would be if those rooms were covered by his own surveillance camera.

Let’s assume, however, that the FBI did at least go through the residence closely enough to ensure no documents remained there after Nauta had stashed them there while Corcoran conducted a search.

The FBI seized no documents from the residence on August 8. Documents were seized from just the storage room (those marked with an “A-” preface on the search warrant return) and Trump’s office (those without).

One thing supports Trump’s claim that he took this — and all the other — empty classified folders, as well as 42 empty aide folders, as trophies. There were 43 empty classified folders and 28 empty aide folders in his leatherbound box, which also had the most sensitive documents. Particularly given the appearance of those documents in the photo the FBI released, it is not inconceivable that Trump stole them as trophies of some events he think reflect well on his presidency, just like he stole the Kim Jong Un letters.

Plus, by appearances, Trump stored those super secret documents right next to his Time Magazine covers. All of which supports his claim that he stole these items as trophies of his time as President.

But that’s not the only place the FBI found empty folders in their August 8 search. They also found them in five other boxes, all stored in the storage room.

With one exception — box A-33 — all the boxes with empty folders also had classified records, though mostly just one or two classified documents.

In other words, even indulging Trump’s excuse — that he stole these empty classified folders as keepsakes — that only explains one of the motives and means by which he stole them. It only explains the folders stored with his other trophies, in the leatherbound box. It doesn’t account for the fact that Trump also stole files that weren’t keepsakes per se, but were boxes of other records, among which some classified records remained. It doesn’t account for the fact that hoarding large amounts of documents, as Trump did, along with sloppy treatment of classified documents while in the White House, will result in the theft of classified documents. Along with some empty classified folders.

More importantly, the discovery of an empty classified briefing folder in his residence, which was not found during the no-notice search on August 8, but was found during the search for which Trump would have had advance notice, could not readily be explained by the kink trophy explanation.

Which is why this currently operative story — and the fact that Trump’s lawyers have decided to share it publicly now — should focus on the other investigative steps that took place in the same time.

Back in October, before Attorney General Garland appointed Jack Smith, Trump was reportedly still considering letting the FBI do a further search of his property, like Joe Biden and Mike Pence have since done. But then, probably after the appointment of Smith and the 11th Circuit ruling overturning the Special Master, Trump decided to have a private firm do the search instead. After the search of (some of) Trump’s properties — this probably happened at the end of November and beginning of December — the contractors provided an inventory to DOJ, which is how DOJ learned of the empty folder. Because Trump’s lawyers refused to certify the searches themselves, DOJ immediately tried to hold Trump in contempt for violating the May 11 subpoena. That request — to hold Trump’s lawyers in contempt — happened at the same time (around December 6) as a bunch of inconsistent stories serially revealed the search of four of Trump’s properties and, the stories claimed, the discovery of just two more classified documents.

We now know those stories were false, classic Trump limited hangout. Yesterday’s stories reveal that when Trump’s lawyers told journalists the search firm had only found two documents marked as classified in December, they were hiding the Trump calendars and the classified folder. They were lying to hide the stuff just revealed yesterday.

Beryl Howell did not make a final decision on contempt, though the same Trump lawyers also falsely told journalists she had made a final decision.

Then, after some back in forth, early in January, DOJ got Beryl Howell to require Trump to turn over the names of the people who did the search. That’s the first we learned that, contrary to the headlines you’d read based on the December 2022 stories, Howell had not made a final decision on contempt.

That’s all background to the mad set of stories yesterday, announced even as Pence admitted FBI found one more classified document at his house. It should tell you something that the leaks yesterday resemble the ones from December 7, when Trump’s lawyers told two lies: That Howell had already decided not to hold them in contempt, and that the search firm had found only two more classified documents. Based on past experience, we should assume yesterday’s stories, like the ones in December, had as their primary goal to tell a false story.

What we know, though, is that after attempting to hold Trump’s lawyers in contempt in early December, DOJ took steps that would be necessary preparation for interviewing the people who did the search. First, forcing Trump to share the names. Then, interviewing two of three lawyers involved in Trump’s obstruction last June, Evan Corcoran and Christina Bobb. And then, obtaining the things found in the search that weren’t immediately turned over as positive search results, which would be necessary preparation to interviewing those who did the search.

Trump told DOJ in December that this empty folder, which the FBI didn’t find when they showed up to MAL unannounced on August 8, 2022, had found its way to Trump’s residence in time for the contracted search, because he has an empty folder fetish.

He certainly does appear to have an empty folder fetish.

But that cannot explain why the folder — full or empty — was not found in August but was found in December.

I’ve updated my resource page on Trump’s stolen documents here.

Timeline

May 11, 2022: Subpoena for all documents bearing classification marks

June 3: Corcoran hands over folder with 38 classified records

June 24: DOJ serves a subpoena for surveillance footage

July 6: Trump provides surveillance footage

October 19: Trump still considering letting FBI search his properties for further classified documents

November 18: Merrick Garland appoints Jack Smith Special Counsel

December 7: A series of inconsistent stories reveal, serially, the search of four properties and the discovery of just two more classified documents

Late 2022: DOJ reaches out to Alina Habba, who last summer claimed to have done a thorough search of Trump’s properties

December: Trump returns box of presidential schedules, which includes classified information

January 4, 2023: Beryl Howell orders Trump to turn over names of investigators to DOJ

Early January: Trump turns over aide’s laptop and DOJ subpoenas both empty folder and

Early January: Evan Corcoran and Christina Bobb appear before the grand jury

February 2: Tom Fitton appears before grand jury

February: Robert O’Brien subpoenaed for both stolen documents and attempted stolen election investigations

Sarah Huckabee Sanders, Trump’s Press Secretary, delivered the Republican response to President Biden’s State of the Union address last Tuesday. It was vintage Sanders, packed with lies.

I see three themes in the speech: self-promotion, bashing Joe Biden and the Democrats, and amplifying the obsessions of the Qrazy base. There were also subliminal themes visible primarily to true believers.

Self-promotion

Sanders reminds us she is a “mom” of three, the youngest governor in the nation, and has big plans for conservative education in Arkansas. She gives off strong Trump vibes. Just before the end of the speech she tells us she accompanied Trump on a surprise trip to Iraq.

One of the young soldiers yelled from the back, ‘Mr. President, I reenlisted in the military because of you.’ The President said, ‘and son, I am here because of you.’
 
“Shortly after, that young soldier came up to me and said, ‘Sarah, you have a tough job.’ I told him ‘What I do is nothing. You take bombs and bullets. That’s a tough job.’
 
“And in a moment that I know I’ll cherish for the rest of my life, that soldier reached up, and pulled the Brave Rifles Patch he wore on his shoulder and placed it into my hand, a sign of ultimate respect, and said, ‘Sarah, we are in this together.’

“Overwhelmed with emotion and speechless, I just hugged him, with tears in my eyes and a grateful heart for our heroes who keep us free. 

It’s not quite Trumpian. That would require the soldier to have tears in his eyes. Also, gag.

Bashing Joe Biden

Sanders gives us an apocalyptic view of the current state of the union. She asserts that Biden and the Democrats are destroying the country with their terrible high inflation brought on by terrible spending, terrible border crisis, terrible tax burdens, terrible crime rate, terrible weakness on China, and other terrible stuff. She delivers this nonsense just as seriously as she all her other lies.

Right-Wing Obsessions

Let’s look at two excerpts from the speech.

In the radical left’s America, Washington taxes you and lights your hard-earned money on fire, but you get crushed with high gas prices, empty grocery shelves, and our children are taught to hate one another on account of their race, but not to love one another or our great country.

The part about lighting your money on fire is hilariously deluded considering how much of that money is spent in Red States. The idea that the President controls gasoline prices is delusional, and ignores the steps taken Biden to lower them and the record profits of the oil business and the refusal of Senate Republicans to deal with inflation. Sorry, I know it’s pointless to discuss reality in this context and it won’t happen again.

Sanders is determined to do something about Critical Race Theory and indoctrination which must be rampant in Arkansas schools, presumably as a result of the failure of her Republican predecessor as governor. Apparently she thinks the dominant leftist culture in Arkansas is using Critical Race Theory to indoctrinate kids into hating one another on account of race and despising our country, and she’s not going to go along with that.

Now consider this passage:

And while you reap the consequences of their failures, the Biden administration seems more interested in woke fantasies than the hard reality Americans face every day. Most Americans simply want to live their lives in freedom and peace, but we are under attack in a left-wing culture war we didn’t start and never wanted to fight.
 
“Every day, we are told that we must partake in their rituals, salute their flags, and worship their false idols, all while big government colludes with Big Tech to strip away the most American thing there is—your Freedom of speech.
 
“That’s not normal. It’s crazy, and it’s wrong.

Let that paranoid fantasy sink in. Remember, she’s normal, you’re crazy.

Dog Whistles

I’m not fluent in Qrazy tropes so I’m certain I don’t get all of the subliminal messages she’s delivering. But here are a couple of things.

Evangelism. Her religious fervor is strong. She survived thyroid cancer, and she and her family “kept our faith and persevered”. Her mother had spinal cancer at the age of 20 and was told she might not survive but certainly wouldn’t have children. And yet here’s Sarah [implying it’s a miracle]. She adds that “faith propels us to charge boldly ahead”. Throughout the speech you can hear the echoes of St. Paul, Eph. 6:10-12:

10 Finally, be strong in the Lord and in his mighty power. 11 Put on the full armor of God, so that you can take your stand against the devil’s schemes. 12 For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms.

Racism is over.

Down the street from where I sit is my alma mater, Little Rock Central High. As a student there, I will never forget watching my dad, Governor Mike Huckabee, and President Bill Clinton hold the doors open to the Little Rock Nine, doors that forty years earlier had been closed to them because they were black. Today, those children once barred from the schoolhouse are now heroes memorialized in bronze at our statehouse.

So that’s all we need to do, except we can’t teach CRT because it says that racism is not over.

Recall that bit about “lighting your tax money on fire”. That’s a dog whistle meaning the money is being spent on those undeserving [not-white] people, not the deserving {white people]. It’s a racist trope dating back at least to Reconstruction.

Democrats are the real fascists. She repeats the idea that Democrats want to control “you”, the decent people. There are no examples of this, except the part about forcing “you” to worship the false idols of the Democrats which is not a real thing.

Trump is too old to run. Throughout the speech, Sanders reminds us that she’s really young, and that there are lots of other young, vigorous leaders in the conservative movement. Biden is old. So is Trump. Time for them to be replaced.

Press coverage. It’s pretty much “This is normal”. Greg Sargent points out that she’s speaking in a code not known by normal Americans, but I haven’t seen anything else. I guess it is normal for the crazy party and the rest of us should just get used to it.
=====
Updated to correct errors about source of lies on the size of Trump’s inauguration crowd. It was Sean Spicer, not Sanders. H/T commenter Matt___B. And Sanders was not the first of Trump’s Press Secretaries.

As noted, yesterday Trump took the opportunity created by news of an additional document with classification marks at Mike Pence’s house to make a series of disclosures. Lawyers found another empty classified document folder, marked Classified Evening Briefing, as well as a laptop and a thumb drive with a classified document on it. The latter, described here by CNN, has generated a really inflammatory response.

Former President Donald Trump’s legal team turned over more materials with classified markings and a laptop belonging to an aide to federal prosecutors in recent months, multiple sources familiar with the investigation told CNN.

The Trump attorneys also handed over an empty folder marked “Classified Evening Briefing,” sources said.

The previously undisclosed handovers – from December and January – suggest the protracted effort by the Justice Department to repossess records from Trump’s presidency may not be done.

The Trump attorneys discovered pages with classified markings in December, while searching through boxes at the former president’s Mar-a-Lago residence. The lawyers subsequently handed the materials over to the Justice Department.

A Trump aide had previously copied those same pages onto a thumb drive and laptop, not realizing they were classified, sources said. The laptop, which belonged to an aide, who works for Save America PAC, and the thumb drive were also given to investigators in January.

Pete Strzok, popularizing my nifty (and now outdated) table, raised a lot of predictable questions about the thumb drive and laptop.

He’s not wrong that these are the kinds of questions FBI will now be asking. All the more so given the ABC report that the laptop, at least, was not found at Mar-a-Lago.

ABC News has also learned that after the information was recovered, federal agents retrieved the laptop from the aide. The laptop was not retrieved on the Mar-a-Lago grounds, the sources said.

But the answers may be somewhat simpler, particularly if — as I suspect — Trump’s lawyers went and found this laptop as a response to one of the other most-pressing questions about Trump’s stolen documents.

After all, there must be some reason why Trump’s lawyers went to look for this document, after having investigators search Mar-a-Lago already. There must be a specific reason they were looking for these documents, given that investigators had done a seemingly thorough search of everything.

And Trump’s lawyers have no doubt been scrambling to answer one of the most important questions revealed in the Special Master review: who had compiled a document — after Trump left the White House — with a Secret and a Confidential document. That document was described in one of the last Special Master filings. It’s a document that includes messages from a book author, a religious leader, and a pollster, probably something from a lawyer, and what were upon seizure a Secret and a Confidential document.

One potentially privileged document that had been scanned was removed from the database (SM_MAL_00001185 to SM_MAL_00001195). That document – excluding the one potentially privileged page (SM_MAL_00001190) – is discussed in the next section about the Filter Materials Log. The potentially privileged page is the subject of a separate letter from the Filter Team to Your Honor, which is sent today.

[snip]

This document is a compilation that includes three documents that post-date Plaintiff’s term in office and two classified cover sheets, one SECRET and the other CONFIDENTIAL. Because Plaintiff can only have received the documents bearing classification markings in his capacity as President, the entire mixed document is a Presidential record.

Besides the classified cover sheets, which were inserted by the FBI in lieu of the actual documents, none of the remaining communications in the document are confidential presidential communications that might be subject to a claim of executive privilege. Three communications are from a book author, a religious leader, and a pollster. The first two cannot be characterized as presidential advisers and all three are either dated or by content occurred after Plaintiff’s administration ended. [my emphasis]

It was, as I’ve been describing, a mini-smoking gun: Two classified documents “compiled” with a bunch of documents that post-date Trump’s Administration, seeming proof that someone accessed classified documents after they were removed from the White House.

The mini-smoking gun is a political document: it includes a message from a pollster. But what FBI meant by a “compilation” was never clear: Was it just two classified documents paper clipped onto messages from a pollster, a religious leader, and a book author? Was this digitally compiled, in which case it might appear to be one 11-page document with passages that were classified?

What would have happened after DOJ and Trump’s lawyers agreed that the messages post-dated Trump’s presidency is that Trump’s lawyers would have scrambled to come up with a non-criminal explanation for the document.

And one possible story to explain it is the one Trump is now offering: an entire box of documents were scanned, and an aide  — CNN appears to know who she is — took copies, not knowing they were classified. And then the aide used the classified documents in her job at Trump’s PAC.

Both the removal of the document, including some classified documents, and this aide’s integration of the documents into some kind of political document, could both be unwitting, and therefore not a crime. Particularly if she were represented by lawyers paid for by Trump, as is his habit.

Given that FBI only found one document like this, the story is not implausible.

And it would answer the really pressing question of the “compiled” classified document (which Trump lawyers have undoubtedly treated as a very pressing question, given that this is a mini-smoking gun). And it would answer the question of why they were searching an aide’s laptop and thumb drive.

Only, if that’s Trump’s final answer — and it may well be! — then it will raise other questions. Such as why Trump had Presidential Records Act documents that he would go on to use for his PAC in the first place.

Particularly at a time when his fundraising is under scrutiny for the other criminal investigation of Donald Trump, the answer to that question might get awkward quickly.

Update: Here is the Guardian’s explanation for the aide and the laptop (none of which makes sense):

[A]t Mar-a-Lago in December, the contractors found a box that mainly contained presidential schedules, in which they found a couple of classified-marked documents to also be present and alerted the legal team to return the materials to the justice department, the sources said.

The exact nature of the classified-marked documents remains unclear, but a person with knowledge of the search likened their sensitivity to schedules for presidential movements – for instance, presidential travel to Afghanistan – that are considered sensitive until they have taken place.

After the Trump legal team turned over the box of schedules, the sources said, they learned that a junior Trump aide – employed by Trump’s Save America political action committee who acted as an assistant in Trump’s political “45 Office” – last year scanned and uploaded the contents of the box to a laptop.

The junior Trump aide, according to what one of the sources said, was apparently instructed to upload the documents by top Trump aide Molly Michael to create a repository of what Trump was doing while in office and was apparently careless in scanning them on to her work laptop.

When the Trump legal team told the justice department about the uploads, federal prosecutors demanded the laptop and its password, warning that they would otherwise move to obtain a grand jury subpoena summoning the junior aide to Washington to grant them access to the computer.

To avoid a subpoena, the Trump legal team agreed to turn over the laptop in its entirety last month, though they did not allow federal prosecutors to collect it from Mar-a-Lago.

 

In Part One of this series, I noted that Jeff Gerth couldn’t make it through his first sentence without making an error (two errors, if you’re a hard grader). In Part Three, I noted that the fact set Gerth draws on is not the Mueller investigation itself or even the underlying Russian hack-and-leak campaign, but the investigations into that investigation.

That’s how Gerth came to rely on a Russian intelligence report of uncertain reliability to make claims about Hillary Clinton’s motives without actually disclosing he was doing it.

Gerth’s reliance on people like Lindsey Graham and Sidney Powell and John Durham and a host of angry men who post highlighted screen caps on Twitter is a problem, because they’re not reliable. They’re the obvious source of many of his outright errors.

Gerth falsely claimed the DOJ IG Report vindicated Devin Nunes’ memo – but he didn’t check that (I did). He applauded retractions based off John Durham claims that couldn’t withstand the scrutiny of a jury. At least twice, he falsely claimed that investigations – the SSCI investigation’s findings about Konstantin Kilimnik, Mueller’s investigations about Prigozhin’s ties to the Russian government – showed no evidence rather than that much of it remains classified.

These are just a few of a host of smaller errors that would have been caught in any robust fact check.

Gerth invents exculpatory evidence Bill Barr says doesn’t exist

Some of his bigger errors, though, are especially revealing.

Of particular interest, given how Gerth ignores much of NYT and (especially) WaPo reporting about Mike Flynn, he misrepresents what happened with Trump’s former National Security Adviser. In Part Four of his piece, Gerth accurately describes DOJ’s claimed reason for reversing the prosecution of Flynn.

In May 2020, the Justice Department dropped the case against Flynn for lying to the FBI after a review by Jensen, the US Attorney in St. Louis. The department cited the FBI’s “frail and shifting justifications for its ongoing probe of Mr. Flynn” and said that the FBI interview of Flynn was “conducted without any legitimate investigative basis.”

In making fact claims about the Flynn investigation, Gerth doesn’t describe how obviously false this claim was. He doesn’t meet his own standard of referring to competing sides of an issue – particularly egregious given how radically DOJ’s own position changed between January and May. 

But at least he accurately reported what DOJ claimed.

In Part Three, however, Gerth falsely claims that DOJ found “exculpatory” evidence, which Gerth surely knows has a legal meaning.

Flynn later tried to withdraw his plea after a Justice Department review found exculpatory evidence, including the fact that the lead agent on his case wanted to shut it down in early January but was overruled by higher-ups. The Justice Department then moved to have the charges dismissed, but a federal judge wanted to know more, so Flynn was pardoned by Trump.

[snip]

Other FBI documents, released in 2020, reflect the same assessment: the inquiry into possible ties between the campaign and Russia, according to one of the agents involved in the case, “seemed to be winding down” then. [my emphasis]

DOJ found no exculpatory evidence; if they had, it would have amounted to a Brady violation. Long before DOJ reversed course on the Flynn prosecution, it had argued that Flynn was not entitled to much of the evidence Bill Barr subsequently made available. In any case, Judge Emmet Sullivan, the judge who, since presiding over the Ted Stevens case, has adopted a particularly expansive view of Brady material, wrote a meticulous, 92-page opinion, ruling that none of that was Brady material. Jocelyn Ballantine, the AUSA stuck trying to reverse course on claims she had previously made to the court, described that DOJ’s reversal on Flynn was discretionary.

While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. 

Barr repeated that assessment in testimony to the House Judiciary Committee – there was no Brady violation. 

Mr. Collins: (01:17:42)

Well, there’s another part of this as well that concerns what has been given to the courts and in the interviews, and that is that the facts were not disclosed to Flynn prior to the interview. That seems like a Brady violation, to me. Do you believe that there’s a Brady violation there in this case? [crosstalk 01:17:56]

Wiliam Barr: (01:17:56)

No, there wasn’t a Brady violation there, but I think what the council concluded was that the only purpose of the interview, the only purpose was to try to catch him in saying something that they could then say was a lie.

The only one who said there was exculpatory information was Sidney Powell, the same person who would go on to claim that “no reasonable person” would believe her election fraud claims were statements of fact. That’s the standard CJR adopted in this series, the Sidney Powell standard.

And when Sullivan issued a final ruling in the case – stating that Flynn’s pardon did not render him innocent – Sullivan noted that “the government had been aware of much of this evidence since early on in the case,” meaning it would be covered by his earlier Brady opinion (indeed, almost all of the “new” documents were specifically addressed in his earlier Brady opinion).

Along with his false claim about exculpatory information, Gerth’s relies on an unusual interview of case agent Bill Barnett (the bolded language above; Gerth neither names nor links the interview), which is particularly problematic. That’s true, first of all, because in the interview, Barnett suggests (improbably) he did not understand the counterintelligence side of the investigation (a point Jim Comey made in congressional testimony). His claims about the evidence conflict with known details. Even so, his interview shows that he believed that Flynn lied in his interview with the FBI, contradicting a key false claim made by “Russiagate” purveyors talking about Flynn’s case. Worse, from a legal perspective, when DOJ submitted his memo to the docket, they redacted AUSA Brandon Van Grack’s name in the interview report, which had the effect of hiding from Judge Sullivan material information – that Barnett had no complaints with Van Grack’s performance and that Van Grack made sure Barnett’s favorable views about Trump and KT McFarland were aired in prosecutorial decisions. That is, the memo actually proves that DOJ was trying to hide that there was no exculpatory information, not that there was any.

To sustain his false claims about Flynn, then, Gerth does the same thing he did with his purported review of NYT and WaPo reporting: rely on a “Russiagate” narrative, rather than the actual facts.

Gerth plays “gotcha” with thin evidence before the evidence is collected

Gerth’s errors about the investigation get far weirder in a series of instances where Gerth scolds the press for not covering statements – either released after some delay or spoken retrospectively – to claim there was no substance to the investigation.

WaPo only included James Clapper’s statement that, by the end of his tenure, the intelligence community had found no evidence of “collusion” at the end of a story otherwise focused on his denial that Trump himself had been targeted under FISA, Gerth complains, “while the Times ignored it” in their story. But, as Clapper noted himself in the interview in question, that reflected the investigation as it existed on January 20, 2017, over forty days earlier. “This could have unfolded or become available in the time since I left the government.” Clapper was right: In the interim period, Flynn had lied to the FBI about his calls with Sergey Kislyak during the transition (which, again, was covered in stories that Gerth omitted from his review of NYT and WaPo reporting) and Papadopoulos had confirmed he got advance notice of the Russian interference, while lying about the timing of it. This is a favorite “Russiagate” move, but it’s just stupid, demanding anyone measure the facts of an investigation by what it used to look like several months in the past.

Gerth also complains that the NYT “omitted” any mention of a text Pete Strzok sent Lisa Page on May 19, 2017 after it was publicly released on January 23, 2018. In the text, Strzok explains that he might not join the Mueller team because “my gut sense and concern there’s no there there.” Gerth suggests reporting it, eight months after the fact, “might have helped readers better understand why Mueller failed to bring any criminal charges involving collusion [sic] or conspiracy with Russia.”

Yet the disclosure in no way substantiates what Gerth fancies it does – because (as other documents he relies on show, as well as a great deal of public documentation about the investigation he does not mention) – with the very notable exception of the FISA warrants targeting Carter Page, the investigation had barely begun to obtain warrants to collect evidence yet in May 2017. Indeed, Strzok’s is one of several comments that Gerth seizes on that reveal the former FBI agent didn’t have it in for Trump and instead repeatedly took steps to protect Trump and Flynn’s interests. But Gerth never complains that the press didn’t cover that aspect of the leaked texts and declassified investigative records. As noted, Gerth opines that, “One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.” The implications of the investigative steps Strzok actually took in the Russian investigation are clearly an example, but not one Gerth has any interest in.

A particularly bizarre example of this is when Gerth relies on a comment that Rod Rosenstein made, in 2020, about the state of the investigation when he approved a memo scoping the investigation on August 2, 2017. “By August, the collusion [sic] investigation had not panned out, according to 2020 testimony by Rod Rosenstein, the deputy attorney general who oversaw Mueller,” Gerth claims.

He appears to base that claim on this exchange with Lindsey Graham on June 3, 2020:

Lindsey Graham: (34:20) I’m not arguing with you about assigning it to Mueller. I’m saying, was there a legitimate reason to believe that any of the people named in this letter were actively working with the Russians in August, 2017?

Rod Rosenstein: (34:34) In August, 2017?

Lindsey Graham: (34:36) That’s when you signed the memo.

Rod Rosenstein: (34:38) My understanding, Senator, was that there was reasonable suspicion.

Lindsey Graham: (34:42) What is it? What was it?

Rod Rosenstein: (34:44) Now, again, Senator, the investigation has concluded and these people were not conspiring with the Russians, the information available at the time included-

Lindsey Graham: (34:55) Well, why do we have the Mueller investigation at all, if we had concluded they working with the Russians?

Rod Rosenstein: (35:00) I don’t believe we had concluded it at that time.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement. [my emphasis]

Gerth’s apparent citation of this exchange is telling. The hearing itself was part of a concerted effort by a Trump ally — relying on people like Bill Barnett — to muddle the actual results of the Mueller investigation. Gerth makes much of Mueller’s “painful” delivery during the Special Counsel’s May 2019 congressional testimony, but in this Senate hearing, Rosenstein – who was struggling to answer why he authorized the most problematic FISA application targeting Carter Page – proved easily bullied. Sure, he did “agree with [Lindsey Graham’s] general statement” that “there was no there there in August, 2017” when Rosenstein had written a new scope statement for the investigation. But Rosenstein said that just 61 seconds after he noted that he understood Mueller to have “reasonable suspicion” that Trump’s associates were working with Russia.

And as Gerth and Graham are both supposed to understand, the [Acting] Attorney General supervising a Special Counsel investigation is not involved in the day-to-day steps of it. Rosenstein’s answers make it clear he either didn’t remember, didn’t know, or didn’t want to talk about those details.

In fact, the public record shows, Mueller had more than reasonable suspicion that Trump’s aides had inappropriate contacts with Russians or others involved in the interference operation. 

Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On September 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.

The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving Manafort, Gates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).

Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.

Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later. 

On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”

Gerth’s reliance on Rosenstein, at best, ignores the context of the former Deputy Attorney General’s quivering in the face of his own exposure in the errors in the Carter Page applications. It ignores Rosenstein’s statement, 61 seconds earlier, about reasonable suspicion. More importantly, it relies on a witness who wouldn’t know what investigators had discovered and by when, all the while remaining blissfully ignorant of (or, worse, suppressing) publicly available details that reveal the actual state of the investigation in August 2017.

Based on such a shoddy reporting approach, Gerth calls all these investigative discoveries – details about plans for a meeting with Putin’s office in September 2016, foldered emails about carving up Ukraine, coordination with Mar-a-Lago on Flynn’s calls about sanctions with Sergey Kislyak, $400K in suspicious payments from a Russian oligarch, and proof that Stone was lying about contact with WikiLeaks – “no there, there.” 

Gerth insists that journalists should disclose the known details about the investigation – such as that Strzok didn’t think there would be anything before Mueller started obtaining warrants to check — but rather than holding himself to that standard, he instead makes provably false statements about what investigators knew, and could have known, when. 

When asked about both the Flynn and the Rosenstein claims, twice, CJR did not respond. “[T]he vast majority of items” I raised “are editorial notes from you, as in ways you would have written the piece differently,” Pope said in response to my list of questions, “rather than issues of fact that need to be addressed by CJR.”

Sweeping misstatements about trolls

Gerth’s legal misrepresentations are perhaps most telling in his discussion of the case against Russian oligarch Yevgeniy Prigozhin, twelve human trolls who worked for Internet Research Agency, the IRA itself, and two shell companies Prigozhin allegedly used to fund the IRA. 

This is going to get weedy, but it’s important because it’s an instance where Gerth simply adopts the false claims of another “Russiagate” propagandist as his own.

Gerth makes two claims: That the judge handling the case “rebuked” “the Mueller [R]eport” for claiming the “IRA” was part of a “sweeping” Russian government effort when (Gerth claimed) prosecutors weren’t prepared to prove that tie. And, he claims, “one criminal case” was dropped by DOJ.

The Mueller report’s implication that the IRA was part of a “sweeping” Russian government meddling campaign in 2016 was later rebuked by a federal Judge handling an IRA-related case. The indictment of the IRA, the judge found, alleged “only private conduct by private actors” and “does not link the [IRA] to the Russian government.” The prosecutors made clear they were not prepared to show that the IRA efforts were a government operation. Mueller’s report does refer to “ties” between Putin and the owner of the IRA—he is sometimes referred to as “Putin’s Cook”—and the fact that “the two have appeared together in public photographs.” Mueller’s source for that was an article in the Times.

[snip]

(One criminal case involving Russian trolling that was prosecuted was dropped by the Justice Department in March 2020. The Times, in its story about the decision, only quoted the prosecutor, while the Wall Street Journal and Washington Post also included quotes from the Russian company’s American lawyer.)

Before I lay out the many errors here, let me address Gerth’s complaint that the NYT quoted only prosecutors in their stories about DOJ’s decision to drop charges against Concord, whereas the WSJ and WaPo “include[] quotes from the Russian company’s American lawyer.” He doesn’t mention that NYT quoted a Twitter account boasting of leaking Mueller’s materials, one proximate reason DOJ dropped the case. But the entire complaint underscores Gerth’s fundamental misrepresentation of this issue: The dispute in question was a dispute about prejudicial pretrial statements, not about what prosecutors planned to prove in court. After Judge Dabney Friedrich issued her rebuke, neither side was supposed to be giving quotes to journalists. 

And because DOJ didn’t dismiss an entire criminal case, DOJ remained gagged under Judge Friedrich’s order. DOJ dismissed only the charges against the defendants in question, which Gerth describes as the “IRA” (Internet Research Agency) five times in one paragraph.

But Gerth got the defendant wrong. Here’s the passage of the judge’s order Gerth claims to be citing.

But the indictment, which alleges that private Russian entities and individuals conducted an “information warfare” campaign designed to sow discord among U.S. voters, Indictment ¶ 10, does not link the defendants to the Russian government. Save for a single allegation that Concord and Concord Catering had several “government contracts” (with no further elaboration), id. ¶ 11, the indictment alleges only private conduct by private actors. [my emphasis]

“The defendants” here were Concord Management and Consulting, the shell companies Prigozhin allegedly used to fund the IRA, the same defendants against which DOJ dropped charges. (Friedrich refers to IRA as Concord’s “co-defendant” when she discusses them.) The difference matters because – as even that passage makes clear – there was no question about the contracts that Concord had with the Russian government.

DOJ dismissed the charges against Concord because it was acting as a true shell company, using its flexibility as a corporate person to show up to contest the charges and obtain sensitive discovery, while dodging parts of the protective order and any possibility it would ever be arrested. I laid out DOJ’s decision to drop the charges, rebutting false claims from both right and left, in this post. Gerth must know that the decision only pertained to two corporate shell defendants. The WSJ story he cites, for example, makes that clear in the headline: “Judge Dismisses Part of Robert Mueller’s Case Against Russian Firm.” The NYT version clarified the dismissal involved just “two Russian shell companies.” 

And as for Friedrich’s rebuke, as I noted, it was about pretrial prejudice, Concord’s ability to get a fair trial, not about what prosecutors planned to prove at trial. Gerth appears to have made up the claim that prosecutors “made clear they were not prepared to show that the IRA [sic] efforts were a government operation.” On the contrary, prosecutor Jonathan Kravis explained in a hearing on Concord’s motion that they had not yet decided whether they would present it at trial.

THE COURT: And is that something that the government plans to introduce at trial in this case?

KRAVIS: I’m not certain of the answer to that question at this point.

Given the charges, they didn’t need to prove that Concord was working with the Russian government. The single conspiracy count against Concord didn’t require proving Prigozhin’s substantial ties to the Russian government. It required showing only that members of the conspiracy deliberately thwarted FEC and DOJ’s ability to enforce campaign finance and FARA laws, both of which only require a tie to a foreign principal, not a foreign government.

Similarly, Gerth falsely insinuates that Mueller didn’t have evidence of such ties by suggesting the only evidence in the report was a reference to a NYT article. As he did with the SSCI case laying out reasons it judged Kilimnik to be a spy, Gerth is here referring to a two page, almost entirely redacted section, and insinuating that a bunch of redacted evidence is the same as no evidence, just a reference to the NYT. A sentence unsealed after this dispute shows that this passage relied, in part, on details of Prigozhin’s ties to the Russian military.

Finally, Gerth misrepresents both the substance of the rebuke and its primary target. Concord’s complaint about prejudicial language (both the alleged tie to Russia and outright claims it was illegal) focused first and foremost on Bill Barr’s language, and only secondarily on the Mueller Report. While Friedrich’s order rebuking the government did cite language in the Mueller Report, she deemed that language a violation in conjunction with Barr’s far more definitive tie between Russia and the corporate defendants, particularly made in Senate testimony. 

Similarly, the Attorney General drew a link between the Russian government and this case during a press conference in which he stated that “[t]he Special Counsel’s report outlines two main efforts by the Russian government to influence the 2016 election.” Press Conference Tr. (emphasis added). The “[f]irst” involved “efforts by the Internet Research Agency, a Russian company with close ties to the Russian government, to sow social discord among American voters through disinformation and social media operations.” Id. The “[s]econd” involved “efforts by Russian military officials associated with the GRU,” a Russian intelligence agency, to hack and leak private documents and emails from the Democratic Party and the Clinton Campaign. Id. The Attorney General further stated the Report’s “bottom line”: “After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the Special Counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.” Id. (emphases added). In context, it is clear that one of these “efforts” or “schemes” attributed to the Russian government was the information warfare campaign alleged in the indictment. Id. Thus, the Attorney General “confirmed” what the indictment does not allege—that Concord’s and its co-defendants’ activities were “sponsored” by the “Russian government” and part of a two-pronged attack on our nation’s democratic institutions. Id. This bottom-line conclusion was highlighted in multiple press articles following the Report’s release.

In fact, Friedrich pointed to Mueller’s closing press conference on May 29 as proof of the care with which DOJ was trying to avoid such prejudice.

In delivering his remarks, the Special Counsel carefully distinguished between the efforts by “Russian intelligence officers who were part of the Russian military” and the efforts detailed “in a separate indictment” by “a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to interfere in the election.” Special Counsel Statement Tr. (emphases added). He also repeatedly referred to the activities described in the Report as “allegations” and made clear that his Office was “not commenting on the guilt or innocence of any specific defendant.” Id. The Special Counsel added that the defendants were “presumed innocent unless and until proven guilty in court.”

As to Gerth’s insinuation that Friedrich was rebuking Mueller for including “IRA” in his observation that, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion,” she did not include the “sweeping” comment quoted by Gerth. While Concord cited the “sweeping” language in its initial motion, it dropped it in its reply. The reference didn’t come up in the hearing on the matter. And Friedrich’s order did not mention the “sweeping and systematic” claim either, which in the report was tied to the hack-and-leak campaign. So not only wasn’t that claim rebuked, but by yoking that claim to IRA, Gerth is doing precisely what Concord complained about, applying language that pertained to other parts of Russia’s operation to Prigozhin’s corporations. Gerth is himself engaged in the kind of sloppy journalism that Concord complained about.

Virtually everything Gerth said in his comments about “IRA” was wrong in one way or another.

The sloppiness of this section is important for another reason.

As far as I’m aware, the claims were first made by Aaron Maté in a piece listing questions he wanted asked in Mueller’s congressional testimony.

Why did you suggest that juvenile clickbait from a Russian troll farm was part of a “sweeping and systematic” Russian government interference effort?

The Mueller report begins by declaring that “[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” A few paragraphs later, Mueller tells us that Russian interference occurred “principally through two operations.” The first of these operations was “a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” carried out by a Russian troll farm known as the Internet Research Agency (IRA).

The inference here is that the IRA was a part of the Russian government’s “sweeping and systematic” interference campaign. Yet Mueller’s team has been forced to admit in court that this was a false insinuation. Earlier this month, a federal judge rebuked Mueller and the Justice Department for suggesting that the troll farm’s social media activities “were undertaken on behalf of, if not at the direction of, the Russian government.” US District Judge Dabney Friedrich noted that Mueller’s February 2018 indictment of the IRA “does not link the [IRA] to the Russian government” and alleges “only private conduct by private actors.” Jonathan Kravis, a senior prosecutor on the Mueller team, acknowledged that this is the case. “[T]he report itself does not state anywhere that the Russian government was behind the Internet Research Agency activity,” Kravis told the court.

Maté made the claim that “sweeping” was included in there, he made the claim (and the substitution in brackets) that this was about the IRA, Maté made up the claim that this was about evidence rather than pretrial prejudice (indeed, his first version of this, since corrected, falsely attributed Concord’s complaint that DOJ had “improperly suggested a link” between “IRA and the Kremlin” to Friedrich). Most of Gerth’s errors first appeared in Maté’s piece, and Gerth doesn’t include Maté’s one quote – Friedrich’s judgment that the Mueller Report had suggested the trolling done by Concord’s co-defendant IRA was “undertaken on behalf of … the Russian government” – where Friedrich most directly condemned the Report.

From Maté’s piece, the claims were magnified through “Russiagate” channels and invoked days later in some erroneous questioning by Tom McClintock in the Mueller appearance that Gerth invoked in word 18 of his 23,000 word series.

MCCLINTOCK: But — but you — you have left the clear impression throughout the country, through your report, that it — it was the Russian government behind the troll farms. And yet, when you’re called upon to provide actual evidence in court, you fail to do so.

MUELLER: Well, I would again dispute your characterization of what occurred in that — in that proceeding.

Gerth, who starts his 23,000-word series citing Mueller’s testimony and scolds journalists repeatedly for not presenting contrary views, doesn’t include Mueller directly disputing the claim – made by McClintock, made by Gerth, and made by Maté – that the government failed to present such evidence. Gerth has been told his claims here are false, in the Mueller testimony he made the opening gambit of his series. And yet, he repeated Maté’s errors anyway.

Maté is one of the many “Russiagate” proponents – along with Matt Taibbi, Glenn Greenwald, Paul Sperry, John Solomon, Barry Maier – of whom Gerth speaks favorably at length (curiously, he doesn’t mention Chuck Ross, who unlike the others did important, substantive reporting on the dossier). I asked Pope whether Gerth had assessed some of the erroneous reports of these “Russiagate” figures, and mentioned this misrepresentation of Friedrich’s order specifically.

Do you believe Aaron Maté’s treatment of the Concord prosecution is accurate (including his misrepresentation of an order Dabney Friedrich issued, which this piece appears to rely on)? [my emphasis]

Pope refused to address the erroneous reporting of “Russiagate” proponents that Gerth was citing approvingly. “[Y]ou ask us to comment on or defend the actions of other people and institutions, including Trump, the FBI, Erik Wemple, the Department of Justice, Glenn Greenwald, and others. Those questions should be addressed to them, not us.”

No. Since CJR adopted Maté’s errors as their own, the question was rightly addressed to Pope. 

Pope’s silence about questions specifically raised about Maté, his refusal to own up to the errors Gerth borrowed from him, are particularly telling: In Duncan Campbell’s recent description of how CJR spiked a story on the Nation magazine’s credulous Russian reporting, Campbell revealed that the last edits Pope made before sending it to an interminable fact check pertained to Maté.

Pope then wanted the 6,000-word and fully edited report cut by 1,000 words, mainly to remove material about the errors in The Nation article. Among sections cut down were passages showing how, from 2014 onwards, vanden Heuvel had hired a series of pro-Russian correspondents after they had praised her husband. Among the new intake was a Russian and Syrian Government supporting broadcaster, Aaron Maté, taken on in 2017 after he had platformed Cohen on his show The Real News.

Maté became the magazine’s prolific ‘Russiagate’ correspondent. Vanden Heuvel was later to tell Maté in a broadcast in October 2020 that “Steve always valued your work… your writing for The Nation was always important to him as it is to me… I think what you do at RealClearInvestigations is factual, is bullet–, and I was reading them to Steve in the last weeks, trying to rile him up.” Maté responded: “I’m forever indebted to you and Steve.”

That is, CJR has covered for Maté in the past, and here they refuse to hold themselves accountable for adopting his errors.

The Columbia Journalism Review blew off one or another clear error – errors that came from people like Sidney Powell! – by claiming the actual facts were mere “editorial notes.”

And along the way, Gerth declared that details about plans for a meeting with Putin’s office in September 2016, foldered emails about carving up Ukraine, coordination with Mar-a-Lago on Flynn’s calls about sanctions with Sergey Kislyak, $400K in suspicious payments from a Russian oligarch, and proof that Stone was lying about contact with WikiLeaks amounted to “no there there.” 

CJR claimed that it “has been examining the American media’s coverage of Trump and Russia in granular detail.” This review has shown how ridiculous that claim is. What it did, in the name of scolding other journalists while misrepresenting their work, was create the “Russiagate” narrative they defined the entire project by. They did so by skipping key events of 2016, ignoring the vast majority of the NYT and WaPo reporting they claimed to review, substituting the dossier for actual media coverage, and passing off a Russian intelligence product with no notice. To prove they found the “Russiagate” narrative they had dishonestly created, they simply parroted  the work of people from their same “Russiagate” bubble, all the while ignoring vast swaths of contradictory evidence in the documentary record. 

CJR invented a Russiagate narrative via omission and factual error. Then they boasted that they had found what their own journalistic failures created.

Update: A stats prof from Columbia caught Gerth making errors — or more likely, adopting others’ errors — in his key statistical claim about declining trust for media.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

Update: Date of Papadopoulos’ claimed inability to read his own notes corrected.