Fox just announced that Tucker Carlson is out, effectively immediately.

I doubt this is Dominion related. It was too sudden. He signed off Friday pitching his show today and Fox was until minutes ago previewing the show.

Plus, Tucker is both less culpable for the specific claims in Dominion than Maria Bartiromo, and far more important for Fox viewership.

Update: As Rayne linked in comments, it is Dominion related, but it seems to be because of the things Fox discovered Tucker had said about management, not about his defamation of Dominion.

But it was Carlson’s comments about Fox management, as revealed in the Dominion case, that played a role in his departure from Fox, a person familiar with the company’s thinking told The Post.

“Do the executives understand how much credibility and trust we’ve lost with our audience?” Carlson wrote to a colleague in a message a day after Fox, like other media outlets, called the election for Joe Biden. In another message, he referred to management with an expletive: “Those f—–s are destroying our credibility.” He later wrote: “A combination of incompetent liberals and top leadership with too much pride to back down is what’s happening.”

Tucker’s Executive Producer is also out, though, so it’s likely more than just that.

One of the few perks I have here at Emptywheel is being able to say what I think. I think you should go buy and read The Shadow Docket by Steve Vladeck.

Mr. Vladeck has been intoning this for a long time. Here he was back in November 2019:

“But insofar as this description is accurate, it is not obvious that it is a positive development. Among other things, such an approach is radically out of kilter with the Court’s approach to the rest of its docket. The Justices have repeatedly emphasized, especially lately, that “[o]urs is ‘a court of final review and not first view,’”20 and for good reason. By waiting for most cases to go through multiple layers of review by lower courts (and, often, multiple cases going through those multiple layers), the Court gives itself the benefit of multiple rounds of briefing and argument — and, usually, lower court rulings — on which to base decisions to grant certiorari and, if necessary, analysis of the merits. To abandon this norm only in cases in which the federal government is the complaining party is to invite serious objections grounded in fairness and equity — and to necessarily tilt the Court’s limited resources toward an undoubtedly important, but importantly narrow, class of disputes. Worse still, such a shift gives at least the appearance that the Court is showing favoritism not only for the federal government as a party, but for a specific political party when it’s in control of the federal government.”

True then, and increasingly so now. In the age of the internet, books are given short shrift. But they are still vital and important. Sales of books, especially early, are vitally important. This is a book that is important, and quite affordable. If you can, please go give Steve a bit of support, he is a pretty decent chap and, hopefully, a friend.

From emptywheel: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

It was a risky move by Proud Boy defendants Zachary Rehl and Dominic Pezzola to take the witness stand. So it is for any criminal defendant. A skilled prosecutor can unwind even the most robust witness without alerting their subject to it until it is too late. 

It took four months of hearing evidence in the Proud Boys seditious conspiracy trial—which enters closing arguments on Monday—but this past week, jurors got it straight from the source when two of five Proud Boys on trial testified for once and all: Zachary Rehl and Dominic Pezzola. 

Their respective testimonies were often combative, the tension frequently high. Each man started out confident and cocksure, but the more Justice Department prosecutors pushed Rehl and Pezzola around the edges of their testimony, the more the men relinquished whatever tight grip they had over themselves when testifying under the far more amenable gaze of their own attorneys. 

Both sides have now rested and on Friday, jury instructions were issued. All that is left are closing arguments. It will be those final words that the jurors will have ringing in their ears when the book finally closes on this trial. But no matter how sweeping or evocative those final arguments may be, some of the trial’s most potent moments,  for better or worse, will belong to the testimony of two Proud Boys who favored speaking instead of silence. 

ZACHARY REHL: “Not that I recall.”

Zachary Rehl was one of two Proud Boy defendants to take the witness stand, and when under cross-examination by Assistant U.S. Attorney Erik Kenerson, his tone was often sharp, his face taut and eyes hard as he grew impatient with a barrage of questions from the federal prosecutor. 

The 37-year-old man’s face, which looks much younger than his years, was more softly animated when he spoke to his own attorney Carmen Hernandez. With her, his testimony would spill out rapidly as he told a jury that has now heard evidence for four months: there was no conspiracy to storm the Capitol on Jan. 6, 2021. There was no plan to stop proceedings nor impede law enforcement from doing their duty, he said again and again under oath. 

Police, he claimed, let protesters pass through barriers. He said he never saw any significant violence directed at law enforcement and didn’t realize there had been such conduct until later, though on the stand he conceded to witnessing “scuffles” between rioters and police. (He would distinguish “rioters” from “protesters” often.) But, again, he offered, there was no attempt by him to assault any officers while he was on Capitol grounds.

On this point, the son and grandson of a Philadelphia police officer was adamant and he would turn to face the jury as he said this, his eyes searching theirs to validate him.

But he didn’t turn to face the jury when Kenerson started walking Rehl through a sequence of video clips from the 6th, including those that his attorney tried and failed to keep out of evidence after they emerged following a weekend break in proceedings.

The prosecutor had Rehl identify himself in footage shot close-up and Rehl positively identified himself as wearing a black jacket, black goggles, a camouflage hat with orange writing, and a gaiter that appeared to have a chevron or some sort of triangular pattern on it.

When Kenerson asked Rehl if he recalled being by the giant media tower erected outside of the Capitol on Jan. 6 before entering the building, Rehl readily offered, he was  “around there.” 

But when asked if he could recognize a man in attire appearing identical to his at a slightly greater distance near this location, Rehl started to lock up. The man appeared to be wearing the same clothes Rehl had just identified as his own at closer range. And at this angle, appearing at a distance, the man appeared to be holding something dark in his hand. Rehl, with his brow furrowed, leaned into the monitor at the witness box and told the jury he couldn’t say what it was that the man was holding. 

Zooming in and out, the footage rolling back and forth, Kenerson pressed: Was this, in fact, his attire? Was this man Rehl? Was this his arm extended toward officers as he held something in his hand? 

“A lot of people wore the same clothes that day”, Rehl said. “I can’t confirm or deny that’s me.”

For several tense minutes, Rehl could not or would not confirm hardly anything presented to him including whether the color of clearly black sunglasses or goggles covering the man in question’s face in the sequence were in fact black. 

“Are they pink?” Kenerson asked incredulously, triggering a storm of objections from defense counsel.

Rehl’s demeanor became more irritated from that point forward and the gloves came off. He insisted the footage was “very blurry,”  although he would eventually concede as cross continued that the gaiter in question was “close” to the pattern of his own. The coat was similar too, but he wouldn’t say whether the more distinctive camouflage hat was his. Going around and around like this with Rehl, Kenerson eventually asked the Proud Boy outright if he assaulted any police before entering the Capitol with pepper spray.

“No,” Rehl said. 

Playing footage frame by frame that prosecutors said came from a bodyworn police camera, a man who prosecutors suggest is Rehl has a device in his hand. 

“I can’t tell but I would imagine it’s an OSMO,” Rehl said, referencing a small camera or recording device.

“Does a small recording device usually have streams coming out of them?” Kenerson asked.

Rehl said he couldn’t see a canister and could only see a hand. He conceded he could see “streaks” in the footage but not “spray” in the direction of police. He questioned the integrity of the evidence. The hand was holding something, he admitted, but if it was his hand, he said, it would be a camera. 

“Mr. Rehl, you’ve had overnight to think about it. You were spraying in the direction of police officers near the media tower on Jan. 6, 2021?” Kenerson asked. 

Rehl, who had been so emphatic of so much else in his testimony about Jan. 6, or about himself, or the Proud Boys as a whole, replied coolly: “Not that I recall.”

The prosecutor elicited from Rehl that after he left the area near the media tower, he was ultimately able to advance further onto the upper west plaza of the Capitol before going inside. Positioned high above, and as police were being overrun on both the west and east sides of the complex, he snapped a photo and narrated to Proud Boys in a text sent at 2:29 p.m: “civil war started.”

On redirect, he didn’t deny sending the message and instead claimed he was “basically mocking all the news we were hearing prior to the event,” he said.

He added that he was being “ironic.” 

“It’s all just a very peaceful scene, we were just standing around,” Rehl told his attorney.

Hernandez tried to steady the ship: “Is that your opinion today that everything that happened that day was irony?”

“Oh no no no,” Rehl said. 

When he went through his phone, after the fact, he said he realized what had happened. 

“It was a terrible day, a lot of bad stuff happened,” he said.

Nonetheless, he told the jury he was “proud of the turnout.” But on Jan. 7, as he started to “go through things and see what happened that day” he didn’t want to “associate” with it. 

And then with a remark that could cut both ways for a jury who had only just watched Rehl’s temper rise and flare, Rehl said: “Previously, I tried to have a good persona and that’s what I try to portray.” 

The scenes that unfolded around him as he got past police and pushed inside the complex didn’t strike him as unusual. 

“Nothing out of the ordinary for a protest?” Kenerson would ask him before ending Rehl’s cross-examination.

The prosecutor’s question was a direct quote from Rehl’s time on direct when described what he witnessed in Washington some 800 days ago now. 

“Nothing out of the ordinary for a protest,” Rehl repeated. 

“No further questions,” Kenerson said. 

Isaiah Giddings, (who Rehl testified came to D.C. with him and at least two other individuals, Brian Healion and Freedom Vy) said in his statement of offense to law enforcement that Rehl had asked other rioters on the 6th whether they had any “bear spray.” According to Giddings’s statement, Rehl never got it. 

In court, Rehl denied realizing he was in Senator Jeff Merkley’s office when he stopped in to have a smoke. But he admitted to lighting up and told the jury he regretted it. So many others were milling around smoking inside, he explained, he figured he would do the same. 

When asked on his last day on the stand, Rehl was able to identify his fellow Philly Proud Boy Giddings as one of the individuals in the lawmaker’s office with him. When Kenerson had asked him if he could remember what Giddings wore on the 6th, he couldn’t recall. When Hernandez played a video from inside Merkley’s office for the jury, he said he “thought Freedom and Brian might be there but I don’t see them.” 

“The door was already open when I got there,” he said. 

Rehl, perhaps still smarting from Kenerson’s cross, quipped that he didn’t think he “would be charged nine felonies” for smoking in the Capitol. 

When former West Virginia Proud Boy leader Jeff Finley testified, Assistant U.S. Attorney Nadia Moore asked Finley if it was Rehl’s idea to go inside the Capitol on Jan. 6.

“We discussed it. I was part of that discussion,” Finley testified in March.

“My question is: did he ask you, ‘you wanna go in?’” Moore said. 

Finley shrugged his shoulders as he sat in the witness box, his face mostly emotionless, and said: “I guess.”

He said he understood at the time they entered the Capitol, police did not want them there. Rehl would deny having a clear understanding of this when he would finally testify weeks later. 

Finley also admitted that he stopped by Merkley’s office and took a selfie. He said he took it in the doorway of the lawmaker’s office. After the 6th, Finley began deleting photos and advised other Proud Boys to do the same. He told the jury it was because he feared doxxing by the left if their devices were captured. Like Rehl, Finley was often curt with prosecutors but unlike Rehl, far more forthcoming. And unlike Rehl, Finley had already pleaded guilty, copping to a misdemeanor charge for entering restricted grounds. He’s serving a 75-day prison sentence.

Jurors saw text messages too that Rehl, a former U.S. Marine, sent to his mother on the night of Jan. 6 when he told her how “fucking proud” he was of the “raid” on the U.S. Capitol.

 It had “set off a chain reaction of events throughout the country” he gushed. 

He sent his mother a message in December 2020 as well after things had turned bloody in D.C. following a pro-Trump “Stop the Steal” rally. 

Four Proud Boys had been stabbed and a woman, who Rehl told the jury he suspected was “antifa,” had been brandishing a knife on the street that night. 

Footage that circulated among the far right network on their private channels as well as on public ones on Parler and Telegram showed the woman being cracked over the head with a helmet before crumpling to the ground. Impressed and celebratory “oohs” and “ahs” emanated from Proud Boys surrounding the grim scene. 

Prosecutors argue this graphic footage was something that Rehl and Proud Boys used as a recruitment tool ahead of the 6th and that it was a point of pride for them to display their violent tendencies.

Records extracted from Rehl’s device after his arrest show he sent the video to his mother. 

He blanched at the suggestion from prosecutors that he shared the clip with his mother because he was proud of the violence and any Proud Boys’ handiwork in it.  

To the contrary, he testified, he didn’t want his mother to think Proud Boys were the aggressors. 

“I didn’t want my mom of all people thinking we’re just going around being freaking bullies to people in the street,” Rehl said in court last week. 

When squaring off with the Justice Department, however, Kenerson brought out a series of text messages from 2020 that he argued showed Rehl had long wanted to “fast track” members into the Proud Boys who were the bullying type. He wanted members who were “ready to crack skulls” and wanted recruits “physically ready” for rallies. 

Rehl disagreed with the interpretation. He was joking, he said, when he told a fellow Proud Boy in one message he wanted all of their guys “to be jacked. LOL” 

“I was looking for guys who could hold their own. Doesn’t mean looking for violence,” he told Kenerson sharply.  

Rehl called much of this talk “street language.” 

There was always some such euphemism Rehl had on hand to describe his communications. He defended the Proud Boys as no more than a fraternity that liked to drink hard, “talk shit” or “bluster” and dabble in political activism to have their “voices heard” when they felt the need or weren’t partying.   

That dabbling, he admitted, included trips where he and his chapter members traveled from their Pennsylvania homes to attend events where they wanted to make a presence, like in Kalamazoo, Michigan, or St. Louis, Missouri, or Fayetteville, North Carolina. Or Washington, D.C.

Texts in evidence between Rehl’s co-defendant Joe Biggs and Henry Tarrio dated Dec.19 offered jurors a look into where the Proud Boys seemed to stand at that time. It was Biggs who wrote that when it came to recruitment efforts, they needed to forgo finding “losers who wanna drink.”

“Let’s get radical and get real men,” Biggs told Tarrio on Dec. 19. 

In this same exchange, Tarrio replied: “The drinking stuff helps mask and recruit. Although some chapters don’t leave their bars and homes.”

“No one looks at us from our side and sees a drinking club,” Biggs responded later in the chain to Tarrio. “They see men who stand up and fight. We need to portray a more masculine vibe.” 

Biggs would buy his airline tickets to D.C. the next day, telling Tarrio he was booked from Jan. 5 to Jan. 7. 

Within 24 hours of that conversation between Biggs and Tarrio, the Ministry of Self-Defense was stood up. 

According to prosecutors, it was then that Zachary Rehl, Ethan Nordean, Charles Donohoe, and a slew of other Proud Boys like Aaron Wolkind and John Stewart—alleged “tools” of the conspiracy—were added to MOSD. Donohoe has pleaded guilty to conspiracy to obstruct an official proceeding and assaulting an officer.

Jeremy Bertino, who has already pleaded guilty to seditious conspiracy and testified against the defendants at trial, would come aboard a few days later on Dec. 23. As for Dominic Pezzola, prosecutors say the Rochester, New York Proud Boy, and former U.S. Marine wouldn’t join the conspiracy until Jan. 2, 2021, when he was officially added into the MOSD chat group. 

Sitting inside the E. Barrett Prettyman courthouse just a few blocks from where he once stood shoulder to shoulder with rioters wildly overwhelming police, Rehl resisted the Justice Department’s allegations about MOSD’s real purpose and he tried to slap away suggestions that Proud Boys relied on violence as a key mechanism bonding their “western chauvinist” group.  

When prosecutors showed the jury evidence tied to an August 2020 rally organized against human sex trafficking and sexual assault in Fayetteville, North Carolina, Rehl grew particularly pointed. The rally was uneventful despite concerns that it would turn ugly when busloads of “antifa” would show up. (A rumor that circulated widely and never came to pass). Kenerson then showed texts suggesting Rehl’s history of being primed to take matters into his own hands when he saw fit. 

Pulling up messages extracted from Rehl’s devices, Kenerson asked him if he said he wanted to “fuck up antifa” at the North Carolina rally if they showed. Without missing a beat, Rehl said in court: “Actually, you know what, yes I did.” 

And, he added, he would have used “any can of mace I had” to stop anyone who would have stood in opposition to the people attending that rally that day. 

“You said you were going to beat them with a 12-inch dildo you picked up?” Kenerson asked. 

“Yes. Again, preparing for the worst,” Rehl said. 

Rehl said Proud Boys only ever “prepared for the worst.” 

Rehl said he wanted “the legal process to play out” on Jan.6 and his intentions were well-meaning. 

“I didn’t go in until I thought there wasn’t anyone in there,” he has said. “The Capitol was a public building. I thought it was fair game to go in.” 

On Jan. 7 in a Proud Boy chat entered into evidence dubbed “Philly PB E-Board,” Rehl lamented in the cold morning light: “Looking back, it sucked. We shoulda held the capital. After Trump conceding today, it all seemed like a waste.” 

Another Proud Boy, using the handle “Rod (Venezuela)” offered, “they should have let them finish the counting and when they didn’t accepted [sic] the challenges, rush in and set fire to that shit.” 

“Yup,” Rehl replied 24 minutes later. 

Rehl told Kenerson, “I see what you’re trying to do here,” and said his reply was to something else in the chat thread. 

In another message from Jan. 7, Rehl wrote on the “E-Board”: “The reason it feels like a waste is because all of these politicians getting scared and realizing they need to answer for this fraud, their [sic] all turning their back on Trump and cucking, they are doubling down on their actions. Everyone shoulda showed up armed and took the country back right away. And fuck you FBI yeah I’m mad.” 

Rehl testified on direct that he believed Trump’s “last stand” to change the election results had been in December. He said people had held out hope that Trump could “pull a rabbit out of his hat” on the 6th but he also testified that he knew better. 

Personally, he said, he didn’t think Trump could pull a rabbit from his hat. He vowed over and over in court that he wanted a legal, constitutional process to unfold. There was never a conspiracy among him or any other Proud Boy to stop those processes or obstruct Congress from taking the necessary steps in the nation’s transfer of presidential powers. 

“I said some fucked up shit the day afterward,” Rehl told Kenerson on April 17. 

“But you just testified, you were only [concerned] about voting and yet you concluded, ‘everyone shoulda showed up armed?’” Kenerson asked. 

“Shoulda, woulda coulda. As opposed to the legal way,” Rehl said. “We didn’t do it that way.”

 

DOMINIC PEZZOLA: “Corrupt trial… fake charges”

Things had started out strong for Dominic Pezzola when he first took the witness stand this past week. He didn’t look anything like the man in the video footage jurors had seen of him for several weeks, particularly as the trial first began and prosecutors shared evidence of things like Pezzola’s victory smoke inside of the U.S. Capitol after he bashed open a window and hoisted himself and other rioters inside. 

The former Marine—a battalion known for its “first in, last out” mentality—was one of the first rioters to get inside the Capitol. 

He faces a slew of charges alongside his co-defendants though he is unique in that he faces a robbery charge for his alleged taking of a police riot shield from U.S. Capitol Police officer Mark Ode. Ode testified at trial in February that his experience on Jan. 6 was “terrifying” as he scrambled to replenish officers who were being overwhelmed by rioters invading the building and grounds. 

Rioters were using “some type of chemical spray;” he testified and at one point “it looked like a [person was holding a] small fire extinguisher walking around spraying officers.” It took Ode more than 10 minutes to recover his vision after he was doused.

Under questions from prosecutor Nadia Moore on Feb. 7, Ode said when he was knocked to the ground it was because he was being pulled down as he clung to his shield with one hand before it was wrestled away from him. 

On the witness stand, in a suit and tie, and sometimes with dark-rimmed glasses framing his face, salt and pepper hair, and beard neatly cut, Pezzola started his testimony by communicating what sounded a lot like genuine remorse about what had happened.

“I’m ready to do this,” Pezzola told attorney Steven Metcalf on first day before the jury. “I’m taking the stand today to take responsibility for my actions on Jan. 6 and I’m also taking the stand to explain how these men that I’m indicted with should not be roped into my actions.” 

Willing to cast himself apart from his co-defendants, Pezzola first couched his testimony with a folksy, warm delivery. 

“There was no conspiracy, it never existed,” Pezzola said. 

It was “the craziest damn thing,” he testified. 

“So, I got caught up in the craziness. I trespassed at the first breach, second, I think there may have been a third, I basically trespassed all the breaches and during the scuffle and whole shield incident, I did grab onto the shield and pulled onto it for fear of my own life because deadly force was being used on us by police,” he said.

Pezzola would tell the jury that he acted out a flash of adrenaline that coursed through his body and made him feel as if he were on “autopilot.” 

When he grabbed the shield it happened in a “split second,” he said. Someone else had grabbed it from police, he claimed, and then he grabbed it. And then, he turned to the jury while he confidently declared: “And we’ll have the proof to show this.” 

The Rochester, New York Proud Boy said he was upset as he “watched mothers grabbing their children to get them out of the way to avoid flashbangs.” (The next day on the witness stand he would clarify, “children” meant teenagers.) Elderly protesters, he said, had their “eyes split open” and people had “faces full of pepper spray.” 

“I was upset,” Pezzola said. 

What fueled his outrage to the point that he began screaming at police, he testified, was an injury sustained by another man, rioter Joshua Matthew Black. Black, who is not a Proud Boy, was found guilty this January for entering and remaining on restricted grounds with a deadly weapon. Black was carrying a knife and made it all the way to the Senate floor despite taking a munition to the face shot at him by police who were repelling him, Pezzola, and thousands of others in the crowd. 

Notably, Black posted social media videos after the 6th saying that he joined the mob and crossed barriers to get inside the Capitol because he wanted to “plead the blood of Jesus over it.”   

Black also claimed that he was shot in the face while he was attempting to help a police officer who “was on the ground with boots coming down on him.” 

Pezzola said after Black was shot, he got in closer for a “bird’s eye view of the damage it had done to him.”

“I knew if it had been a few inches higher that shot would have been fatal,” he said.

On direct, Pezzola spent considerable time telling jurors he was in “disbelief” of how police treated “unarmed crowds just pushing against riot shields.”

Things were “dire,” for them he testified. Things were “deadly.” 

Pezzola never saw combat during his time in the military but he compared the use of less-than-lethal munitions by police on the 6th akin to being “underfire by a machine gun or something.”

The military had taught him to ignore his flight response, he said. He claimed “flash bangs” soared into the crowd at a rapid clip but he wasn’t going to turn around or walk away. He was going to “neutralize the danger,” he said. 

Whether or not tales of his perceived heroics in the face of bodily harm were convincing to jurors, there was a palpable missing link in his narrative. 

Pezzola expounded on direct about “rubber bullets” whizzing past his eyes, head, and face. Yet at no point over the months of evidence presented from either side, has any video or photographic evidence emerged showing Pezzola hoisting the police riot shield in a defensive posture over his head or face. On the stand he said he covered his head and remembered bullets hitting right by where his head would have been, but those flew by, he claimed, when he was on the ground in the scuffle. 

When Kenerson pressed him, Pezzola couldn’t recall the moment he might have used the shield to cover his head. It was a “fog of war type thing,” he said. It was a “vague recollection.”

Footage did, however, show Pezzola carrying the shield, ascending Capitol steps with the shield, and then using the shield to smash apart a window. He also found time to take a selfie with it. In other video footage presented in court, Pezzola can be heard replying “yeah” when a man asks him if he had stolen a police shield. 

Pezzola said he only said that to get the person asking questions “out of my hair.” 

Once he was atop the scaffolding, video evidence shows Pezzola screaming at police: “You better be fucking scared! Yeah, you better be fucking scared! We ain’t fucking stopping. Fuck you. You better decide what side you’re on motherfuckers. You think antifa is bad, just you wait.”

In court, Metcalf asked Pezzola: “Did you use that shield to damage any property?”

“I did. When I made it up to the terrace… I did break one pane of glass. One. Someone used a two-by-four… it’s been proven over and over it was less than $1,000,” Pezzola said. 

This is a point that he emphasized more than once as he testified, saying that each pane only cost $774. Further, according to Pezzola, a pane to the left of the one that he broke with the riot shield was already shattered by the two-by-four and therefore: “I struck a completely destroyed pane of glass with a shield,” Pezzola told AUSA Kenerson.

 “I wouldn’t consider it a pane anymore,” he said. 

When Kenerson asked him if he was saying he thought he did no damage, Pezzola smiled wryly at the attorney and told him he was just “twisting his words.”

Where he had been cool, calm, and seemingly collected on direct, Pezzola’s demeanor changed abruptly on cross. He grew more defensive and his tone more abrasive and angry. He smirked regularly or laughed under his breath at Kenerson’s questions.  

“Your goal of busting the window was to have someone to listen to you?” Kenerson asked. 

“Correct,” Pezzola said. 

They were there to express their First Amendment rights, he said. They were “trespassing,” he admitted, but this was the way to “have their voices heard.”

“And this was the way to get the government to listen to you?” Kenerson asked again, footage of him entering the Capitol still on the screen for jurors. 

“At this moment? Correct,” Pezzola said. 

Besides a claim of self defense from police he deemed overzealous, the Proud Boy and his attorney also played down the alleged robbery of the shield by playing up the fact that Pezzola gave the shield back to another police officer before leaving the building. Nonetheless, on cross, the 43-year-old Proud Boy said that was a “last-minute decision.” 

Pezzola met with Charles Donohoe after he got the shield and together, they and Proud Boy Matthew Greene of New York, who testified at trial and has pleaded guilty to conspiracy and obstruction already, moved toward a concrete wall. Donohoe would help him carry the shield for a time, Pezzola affirmed. Jurors also saw a text message Donohoe sent to Rehl and other Proud Boys on Telegram moments after Pezzola got the shield.

When describing his military service to the jury, Pezzola took pains to highlight his experience with antiarmor rockets and crowd control, but in fact, he was never a military police officer, and his very limited experience using flash bangs was restricted to his short stint in the Marines more than 20 years ago. When prosecutors asked him if he was aware that police used sting balls on Jan. 6, a device that delivers less damage than a flash bang, Pezzola refuted it. 

Whatever was used, they were used improperly, he said. 

When Kenerson asked Pezzola how he knew this to be true, he elicited that the only training the Proud Boy had received on crowd control was from a few handouts he received while serving in the military. 

He had no training on “sting balls” he conceded, but that didn’t stop him from offering his non-expert testimony on their deadliness. 

“You’ve never worked with police and you have never taken their protocols?” Kenerson asked. 

“No,” Pezzola replied. “But I know police brutality when I see it.” 

“So the standard you’re applying here is the Dominic Pezzola standard?” Kenerson said. 

“You don’t need to be trained to know that an explosive can kill you,” he said. 

Pezzola emphasized again how he was “afraid for his life” and then footage played in court of him hoisting the riot shield in the air—though not defensively over his head—while he chanted “USA! USA! USA!”

Underpinning the prosecution’s charges is its “tools theory,” which argues that Proud Boys activated their conspiracy to stop proceedings by relying on fellow Proud Boys and “normies” or average protesters alike, in large numbers to aid them, wittingly or not, on Jan. 6.

To that end, prosecutors showed Pezzola video from outside of the Capitol near the Peace Monument. Pezzola testified that he heard a “ruckus” near that area while he was near a line of food trucks. He went off to investigate. It just so happened that when he arrived, barriers were knocked over already, he said.

Kenerson pointed out in footage from the first breach near the Peace Monument that quite “fortuitously” Pezzola appeared at the breach with a Proud Boy from New York right behind him identified as “Hooks.” Hooks was grabbing onto Pezzola as they flowed past police. But Hooks wasn’t with him at the food trucks. 

It was a “contained area,” Pezzola said, adding that he was bound to run into somebody he knew.

When New York Proud Boy William Pepe was seen pulling down barricades in video footage and Kenerson started to ask about it, Pezzola deflected immediately to invoking a highly-favored conspiracy theory that it was rioter and former Oath Keeper Ray Epps who told him and others to breach the barriers and go inside the Capitol. 

Pezzola then suggested to jurors that Epps was a government informant. 

“Mr. Pezzola, you have absolutely no evidence that Ray Epps is a government informant, do you?” Kenerson said. 

“I’ve seen no evidence he isn’t,” Pezzola shot back. 

There was plenty of evidence of his fellow Proud Boys “bumping into” Pezzola on the 6th at critical times, however. 

Like when Pezzola was first approaching the scaffolding, he identified himself in a series of frames from this area and then identified fellow Proud Boys William Pepe, Art Lashone (who he came to D.C. with) and again, “Hooks” and other Proud Boys. After he left the Capitol, he would see Greene again at his hotel, he said, and another Proud Boy identified in court as “Ronie.” When someone asked whether “Ronie” had bear-sprayed a police officer, Pezzola couldn’t say whether he recalled the conversation. He also couldn’t remember what he thought or said when Jeremy Bertino messaged Proud Boys around this time either to tell them they “should have gone further.” 

Pezzola’s temper grew most hot when Kenerson grilled him about his reasons for joining the Proud Boys. Where a day before Pezzola had smiled sheepishly and even laughed as he remarked that at 43 years old, he may have been “too old” to be a Proud Boy when he joined, he was downright surly when Kenerson asked him about his convictions that a “civil war was imminent” in the weeks before Jan. 6. 

It was a fact that the “other side” was trying to destroy the nation, Pezzola said. 

He and his way of life were under daily attack, he said. 

In a letter found in his property after his arrest, Pezzola once wrote at length about his hopes and fears, and his anxieties of a takeover of America by “radical socialists” or communists. Prosecutors say the letter was one Pezzola intended to submit to the Proud Boys when applying to join the organization. This was sometimes a requirement for prospects to the organization in late 2020.  

“You wanted to stand first on line to protect those you love and what you stand for?” the prosecutor asked. 

Angry and defensive, Pezzola testified: “That’s correct and that’s in line with standing against this corrupt trial with your fake charges.” 

He called the trial “fake” at another point too when Kenerson brought up social media posts Pezzola had upvoted or liked, including those from Tarrio and others, like one from Proud Boy Jeremy Bertino who said if the government wanted to declare war on the American people, they could have it. 

Pezzola boiled over. 

“At this point, if I didn’t have a case, I would probably bring up things like this too,” he sniped. 

Kenerson nodded passively and brought up a photo of Pezzola on the ground appearing to wrestle a riot shield away from an officer. 

“So is this fake evidence to you?” he said. 

“I say you interpret it fakely… this is a phony trial because of the way you’re trying to push it off,” Pezzola said. 

Like Rehl, Pezzola denied there was any “plan” on Jan. 6. Maybe they planned to storm the liquor store, he said, but that was it. Otherwise, when he got to D.C. on the 5th, he had no idea what to expect. He wanted to hear Trump speak. On the morning of the 6th, Pezzola said at first he didn’t know who was in charge. It was a “mishmash” of people, he testified initially. Then he said he assumed his now co-defendant Ethan Nordean was in charge because he held a megaphone. Then he said when they started marching to the Capitol, he knew that whoever was in front was leading the group. Extensive video footage played for the jury has shown Nordean and Biggs and Rehl were always at the front of the marching group with Nordean and Biggs specifically commanding the marching group consisting of dozens of Proud Boys to stop or go.

With yet more of his machismo to display, Pezzola finally said Nordean was in charge of the group. 

But “not of me,” he said. 

He was in control of himself. 

At trial, prosecutors also worked to pick apart whatever credibility Pezzola may have lent to his testimony by bringing out details about his lies to the FBI in the early days following his arrest.

In March 2021, while he was incarcerated, Pezzola claimed that he witnessed—firsthand—his co-defendant Joe Biggs and another man, Ryan Samsel, speak to each other moments before the very first breach of the Capitol. Pezzola told the FBI he saw Biggs flash a gun—a 9MM Beretta—and then he said Biggs told Samsel he better “defend his manhood” by plowing past police to prove he wasn’t antifa.

In court, Pezzola testified that he lied about this episode to the FBI at least twice because he thought it would improve his conditions at the jail where he was being held before this trial began. Video footage from the 6th shows Samsel and Biggs speaking but it has not yet been made clear what Samsel said to Biggs in that moment or vice versa. Samsel goes on trial later this summer. 

Pezzola said Samsel was detained in the jail cell next to him initially, and told him this story. Right away Pezzola said he knew it was fake but he nonetheless saw the story as a one-way ticket out of solitary confinement or to receiving his medication he was cut off from or for better “soy free” food that he wasn’t allergic to. He was eventually moved. 

Pezzola also told the FBI that when he was at the Peace Circle, he saw a group of Proud Boys harassing a young boy wearing a Black Lives Matter shirt and that he saw Samsel defend the boy and that later, Pezzola even escorted the boy away from the scene. All of that was untrue, all of it a lie. But admitting that it was a lie specifically more than once or twice in court was a visible struggle for Pezzola.  He time and again met Kenerson’s questions about the veracity of his statements to the FBI with the retort: “I wasn’t there” instead of “that’s not true” or “I lied.”

Though Pezzola testified that he believed the lie about Biggs is what ultimately got him moved into better conditions, Kenerson pointed out how self-serving Pezzola had been. He only got a hand up by falsely incriminating Joe Biggs. 

Pezzola seemed offended by the suggestion. Where loyalty to the Proud Boys was often just under or at the surface of his testimony, and he proudly proclaimed that he had refused to cooperate with the DOJ or take a plea deal, two years ago Pezzola seemed to sing a different tune. 

His attorney at the time, Jonathan Zucker, appeared to express interest in a plea agreement for Pezzola, saying that the father of two teenage girls was “consumed with guilt” and wanted to “disavow and seek to sever any relationship and involvement in future activities of the Proud Boys or similar groups.” 

 

The other day, DOJ announced charges in two cases related to FSB efforts to recruit in the US and overseas. Neither set of allegations was entirely new. But what got added to the allegations is of some interest.

Certainly, the fact that American citizens got charged in a Florida case for not disclosing that their political activism was funded, in part, by the FSB, seems to be of interest to Glenn Greenwald. The charges, along with a few overt acts, and the names of two FSB colleagues are what got added to an earlier indictment against the FSB handler, Aleksandr Ionov, filed last July.

Glenn won’t shut up about those charges, making appearances on Glenn Beck and Tucker Carlson’s show so all of them could lie about why members of the African People’s Socialist Party were charged.

The members of the APSP weren’t charged because they disagree with Joe Biden. They weren’t charged because they oppose the war in Ukraine.

They were charged because after one, Omali Yeshiteli, went on an all-expenses paid trip to Russia in 2015, the group started getting funding and completing requests for their FSB handler, Aleksandr Ionov, who ran a front called the Anti-Globalization Movement of Russia. For example, shortly after the trip, Ionov wrote the group and asked them to start a petition against the genocide of the African people in the US so that AGMR could start using it as propaganda. And when Russia needed someone to legitimize the “Donetsk People’s Republic,” in 2020, Ionov contacted the Floridians to publicly do so. And when Russia wanted to protest Twitter’s restrictions on Russian disinformation after the Ukraine invasion, Ionov flew one of the Americans to San Francisco to make it happen.

Russia wanted to be able to point to a certain kind of dissidence in the US, so they paid money to help sustain it. And the Americans didn’t disclose that they knew they were working with agents of Russia.

Glenn thinks only rich people like Tony Podesta should be held to foreign agent laws (Podesta wasn’t charged under a different law, FARA, for hiding his ties to a Ukrainian front group that Paul Manafort set up because he was paid by Manafort, and in any case, Glenn didn’t think much of Manafort’s charges for hiding the ties in real time). Glenn doesn’t think other people should have to disclose if they’re taking money — after they go on trips to Russia and start spouting Russian talking points non-stop from that point forward — from Russian spies.

It’s an interesting cause for Glenn and Tucker — who has his own curious tale about Russian ties — to champion.

Which brings us to the other case.

It charges Natalia Burlinova with attempting to do what Ionov succeeded in doing: getting Americans and others to unwittingly act as agents of Russia by recruiting them through her Russian government backed NGO, Creative Diplomacy, or PICREADI.

Burlinova was sanctioned — along with Ionov — last year, which suggests they may have a tie, perhaps the FSB officer they both report to.

Since she was already sanctioned, which would likely prevent her from traveling in any case, this complaint serves largely as a speaking document, which allows everyone she has had prior association with to understand her ties to the FSB.

For example, the complaint provides a detailed description of a trip she made to the US in 2018 and the emails the American participants sent to Burlinova after meeting with her. It doesn’t provide the content of the emails — but it makes those who sent them aware that the FBI knows what got sent.

Of even more interest is an article a former participant of Burlinova’s event wrote in 2020. Without explaining how he received it, Burlinova’s FSB handler sent it to her and said it’d be a really huge deal if it were published.

On October 30, 2020, the FSB Officer forwarded to Burlinova an article written by a participant in the 2019 Meeting Russia program, which argued that Russian malign influence efforts were actually legitimate uses of state soft power. The FSB Officer commented to Burlinova that the article was a huge result for them and would be revolutionary if printed by a named English-language newspaper in the United States and a named English-language newspaper in Europe.

The complaint doesn’t tell us whether it was published (update: it was this one, which was also posted on Burlinova’s site; h/t Alex Finley). But the description would be plenty for its author to understand that it had been the focus of internal discussion at the FSB.

Both these indictments necessarily focus on the US, but both conspiracies are international. Laying out the charges in the US and arresting anyone that would one day be arrested might something the FBI would want to do before sharing the underlying intelligence with allies.

And some of the details describe the greater international success of this effort. One of Burlinova’s biggest successes, for example, came in seeing two former participants in her yearly event elected to parliament.

On October 5, 2018, Burlinova informed the FSB Officer about two prior participants in another Russian public diplomacy program in which Burlinova had been involved. Burlinova reported that the two prior participants, both of whom resided in a European country, were running for public office. Burlinova stated that these were the results that take years to come into fruition. The FSB Officer responded that this was truly the result for which they were striving and requested that Burlinova provide more information about these prior participants and the election for public office so that the FSB Officer could prepare a report. The two candidates ran for parliamentary positions; one won in that election, and the other was elected subsequently to parliament.

Again, we don’t know which members of parliament these are and in which country, but others in their country likely recognize it.

A report in the WaPo — the timing of which may be coincidental or may explain why DOJ rolled out the charges earlier this week — describes the stakes. It describes the Kremlin’s involvement in the red-brown coalition opposing the Ukraine war in Germany.

The coming together of political opposites in Berlin under the banner of peace had been percolating for months, though the union remains ad hoc and unofficial. But marrying Germany’s extremes is an explicit Kremlin goal and was first proposed by senior officials in Moscow in early September, according to a trove of sensitive Russian documents largely dated from July to November that were obtained by a European intelligence service and reviewed by The Washington Post.

The documents record meetings between Kremlin officials and Russian political strategists, and the Kremlin’s orders for the strategists to focus on Germany to build antiwar sentiment in Europe and dampen support for Ukraine. The files also chronicle the strategists’ efforts to implement these plans and their reports back to the Kremlin. The documents do not contain any material that records communications between the Russian strategists and any allies in Germany. But interviews show at least one person close to Wagenknecht and several AfD members were in contact with Russian officials at the time the plans were being drawn up.

Like the Florida effort, the German one features manifestos written by the Kremlin.

The aim of a new political formation, according to a document dated Sept. 9, would be to win “a majority in elections at any level” in Germany and reset the AfD to boost its standing beyond the 13 percent the party was polling at then. The reset, laid out among the documents in a proposed manifesto for the AfD that was written by Kremlin political strategists, includes forging the AfD into the party of “German unity” and declaring sanctions on Russia as counter to German interests.

[snip]

It is not clear from the documents how the political strategists working with the Kremlin attempted to communicate with members of the AfD or other potential German allies about Moscow’s plans. But soon after the Kremlin gave the order for a union to be forged between Wagenknecht and the far right, AfD deputies began speaking in support of her in parliament and party members chanted her name at rallies. Björn Höcke, chairman of the AfD in Thüringen in eastern Germany, publicly invited her to join the party.

This is the same kind of effort — but much more impactful — as the Ionov one was fostering in the US (though the right wing secessionist described in it as an unindicted co-conspirator, understood to be Louis Marinelli, was not arrested).

And it’s the kind of horseshoe leftist that Greenwald once posed as before he joined up with Tucker full time … most recently to claim these socialists were arrested for their dissidence and not because they were hiding ties with Russian spies.

Update: RFERL did a bunch of interviews with people who attended Burlinova’s program, some who were shocked about the FSB tie, some who were quite blasé about it.

I’m not sure whether it was just chance or whether Ben Smith knew in advance that BuzzFeed would announce the closure of its news division on the same day that he posted an account of publishing the Steele dossier. His account doesn’t explain whether the cost of defending against serial Russian lawfare for publishing the dossier made it harder, in the aftermath, to pay journalists’ salaries, but it’s a question that deserves an answer.

But Ben’s account — which focuses, as most of Ben’s writing does, on insider news media stuff — makes two grave errors.

The first is that — even though he quotes Pete Strzok describing how the dossier framed the Russian investigation, thereby inoculating Trump against accountability for the very real scandalous behavior he had with Russia — Ben falsely suggests that the dossier was the genesis of the public concern about Trump’s ties to Russia.

We had embedded it as a PDF, which meant that it could travel context-free, without our article’s careful disclaimers, and that’s exactly what happened. I watched uneasily as educated Democrats who abhorred Trump supporters’ crude rants about child sex rings in Washington pizza joints were led by the dossier into similar patterns of thought. They read screenshots of Steele’s report; they connected the dots. They retweeted threads about how the plane of a Russian oligarch—previously unknown to them, now sinister—had made a mysterious stop in North Carolina.

[snip]

It had blown wide open a Russia investigation and forced voters to ask just why Trump seemed so friendly with Vladimir Putin.

[snip]

An FBI agent who investigated Trump, Peter Strzok, later said the dossier “framed the debate” in a way that ultimately helped Trump: “Here’s what’s alleged to have happened, and if it happened, boy, it’s horrible—we’ve got a traitor in the White House. But if it isn’t true, well, then everything is fine.”

The notion that Democrats and national security hawks weren’t concerned about Trump’s Russian ties until January 10, 2017 is ludicrous. The effort to understand Trump’s Russian ties went into high gear on July 27, 2016, when he encouraged Russia to attack his opponent and floated recognizing the annexation of Crimea. It never stopped thereafter.

And, as I had to explain patiently to Columbia Journalism Review, even the intense press reporting on Trump’s real ties to Russia started before January 10, because the WaPo was already onto Mike Flynn’s lies about his outreach to Sergey Kislyak by then. Strzok’s point, I think, is that publishing the dossier made it easier for Trump to get away with attempting to undermine sanctions on Russia and all the rest because at least undermining sanctions wasn’t a pee tape.

No one needed the dossier to heighten concerns about Trump’s fondness for Russia. That’s a myth created by Russiagate [sic] peddlers trying to distract from the very real scandal of Trump’s ties to Russia.

Ben’s other silence, though, is irresponsible.

As I have noted, as the Carter Page IG Report makes clear, and as Republicans in Congress have come to agree, there’s abundant reason to believe that Russians started feeding Igor Danchenko with disinformation from the start. Lawyers for Oleg Deripaska were likely the client for a Steele collection effort targeting Paul Manafort in March 2016. According to declassified footnotes in the IG Report, Deripaska likely learned of the dossier project before the second report. And he demonstrably played a double game throughout 2016, getting Steele to feed Bruce Ohr damaging claims about Manafort at the same time as his aide, Konstantin Kilimnik, was exploiting Manafort’s legal and financial vulnerability to get information on the Trump campaign and a commitment to help carve up Ukraine.

This dynamic is utterly central to understanding the dossier. Someone who played a central role in the 2016 Russian operation knew about the dossier project, and had means to know of Danchenko’s collection network, almost from the start. And that makes it likely that at least some of the content of the dossier was tailored to be wrong in ways that benefitted the Russian operation.

Ben’s silence about the likelihood that he unwittingly peddled Russian disinformation is all the more embarrassing given how his post transitions directly from suggesting that John Durham had “poked holes in Steele’s sourcing” to noting that there was something that Trump actually was lying to cover up: the impossibly lucrative Trump Tower deal in Moscow.

Simpson then told Ken something he didn’t know: Steele had been working the case of the president-elect, Donald Trump, and he’d assembled evidence that Trump had close ties to the Kremlin—including claims that Michael Cohen, one of his lawyers, had held secret meetings with Russian officials in Prague, and that the Kremlin had a lurid video of Trump cavorting with prostitutes in the Ritz-Carlton Moscow that would come to be known as the “pee tape.”

[snip]

But although the biggest-picture claim—that the Russian government had worked to help Trump—was clearly true, the release of Special Counsel Robert Mueller’s investigation in April 2019 did not support Steele’s report. Indeed, it knocked down crucial elements of the dossier, including Cohen’s supposed visit to Prague. Internet sleuths—followed by a federal prosecutor—had poked holes in Steele’s sourcing, suggesting that he’d overstated the quality of his information.

And there had always been a more mundane version of the Trump-Russia story. Trump was the sort of destabilizing right-wing figure that Putin had covertly supported across Europe. Trump’s value to Putin was related not to a secret deal, but to the overt damage he could do to America. And Trump, BuzzFeed News’s Anthony Cormier and Jason Leopold discovered, had a more mundane interest in Russia as well: He had drawn up plans to build the biggest apartment building in Europe on the banks of the Moskva River. The Trump Organization planned to offer the $50 million penthouse to Putin as a sweetener.

That real-estate project wasn’t mentioned anywhere in the dossier. Yet it seemed to explain the same pattern of behavior, without the lurid sexual allegations or hints of devious espionage.

The man responsible for publishing both the Steele dossier and the best reporting on the Trump Tower Moscow deal seems not to understand that false claims about Michael Cohen in the dossier were likely there because of the Trump Tower deal.

Ben invokes what Durham’s failed prosecution revealed about (what Ben mistakenly claims to be) Danchenko’s sourcing, without laying out the import of Danchenko’s ties to Charles Dolan: Dolan gave the source of the Cohen claims in the dossier, Olga Galkina, direct access to Dmitri Peskov, the one man in Russia with proof that when Trump falsely claimed in July 2016 that he wasn’t pursuing real estate deals in Russia, he was lying. Even Durham implied this was the import of Dolan’s relationship with Galkina! Dolan was important because he put Galkina, who was sending dirt on Trump to her childhood buddy, Igor Danchenko, in close touch with Peskov.

The source of the claims that Cohen had secret communications with the Kremlin in the dossier had direct ties to the one guy in Russia, Peskov, who provably knew that Cohen really did have secret communications directly with the Kremlin that he and Trump were lying to hide.

Once Trump publicly lied about chasing real estate deals in Russia in July 2016, it made the notes Peskov’s aide took, showing that Cohen had agreed to work with sanctioned banks and a retired GRU officer as fixer in order to chase one such deal, far more valuable to Russia, particularly after it became clear in the US that the GRU was behind the hack of Hillary. So it is likely not random at all that someone with direct access to Peskov told Danchenko that Cohen — who was lying to hide his real direct contact with the Kremlin during the election — had other, more damning direct contact with the Kremlin. It raised the stakes of Trump’s and Cohen’s lies. It raised the value of Russia’s silence about the earlier conversation with Peskov. To the extent that everyone kept their shared secret — and they did for the entire first year of the Trump Administration — it provided cover for the lies that Cohen would tell to Congress.

From the start, the FBI had warnings that the Cohen in Prague story was disinformation. And it just so happens that the story, which came from someone with ties to Peskov, repeated a true fact that Peskov knew: that Cohen really did have secret communications with the Kremlin, communications that had already compromised Trump and Cohen with Russia before the hacking even started. If the Cohen in Prague story was disinformation (and, again, FBI got warnings it was the day after Ben published the dossier), it was disinformation that made that earlier compromise more powerful.

And Ben Smith, who played a key role in disseminating that likely disinformation, appears to not even understand that, much less want to reflect on his role in being an unwitting mule for Russian disinformation.

Not exactly breaking news at this point, but the SpaceX Starship blew up after a successful launch this morning. Not entirely clear if it was inherent in the vehicle, or if it was intentionally taken out by SpaceX as it was malfunctioning. Either way, a disaster. From the New York Times:

“SpaceX’s Starship rocket exploded on Thursday, minutes after lifting off from a launchpad in South Texas. The spacecraft, the most powerful ever to launch, failed to reach orbit, but it was not a total failure for the private spaceflight company.

Before the launch, Elon Musk, the company’s founder, had tamped down expectations, saying it might take several tries before Starship succeeds at this test flight, which was to reach speeds fast enough to enter orbit before splashing down in the Pacific Ocean near Hawaii.”

As much as I dislike Musk, and trust me I have likely been doing so longer than most anybody, the SpaceX program is part and parcel of NASA now, and getting into, and out of, space is progress for the US and humanity. It really is “rocket science”, and it is not easy. There have always been things like this in the human approach to space. But no lives were lost this morning, and much was probably learned.

You could tell there was something wrong though. There was film of the bottom of the giant rocket, and there were several of the 33 engine pods that were clearly not firing. Was that the catastrophic failure, or was there really a failure to separate stages? The news people do not seem to know, and neither do I.

The SpaceX term has been “rapid unscheduled disassembly”. Orwellian almost, but I guess. In short, it blowed up, by whatever mechanism.

Forget El Mo on this one, SpaceX is effectively part of the government now, and their effort should be supported.

All thanks to Moonraker by Ian Fleming and Supersonic Rocket Ship by Ray Davies and the Kinks.

We’re almost seven years past the hack of the DNC, and self-imagined contrarians are still clinging to conspiracy theories about the attribution of that and related hacks. In recent weeks, both Matt Taibbi and Jeff Gerth dodged questions about the attribution showing Russia’s role in the hack-and-leak by saying that the Mueller indictment of twelve GRU officers would never be tested in court (even while, especially in Gerth’s case, relying on unsubstantiated claims in John Durham indictments from his two failed prosecutions).

And while’s it’s likely true that DOJ will never extradite any of those twelve men to stand trial, DOJ did successfully convict one of their co-conspirators on a different hack: the hack-and-trade conspiracy involving Vladimir Klyushin and accused John Podesta hacker, Ivan [Y]Ermakov.

(The Mueller indictment and Ermakov’s second US indictment, for hacking anti-doping agencies, transliterated his name with a Y, the Boston one does not.)

That trial provides a way to show how DOJ would prove the 2018 indictment if one of the twelve men charged ever wandered into a jurisdiction with an extradition treaty with the US.

As laid out at trial, between 2018 and 2020, the co-conspirators hacked two securities filing agencies, Toppan Merrill and Donnelly Financial, to obtain earnings statements in advance of their filing, then traded based off advance knowledge of earnings. Klyushin was one of seven people (two charged in a separate indictment, three who were clients of Klyushin’s company M-13) who did the trading. Ermakov didn’t trade under his own name. He may have been compensated for Klyushin’s side of the trades with a Moscow home and a Porsche. But at least as early as May 9, 2018, forensic evidence introduced at trial shows, an IP address at which Ermakov’s iTunes account had just gotten updates was used to steal some of the filings.

Ermakov did not show up in a courtroom in Boston to stand trial and Klyushin has launched a challenge to his conviction that rests entirely on a challenge to venue there. But the jury did convict Klyushin on the hacking charge along with the trading charges, meaning a jury has now found DOJ proved Ermakov’s hacking beyond a reasonable doubt.

And they did it using the same kind of evidence cited in the Mueller indictment.

The crime scene

Start with the crime scene: the servers of the two filing agencies victimized in the hack-and-trade, Toppan Merrill and Donnelly Financial.

According to the trial record, neither figured out they had been hacked on their own. As the FBI had tried to do for months beforehand in the case of the DNC, a government agency, the SEC, had to tell them about it. The SEC had seen a number of Russians making big, improbable stock trades from clients of the two filing agencies, all in the same direction, and wanted to know why. So it sent subpoenas to both companies.

As the DNC did with CrowdStrike in 2016, both filing agencies hired an outside incident response contractor — Kroll Cyber in the case of Toppan Merrill, Ankura in the case of Donnelly Financial — to conduct an investigation.

The lead investigators from those two contractors were the first witnesses at trial. Each explained how they had been brought in in 2019 and described what they found as they began investigating the available logs, which went back six months, a year, and two years, depending on the type and company. The witness from Kroll described finding signs of hacking in Toppan Merrill’s logs:

• A November 28, 2018 use of DirBuster used to brute force file structure on a server
• Evidence of someone renaming PowerShell, RDTEVC, on December 23, 2019 to hide its use
• A December 25, 2019 use of a renamed copy of PuTTY remote access software
• A January 10, 2019 instance of a user invoking MimiKatz
• 8 domains from which intrusions had come with names like “developingcloud” and “finshopland”
• An IP associated with unauthorized activity from an AirVPN address.

The Ankura witness described how they first found the account of employee Julie Soma had been compromised, then used the IP addresses associated with that compromise to find other employees whose accounts were used to download reports or other unauthorized activity.

In sum, the two incident response witnesses described providing the FBI with the forensic details of their investigation — precisely the same thing that CrowdStrike provided to FBI from the DNC hack. There’s not even evidence that they shared a full image of the filing agencies’ servers (though an FBI agent described going back to Donnelly to search for the domain names behind the intrusions that Kroll had found at Toppan Merrill), which was one of the first conspiracy theories about the DNC hack Republicans championed: that the FBI failed to adequately investigate the DNC hack because it didn’t insist on seizing the actual victim servers during the middle of an election.

The forensic evidence wasn’t the only evidence submitted at trial from the crime scene. One after another of the employees whose credentials had been misused testified. Each described why they normally accessed customer records, if at all, how and when they would normally access such records, and from what locations they might access corporate servers remotely, including their use of the corporate VPN. Julie Soma — the Donnelly employee whose credentials were used most often to download customer filings — described that she would never have done what was done in this case, download one after another filing from Donnelly customers in alphabetical order.

Q. Would you ever go from client to client and alphabetically access those types of documents?

A. No.

Both interview records from the Mueller investigation (one, two, three) and documents from the Michael Sussmann case show that the FBI did similar interviews in the DNC hack. The Douglass Mackey trial, too, featured witnesses describing how the Hillary campaign identified that attack on the campaign as well.

In proving their case against John Podesta’s hacker, DOJ presented witness testimony that eliminated insiders as the culprit.

Fingerprinting

Having established the forensic data tied to intruders through the incident response contractors, prosecutors then called FBI agents as witnesses to describe how — largely through the use of IP addresses obtained using subpoenas or pen registers and the materials found in the suspects’ iCloud accounts — they tied Klyushin’s company, M-13, to both the hacking and the trading.

The trading was fairly easy: the co-conspirators accessed the two online brokers used to execute the trades under their own names and from IP addresses tied to M-13. An SEC witness described in detail how trades always shortly followed hacks but preceded the public filing of earnings statements.

Tying M-13 to the hacking took a few more steps.

For the hacking conducted via the domains Kroll identified, the FBI first found the account that registered the domains. Each was registered under a different name, but each of the names were based on a Latvian-based email service and used similar naming conventions. Each had been accessed from the same set of 3 IP addresses.

For IPs that Kroll identified, the FBI found BitLaunch servers created by an account in the name of Andrea Neumann, which was controlled from one of the same IP addresses that had registered the domain names. The FBI got search warrants to obtain images of those BitLaunch servers.

Another IP address used to steal filings, several FBI agents explained, was from an Italian-run VPN, AirVPN. The FBI used a pen register to show that someone accessed AirVPN from the M-13 IP address during the same period when the AirVPN IP was stealing records from the filing companies. The FBI also showed that Klyushin had accessed his bank at the same time from that same IP address. The FBI also showed that eight common IP addresses had accessed Ermakov’s iTunes account and the AirVPN IP address (in this case, the access was not at the same time because the FBI only had a pen register on the VPN for two months in 2020). While FBI witnesses couldn’t show that the specific activity tied to an AirVPN IP at the victim companies tied back to M-13, they did show that both Klyushin and Ermakov routinely used AirVPN.

Plus there were the filing thefts — noted above — that were done on May 9, 2018 using the same IP address that, four minutes earlier, had downloaded an Apple update from Ermakov’s iTunes account. As I’ve noted repeatedly, before Ermakov was first indicted by Mueller, he had already left a smoking gun in the servers at Donnelly in the form of IP activity that the FBI obtained over a year later inside the US.

In fact, much of the evidence used to prove this case (particularly establishing the close relationship between the conspirators) came from Apple, including WhatsApp chats saved in Klyushin and other co-conspirators’ iCloud accounts. We know Mueller used the same source of evidence. In March of this year, emails stolen by hacktivists revealed, Apple informed another of the GRU officers charged in the DNC hack that the FBI had obtained material from his Apple account in April 2018, in advance of the Mueller indictment.

The indictment likely also relied on warrants served on Google, especially on Ermakov’s account. The Mueller indictment (as well as the later anti-doping one) attributes much of the reconnaissance conducted in advance of the hacks to Ermakov: the names of some victims; information on the DNC, the Democratic Party, and Hillary; how to use PowerShell (which would be used against Toppan Merrill); and CrowdStrike’s reporting on GRU tools. If he did this research via Google, it would all be accessible with a warrant served on the US tech company.

The getaway car

One pervasive conspiracy theory about the Mueller indictment stems from testimony that Shawn Henry gave to the House Intelligence Committee in December 2017, describing that Crowdstrike did not see the data exfiltrated from the DNC servers. Denialists claim that is proof that the information was never exfiltrated by the GRU hackers. The conspiracy theory is ridiculous in any case, since there were so many other Russian hacks involving so many other servers, including servers run by Google and Amazon that had a different kind of visibility on the hack (something that Henry alluded to in his testimony), and since the indictment describes that the DNC hackers destroyed logs to cover their tracks.

But the Klyushin trial featured testimony about a tool used in the hack-and-trade conspiracy that has a parallel in the DNC hack: the AMS panel, hidden behind an overseas middle server, which the Mueller indictment described this way:

X-Agent malware implanted on the DCCC network transmitted information from the victims’ computers to a GRU-leased server located in Arizona. The Conspirators referred to this server as their “AMS” panel. KOZACHEK, MALYSHEV, and their co-conspirators logged into the AMS panel to use X-Agent’s keylog and screenshot functions in the course of monitoring and surveilling activity on the DCCC computers. The keylog function allowed the Conspirators to capture keystrokes entered by DCCC employees. The screenshot function allowed the Conspirators to take pictures of the DCCC employees’ computer screens.

[snip]

On or about April 19, 2016, KOZACHEK, YERSHOV, and their co-conspirators remotely configured an overseas computer to relay communications between X-Agent malware and the AMS panel and then tested X-Agent’s ability to connect to this computer. The Conspirators referred to this computer as a “middle server.” The middle server acted as a proxy to obscure the connection between malware at the DCCC and the Conspirators’ AMS panel. On or about April 20, 2016, the Conspirators directed X-Agent malware on the DCCC computers to connect to this middle server and receive directions from the Conspirators.

[snip]

For example, on or about April 22, 2016, the Conspirators compressed gigabytes of data from DNC computers, including opposition research. The Conspirators later moved the compressed DNC data using X-Tunnel to a GRU-leased computer located in Illinois.

In the hack-and-trade conspiracy, the hackers set up a similar structure, using the servers given names like “developingcloud” and “finshopland” as reverse proxies, with a final server behind them all executing orders on the hacked servers at Toppan Merrill (and the implication is, Donnelly, though the forensics came from Toppan Merrill via Kroll). The “computers numbered 1 through 7” in what follows are the servers identified by Kroll stealing earnings filings from Toppan Merrill.

A. So this is a digital depiction of the servers that I examined on the right there, so they each have a number on them, 1 through 9.

Q. Let me focus you first on the computers numbered 1 through 7. Do you see them there?

A. Yes.

Q. Are they kind of in a sideways V configuration?

A. Yes.

Q. Okay. And what do computers 1 through 7 show on this Exhibit DDD?

A. They functioned as gatekeepers for the furthest machine to the right, server number 8.

Q. And when you say “gatekeeper,” is there a technical term for that?

A. Yes. So the technical term is a “reverse proxy.”

Q. Can you explain to the jury, in a easy for me to understand way, what a reverse proxy or gatekeeper is in this chart, 1 through 7.

A. Yes. So in this chart, it would function — so the seven that are in that V formation, they would pass traffic to server number 8, if it was coming from an infected machine; and if it was something else, it would send the traffic to some other website.

This structure would have made it impossible for Toppan Merrill to understand the source or function of the anomalous traffic on its servers because any attempt to do so would be redirected away from the control server.

But not the FBI, because they obtained images of the servers with a warrant.

The forensic witness describing this structure showed, command by command, that the forensic clues identified by Kroll on the Toppan Merrill servers were controlled via that final server running PowerShell (the same tool that Mueller alleged Ermakov researched during the DNC hacks in 2016).

Q. And is there something on this log that you found that tells you the name of the program that was running on the victim’s computer at Toppan Merrill?

A. Yes, the process name line, and that reads rdtevc.

Q. And is process another name for computer program?

A. Yes.

Q. So this is a log that shows that a program named RDTEVC was running on a Toppan Merrill computer, right?

A. Yes.

Q. But it’s stored in the hacker computer?

[snip]

Q. And what does PowerShell do? You can call it anything, right? You can call it RDTEVC?

A. That’s probably a randomly chosen name.

Q. But no matter what it’s called, what does it do?

A. So it allows it to be remotely controlled and accessed.

Q. Allows what to be remotely controlled and accessed?

A. The infected machine.

The same forensic expert explained that he didn’t find any downloads of stolen files.

But he also explained why.

He had also found secure tunnels, readily available but similar in function to a proprietary GRU tool Crowdstrike found in the DNC server. As he described, these would be used to transfer data in encrypted form, making it impossible to identify the content of the data while it was in transit.

Q. Mr. Uitto, are you familiar with the concept of exfiltration?

A. Yes.

Q. Big word, but what does it mean?

A. It means to steal data, take data.

Q. And in your review, did you find evidence — you told Mr. Nemtsev you didn’t find evidence of the taking of data from the victim computers to these particular hacker servers; is that right?

A. That’s right, but I did see secure tunnels that were created.

Q. So when you say there were secure tunnels, were you able to tell what was going through those secure tunnels?

A. No.

Q. Those were encrypted, right?

A. Yes.

Q. So you actually don’t know whether or not there was financial information in those tunnels?

A. That’s correct.

Q. Or sports scores or anything?

A. That’s correct.

Q. It’s encrypted.

A. Yes.

[snip]

Q. What role does encryption serve in this hacker architecture?

[snip]

A. Yes, so it can be used to hide data or information.

Q. So if it’s encrypted, we can’t know what’s being passed?

To prove the hack, you would have to — and FBI did, in both cases — prove that the stolen data made it to the end point.

This testimony is important for more than explaining where you’d need to look to find proof of a hack (at the end points). It shows the import of understanding not just the crime scene and those end points, but the infrastructure used to control the hack and exfiltrate the data. With both the hack-and-trade conspiracy and the hack of the DNC, the FBI got forensics about the victim from the incident response contractors, but they obtained the data from these external servers directly, with warrants.

The denialists looking for proof in the DNC server were focused on just the crime scene, but not what I’ve likened to a getaway car, one to which the FBI had direct access but Crowdstrike did not.

Follow the money

Another specialized kind of fingerprint prosecutors used to prove the case against Klyushin parallels the one in the Mueller indictment (and, really, virtually all hacking cases these days): the cryptocurrency trail. As the Mueller indictment explained, the hackers who targeted the DNC used the same cryptocurrency account to pay for different parts of their infrastructure, thereby showing they were all related.

The funds used to pay for the dcleaks.com domain originated from an account at an online cryptocurrency service that the Conspirators also used to fund the lease of a virtual private server registered with the operational email account [email protected]. The dirbinsaabol email account was also used to register the john356gh URL-shortening account used by LUKASHEV to spearphish the Clinton Campaign chairman and other campaign-related individuals.

[snip]

For example, between on or about March 14, 2016 and April 28, 2016, the Conspirators used the same pool of bitcoin funds to purchase a virtual private network (“VPN”) account and to lease a server in Malaysia. In or around June 2016, the Conspirators used the Malaysian server to host the dcleaks.com website. On or about July 6, 2016, the Conspirators used the VPN to log into the @Guccifer_2 Twitter account. The Conspirators opened that VPN account from the same server that was also used to register malicious domains for the hacking of the DCCC and DNC networks.

By following the money, prosecutors were able to show the jury how these pieces of infrastructure fit together.

In the case of the hack-and-trade, the conspirators did nothing fancy to launder the cryptocurrency used in the operation. The servers obtained in the name of Andrea Neumann were paid using three successive cryptocurrency accounts, each with different names but accessed from the same IP address. The third name was Wan Connie. An interlocked Wan Connie email account had been accessed from M-13’s IP address. So while the cryptocurrency itself couldn’t tie the conspirators to the hack, the interlocked infrastructure did.

The conspiracy

To prove the hack, prosecutors at trial showed how the FBI had used evidence from the crime scene, the “getaway” car, the money trail, and evidence obtained at the end point from iCloud accounts to tie the hack back to Ermakov personally and M-13 more generally. The biggest smoking gun came from matching the IP addresses to which Ermakov got his iTunes updates to the infrastructure used in the hack (or, in the case of the May 9, 2018 thefts, directly to someone exploiting Julie Soma’s stolen credentials.

All that was left in the Klyushin case was proving the conspiracy, showing that Klyushin and others had used this stolen information to make millions by trading in advance of earnings announcements. This would be the functional equivalent of tying the records stolen from Democrats (and some Republicans) to their release via Guccifer 2.0, dcleaks, and WikiLeaks.

At Klyushin’s trial, the government proved the conspiracy via two means: an SEC analyst presented a bunch of coma-inducing analysis showing how the trades attributed to online brokerage accounts that Klyushin and others had in their own names lined up with the thefts. The analyst explained that odds of seeing those trading patterns would be virtually impossible.

More spectacularly, prosecutors introduced Klyushin’s role with a bunch of pictures establishing that he was “besties” with Ermakov (and, eventually, that there were unencrypted and encrypted communications, along with a picture of Klyushin’s yacht, sent via Ermkaov to two guys in St. Petersburg who didn’t work for M-13 but who were making the same pattern of trades); I looked at some of that evidence here. One picture found in Klyushin’s account showed Ermakov, crashed on a chair, wearing an M-13 sticker, taken in the same period as some of the logs provided by Kroll showed hacking activity. About the only thing the FBI found in Ermakov’s iCloud account was the online brokerage account used to execute the insider trading, in Klyushin’s name, but that tied him to the trading side of the conspiracy.

As their trades began to attract attention, Ermakov and another M-13 employee attempted to craft cover stories, evidence of which prosecutors found via Apple. Prosecutors even introduced Threema chats in which Ermakov told Klyushin, his boss, not to share details about their trading clients or he might end up a defendant in a trial.

He did.

And at that trial, prosecutors were able to prove a hacking conspiracy against Klyushin using evidence and victim testimony from the crime scene, but also from other data readily available with a subpoena or warrant inside the US.

Update: Tweaked language describing secure tunnels.

The nuts and graphs are here courtesy of the New York Times:

“The judge in the Fox News defamation case said on Tuesday that the case was resolved, abruptly ending a long-running dispute over misinformation in the 2020 election just as a highly anticipated trial was about to begin.

It was a last-minute end to a case that began two years ago and after the disclosure of hundreds of thousands of pages of documents that peeled back the curtain on a media company that has long resisted outside scrutiny. The settlement included a $787.5 million payment from Fox, according to Justin Nelson, a lawyer for Dominion.

“The truth matters. Lies have consequences,” he said outside the courthouse. “Over two years ago, a torrent of lies swept Dominion and election officials across America into an alternative universe of conspiracy theories causing grievous harm to Dominion and the country.”

Dominion had originally sought $1.6 billion in damages. Fox Corporation said in a statement that “we acknowledge the court’s rulings finding certain claims about Dominion to be false.”

It added: “We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”

The agreement was reached a few hours after a jury in Wilmington, Del., was selected on Tuesday, just as opening statements were expected to begin. Lawyers for both sides had been preparing to make their cases to the jury, their microphones clipped to their jacket lapels.

The sudden settlement means no high-profile Fox figures — including those who privately expressed concerns about the veracity of claims being made on its shows — will have to testify. The expected witness list had included Fox executives, including Rupert Murdoch, the chairman of Fox Corporation, and the hosts Tucker Carlson, Sean Hannity and Maria Bartiromo.

It was the latest extraordinary twist in a case that had promised to be one of the most consequential against a media organization in a generation.

The trial had been expected to be a major test of the First Amendment, raising questions about whether defamation law adequately protects victims of misinformation campaigns.

While the settlement avoids a lengthy trial, it still results in a rare instance of accountability for attempts to delegitimize President Biden’s victory. Few people or organizations have faced legal ramifications for claims related to electoral fraud that were brought by former President Donald J. Trump or his supporters.

Dominion sued Fox in early 2021, arguing that its reputation was badly damaged when Fox repeatedly aired falsehoods about its voting machines. Fox denied wrongdoing, saying that it had merely reported on newsworthy allegations that were coming from Mr. Trump and his lawyers and that it was protected in doing so by the First Amendment.

Judge Eric M. Davis had previously ruled that statements Fox had aired about Dominion were false, and functionally limited some of its potential defenses by deciding that its lawyers could not argue that it broadcast false information on the basis that the allegations were newsworthy.

At trial, a jury would have been tasked with answering the question of whether Fox had acted with “actual malice” — a legal standard meaning it had knowingly broadcast lies or had recklessly disregarded obvious evidence that the statements were untrue.”

Personally, I am shocked to find such gambling here in Ricks Cafe. Or not so much. Am feeling pretty good about my post yesterday morning.

I’ll leave it at that for now. Who could have known?

And for the inevitable dopes that will wander in to say “Ohhh, this was not enough!”, or “Ohhh there needed to be more admission and contrition!”, please stop. This was a fine and appropriate settlement. This case was NEVER about you and your politics, it was a jury trial case, which was NEVER going to be about you. Stop now.

Ruby Freeman and her daughter Shaye Moss have, as Beryl Howell invited them to do, moved to compel Rudy Giuliani to comply with discovery in their defamation lawsuit. The two 2020 Georgia election workers sued for the damage caused by the lynch mob Rudy summoned by falsely claiming they were attempting to steal votes after he saw a video showing Moss passing her mother a ginger mint.

The motion and all its exhibits are here.

What seems to be happening is that Rudy, having had his phones seized in 2021 and successfully avoided — thus far — charges for his Ukraine influence-peddling, is deliberately slow-walking discovery here to avoid identifying any devices or records that prosecutors can use in that investigation, the Georgia investigation, or Jack Smith’s January 6 one, all while sustaining a story that is already starting to fall apart.

As described in the motion to compel, Rudy’s non-compliance has included:

• Refusing to turn over any phone or financial records
• Refusing to explain what accounts and devices he has included in his searches
• Failing to search for texts and messaging apps from the phones seized in 2021
• Providing discovery based on much earlier requests from the January 6 Committee and Dominion’s lawsuit against him, rather than the requests from Freeman’s lawyers
• Providing documents on Hunter Biden along with one Pentagon City Costco receipt
• Others — like Bernie Kerik and Christina Bobb — similarly refusing to comply
• Claiming, then disclaiming, reliance on “unknown GOP operatives” for the false claims made about Freeman
• Refusing to describe how he became aware of the surveillance footage on which he based his false claims about Freeman and Moss

As a reminder, back on April 21, 2021, DOJ obtained a warrant for around 18 of Rudy’s phones in conjunction with the investigation into Rudy’s Ukrainian influence peddling that Bill Barr had successfully obstructed. By September of that year, DOJ had convinced Judge Paul Oetken to have Special Master Barbara Jones to review all the contents on his phones, not just that pertaining to the Ukraine warrants. Since then, I’ve been arguing that DOJ could — and at this point, almost certainly has — obtained that content for use in the January 6 investigation.

Dominion sued Rudy back in 2021. The January 6 Committee subpoenaed Rudy in January 2022 and interviewed him in May 2022. Those are the discovery requests on which Rudy is attempting to rely in this suit, rather than doing searches specific to the requests made by Freeman’s lawyers.

But after May 2022, Rudy’s exposure in Georgia went up. In addition to Freeman’s lawyers filing their amended complaint on May 10, 2022, Fani Willis convened her grand jury on May 2, 2022, subpoenaed Rudy to testify in June 2022, and he testified in August. It is virtually certain that Rudy gave answers to Willis — at the very least, about what he knew of Trump’s call to Brad Raffensperger on January 2 — that subsequent testimony has since disputed and on which topic he has since amended his interrogatory response.

The materials in this motion reveal that Rudy’s lawyer in this matter (Joe Sibley — who represented Christina Bobb in a J6C deposition that conflicts with Rudy’s answers here, though Robert Costello was present for Rudy’s March deposition) at first promised thousands of documents to Freeman’s lawyers, while claiming that most documents would be unavailable because of the Special Master process tied to the Ukraine investigation. Last July 12, Rudy provided 1,269 documents he had also turned over to Dominion’s much earlier request, which Freeman’s lawyers describe as, “his first and only substantial document production to date.”

Then, on August 3, Robert Costello made a showy announcement that SDNY had ended the Special Master process, which is not the same thing as getting a letter that he’s not a subject of that investigation anymore. Shortly thereafter, Freeman’s attorneys pointed out that the excuse Rudy had been using to limit his discovery in this case was no longer operative. He had the phones that — he claimed — included all his communications from the period during which he had started the conspiracy theories about Freeman.

After that showy announcement from Costello on August 3, things changed dramatically. In September, Sibley told Freeman’s lawyers there were 18,000 documents relevant to discovery in the materials seized from his phone. A month later, he said there were 400. In October, Rudy turned over 177 of those documents, 51 of which were blank. Since then, Sibley seems to have provided answer after answer that amounted to throwing up his hands when describing the state of Rudy’s discovery.

Rudy is quite literally attempting to claim he can only shoot blank documents in hopes of getting through this discovery process.

In his March 2023 deposition, Rudy claimed that the physical phones returned by SDNY — which he says only happened in August — were “wiped out.” What actually seems to have happened is that he hasn’t figured out how to access the content saved to the cloud by discovery vendor TrustPoint, and may not have tried to access the phones themselves, which I believe Costello had publicly claimed to have been returned earlier last year.

But far and away the best way to understand his answers are that, first of all, he and Bobb gave materially inconsistent answers while being represented by Sibley, most notably on the topic of whether they participated in the Brad Raffensperger call, which Bobb said they did and Rudy originally claimed — and presumably claimed to Fani Willis’ grand jury — that they had not.

Just as importantly, Rudy may be aware of both messaging apps and phone accounts that he’s not certain prosecutors in SDNY, Georgia, or DC have identified, so he’s refusing to be forthcoming about all the devices and phone accounts he used. There are probably communications from his phones that Costello successfully claimed were privileged during the SDNY Special Master process, which would be obviously crime-fraud excepted in any proceeding before someone who knows the January 6 investigation well. Prosecutors in both SDNY and DC will be able to tell after a quick review of exhibits included with this motion to compel whether Rudy’s claims about the status of the phone content from TrustPoint are accurate.

And therein lies the risk of the game that Rudy is playing.

This would be an obviously bullshit response before any judge, including Carl Nichols (who is presiding over the much more leisurely Dominion suit against Rudy).

But by luck of the draw, he’s attempting this stunt before Beryl Howell, who even on good days does not suffer fools at all, much less gladly, and who until just a month ago was the Chief Judge presiding over all the grand jury proceedings in DC, including the January 6 investigation. She’s one of just two or three judges who knows whether DOJ asked for and obtained a warrant to get the stuff from Rudy’s phones in SDNY. If they did (and I’d bet a very good deal of money they did), she would have seen an affidavit explaining in what form DC USAO understood that phone content to be, and if they did, she has likely overseen discussions about any further attorney-client protections DOJ had to adhere to. If DC USAO obtained warrants for other cloud content, she might also know about any accounts that Rudy is not disclosing to Freeman, including those whose email and phone accounts Rudy consistently used as a proxy. She likely has a sense of how many phone accounts DOJ has identified for Rudy, none of the call records of which would be subject to attorney-client protection. She may know of other aliases that Rudy used in his assault on the election.

Rudy is pulling this contemptuous stunt in front of the one judge who may know the extent to which he’s bullshitting.

Which may be why, at a few points in Freeman’s Motion to Compel, her attorneys note that they’re only asking for modest relief, basically just leverage to get Rudy to actually answer the questions, as well as attorney fees for their time he has wasted.

But Judge Howell? Well, if she wants to use her discretion to provide expanded relief, Freeman’s lawyers say, they’d be open to that too.

The relief Plaintiffs seek in this Motion is narrow, while recognizing that the Court in its discretion may enter additional forms of relief, including sanctions. Plaintiffs reserve all rights relating to seeking expanded forms of relief in the future.

At this point, there are at least two criminal investigations into Rudy and two civil suits — January 6, Georgia, Dominion, and this suit. Even before reviewing his J6C transcript, it’s easy to identify plenty of ways his evolving answers here, amended in part because of inconsistent testimony given before the J6C, conflict with what he must have answered before the Georgia grand jury, which could start issuing indictments any day.

Juggling all that legal exposure would be difficult for a sober, organized man with little real legal exposure.

For Rudy, though, this insane approach may be, at best, a futile attempt to limit the damage this civil case can do to his criminal exposure.

Members of the Emptywheel community are on top of almost everything. So you probably know that late over the weekend, the judge in the Dominion v. Fox defamation trial in Wilmington Delaware continued the trial. For one day, moving the continuation of jury selection from this morning, Monday, to the same time, 9:00 am, tomorrow, Tuesday.

That caused quite a stir on the internet, but, as the judge explained today, is quite common, although he did not say why it had been done in this case.

The speculation is that it was to give one extra day past the weekend for the parties to contemplate settlement. Courts, especially a rapid moving one like the Delaware Court, rarely do that on their own. One or both parties have to request it. Was it Fox, Dominion, or both?

Then late last night, there were reports there had been no settlement reached. That is not surprising in the least, as Sunday would have just been the start, any really settlement would come Monday. So far, so good, but now what?

Short answer is that is unclear. Even today is not a drop dead deadline. Trials can be settled even during jury voir dire or into arguments and evidence. I would very much think the judge here would rather it be sooner rather than later, but doubt given the strain on the court, would probably accept it at any point.

The internet hills are alive with the sound of (almost always) non-trial lawyers yammering that Dominion should “not” settle, because the “public” is entitled to this spectacle.

What a load of bullshit. There are two parties to this civil litigation, and the “public” is not one of them. But the two actual parties in interest, Dominion and Fox have their own interests and needs that obliterate public call for a show trial for their puerile amusement, and “popcorn” moment.

Attorney Brad Moss noted:

“For those asking why Dominion might settle, there are at least three things to remember:

1) non-trivial chance the pre-trial rulings get reversed on appeal and the whole thing is tossed;

2) trials are a wild card; and

3) if they can accomplish their primary goals, why not?”

Attorney Peter Zeidenberg, who this blog knows well if you go far enough back, said:

“Better reason: the damages case for $1.6B is pretty weak. If awarded it could easily get tipped on appeal. $500M would be a tempting offer.”

Frankly, I agree with both on this. Will the case settle? I have no idea, but there are good reasons for both parties to try. And it would certainly thrill the court. There is a lot of sense in making the attempt.