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

Because we’re running in excess of 500 comments across the last three threads about Donald Trump’s indictment and arraignment in Manhattan, I want to post another thread for more discussion.

I’ll remind you now I’m not a lawyer and I don’t have either Marcy’s holographic memory or her skills at fine reading, nor bmaz’s experience representing criminal defendants.

But I want to bring up a couple subjects we haven’t discussed which are related to D.A. Alvin Bragg’s criminal suit against Trump.

First, only one member of the emptywheel community made a passing reference to Trump’s post-arraignment speech. They didn’t mention Trumps’ threats.

Yes, that’s plural Trumps, because Donnie Jr. and Eric posted in social media a photo of New York Supreme Court Justice Juan Merchan and his daughter on the day of his father’s arraignment. They targeted Merchan’s daughter for having worked for Kamala Harris’ campaign.

You’ll recall in July 2020 that U.S. District Court for the District of New Jersey Judge Esther Salas’ family members were attacked at their home – her husband was shot three times and her son shot and killed. The attacker was an aggressive anti-feminist who killed himself shortly after the attack on Salas’ family. He had been able to locate Salas’ home using her personal information publicly available online.

Last November, Congress passed the Daniel Anderl Judicial Security and Privacy Act of 2021, named after Salas’ son, to protect the personal information about judges on the internet.

Trump himself attacked Judge Merchan verbally in his speech from Mar-a-Lago after returning from his arraignment. He’d been strongly cautioned against threatening speech during his arraignment, but he fulminated anyhow about Merchan being a “Trump-hating judge with a Trump-hating wife and family,” repeating the same disparaging remarks he’d made earlier the same day over social media. He also targeted Merchan’s daughter.

Apart from the obvious potential incitement to violence the Trumps attempted against Judge Merchan and his family, was this a move to manipulate the Manhattan case?

Being a state jurist, Merchan and his family are not protected by the federal Judicial Security and Privacy Act. But I wonder if these threats made online and on an interstate basis were intended not just to influence the judge or D.A. Alvin Bragg.

Are there potential federal repercussions?

~ ~ ~

Secondly, the emptywheel community and the legal commentariat at large have sifted through Trump’s indictment and the statement of facts. The amount of related discussion across social media has been exhausting.

However community member c-i-v-i-l shared a link to a thread by University of Texas Professor of Law Lee Kovarsky which checked me short and made me rethink the 34 count indictment.

You can catch the thread on the Wayback Machine at this Internet Archive link (I won’t make you go to Elmo’s House of Doge Nazi Bar for this).

What gave me pause was Kovarsky’s analysis of preemption and the matrix of possible underlying crime(s) which Bragg did not disclose but underpin the charges Bragg filed against Trump.

Here’s what the matrix looked like, with Not-Trump = Pecker, Cohen, etc. according to Kovarsky:

(1) federal tax law violation by Trump	(2) federal tax law violation by Not-Trump
(3) state tax law violation by Trump	(4) state tax law violation by Not-Trump
(5) federal election law violation by Trump	(6) federal election law violation by Not-Trump
(7) state election law violation by Trump	(8) state election law violation by Not-Trump

Kovarsky made a lot of sense to a non-lawyer like me as he pointed out where others’ arguments about preemption are weak and what’s most likely as a preemption.

And then it clicked, all the tumblers fell into place.

In my uneducated opinion, the underlying crime isn’t one which can be preempted by federal law.

It’s a crime which has been prosecuted by the state of New York already.

It’s a crime which has already been prosecuted by the Manhattan D.A.

It’s a crime which explains the narrow emphasis on business records and falsification of the same, and a crime which relied on falsified business records.

And the crime looked like this:

These are counts for which Trump Organization and its CFO (TO CFO) was already convicted and is now serving time in Rikers Island.

It’s the April 2017 and April 2018 tax returns and related supporting documentation filed based on falsified business records for which TO CFO Allen Weisselberg has already been charged.

But so has the Trump Organization – the same organization which was responsible for the financial records of Donald J. Trump Revocable Trust, and the financial records of Donald J. Trump.

This January both Trump Corporation and the Trump Payroll Corporation were assessed a total of $1.6 million in fines for their tax fraud as part of Trump Organization.

Again, I’ll remind you I’m not a lawyer, don’t even play one on TV, though I’ve done bookkeeping for several small businesses in my career and worked for a lawyer and CFO. I’ve shared my speculation here knowing I’m going to get a drubbing from my partner in (im)moderation bmaz.

I don’t even know if I can muster much defense of my own argument here except that Weisselberg’s case is one which hasn’t been discussed much at all since Tuesday morning.

Yet it was reported on March 30 that Weisselberg had “dumped” his Trump-funded lawyer Nicholas Gravante or that the Trump organization had fired Weisselberg’s lawyer. Gravante was apparently too willing to let Weisselberg talk with Bragg’s office.

Weisselberg is now represented by Seth L. Rosenberg who was a former member of the Manhattan D.A.’s office; Rosenberg has been with Clayman & Rosenberg LLP since 1986.

The late shuffle of attorneys could be a sign that it is the tax fraud for which Trump Org has already been charged that is the predicate to Trump’s 34-count indictment.

This situation would explain why Bragg would have been reluctant to outline the underlying crime when the 34 counts against Trump were filed and Trump was arraigned. Trump has already been manipulating Weisselberg through the legal representation Trump organization has been providing him; it’s reasonable to assume this is an attempt to throttle Weisselberg’s possible testimony against Trump.

What other crime might have been the predicate upon which the Manhattan D.A.’s charges would have relied if not the tax fraud charges against Trump Organization?

What other underlying crime would avoid preemption?

In a press conference after Defendant-1’s arraignment yesterday, Alvin Bragg explained that he reconsidered bringing this case because new information — both newly available witness(es) and evidence — had come to him that change the way he thought of the case.

The witnesses may be one or both of Kellyanne Conway or Hope Hicks, both of whom testified to the grand jury, both of whom will have backed Michael Cohen’s claims about what went down in 2016.

The new evidence may be something from Trump’s taxes (the statement of facts briefly notes that “the participants
also took steps that mischaracterized, for tax purposes” the hush money payments) or something that came out of the Trump Organization trial last year.

But I can’t help but wonder whether, in his attempt to stave off a Trump indictment last month, Robert Costello provided new information to Bragg.

I say that because one of the only new details in the statement of facts is that, after writing Cohen on April 20, 2018 to reassure him that he had “friends in high places” (which made the Mueller Report and was also included in the SOF), Costello emailed Cohen again on June 14, 2018, urging him not to plead again. This email is not included in the Mueller Report.

On or about June 14, 2018, Lawyer C emailed Lawyer A a news clip discussing the possibility of Lawyer A cooperating, and continued to urge him not to cooperate with law enforcement, writing, “The whole objective of this exercise by the [federal prosecutors] is to drain you, emotionally and financially, until you reach a point that you see them as your only means to salvation.” In the same email , Lawyer C, wrote, “You are making a very big mistake if you believe the stories these ‘journalists’ are writing about you. They want you to cave. They want you to fail. They do not want you to persevere and succeed.”

In hubristic interviews after his testimony to the grand jury — which he claimed to be sure would stave off an indictment — Costello described that prosecutors were narrowly focused on six emails he provided them, rather than a whole binder of emails that, Costello claimed, would totally discredit Cohen as a witness (but not Kellyanne, Hope Hicks, or David Pecker, which is a testament to the limits of his understanding of the case).

Presumably, this email is one of the ones they focused on.

If Costello’s attempt to stave off the indictment actually hastened it, it wouldn’t be the first time. Costello had two exchanges with federal prosecutors (and FBI agents) in a November 2021 attempt to stave off Steve Bannon’s indictment for contempt. Prosecutors treated him as a witness. Among the other damning things he told them is that he advised Bannon to BEWARE because he could be referred for prosecution if he totally blew off the subpoena from the January 6 Committee. He also made it clear that Bannon did not have an explicit executive privilege invocation.

It would be especially remarkable if Costello provided Bragg with emails that he previously didn’t have, because that might mean that Cohen didn’t have everything accessible himself. It might mean DOJ didn’t consider all the evidence about Costello’s attempt to influence Cohen’s testimony.

And in this case, there can be no misunderstanding that he will be treated as a witness. Trump sent Costello as a witness, his witness. His testimony is now locked in.

That testimony necessarily covers one of the only previously unpublished details in the entire narrative. Costello himself may be one of the new witnesses.

I’m starting a new post as we begin to get news from the arraignment. Among the 34 charges is a conspiracy count that will sweep in a great deal of damning evidence.

Update: Here is the indictment. That just lists the individual document fraud, check by invoice.

The statement of facts explains the underlying logic of the case.

Update: Alvin Bragg just explained the case. The argument is that in 2015 and 2016, Michael Cohen, David Pecker, Trump, and others agreed to conduct the catch-and-kill program to help Trump win. That violated three crimes, per Bragg:

• New York State laws prohibiting the promotion of a candidate by false means
• Federal campaign finance laws
• Document falsification by American Media Inc (National Enquirer)

He alleges each invoice and check were an attempt to cover up those 2016 crimes.

Bragg did say that the indictment does not need to specify what the other crimes the document falsification was intended to hide. He also noted–as NYU’s Ryan Goodman has laid out–that it is the “bread and butter” of the white collar charges NY DA charges.

Bragg claimed that his office had received additional evidence and access to additional witnesses after he took over.

Upon request I, hopefully, will come back to the big Alvin Bragg indictment of Trump. Later. When have really had a chance to digest and analyze it.

So far, at least, not too sold on it. Not like all the Boyz at Just Security, several of whom I respect, but they have been been overselling, led by Weissmann, this entire scenario mercilessly. To the extent of being dubious.

Anybody who thinks this is all cut and dried as Bragg makes it is a dope. To what extent we shall see. But, yes, we shall see. Tomorrow will be merely the start of the analysis, not merely the end like other dopes will tell you.

So, let us see what is, and what will never really be. They are very different things. Am prepared to be totally wrong. Are you? And how long are you willing to play the long game out?

Criminal law will never be your personal political savior.

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

“What does colonialism have to do with carrots?” one might ask.

A lot — and an awful lot if you live in the U.S.

~ 3 ~

First, a bit of history which itself doesn’t have much to do with orange root vegetables.

130 years ago this past January there was a coup.

The last reigning monarch of the sovereign nation of Hawai’i was deposed by a bunch of white farmers – the guys who owned and operated sugar and pineapple farms on the islands, or the owners’ henchmen. They set up a provisional government composed of white guys who were the “Committee of Safety,” completely bypassing and ignoring the sentiments of the islands’ majority native Hawaiian population.

You’ll recall from your American History classes that a “Committee of Safety” was formed during the American Revolution as a shadow government. Groups later formed post-revolution with the same or similar names — a movement of vigilantism — but focused on protecting local white property owners’ interests.

Hawaiians had already been disenfranchised in 1887 when their king was forced to sign the “Bayonet Constitution” which removed much of his power while relegating Hawaiians and Asian residents to second-class non-voting status.

All because the Hawaiian islands were there and the sugar and pineapple producers wanted them.

That’s the rationalization. A bunch of brown people who had no army were stripped of their rights and their kingdom because white dudes wanted to farm there.

It didn’t help matters that the Hawaiian people had already been decimated by diseases the whites brought with them between Britain’s Captain Cook’s first foray into the islands in 1778 and the eventual annexation of Hawaii. As much as 85-90% of all Hawaiians died of communicable diseases like measles. There were too few Hawaiians remaining to fight off depredation by whites from the U.S. and Europe.

In 1993, then-president Bill Clinton signed a joint Apology Resolution Congress passed on the 100th anniversary of the coup, in which Congress said it “acknowledges that the overthrow of the Kingdom of Hawaiʻi occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaiʻi or through a plebiscite or referendum”.

None of that restores the sovereign nation of Hawai’i and makes it whole. It merely acknowledged the theft of an entire nation.

Am I a little chapped about this? Fuck yes, because my father’s family is Hawaiian and the land was stolen from them because the mainland U.S. wanted sugar and pineapples and the white dudes who stole it wanted a profit for little effort and didn’t give a damn about the nation of brown people who already existed on the islands. In contrast, Hawaiians like my family subsisted off the land and water.

They were merely collateral damage.

Happy fucking coup anniversary, white dudes from afar. You got what you wanted and more.

Hawaiians received nothing.

~ 2 ~

“But what does this have to do with carrots,” one might still be asking. “Is it the farmers?”

Yes, kind of — but it’s about the farmers’ attitudes.

Every single person who is not indigenous on this continent is on land which was already long occupied for thousands of years before whites arrived from Europe.

Much of this land is unceded territory, like the sovereign nation of Hawai’i. The rest may have been signed away in treaties, but get the fuck out about it being fair and equitable let alone fully informed and consensual, like the “Bayonet Constitution” King Kalākaua was forced to sign.

Here’s some 60 Dutch guilders, some alcohol, (sotto voce) some disease in exchange for the island of Manhattan. Fair trade, right? Such bullshit.

What’s even more bullshit is the argument some whites have used claiming indigenous people didn’t have a sense of ownership over the land. In a sense that’s true – many indigenous people felt or believed it was the other way around. They belonged to the land and to the forces of nature which made the land what it was, a holistic system.

This changes the concept of what a treaty entails, especially when both parties lack fluency in each other’s language and culture

(In Kalākaua’s case, there was no vagary; he was fluent in English and he knew if he didn’t sign the Bayonet Constitution the monarchy would be overthrown and the nation of Hawai’i would cease to exist.)

But who cared what those brown pagan savages thought? Even when they were converted to Christianity they were still brown and not perceived by whites as having legitimate rights to anything.

That included land and water.

This has pervaded white American history, that the people who pre-existed here were somehow not worth full consideration as equals. The attitude remains today when we talk about water and water rights.

The parallel thread to the marginalization of Native Americans and Hawaiians is the premise that white development should not ever be impeded (including development for its client states). If it needs something to expand and maintain itself, even if it exceeds its resources, it should simply be accommodated by whomever has the resources it needs.

So it is with the west and water.

I’ve read tens of thousands of words this since January about water and the western U.S., and so very little of it is concerned with the rights of the people who were first here.

Where are their water rights in all of this demand for more water for agriculture?

What set me off on this was a comment responding to my last post about carrots in which it was suggested water for the west should come from the Midwest/eastern U.S.; it wasn’t the first time I’d heard such balderdash.

As if the Great Lakes region should simply give water because it has so much and the west needs it.

Oh, and the west will trade energy for it.

Like trading an island for 60 Dutch guilders. Or trading a nation for the bayonet removed from the throat.

No. Fuck no.

This is colonialism — its unending grasping nature to take what doesn’t belong to colonialists because they need it.

Like islands to grow sugar and pineapples, they want lakes to ensure their profits, I mean, carrots continue to grow.

Or their golf courses, or swimming pools, or their verdant fescue lawns in the middle of the desert.

Never mind the Great Lakes isn’t solely the property of the U.S., but a shared resource with its neighbor Canada.

Never mind there are First Nations Native Americans who also have water rights to the Great Lakes, who continue to rely on those lakes for their subsistence, and who may also subsist on the waters outside of Great Lakes but in other watersheds

No. Fuck no. The American west can knock off its colonialist attitude and grow up. Resources are finite, defining the limits of growth. Apply some of that vaunted American ingenuity and figure out how to make do with the resource budgets already available.

People are a lot easier to move than lakes full of water, by the way.

~ 1 ~

“Okay, carrots may be colonialist when they demand more water than available,” one might now be thinking.

Yes. But there’s more. Another issue which surface in comments on my last post was the lack of a comprehensive national water policy.

This is has been a problem for decades; it’s come up here in comments as far back as 2008, and the problem was ancient at that time.

It’s not just a national water policy we need, though. We need a global policy in no small part because of the climate crisis. Look at California as this season’s storms begin to ease; the fifth largest economy in the world has been rattled with an excess of fresh water it can’t use effectively, which has and will continue to pose threats to CA residents. California is not the only place which will face such challenges. Super Typhoon Nanmadol last year dumped rain under high winds for days across all of Japan; while a typhoon is a discrete event, the size and length of Nanmadol are not unlike the effects of multiple atmospheric river events hitting California inside one week. The super typhoon hit Japan a month after a previous typhoon; imagine had they both been extended-length super typhoons.

Indeed, this is what has already happened in the Philippines before Nanmadol with Hinnamor.

This year has already seen the longest ever typhoon; Freddy lasted more than five weeks. Imagine a single super storm inflicting rain for that long in the East Asian region.

Depending on the level of development and preparedness, fresh water may be a problem during and after these much larger more frequent storms – not to mention drought and wildfire.

In 2010 the Defense Department’s Quadrennial Defense Review Report included a section addressing climate change:

Crafting a Strategic Approach to Climate and Energy

Climate change and energy are two key issues that will play a significant role in shaping the future security environment. Although they produce distinct types of challenges, climate change, energy security, and economic stability are inextricably linked. The actions that the Department takes now can prepare us to respond effectively to these challenges in the near term and in the future.

Climate change will affect DoD in two broad ways. First, climate change will shape the operating environment, roles, and missions that we undertake. The U.S. Global Change Research Program, composed of 13 federal agencies, reported in 2009 that climate-related changes are already being observed in every region of the world, including the United States and its coastal waters. Among these physical changes are increases in heavy downpours, rising temperature and sea level, rapidly retreating glaciers, thawing permafrost, lengthening growing seasons, lengthening ice-free seasons in the oceans and on lakes and rivers, earlier snowmelt, and alterations in river flows.

Assessments conducted by the intelligence community indicate that climate change could have significant geopolitical impacts around the world, contributing to poverty, environmental degradation, and the further weakening of fragile governments. Climate change will contribute to food and water scarcity, will increase the spread of disease, and may spur or exacerbate mass migration.

While climate change alone does not cause conflict, it may act as an accelerant of instability or conflict, placing a burden to respond on civilian institutions and militaries around the world. In addition, extreme weather events may lead to increased demands for defense support to civil authorities for humanitarian assistance or disaster response both within the United States and overseas. In some nations, the military is the only institution with the capacity to respond to a large-scale natural disaster. Proactive engagement with these countries can help build their capability to respond to such events. Working closely with relevant U.S. departments and agencies, DoD has undertaken environmental security cooperative initiatives with foreign militaries that represent a nonthreatening way of building trust, sharing best practices on installations management and operations, and developing response capacity.

Water — whether potable fresh, rising oceans, changed waterways, ice or lack thereof — figured prominently in this assessment of growing climate threats.

The inaugural Quadrennial Diplomacy Report published by the State Department in 2010 likewise considered climate change an issue demanding consideration as State assessed diplomatic efforts needed to assure the U.S. remained secure.

The climate crisis isn’t confined to the U.S. alone, though; it’s a global challenge and in need of global response. We need not only a national water policy but a global water policy, and with it policies related to agriculture dependent upon water’s availability.

The price for failing to implement a global approach has long-term repercussions. Examples:

• Ongoing conflict in Syria may have been kicked off before Arab Spring by long-term drought in the region;

• Violence and economic instability in Central America caused in part by drought and storms creates large numbers of asylum seekers and climate refugees heading north;

• Sustained drought in Afghanistan damaging crops increases the chances poor farmers will be recruited by the Taliban.

Developing approaches to ensure adequate clean drinking water and irrigation of local crops at subsistence level could help reduce conflicts, but it will require more than spot agreements on a case-by-case basis to scale up the kind of systems needed as the climate crisis deepens, affecting more of the globe at the same time.

~ 0 ~

“But wait, what about the carrots and colonialism and conflict?” one might ask.

The largest producers of carrots are China (Asia), the United States (western hemisphere), Russia, Uzbekistan — and Ukraine.

The third largest producer of carrots attacked the fifth largest producer which happened to be a former satellite state.

That besieged state is the largest producer of carrots in Europe.

The colonialism is bad enough. Imagine if the colonial power damaged the former colony’s water supply, too.

The WaPo, with Devlin Barrett as lead byline and Mar-a-Lago Trump-whisperer Josh Dawsey next, has a report describing either new evidence or more evidence of obstruction in the stolen documents case.

Some of it, such as that investigators “now suspect that boxes including classified material were moved from Mar-a-Lago storage area after the subpoena was served,” is not new — not to investigators and not to the public. The version of the search affidavit released on September 14 showed that on June 24 investigators subpoenaed the surveillance footage for the storage room and at least one other, still-redacted location, going back to January 10, 2022, long before subpoena for documents with classification marks was served on May 11. So unless Trump withheld surveillance footage, then DOJ has known since early July 2022 on what specific dates boxes were moved. And a redacted part of the affidavit explains the probable cause the FBI had in August that there might be classified documents in Trump’s residential suite.

In other words, much of what WaPo describes is that DOJ has obtained substantial evidence since August to prove the probable cause suspicions already laid out in their August warrant affidavit. You don’t search the former President’s beach resort without awfully good probable cause, and they were able to show substantial reason to believe that Trump had boxes moved to his residence after he received the May 11 subpoena, where he sorted out some he wanted to keep, eight months ago.

They’ve just gotten a whole lot more proof that they were right, since.

Other parts of the story do describe previously unknown (to us, at least) details, and those may be significantly more important for Trump’s fate. The most intriguing, to me, is that witnesses are being asked about Trump’s obsession with Mark Milley.

Investigators have also asked witnesses if Trump showed a particular interest in material relating to Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, people familiar with those interviews said. Milley was appointed by Trump but drew scorn and criticism from Trump and his supporters after a series of revelations in books about Milley’s efforts to rein in Trump toward the end of his term. In 2021, Trump repeatedly complained publicly about Milley, calling him an “idiot.”

The people did not say whether investigators specified what material related to Milley they were focused on. The Post could not determine what has led prosecutors to press some witnesses on those specific points or how relevant they may be to the overall picture that Smith’s team is trying to build of Trump’s actions and intent.

Remember that reports on investigations, especially ones that include Mar-a-Lago court reporters, often amount to witnesses attempting to share questions they’ve been asked with other witnesses or lawyers. Trump’s team has no idea what kinds of classified items were seized. This detail suggests that among the classified documents seized are a document or documents pertaining to Milley.

According to Bobs Woodward and Costa in Peril, Milley called China twice in the last months of the Trump administration to reassure his counterpart that the US was not going to attack China without some build-up first.

On Friday, October 30, four days before the election, Chairman Milley examined the latest sensitive intelligence. What he read was alarming: The Chinese believed the United States was going to attack them.

Milley knew it was untrue. But the Chinese were on high alert, and whenever a superpower is on high alert, the risk of war escalates. Asian media reports were filled with rumors and talk of tensions between the two countries over the Freedom of Navigation exercises in the South China Sea, where the U.S. Navy routinely sails ships in areas to challenge maritime claims by the Chinese and promote freedom of the seas.

There were suggestions that Trump might want to manufacture a “Wag the Dog” war before the election so he could rally the voters and beat Biden.

[snip]

This was such a moment. While he often put a hold on or stopped various tactical and routine U.S. military exercises that could look provocative to the other side or be misinterpreted, this was not a time for just a hold. He arranged a call with General Li.

Trump was attacking China on the campaign trail at every turn, blaming them for the coronavirus. “I beat this crazy, horrible China virus,” he told Fox News on October 11. Milley knew the Chinese might not know where the politics ended and possible action began.

To give the call with Li a more routine flavor, Milley first raised mundane issues like the staff-to-staff communications and methods for making sure they could always rapidly reach each other.

Finally, getting to the point, Milley said, “General Li, I want to assure you that the American government is stable and everything is going to be okay. We are not going to attack or conduct any kinetic operations against you.

“General Li, you and I have known each other for now five years. If we’re going to attack, I’m going to call you ahead of time. It’s not going to be a surprise. It’s not going to be a bolt out of the blue.

The two Bobs also described how, in the days after January 6, Milley reviewed nuclear launch procedures with senior officers of the National Mission Command Center to make sure he would be in the loop if Trump ordered the use of nukes.

Without providing a reason, Milley said he wanted to go over the procedures and process for launching nuclear weapons.

Only the president could give the order, he said. But then he made clear that he, the chairman of the JCS, must be directly involved. Under current procedure, there was supposed to be a voice conference call on a secure network that would include the secretary of defense, the JCS chairman and lawyers.

“If you get calls,” Milley said, “no matter who they’re from, there’s a process here, there’s a procedure. No matter what you’re told, you do the procedure. You do the process. And I’m part of that procedure. You’ve got to make sure that the right people are on the net.”

If there was any doubt what he was emphasizing, he added, “You just make sure that I’m on this net. “Don’t forget. Just don’t forget.”

He said that his statements applied to any order for military action, not just the use of nuclear weapons. He had to be in the loop.

Since these details about Milley came out, Trump and his frothers have claimed Milley committed treason, in concert with Nancy Pelosi (who had expressed concerns to Milley about the safety of America’s nuclear arsenal).

The attack on Milley is the same kind of manufactured grievance — often cultivated by investigation witness Kash Patel (who was DOD Chief of Staff during the transition) — as the Russian investigation. That other inflated grievance led Trump to compile a dumbass binder of sensitive documents that didn’t substantiate his grievances. If Trump did the same with Milley, either before or after he left office, those documents might include highly sensitive documents, including SIGINT reports about China’s response to Milley’s contacts.

If DOJ were ever to charge Trump for refusing to give back classified documents under 18 USC 793(e), DOJ would select a subset of the documents to charge, probably from among those seized in August. They would pick those that, if declassified for trial, would not do new damage to national security, documents that would allow prosecutors to tell a compelling story at trial. And given WaPo’s report, there’s good reason to think there’s a story they think they could tell about documents that may be part of Trump’s grievance campaign against Milley.

WaPo also described that witnesses are being asked whether Trump shared documents, including a map, with donors.

As investigators piece together what happened in May and June of last year, they have been asking witnesses if Trump showed classified documents, including maps, to political donors, people familiar with those conversations said.

According to the story, communications from Trump’s former Executive Assistant, Molly Michael, have been key for investigators.

[A]uthorities have another category of evidence that they consider particularly helpful as they reconstruct events from last spring: emails and texts of Molly Michael, an assistant to the former president who followed him from the White House to Florida before she eventually left that job last year. Michael’s written communications have provided investigators with a detailed understanding of the day-to-day activity at Mar-a-Lago at critical moments, these people said.

Michael is likely the person in whose desk drawer at least two of the classified documents seized in August were found: the two “compiled” with messages from a pollster, a faith leader, and a book author, the kind of document you would show to donors. That document, which combines two classified documents obtained before Trump left the White House with messages from after he left, is the kind of smoking gun that shows Trump didn’t just hoard documents because of ego (as Barrett reported even after the existence of this document was made public), but because he was putting classified documents to his own personal use. We learned back in November that there was evidence that Trump had used two classified documents in what sounds like a campaign document. Perhaps one of those classified documents was a map (of Israel? of Ukraine?).

Whatever it is, this is the kind of story prosecutors might like to tell at stolen classified document trials, not just because it would show Trump putting the nation’s secrets to his own personal gain and sharing classified documents with people who never had clearance, but because it would be proof that people on Trump’s team knew of and accessed documents after they lost their need to access such documents. This document would go a long way to proving that Trump didn’t just hoard classified documents out of negligence (which is currently the explanation why both Joe Biden and Mike Pence did), but because he wanted to make use of what he took.

Molly Michael is also the person who ordered a more junior aide to make a digital copy of Trump’s schedules from when he was President, an order that led to documents with classification markings being loaded to a laptop and likely to the cloud. That’s another example of the kind of exploitation of classified documents that would make a good story at trial.

It’s also the kind of story that could expose Michael herself to Espionage Act charges, such that she might work hard to minimize her own exposure. And yes, because she was Trump’s Executive Assistant, both at the White House and after he moved back to Mar-a-Lago, she likely can explain a lot about how Trump used documents he took from the White House and brought to Mar-a-Lago, including documents used as part of his political campaigning afterwards.

Without conceding it was incorrect, WaPo notes that in November, after it was already public that Trump had self-interested reason to refuse to return documents, it reported it was all just ego (it now attributes that conclusion entirely to what Trump told his aides, not — as claimed in the first line of last fall’s story — what “Federal agents and prosecutors have come to believe”).

Such alleged conduct could demonstrate Trump’s habits when it came to classified documents, and what may have motivated him to want to keep the papers. The Post has previously reported that Trump told aides he did not want to return documents and other items from his presidency — which by law are supposed to remain in government custody — because he believed they belonged to him.

Even in a story describing prosecutors collecting evidence about at least two stories about classified records that they might tell at a trial, the WaPo remarkably suggests to readers that obstruction is the primary crime being investigated here.

The application for court approval for that search said agents were pursuing evidence of violations of statutes including 18 USC 1519, which makes it a crime to alter, destroy, mutilate or conceal a document or tangible object “with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency.”

A key element in most obstruction cases is intent, because to bring such a charge, prosecutors have to be able to show that whatever actions were taken were done to try to hinder or block an investigation. In the Trump case, prosecutors and federal agents are trying to gather any evidence pointing to the motivation for Trump’s actions.

[snip]

Investigators have also amassed evidence indicating that Trump told others to mislead government officials in early 2022, before the subpoena, when the National Archives and Records Administration was working with the Justice Department to try to recover a wide range of papers, many of them not classified, from Trump’s time as president, the people familiar with the investigation said. While such alleged conduct may not constitute a crime, it could serve as evidence of the former president’s intent.

By treating this as only an obstruction investigation, WaPo incorrectly claims that lying to NARA (as opposed to the FBI) could not be part of a crime.

Here’s my attempt to lay out the elements of offense of both crimes — what prosecutors would have to prove at trial (I wrote more about the elements of an 18 USC 793e charge here and here).

To prove obstruction, DOJ would focus on the things of which — WaPo describes — Jack Smith’s team has developed substantial proof. Most conservatively, they would pertain to a grand jury investigation, because that application would be uncontroversial. After DOJ sent Trump a grand jury subpoena (which would be presented at trial as proof that Trump had notice of the grand jury investigation, his knowledge of which Evan Corcoran’s recent testimony would further corroborate), Trump took steps to hide documents and thereby prevent full compliance with that subpoena, and so thwarted a grand jury investigation. That’s your obstruction charge.

DOJ could charge a second act of obstruction tied to NARA’s effort to recover documents as part of its proper administration of the Presidential Records Act. But such an application would be guaranteed to be appealed. So the safer route would be to charge behavior that post-dates Trump’s knowledge of the grand jury investigation (and indeed, WaPo describes a close focus on events that took place starting last May).

But Trump’s longer effort to deceive the government in order to hoard documents is proof of 18 USC 793(e). To prove that, DOJ would need to prove that the government, whether NARA or FBI, told Trump he was not authorized to have documents covered by the Presidential Records Act, a subset of which would include documents with classification marks. They would need to show that Trump had been told about why he needed to protect classified records, which Trump’s former White House counsels and Staff Secretary have described (and documented) doing. For good measure they would show that Jay Bratt affirmatively told Trump that he had been (and, the August search would prove, was still) storing classified documents in places not authorized for such storage.

To prove 18 USC 793(e) at trial, you would need to describe specific documents Trump refused to give back and explain to a jury why they fit the definition of National Defense Information, material that remained closely held that, if released, could do damage to the US. That may be why they’re asking questions about Trump’s obsession with Milley or sharing maps with donors: because it’s part of the story that prosecutors would tell at trial, if they were to charge 18 USC 793.

All of which is to say that WaPo not only reported that DOJ has collected more evidence to prove what DOJ already suspected when they did the search on August 8, but they’ve been collecting information that would go beyond that, to a hypothetical Espionage Act charge.

Charging a former President with violating the Espionage Act is still an awfully big lift, and in the same way that charging obstruction for impeding NARA’s proper administration of the Presidential Records Act would invite an appeal, charging 18 USC 793(e) in DC would invite a challenge on venue (and charging it in Florida would risk spending the next three years fighting Aileen Cannon). But in addition to developing more evidence to prove the suspicions that they already substantiated in August, WaPo describes Jack Smith’s team asking the kinds of questions — about specific documents that might be charged as individual violations of the Espionage Act — that you’d ask before charging it.

Asking whether Trump (or Molly Michael or anyone else from Trump’s PAC) showed donors a classified map in a package also showing polling and a faith leader’s support for Trump’s policy in an attempt to raise money doesn’t get you evidence of obstruction. If the map is classified, though, it gets you proof that Trump not only knew he had classified documents, but had turned to profiting off of them.

That’s not a guarantee they’re going to charge 18 USC 793e. It’s a pretty good sign they’re collecting evidence that might support that charge.

Update: CNN has a much more measured story, describing how Jack Smith’s team is locking in the voluntary testimony they got last summer.

The new details come amid signs the Justice Department is taking steps typical of near the end of an investigation.

The recent investigative activity before a federal grand jury in Washington, DC, also includes subpoenaing witnesses in March and April who had previously spoken to investigators, the sources said. While the FBI interviewed many aides and workers at Mar-a-Lago nearly a year ago voluntarily, grand jury appearances are transcribed and under-oath – an indication the prosecutors are locking in witness testimony.

[snip]

The grand jury activity – expected to continue to occur at a frequent clip in the coming weeks – builds upon several known reactions Trump and others around him had to the DOJ’s attempt to reclaim classified records last year, and which prompted the FBI to obtain a judge’s approval to search Mar-a-Lago in August for classified records.

Some of the evidence the DOJ has used to persuade a judge to allow that search is still under seal.

It also notes that Smith is still pursuing how a box including documents with classification marks came to be brought back to Mar-a-Lago after the search.

Since then, the Justice Department has pushed for answers around how a box with classified records ended up in Trump’s office after the FBI search took place.

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.

The end of the Proud Boys seditious conspiracy trial may be growing closer but the hole the defendants seemingly dug themselves into this week with yet more testimony from their own witnesses has grown larger.

Testimony continued briefly this week with Tarrio’s witness George Meza. Meza is the self-proclaimed rabbi and former third-degree Proud Boy who described Jan. 6 as ‘the most patriotic act” in a century in a gushing, white power-hand-gesture-wielding video post mere days after former President Donald Trump incited a mob to descend on the U.S. Capitol. 

As a witness for Tarrio, Meza was meant to credibly convince jurors that while he was admittedly once part of a rowdy, reactive brotherhood unbound by social mores, it didn’t mean that he or fellow members of the group, including its national leader, were ever part of a violent conspiracy to stop Congress from certifying the election in 2020. 

Their support of Trump was prolific but to hear Meza insist upon it, it was only in a wholesome patriotic fashion, the way that any American might exercise their right to free speech and assembly.

But Meza’s claims collided, in the final hour of his appearance before jurors, with the cold reality of the prosecution’s evidence against the defendants. Impeaching Meza was often done with a sober tone from Assistant U.S. Attorney Jason McCullough. 

When Meza, also known as “Ash Barkoziba,” insisted he had been ousted from the exclusive text channel at the heart of the charges; Tarrio’s so-called “Ministry of Self Defense” or MOSD, by Jan. 3, McCullough presented evidence where Meza’s frantic rantings about the 6th had continued into chats dated Jan. 9. 

“I can’t tell what chat this belongs to,” he said, speaking fast. “It’s hard to believe they would let me back in after they kicked me out…The average Proud Boy didn’t even know this chat existed. I question this statement if I made it at all in this chat.” 

Jan. 6 was “mass hysteria” Meza later told the jury. People were simply “emoting,” he said. He denied having any understanding that police were under extreme duress when he was near the Columbus Doors seconds before they were forced open. He denied attacking the door or being part of the breach there. 

And though suspicions had been raised about the truthfulness of his testimony for a little more than a day, before he left the stand he told one of Tarrio’s attorneys, Nayib Hassan, that he never received instruction from the Proud Boy leader to go to the Capitol. There wasn’t even a discussion about going there, Meza testified. 

Hassan worked to elicit testimony through Meza that seemed intent to portray Tarrio as all flash and no substance, or a showboater who simply enjoyed to “razzle dazzle” the masses or antagonize the media. But objections over the scope and relevance on this count were sustained, leaving an already thin argument more impotent.

Battered by Meza’s testimony, it was followed with a First Amendment heavy defense from fourth-degree Florida Proud Boy Fernando Alonso that was rich in controversy.

Like Meza, Alonso was a member of MOSD and told the jury when he joined the chapter on Dec. 31, 2020, it was his understanding that the local D.C. division of Proud Boys didn’t want “any heat” and the Vice City member learned that other chapters of the extremist group were warned about coming to Washington on Jan. 6. 

Nonetheless, Alonso came on the 5th. 

And when he did, it wasn’t because there was a plan arranged to storm the Capitol, he said. Any suggestion otherwise, Alonso repeated through a gruff, often heavy accent, was “just ludicrous.”

He knew to meet at the Washington Monument, however, having consulted the MOSD chat that day, he testified, but there was “no objective” discussed. Alonso told the jury he didn’t know what was going to happen and when a video of Proud Boys shooing press away from their group as they congregated near the Capitol was played in court this week, Alonso said this wasn’t about hiding conduct. 

It was because Proud Boys didn’t want to be “doxxed” and didn’t want attention on their club. 

Though Alonso testified on direct that the Proud Boys weren’t doing “photo ops” on Jan. 6, another defense witness, Proud Boy Travis Nugent, said that’s exactly how he perceived things. At trial, Alonso insisted Proud Boys were “peacekeepers” on Jan. 6. 

“The objective was we were going to walk towards the Capitol, stop somewhere along the line, and say a prayer. That was the only objective I knew of at that point,” he said.

Tarrio always contacted law enforcement before Proud Boys rallied, he told defense attorney Sabino Jauregui, “as he should.”

But when pressed, he testified that he never saw any messages about that himself, and he admitted to the jury, that while he considered himself a “good friend” of Tarrio who understood the ringleader’s intentions, he also never saw a single private message between Tarrio and Proud Boy elders or leaders like Nordean or Biggs.

 If he had even an inkling that the plan was for Proud Boys to attack the Capitol on Jan. 6 and stop the certification, well, that would have been an affront so severe to Alonso’s sensibilities, he told the jury, “I would have left right there and then.”

Alonso elaborated on how offended he was at the suggestion that Proud Boys would incite violence. They did charity work and hurricane relief. 

It “insulted” him, in fact, that people could think Proud Boys would even ponder the idea of storming the Capitol.

But in court, jurors heard and saw a different side of Alonso.

In an audio clip, he is heard breezing right over the news that a woman (Ashli Babbitt) had been shot inside the Capitol. From the grounds as people around him exclaim, he is heard only asking if then-Vice President Mike Pence had “betrayed” Trump and whether the vote had been certified. 

“Going on the 6th is not about fighting lefties. It’s about joining patriots on the Capitol steps and awaiting the outcome of history that affects us all,” Alonso once wrote under the handle “Deplorable51” in a message to fellow Proud Boy Michael Priest, also known as Al Tourna, on Dec. 20. Priest was brought into the Ministry of Self Defense by Tarrio, according to application records for the “ministry.”

When Tourna, who used the handle “AL PB,” told him that Jan. 6 would be the moment people would need to “take DC” and then warned that it “may not be peaceful,” Alonso didn’t shrink away. 

Unlike much trial testimony from other defense witnesses who vowed the Proud Boys focus was grounded in defending the Trump-loving masses from antifa, Alonso told Priest going to the Capitol on Jan. 6 “is not for antifa.” 

They were going “as patriots to stand with normies together united awaiting the outcome… when we are amongst them they feel safer and the purpose is what will happen that day…” he wrote. 

“It’s not a meet at Harry’s [bar at] 8 p.m. to go hunt antifa,” he added. 

Alonso had attended the Stop the Steal rally in Washington, D.C. in December 2020 with fellow Proud Boys, and on his application form for MOSD, he said he had “provided intel” to members of the extremist group while they were on the ground in D.C. for the Million MAGA March a month earlier. He stayed in Florida for that event.

Proud Boys engaged in violent clashes with counterprotesters after both of those rallies. After the rally in November, a Black woman with long braids brandishing a knife and surrounded by Proud Boys was knocked unconscious by a man who cracked a helmet over the crown of her head prompting her to crumple to the ground immediately.

Prosecutors say Alonso greeted that violence merrily.

“‘Put up the video of that predator bitch,’” Mulroe said in court, quoting Alonso’s texts found in a Miami Proud Boys channel that counted Tarrio as a member.  Alonso denied writing it. 

It didn’t sound like him, he said. 

But Alonso joked about that violent episode and others, Mulroe told presiding U.S. District Judge Timothy Kelly this week as he fought off objections from the defense that this evidence was prejudicial and irrelevant to impeaching one of Tarrio’s few witnesses. But Mulroe convinced Judge Kelly that this show of force, appearing sanctioned by Tarrio, encouraged Alonso to return to the next pro-Trump rally in December and later, to join his fellow Proud Boys in January after Trump’s “wild” invite to Washington. 

Assistant U.S. Attorney Conor Mulroe presented evidence spread out over a series of text messages where Alonso excoriated law enforcement roughly a week before he would officially be invited into the Ministry of Self-Defense by Proud Boy Gilbert Fonticoba, an intimate of Tarrio’s. 

Police in D.C. backed antifa, Alonso wrote on Dec. 23. So too did the FBI. Police had turned their backs on Proud Boys when one of their brothers, Jeremy Bertino, who has already pleaded guilty to seditious conspiracy, was stabbed at the Dec. 12 event.

Weeks later on Jan. 6, when defendant Ethan Nordean spoke to a mass of Proud Boys and others gathered at the Washington Monument with a megaphone, it was he who encouraged them to “back the yellow.” Jurors saw this footage of Nordean invoking the Proud Boys black and yellow “colors” in the same way pro-law enforcement groups may invoke their slogan “back the blue.”

Nordean told the crowd just before 11 a.m. on Jan. 6 that police had let the people who stabbed Proud Boys get away last time. Tarrio had been arrested unfairly just two days before, Nordean wailed. Video footage played for the jury on March 7 showed Nordean passing the bullhorn off to defendant Joseph Biggs next. 

Excitedly speaking to the crowd, Biggs told them it was their “goddamned city” and started chants of “fuck antifa.” But once Biggs would reach the location of what would be the first barrier breach of the day, Alonso testified in court this week that Biggs used the bullhorn again. This time as Proud Boys and non-Proud Boys alike were gathered near the Peace Monument less than 100 yards away from the Capitol, Biggs led chants of “Whose House, Our House” and “1776,” Alonso testified.

Prosecutors contend that Proud Boys relied on “tools” of the alleged conspiracy to pull it off and that included Proud Boys as well as non-members, the  “normies” at the Capitol. In sum, the Justice Department argues Proud Boys believed they could whip the “normies” into a frenzy and this would aid them to breach barricades, subsequently overwhelm law enforcement and get inside the Capitol to stop the certification.

After the Stop the Steal rally just three weeks before the insurrection, positive attitudes toward law enforcement among Proud Boys had dried up, prosecutors allege, and the group’s anger morphed and hardened into a multi-layered paranoia: Trump’s “victory” was stolen. Cops in D.C. had sided with “antifa.” The Democrats and radical left needed to be stopped. 

In a text chat seized off Tarrio’s phone dubbed “Croqueta Wars,” Tarrio and other Florida Proud Boys including Gabriel Garcia, George Meza, Pedro Barrios, and others, shared messages about efforts to keep Trump in power. On Dec. 17, Alonso forwarded a message to the group that laid out a “plan” for Trump to win. He had “dueling electors from 7 state legislatures [and] he has VP Pence as final arbiter of the ballots to accept,” Alonso’s friend “Tim Moore” wrote in the forward. The message was rich in conspiracy theories invoking Julian Assange, Seth Rich, and Sidney Powell’s “Kraken.” 

In the transcript from Alonso’s testimony, during a sidebar with Judge Kelly, Nordean’s defense attorney Nick Smith objected to the introduction of evidence indicating Michael Priest had something a “little less complex in mind” than the theories Alonso forwarded to the Croqueta Wars chat.

While Smith argued it was irrelevant, Mulroe managed to convince Judge Kelly to let in Alonso’s exchange in the next sequence. Priest, as a member of the Ministry of Self-Defense and “tool” of the conspiracy—something Kelly agreed with during the sidebar—was fed up. 

“Unleash the Kraken. Trust the plan. Blah. Blah. Blah. When do we start stacking bodies on the White House lawn?” Priest wrote. 

“Jan. 7,” Alonso replied. 

When Priest told him they would stack the bodies of “RINOs,” or “Republicans in Name Only” first and make Democrats watch, Alonso affirmed in court this week that he said “yes.” But it was just “locker room talk, if you will,” he said. 

In the Ministry of Self-Defense chat on Jan. 3, a day before Tarrio would be arrested and three days before the insurrection, Gabriel Garcia shared a message with MOSD members. It was a blog post from the Hal Turner Radio Show promoting the false claim that a “1776 flag” was flying over the White House that night. But the image wasn’t new. Trump White House deputy chief of staff Dan Scavino posted an image of a colonial-era flag over the White House in June 2019 though that image was doctored too.

But Garcia seemed to believe it was realand so did others in the Ministry like one Proud Boy identified in chats only as “BrotherHunter Jake Phillps.” When Phillips asked whether the “normies and ‘other’ attendees” were going to “push thru police lines and storm the capitol buildings,” and invoked the violence that unfolded in D.C. on December, Alonso replied: “cue in the music… let the bodies hit the floor, let the bodies hit the floor.” 

On direct, Alonso told Jauregui the “bodies” were “regular people” not the police. The police, he said, were going to make people hit the floor at the Capitol. On cross, he told Mulroe it was just a song. It was just locker room talk. It was all just a joke. 

Norm Pattis, for Biggs, argued during a bench conference that Alonso’s comments were protected under the First Amendment and “no more prohibited than saying you’re going to line up capitalists against the wall and shoot them.” 

At the end of his testimony on Tarrio’s behalf, Fernando Alonso said under oath that as far as overtaking the U.S. government was concerned or storming the Capitol, he had no part in it or wanted no part in it. It was a reprehensible suggestion. That was behavior that wouldn’t make him proud. 

Yet, Mulroe pointed out to him, he sat in court today with a yellow shirt bearing the Proud Boys laurel on its chest, hiding just beneath his fleece. And he didn’t seem insulted when Priest talked about storming the Capitol. No one else seemed put off by the suggestion in MOSD either, that Alonso could recall. And though he had claimed he knew Tarrio’s intent, he wasn’t ever a witness to meetings or calls or chats that Tarrio may have had with elders, leaders, or even local police in advance of a Proud Boys official event. 

There was no indication one way or the other to Alonso, Mulroe elicited, that Tarrio had even told local police Proud Boys would plan to meet at the Monument on the morning of the 6th. And he certainly had ample opportunity: Tarrio was arrested on the 4th and ordered by law enforcement to stay out of Washington after his release on the 5th. 

Yet, Mulroe elicited, there was no indication that law enforcement was hipped to the Ministry of Self-Defense’s plan to gather at the Monument with what Alonso said was at least 100 men.

Alonso never went into the Capitol on Jan. 6. He never went with the defendants or anyone else that day to hear Trump, their man of the hour, speak at the Ellipse. When people were breaching the Capitol, he told the jury he thought it would be “too extreme” for anyone to go inside or past police lines. Police could shoot them, he testified.  Alonso, like other Proud Boys on Jan. 6, carried a radio but like other members, he claimed “there was no communication” on it. He downplayed evidence of him railing over Proud Boy Eddie Block’s decision to circulate  footage from Jan. 6 just a week after the insurrection. The wheelchair-bound Block, he told Mulroe, was doxxing them. 

“Crip or not,” Alonso wrote in a Proud Boy chat. “Snitches get stitches.” He added later: “That fuck needs to be duct taped to the National Mall, his scooter placed at the top of it.” 

Congress went into recess on Jan. 6 ultimately stopping the certification for several hours after the mob had rushed past police barriers, subsumed the Capitol steps, tunnels, archways, and inaugural scaffolding before streaming through broken windows or doors like the 20,000-pound Columbus Doors that were ripped from their hinges. 

Tarrio, it appears now, is unlikely to testify on his own behalf. 

Following suboptimal testimony from Tarrio’s witnesses this week, defendant Ethan Nordean squeezed in witness testimony from an FBI confidential human source and Proud Boy who appeared in court using only his middle name, “Ehren.” 

Unfortunately for the defense, “Ehren,” testified under cross-examination that he was not at the Capitol on Jan. 6 as an FBI informant in any meaningful sense. He was there, he affirmed, as a member of the Proud Boys. Though the spelling of his name was not reported into the record, “Ehren” would appear to be the individual that Jan. 6 internet sleuths have identified as “TrackSuitPB.”

In video footage, jurors could see how “Ehren” entered the Capitol carrying zip tie cuffs he said he acquired incidentally as a memento of sorts. At another point, he appears in capitol CCTV  footage flanked by Kansas City Proud Boys like William “Billy” Chrestman, Chris Kuehne, and others, as he helps place a podium under an interior electric gate to keep it from closing while others set chairs in the way. Police are seen working over and over to drop the barrier as rioters advanced.

Poking holes in the defense’s direct and indirect suggestions over these many weeks of trial that the FBI was responsible for guiding the violence of Jan. 6, “Ehren” admitted he wasn’t instructed by the bureau to obstruct the gate. Or enter the Capitol. Or impede police. In hindsight, he admitted, he shouldn’t have helped prop open gates police were trying to lower at all.

While he testified, evidence was also presented to strongly support the government’s claim that he was playing up the “informing” he offered to the FBI. 

“Ehren” texted his handler on Jan. 6 at 1:02 p.m. ET just as barriers were overrun: “Pb did not do it, nor inspire. The crowd did as a herd mentality. Not organized. Barriers down at capital [sic] building crowd surged forward, almost to the building now.” 

During his interviews with the FBI in the summer of 2021, he claimed he was standing 100 people back from the front of the first breach. In court, however, footage showed him more like 20 or 30 people back. He was also close to defendant Zachary Rehl at one point as Rehl filmed from the fore of the crowd.

FBI Agent Nicole Miller testified earlier in the trial that in this particular clip shot by Rehl, she was able to identify the Philadelphia chapter president’s voice screaming “Fuck them! Storm the Capitol” moments before Proud Boy William “Billy” Chrestman is seen scrambling over snow fencing and outnumbered police start to run backward. “Ehren” told the jury he followed Chrestman. The crowd’s chants of “fight for Trump” reverberated as they ran closer to the Capitol. There were hundreds of people behind them, he affirmed. 

When he approached the terrace of the Capitol, he said in court that he saw people topple barricades. 

And yet, he told his handler that the Proud Boys didn’t inspire the breaches.

“Ehren” said he had sent his text vouching for the Proud Boys to his handler earlier than the handler received it but bad cell service caused his message to go through on delay. His testimony around the timing of the message changed over two interviews with the FBI and diverged again once he appeared in court this last week. 

“Ehren” told Nordean’s attorney on direct that his handler urged him: if he saw a crime committed and was asked to talk about it, he was to be truthful with the bureau. 

On cross, he testified under oath that the FBI never “embedded him” with the Proud Boys. He was tasked to report on “antifa” or leftist violence, then a focus for Trump’s Attorney General Bill Barr. “Ehren” was never part of MOSD or the Boots on Ground chat created just for Jan. 6. He said it was his local chapter president who told him to go to the Washington Monument on the 6th and not to wear Proud Boy colors. He never saw messages from Bertino or Tarrio suggesting otherwise but it would seem that information was passed down to him nonetheless.  When he arrived that morning, it was clear, he testified, that Nordean was in charge. 

Proud Boys were to blend in, he said, making themselves identifiable only to each other by slapping a piece of orange tape on their shoulder or arm. Antifa would infiltrate the crowds on the 6th, they believed, “Ehren” testified, and the orange tape allowed so-called Proud Boys brothers to identify each other.

Adding further ammunition to the prosecution’s “tools” argument, “Ehren” also said that Three Percenter Robert Geiswein approached him that morning and asked to march with the Proud Boys to the Capitol. “Ehren” said he told Geiswein he could stick around for a bit but once his brothers started to get on the move, he would have to go his own way.

On redirect by Dominic Pezzola’s attorney Roger Roots, “Ehren” said “Geiswein “didn’t listen very well about staying back once we met with other Proud Boys.”

Indeed, Geiswein would be spotted shoulder-to-shoulder with Pezzola on Jan. 6 just outside of the Senate Chamber. 

 As for “Ehren,” he wouldn’t leave the Capitol until after police told him a woman had been shot. Prior to that moment, he said, he didn’t attempt to de-escalate the situation because he figured if there was an “emergency situation” he “might be asked about it” by his handler. But this testimony ran up against video footage of “Ehren” also pumping his fist in the air in celebration after breaching. 

He rather sheepishly conceded that, in the moment, it all seemed “funny” and “exciting.” 

Witnesses for defendant Zachary Rehl didn’t fare much better this week, save for the largely innocuous testimony of Rehl’s wife, Amanda. Cutting a sympathetic figure, her voice was gentle as she testified and admitted to Rehl’s attorney, Carmen Hernandez, that she was nervous. They married after Rehl graduated from Temple University; she told jurors how three of her uncles were policemen and his father and grandfather were policemen, too. Jurors saw pictures of Zachary’s father and grandfather in their uniforms, including one photo of a young Rehl in tow. They also saw a photo of her child with Zachary, a cherubic-looking little girl of maybe two or three years old. 

On Jan. 6, her husband, she said, left out for D.C. with Isaiah Giddings, Brian Healion, and Freedom Vy. She didn’t come. On the witness stand, Amanda Rehl said she couldn’t distinguish her husband’s voice in the video he shot from the first breach at the Peace Circle. She could hear someone say “Fuck them! Storm the Capitol” but if it was her husband’s, she couldn’t say. 

Testimony from Rehl’s next witness, former West Virginia Proud Boy chapter president Jeff Finley followed. 

Finley was easygoing on the stand with responses neatly tailored on direct. He pleaded guilty to a misdemeanor charge of entering restricted grounds in last April and was sentenced to 75 days. Finley’s first reporting to prison was delayed so he could appear at the trial on Rehl’s behalf. 

Though not a member of MOSD, he was part of the Boots on the Ground chat using the handle “El Jefe.” Finley was often in close proximity to Biggs and the co-defendants on Jan. 6 including at the west terrace where some of the worst fighting of the day occurred. He couldn’t recall whether any police officers asked him not to come inside the capitol that day, however, and he couldn’t identify any of the  Proud Boys Rehl had brought to DC from Philly when Hernandez asked. 

But, he testified succinctly, “no,” he didn’t do anything that day to stop legislators from certifying the election. He was in and out in 10 minutes, he said. 

Finley was a fourth-degree Proud Boy deeply invested in the club—he has a tattoo etched across his chest declaring him a “West Virginia Proud Boy” jurors learned. And in the run-up to the insurrection, prosecutors brought out texts and video showing Finley looking to Nordean as the leader. In his guilty plea, he said as much to investigators and from the witness stand, Finley testified that while Proud Boys marched on the Capitol, it was Biggs, Nordean, and Charles “ Yut Yut Cowabunga” Donohoe, who would sometimes break off from the group for chats he was not privy to. Rehl, Biggs, and Donohoe did the same, he testified. 

Donohoe pleaded guilty to conspiracy to obstruct an official proceeding a year ago this week. 

Finley told the jury he never saw any of the defendants throw projectiles at police and didn’t hear any conversations that led him to believe a plan to stop the certification was in place. He presented Jan. 6 as an opportunity he seized on to “make my voice heard” about potential discrepancies in the 2020 election. 

Yet, prosecutors presented pages of text messages to the jury where Finley urged Proud Boys to delete their communications. Some of the messages showed Finley was furious with Eddie Block for filming, just like Alonso had been. In the weeks after the attack, Finley steadily discouraged Proud Boys from saving information or from having mementos, like challenge coins commemorating Jan. 6, mocked up.

“It would just place you in D.C. give more ammo against you,” he wrote on Jan. 12.

 He deleted his own socials after the 6th but not before making a podcast appearance where he told the interviewer he didn’t know a single Proud Boy who was remotely close to being in the Capitol on Jan. 6. 

“But you were a Proud Boy and you went in with Rehl and three other Philadelphia Proud Boys?” prosecutor Nadia Moore asked Finley in court on March 30. 

He did, he admitted, but in the podcast, the host wasn’t a member of law enforcement so he was in no way obligated to tell the truth. 

When the trial resumes starting Monday, it is expected that defendant Joe Biggs will start to come into focus as his attorneys, Norm Pattis and Dan Hull, make their case. Dominic Pezzola’s attorneys Steven Metcalf and Roger Roots shouldn’t be far behind. While it seemed that Biggs would likely take the stand earlier in the trial, after grueling days for the defense without any immediately obvious pay-off, that likelihood now seems low.

It may behoove Pezzola to try his luck or admit to charges that will be the hardest for him to beat because of compelling video evidence compiled by prosecutors, including video footage of him smashing open a window and allegedly stealing a police riot shield. In the first Oath Keepers case, which in many ways is quite similar to this one, defendant Jessica Watkins admitted to jurors that she impeded officers. In the end, her remorse from the stand may have helped her. She was convicted for impeding officers during a civil disorder (and conspiracy and obstruction) but she evaded a destruction of property charge despite being in the thick of a quite brutal push into the Capitol. She also was not convicted of seditious conspiracy. 

The light is now visible at the end of the tunnel in this three-month-long trial and this week, parties are expected to hash out jury instructions. If there are any Hail Mary moves to be made by the remaining defendants, the window to make them is inching closed.

For the entire time since MattyDickPics started complaining about the fact he couldn’t see nonconsensual pictures of Hunter Biden’s dick, he and other apologists for disinformation have claimed there was nothing to the effort to suppress the vote using Twitter.

A jury in Brooklyn just decided otherwise. Douglass Mackey — who was indicted for attempting to suppress the Black and Latino vote in 2016 — was found guilty of conspiring to violate his targets’ right to vote.

As proven at trial, between September 2016 and November 2016, Mackey conspired with other influential Twitter users and with members of private online groups to use social media platforms, including Twitter, to disseminate fraudulent messages that encouraged supporters of presidential candidate Hillary Clinton to “vote” via text message or social media which, in reality, was legally invalid. For example, on November 1, 2016, in or around the same time that Mackey was sending tweets suggesting the importance of limiting “black turnout,” the defendant tweeted an image depicting an African American woman standing in front of an “African Americans for Hillary” sign. The ad stated: “Avoid the Line. Vote from Home,” “Text ‘Hillary’ to 59925,” and “Vote for Hillary and be a part of history.” The fine print at the bottom of the deceptive image stated: “Must be 18 or older to vote. One vote per person. Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska or Hawaii. Paid for by Hillary For President 2016.” The tweet included the typed hashtag “#ImWithHer,” a slogan frequently used by Hillary Clinton. On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted “Hillary” or some derivative to the 59925 text number, which had been used in multiple deceptive campaign images tweeted by Mackey and his co-conspirators.

Several hours after tweeting the first image, Mackey tweeted an image depicting a woman seated at a conference room typing a message on her cell phone. This deceptive image was written in Spanish and mimicked a font used by the Clinton campaign in authentic ads. The image also included a copy of the Clinton campaign’s logo and the “ImWithHer” hashtag.

The people with whom Mackey conspired are a collection of leading figures in the (Russian-backed) alt-Right.

I plan to return to this trial in weeks ahead.

But for the moment, this verdict says that all the disinformation that Matt Taibbi and Elon Musk are working to replatform on Twitter has been found to be potentially criminal.

Among the things Trump said in his tweet yesterday complaining that he had been “indicated” is that his criminal prosecution was “a continuing attack on our once free and fair elections.”

Thanks to the former President for reminding us what the charges against him, in part, are about: That he cheated to win.

Whether it would have made a difference or not, Donald Trump believed it sufficiently important to lie to American voters about fucking two women– both Karen McDougal and Stormy Daniels — that both were paid in the last months of his 2016 campaign to prevent voters from finding out.

Paying his former sex partners to hide from voters that he cheated on Melania is not, itself, illegal.

Having corporations pay sex workers for the purpose of benefitting a political campaign is. The company that owned the National Enquirer paid for the first payment, to McDougal; Trump Organization, by reimbursing the payment that Michael Cohen made, eventually paid for the second payment, to Daniels.

The charges brought against Trump in NY reportedly relate, at least in part, to the second payment — to the treatment of the reimbursement to Cohen as a legal retainer rather than a reimbursement for a political donation. That is, the cheapskate billionaire, who could have legally paid off the women himself, allegedly covered up his cover-up.

Trump’s eponymous corporate persons have already been found guilty of serving as personal slush funds. In 2019, he admitted the Trump Foundation had engaged in self-dealing. And last year, a jury convicted Trump Organization of compensating employees via untaxed benefits rather than salary.

The new charges against Trump aren’t so much unprecedented, as they simply charge Trump’s biological person with the same crimes for which his corporate persons have already been convicted.

But there’s more history here, too. On multiple occasions, agents of Donald Trump reportedly engaged in further attempts to cover-up this cover-up.

Trump Organization withheld multiple documents from investigators. Most known documents that were withheld — such as the email showing Cohen had a substantive conversation with a Dmitri Peskov aide during the election — pertain to Russia, but it’s certainly possible they withheld others.

In 2018, in the days after SDNY seized phones that included recordings of conversations about the hush payments, Trump is suspected of floating a pardon to Cohen to keep him quiet, about this and about the impossibly lucrative Trump Tower deal both had lied to hide from voters in 2016.

In an email that day to Cohen, [Robert] Costello wrote that he had spoken with Giuliani.1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . . Sleep well tonight[], you have friends in high places.”1027

Cohen said that following these messages he believed he had the support of the White House if he continued to toe the party line, and he determined to stay on message and be part of the team.1028 At the time, Cohen’s understood that his legal fees were still being paid by the Trump Organization, which he said was important to him.1029 Cohen believed he needed the power of the President to take care of him, so he needed to defend the President and stay on message.1030

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House.1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him.1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine.1033

Note that the payments for Cohen’s legal fees — which stopped after he pled guilty — are another expense that Trump Organization may not have accounted for properly.

Later in 2018, during the period where he was feigning cooperation with Mueller’s prosecutors but really just stalling past the midterm elections, Paul Manafort attempted to lie about some aspect of a different investigation

Manafort gave different versions of events surrounding an incident in the summer 2016 that was potentially relevant to the investigation: one version that was more incriminating was given prior to signing the plea agreement (on September 13, 2018), and another that was more benign was made after on October 5, 2018, after his plea. When confronted with the inconsistency by the government and his own counsel, Manafort largely retracted the second version.

A footnote in that discussion cites the Cohen plea, suggesting the 2016 conversations that Manafort lied to prosecutors in an attempt to spin pertained to these hush payments.

83 See United States v. Cohen, 18-cr-602 (S.D.N.Y. 2018); Information, United States v. Cohen, 18-cr602 (S.D.N.Y Aug. 21, 2018) (Doc. 2).

Unlike Cohen, of course, Manafort did get a pardon.

In the months after Cohen’s plea, Main DOJ attempted to interfere in the Cohen investigation repeatedly, as laid out in Geoffrey Berman’s book. They did so first on Rod Rosenstein’s orders, by demanding the SDNY rewrite Cohen’s statement of offense to hide the degree to which Trump ordered the hush payments (Rosenstein’s deputy, Ed O’Callaghan tried to eliminate all reference to Individual-1).

We then sent a copy to Rod Rosenstein, informing him that a plea was imminent. The next day, Khuzami, who was overseeing the case, received a call from O’Callaghan, Rosenstein’s principal deputy.

O’Callaghan was aggressive.

Why the length, he wanted to know. He argued that now that Cohen is pleading guilty we don’t need all this description.

[Robert] Khuzami responded, What exactly are you concerned about? O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1.

It quickly became apparent to Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1.

[snip]

The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.” But in the end, everything that truly needed to be in the information was still there.

Then, after Bill Barr came in, he amazingly tried to order SDNY to dismiss the charges against Cohen entirely, the functional equivalent of what he tried with Mike Flynn, undoing a successful criminal prosecution after the fact.

When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr had Steven Engel write up an OLC opinion about the charges (which is likely one of the reasons SDNY didn’t charge Trump).

About six weeks later, Khuzami returned to DC for another meeting about Cohen. He was accompanied by Audrey Strauss, Russ Capone, and Edward “Ted” Diskant, Capone’s co-chief. Barr was in the room, along with Steven Engel, the head of the Office of Legal Counsel, and others from Main Justice. A fifteen-page memo, drafted by Engel’s office, had been provided to our team the day before, which they were still analyzing. I learned later that it was an intense meeting.

When SDNY refused to dismiss the case against Cohen, Barr tried to transfer the case to EDNY, under Richard Donoghue, so he could kill it.

 About a week after our office tussled with Barr and Engel, Barr attempted to do just that. Word was passed to me from one of Barr’s deputies that he wanted Richard Donoghue, the US Attorney for the Eastern District of New York (who would later transfer to Main Justice to work under Barr), to take over supervision of anything I was recused from.

At the same time that Barr was trying to cover up that Trump cheated to win in 2016, Republicans on the FEC were joining in the cover-up. After FEC’s General Counsel recommended acting on several complaints about the payments, Republican Commissioners Sean Cooksey and Trey Trainor refused to do so because, they said, Michael Cohen had already been prosecuted for it and, thanks to Trump’s own actions, there was a backlog of other complaints.

Before the Commission could consider the Office of General Counsel’s (“OGC”) recommendations in these matters, Mr. Cohen pleaded guilty to an eight-count criminal information,2 and in connection thereto admitted, among other things, to making an excessive contribution in violation of the Act by making the Clifford payment from his personal funds. 3 The plea hearing transcript includes a step by step review of how U.S. District Judge William Pauley verified the plea, confirming that a federal judge was sufficiently satisfied with the circumstances surrounding the plea deal and the responses given by Cohen at the hearing, including the explanations given by Cohen, count by count, during his allocution.4 Ultimately Mr. Cohen was sentenced to three years in prison and ordered to pay $1.39 million in restitution, $500,000 in forfeiture, and $100,000 in fines for two campaign finance violations (including the payment at issue in these matters) and other charges. In sum, the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters.

Thus, we concluded that pursuing these matters further was not the best use of agency resources.5 The Commission regularly dismisses matters where other government agencies have already adequately enforced and vindicated the Commission’s interests.6 Furthermore, by the time OGC’s recommendations came before us, the Commission was facing an extensive enforcement docket backlog resulting from a prolonged lack of a quorum, 7 and these matters were already statute-of-limitations imperiled.

This was one of 22 credible campaign finance allegations against Trump that Republicans refused to consider, nothing less than a partisan effort to make the leader of their party immune from all campaign finance rules.

There’s a lot of shite being written about how the indictment of a former President — for actions that stem from cheating to win — will test democracy.

But Trump’s serial cover-ups of his own actions in this and other matters already threaten democracy.

Trump is right: This is about free and fair elections. This is, like most of his allegedly criminal behavior, about his refusal to contest elections fairly. It’s about his corruption of the entire Republican Party, from top to bottom. And it’s about one of at least six times that Trump and his agents have tried to cover up that he cheated to win in 2016.

NYT reports that Trump has been indicted. CNN has confirmed.

A Manhattan grand jury voted to indict Donald J. Trump on Thursday for his role in paying hush money to a porn star, according to four people with knowledge of the matter, a historic development that will shake up the 2024 presidential race and forever mark him as the nation’s first former president to face criminal charges.

The felony indictment, filed under seal by the Manhattan district attorney’s office, will likely be announced in the coming days. By then, prosecutors working for the district attorney, Alvin L. Bragg, will have asked Mr. Trump to surrender and to face arraignment on charges that remain unknown for now.

These are just the training wheel charges.