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Eight Possible Explanations — Many Bad, Some Good — for SDNY’s Delay in Turning Over Cohen Files

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As Adam Klasfeld and others reported yesterday, Trump is asking to delay his New York trial on charges that he engaged in fraud to cover up the hush payments he made to get elected in 2016. Trump is asking for the delay because the Southern District of New York just provided stacks and stacks of discovery he subpoenaed in January. Alvin Bragg has consented to a 30-day delay, but Trump is asking for a 90-day delay of the trial that was supposed to start on March 25.

In their letter explaining the situation, NYDA attorneys described that last year, they asked SDNY for the “full grand jury record” associated with Michael Cohen’s campaign finance conviction. Instead, SDNY provided “a subset.”

The People diligently sought the full grand jury record related to Cohen’s campaign finance convictions from the USAO last year, including exculpatory material and (1) grand jury minutes and tapes; (2) witness lists and other documents identifying the names or identities of grand jury witnesses; (3) any grand jury subpoenas and documents returned pursuant to those subpoenas; (4) exhibits presented to the grand jury; (5) to the extent within the scope of Rule 6(e), summaries of witness interviews occurring outside the grand jury; and (6) to the extent within the scope of Rule 6(e), search warrant affidavits or other applications that contain evidence from the grand jury, and evidence seized pursuant to those warrants. In response, the USAO produced a subset of the materials we requested, which we timely and fully disclosed to defendant on June 8, 2023, more than nine months ago. [my emphasis]

On January 18 of this year, Trump subpoenaed additional materials, and consented to several delays. On March 4, SDNY provided the initial tranche, which was 73,000 pages, of which less than 200 pages pertained to the case. Last week, SDNY provided a second tranche. And they say they’ll provide a third next week.

Regarding the 73,000 pages of records produced by the USAO as of the date of defendant’s motion, the People’s initial review indicated that those materials were largely irrelevant to the subject matter of this case, with the exception of approximately 172 pages of witness statements that defendant would have adequate time to review and address before trial. Yesterday afternoon, however, the USAO produced approximately 31,000 pages of additional records to both the People and the defense in response to defendant’s subpoena, and also indicated that an additional production would follow by next week. [my emphasis]

Those 31,000 pages provided last week includes stuff from Cohen’s grand jury file that NYDA had asked for last year.

Based on our initial review of yesterday’s production, those records appear to contain materials related to the subject matter of this case, including materials that the People requested from the USAO more than a year ago and that the USAO previously declined to provide.

NYDA say they’re ready to go on the 25th, but would consent to a 30-day delay. Surely, though, they’ve seen enough that they want to be prepared to rebut anything Trump found in the documents.

Update: NYDA has submitted a follow-up. The total universe of this production amounts to 119,000 pages of discovery. Of that, just a subset of 31,000 pages covers stuff related to the case, and of that subset, some of it was already provided to Trump. Trump is disputing that, but at this point, he and his lawyers have been crying wolf for a year. 

It’s not yet clear what’s in the 100,000-page plus discovery or why SDNY refused to turn it over, besides their unshakeable arrogance.

But there are a number of possible explanations, most terrible, at least three defensible. They include:

  1. Covering up Bill Barr’s fuckery
  2. Covering up Ed O’Callaghan’s fuckery
  3. Hiding details regarding the retraction of Robert Mueller’s scope
  4. Hiding details of Cohen’s tax crimes
  5. Hiding details of Barr’s further fuckery
  6. Protecting a Bill Barr investigation
  7. Protecting a Viktor Vekselberg investigation
  8. Protecting a Trump tax investigation

Much of these would serve to shield (or, ultimately, delay) SDNY or DOJ embarrassment generally. Some, though, would serve to protect real investigations that we know happened.

Covering up Bill Barr’s fuckery

What Trump undoubtedly was seeking when he subpoenaed SDNY was evidence of known Bill Barr fuckery, which would help the former President argue that he never committed a federal campaign finance crime and would hurt the theory of the case. Geoffrey Berman described much of this in his book.

In February 2019, days after being confirmed, Bill Barr tried to unprosecute Cohen.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. 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 headed the Office of Legal Counsel in 1989 through the middle of 1990. He knew its powers, and as Trump’s attorney general he knew how to use it as a cudgel to accomplish his goals.

The directive Barr gave Khuzami, which was amplified that same day by a follow-up call from O’Callaghan, was explicit: not a single investigative step could be taken, not a single document in our possession could be reviewed, until the issue was resolved.

And if Main Justice decided there was no legal basis for the charges? The attorney general of the United States would direct us to dismiss the campaign finance guilty pleas of Michael Cohen, the man who implicated the AG’s boss, the president.

Barr attempted to put Richard Donoghue in charge of the matters — the Cohen case — that Berman was recused from. (Remember that Barr would also put Donoghue in charge of what should have been follow-on investigations of Rudy Giuliani’s dalliance with Russian spies.)

One way for Barr to accomplish that would have been to put the Cohen case in the hands of someone to whom he felt closer. 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.

By Berman’s description, none of those efforts succeeded.

But according to the NYT, Barr did get OLC to write a memo questioning the basis for prosecuting someone for covering up public details (this doesn’t show up in Berman’s book).

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

[snip]

The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

[snip]

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.

This memo is undoubtedly what Trump wants. He would use it to suggest that he was never in danger of prosecution for the hush payments, and therefore his fraud to cover them up cannot be a felony.

Covering up Ed O’Callaghan’s fuckery

Trump is also, undoubtedly, seeking details of then PADAG Ed O’Callaghan’s fuckery.

Once SDNY did charge Cohen, O’Callaghan intervened to demand that SDNY take language out of Cohen’s statement of offense making it clear that Individual-1 was part of the crime.

Consistent with DOJ guidelines, we first submitted the information to the Public Integrity Section at Main Justice. They signed off.

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.

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. Khuzami and O’Callaghan went through a handful of these allegations, some of which Khuzami agreed to strike; others, to ensure a coherent description of the crime, he did not.

Berman’s prosecutors stayed up all night cutting the Information from 40 pages to 21.

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.

Cohen included those details in his verbal allocution anyway.

The most consequential details that O’Callaghan wanted removed still wound up in the public record, simply because Cohen acknowledged them in open court. He testified that Trump not only knew about the six-figure payoffs designed to keep Stormy Daniels and Karen McDougal from going public but had orchestrated them.

With regard to McDougal, Cohen said that he and “the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information. After a number of discussions, we eventually accomplished the goal by the media company entering into a contract with the individual under which she received compensation of $150,000.”

As for Stormy Daniels, Cohen admitted that he had, “in coordination with, and at the direction direction of, the same candidate, [arranged] to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information. To accomplish this, I used a company that was under my control to make a payment in the sum of $130,000.”

Any paperwork describing this dispute will not help Trump as much as an OLC memo saying his hush payments weren’t a federal crime. But he will use them to suggest that Rod Rosenstein didn’t think Trump was a part of it.

Hiding details regarding the retraction of Robert Mueller’s scope

Another thing that Cohen’s case file would disclose that might embarrass DOJ is how Rod Rosenstein constrained Mueller’s scope after initially permitting him to prosecute crimes he could use to flip people.

Remember that Mueller was permitted to prosecute both Paul Manafort’s tax crimes and Mike Flynn’s Turkey FARA crimes; he used those other crimes to (attempt to) flip Trump’s aides. But around the same time as Rosenstein issued his second scope memo (November 2017), he seems to have changed this approach.

In his book, Berman explained that by the time Mueller was investigating Cohen, Rosenstein was only permitting Mueller to investigate the Russian-related conduct. So when Mueller found Cohen’s taxi medallion and other crimes, they had to find a way to hand it off while still hoping to use those crimes to flip people.

At first, Mueller prosecutor Andrew Goldstein asked Berman to partner on the case, which would allow Mueller to be involved in an attempt to flip Cohen.

Goldstein informed Martins and Capone that Mueller was investigating Michael Cohen, the president’s personal lawyer, for bank fraud relating to his taxi medallion business. Mueller wanted to pursue the Cohen investigation—but in conjunction with a US attorney’s office—because it fell outside his mandate. The idea was that we would be the partner to Mueller’s team.

Berman refused that request, because he didn’t want to sacrifice SDNY’s cherished independence. In the end, Mueller only got a request that a Mueller prosecutor could be involved in any discussion of cooperation.

The next day Goldstein got back to us. He backed off the requirement of a joint investigation and agreed that the Southern District would conduct the investigation as we saw fit. He asked for just one thing: if SDNY and the FBI had discussions with Cohen or his lawyer about cooperation, we would inform Goldstein and allow someone from the Mueller team to be present. I did not believe that such an accommodation would impinge on our independence or link our reputation to Mueller’s.

These disclosures, if they’re included in the documents turned over, wouldn’t help Trump all that much (and therefore might not be made public). But they’re another instance showing how Rod Rosenstein intervened to protect Trump.

Hiding details of Cohen’s tax crimes

Something else that SDNY might not want to turn over would pertain to the viability of the crimes to which Cohen ultimately pled guilty.

Remember: Every time he gets asked about why he pled guilty, he claims he pled guilty to more than what he had done, and he did so because of SDNY’s threats that they would include Cohen’s spouse if he didn’t plead.

SDNY would absolutely attempt to withhold details that addressed this issue, particularly if they confirmed Cohen’s claims.

They would only help Trump if they confirmed SDNY’s side of the story (and to be sure, there is abundant SDNY documentation documenting their belief that they believe Cohen’s lies extended before and after his guilty plea).

Hiding details of Barr’s further fuckery

After first trying to make Cohen’s prosecution go away, Barr later tried to make it worse, by sending Cohen back to prison from his COVID furlough because he started writing a book about what a crook Trump was. As Cohen claimed in an emergency motion to get out of jail, Cohen described that he was issued a gag order he would have to sign if he remained out on furlough, and when he refused, he was sent back to prison.

Michael Cohen is currently imprisoned in solitary confinement because he is drafting a book manuscript that is critical of the President of the United States—and because he recently made public that he intends to publish this book shortly before the upcoming election.

[snip]

While he was on furlough, Mr. Cohen publicly announced that he was putting the finishing touches on a tell-all book about his decade-long experience with President Trump. Just one week later, on July 9, 2020, BOP officers under the direction of Respondents presented Mr. Cohen with an unconstitutional demand: As a condition of his release—a release BOP already had determined was necessary for his health and safety—Mr. Cohen had to agree to a complete bar on speaking to or through any media of any sort.

Mr. Cohen expressed that this condition would bar him from making any progress on his book draft, making a pre-election publication date unlikely. But, because he was fearful for his life should he be remanded to prison, he did not refuse. Instead, he and his lawyer sought both to clarify the meaning of the condition, and to tailor it more narrowly to the BOP’s stated reason for including it; namely, to avoid glamorizing or bringing attention to his upcoming home confinement status. BOP officials refused those requests. Instead, they remanded him into solitary confinement in Respondents’ custody, where he remains.

Judge Alvin Hellerstein found Cohen’s claims persuasive. When he released Cohen shortly thereafter, Hellerstein ruled that the purpose of Cohen’s jailing was retaliatory (here’s the transcript, which shows BOP and SDNY’s rebuttals).

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” U.S. District Judge Alvin Hellerstein said during a teleconference Thursday morning.

Cohen secured an emergency temporary restraining order and a preliminary injunction, ordering the government to immediately release him and be allowed to resume his home confinement.

“How can I take any other inference other than it was retaliatory?” Hellerstein mused, summarizing the terms of the government’s home-confinement agreement as telling Cohen: “You toe the line about giving up your First Amendment rights or we’ll send you to jail.”

“I’ve never seen such a clause in 21 years of being a judge,” the Clinton appointee added.

“In 21 years of being a judge, and sentencing people, and looking at the terms and conditions of supervised release, I have never seen such a clause.”

There’s undoubtedly paperwork related to this in Cohen’s case file, including paperwork that might match SDNY’s claims that this was not retaliation. But there could well be paperwork that shows — as was also alleged in the decision to free Paul Manafort from a prison not experiencing a COVID outbreak — involvement from Barr.

Protecting a Bill Barr investigation

You probably won’t believe me. But DOJ actually investigated some of Bill Barr’s fuckery. One such investigation was publicly reported: a DOJ IG investigation into Roger Stone’s sentencing.

There was at least one other aspect of Bill Barr fuckery that DOJ investigated which is not public.

Both investigations were active in the year since NYDA asked for materials on this case.

I have no idea whether Barr’s fuckery on the Michael Cohen case was part of either investigation into his fuckery. But if it was, then any delay in releasing materials would be justified to protect an ongoing investigation.

Protecting a Viktor Vekselberg investigation

You cannot separate the investigation into Trump’s 2016 hush payments from payments that Viktor Vekselberg’s Columbus Nova made to Michael Cohen. That’s because, after Cohen’s bank issued a Suspicious Activity Report on the payment to Stormy Daniels, they looked at how the other things Cohen did with his Essential Consultants account, which he had claimed was for domestic real estate purposes, deviated from his claims about the account.

And one thing he did with that account was to receive $400,000 from a company owned by Russian oligarch Viktor Vekselberg.

22. According to records obtained from Bank 1 through June 1,2017, in the first fìve months of 2017, the Essential Consultants bank account received five deposits, each in the amount of $83,333 (for a running total of $416,665). The funds for all five deposits-four of which were wire transfers and one by check-came from an account at another bank held in the name of Columbus Nova, LLC.

23. Public records show that Columbus Nova, LLC is an investment management firm controlled by Renova Group (“Renova”), an industrial holding company based in Zurich, Switzerland. According to public news accounts, Renova is controlled by Viktor Vekselberg, a wealthy Russian national. Public news accounts also report that Vekselberg is an oligarch with various connections to Russian President Vladimir Putin and publicly met with Putin as recently as in or around March 2017.

7 According to the news articles, Vekselberg and Renova currently are involved in various infrastructure projects in Russia, such as the building of an airport in Rostov in advance of the 2018 FIFA World Cup, which is to be held in Russia. Vekselberg has been involved in various symbolic acts seen to be in the Russian national interest, such as the purchase and repatriation of historic Faberge eggs.8

Mueller investigated these payments to determine whether they explained why Trump tried to back out of sanctions on Russia, etcetera etcetera. From the first warrant, then, the Stormy Daniel investigation implicated any investigation into Vekselberg’s efforts to pay for access in the US.

We know that, since Russia’s invasion of Ukraine, DOJ has ratcheted up sanctions-related investigations into Vekselberg’s associates. In January 2023, DOJ unsealed details of arrests pertaining to Vekselberg’s yacht; those prosecutions are active and are being run out of DC.

And in February 2023 — around the time when NYDA asked for the Cohen file — SDNY rolled out money laundering charges against Vekselberg’s US-based fixer, Vladimir Voronchenko, whom they claimed was a fugitive.

Voronchenko may be a fugitive, but the docket in his case has the look of a docket with a whole bunch of interesting things going on, albeit all sealed.

I don’t know what explains the skips in docket numbers, from 3 to 18, from 18 to 27, and from 27 to 32. But as of December, they SDNY was still stuffing the vault with … something.

If the investigation into Vekselberg would in any way be compromised by the release of Cohen’s case file, it would explain — and easily justify — delaying their release. Particularly if the investigation into Vekselberg’s associates implicated people close to Trump or other prominent Republicans.

Protecting a Trump tax investigation

During both the tax and fraud trials of Trump Organization, there were hints that SDNY had — finally — picked up some of the financial allegations NYS dug up and turned them into federal investigations, including obtaining testimony from some of the same witnesses.

If that happened, it could explain a justifiable delay of providing those files to Trump.

Obviously, most possible explanations for a delay in turning over these files involve someone’s embarrassment, whether SDNY itself, or DOJ more generally. I grant that it’s extremely likely that an attempt to avoid embarrassment explains the delay.

But there are several confirmed and one suspected investigation that also might explain, and entirely justify, a delay. We just don’t know yet.

Update: Judge Merchan has delated the trial start for 30 days from today and scheduled a hearing about the claimed discovery violation.

All GOP Horserace Analysis Is Useless without Consideration of Possible Indictments

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The NYT did a 3-byline 1,700-word story describing how the number of minor Republican candidates joining the race serves Trump’s purpose.

Its analysis of the numbers and Ron DeSantis’ early failures isn’t bad. But because it is silent about how the expanding field might play in the likelihood of Trump indictments, it is entirely worthless.

For example, the content and timing of indictments may have an utterly central impact on the two dynamics described in the piece: Trump’s diehard base and the unwillingness of others in the party to criticize Trump directly.

The rapidly ballooning field, combined with Mr. Trump’s seemingly unbreakable core of support, represents a grave threat to Mr. DeSantis, imperiling his ability to consolidate the non-Trump vote, and could mirror the dynamics that powered Mr. Trump’s takeover of the party in 2016.

It’s a matter of math: Each new entrant threatens to steal a small piece of Mr. DeSantis’s potential coalition — whether it be Mr. Pence with Iowa evangelicals or Mr. Scott with college-educated suburbanites. And these new candidates are unlikely to eat into Mr. Trump’s votes. The former president’s base — more than 30 percent of Republicans — remains strongly devoted to him.

[snip]

The reluctance to go after Mr. Trump, for many Republicans, feels eerily like a repeat of 2016. Then, Mr. Trump’s rivals left him mostly alone for months, assuming that he would implode or that they were destined to beat him the moment they could narrow the field to a one-on-one matchup, a situation that never transpired.

Consider how each of three legal risks (and these are only the most obvious) might affect these issues. This post builds on this series I did last month:

August Georgia indictments

The NYT itself has, as have many other close observers, noted the many signs that Fani Willis has given that she will indict Trump and others in August — probably mid-August.

The Georgia prosecutor leading an investigation into former President Donald J. Trump and his allies has taken the unusual step of announcing remote work days for most of her staff during the first three weeks of August, asking judges in a downtown Atlanta courthouse not to schedule trials for part of that time as she prepares to bring charges in the inquiry.

The moves suggest that Fani T. Willis, the Fulton County district attorney, is expecting a grand jury to unseal indictments during that time period. Ms. Willis outlined the remote work plan and made the request to judges in a letter sent on Thursday to 21 Fulton County officials, including the chief county judge, Ural Glanville, and the sheriff, Pat Labat.

“Thank you for your consideration and assistance in keeping the Fulton County Judicial Complex safe during this time,” wrote Ms. Willis, who has already asked the F.B.I. to help with security in and around the courthouse.

Ms. Willis had said in a previous letter that any charges related to the Trump investigation would come in the grand jury term that runs from July 11 to Sept. 1. Her letter on Thursday appears to offer more specificity on timing.

That means these indictments will come around the same time as the GOP primary debate scheduled for Milwaukee, hosted by Fox.

Trump has already signaled he may not attend this debate and the party has talked about floating minimum requirements to avoid another cattle call like we saw in 2016. If Willis indicts before this debate, the debate will focus closely on those indictments, meaning the middling candidates will be on a stage without Trump talking about alleged crimes he committed to try to win the 2020 election — alleged crimes he committed instead of doing what he could to win the two Georgia Senate seats that tipped control to Democrats.

While I agree with NYT that a cattle call primary and DeSantis’ weaknesses help Trump, had DeSantis had a stronger start, Trump might have been able to finish off any perceived opposition before substantive indictments drop. Now a bunch of other people will be prepped to capitalize on opportunities created by any Trump charges.

A far more important dynamic than the timing of this, though, is the likelihood Willis will indict others. If those others are just top Trump aides and a handful of fake electors (with other fake electors cooperating against them), it could set up a Trump versus the party dynamic, especially given Brian Kemp’s singular success at finding a way to ignore Trump’s demands while not antagonizing him. But if more Republicans are indicted — and commentary on the fake electors plot always seems to forget that the plot involved some of the most prominent Republicans in all the swing states necessary to win the presidential — then it may tend to solidify the Republican party with Trump, in spite of the legal damage his efforts to steal the last election will start to do.

It matters that Fox will host this debate, too, though it’s still too early to tell how. In the wake of the Dominion settlement and with Smartmatic still to come, Fox News has swung wildly from supporting to criticizing Trump. But Rupert Murdoch does seem intent on finding an alternative to him. And that means this debate may provide an opportunity for someone else to break out of the pack.

Stolen documents

Recent reporting suggests that possible August Georgia indictments may not even be the next indictments against Trump.

Last week, both the WSJ and Bloomberg reported that the stolen documents investigation is substantially finished, with Bloomberg suggesting it could be a matter of days or weeks after today’s federal holiday before Jack Smith announces charges.

Special Counsel Jack Smith is wrapping up his investigation into former president Donald Trump’s refusal to return classified documents after his election defeat and is poised to announce possible criminal charges in the days or weeks after Memorial Day, according to people familiar with the matter.

For months, key Republicans like Bill Barr and Andy McCarthy have been treating the stolen documents case as a legitimate investigation, effectively giving firebreathing Republicans permission to criticize Trump for these suspected crimes. And they’re doing so even if this is charged only as obstruction, 18 USC 1519.

Jack Smith might tell any of four stories with a hypothetical stolen documents indictment:

  • A straight-up obstruction charge for blowing off the August subpoena, the likes of which Barr envisions
  • An 18 USC 793 indictment charging fairly innocuous documents — the two classified documents used along with post-presidential records and the schedules Chamberlain Harris copied — both of which show Trump made use of stolen classified documents for his own personal benefit; such an indictment might focus on the fact that Trump made classified documents available to others, including non-staffers, too
  • An 18 USC 793 indictment making it clear that Trump sought out some of the nation’s most sensitive secrets in advance to take with him when he left; such an indictment might plausibly include a 18 USC 2071 charge, which with conviction, disqualifies someone from holding federal office (though that punishment is constitutionally suspect)
  • An Espionage Act indictment making it clear that documents Trump is believed to have stolen have not yet been retrieved and tying gaps in surveillance footage to business meetings at Mar-a-Lago with foreigners reflecting Smith’s recent focus on Trump’s business deals

We don’t know how Jack Smith will charge it if he does (or where, which for reasons I laid out here, is critically important). But the very last thing Smith is known to have done — the one thing he has done since what WaPo described as the last known grand jury meeting on May 5 — is obtain 16 documents from the Archives advising Trump about whether or how he should declassify specific records.

In a May 16 letter obtained by CNN, acting Archivist Debra Steidel Wall writes to Trump, “The 16 records in question all reflect communications involving close presidential advisers, some of them directed to you personally, concerning whether, why, and how you should declassify certain classified records.”

[snip]

According to the letter, Trump tried to block the special counsel from accessing the 16 records by asserting a claim of “constitutionally based privilege.” But in her letter, Wall rejects that claim, stating that the special counsel’s office has represented that it “is prepared to demonstrate with specificity to a court, why it is likely that the 16 records contain evidence that would be important to the grand jury’s investigation.”

The special counsel also told the Archives that the evidence is “not practically available from another source.”

The letter goes on to state that the records will be handed over on May 24, 2023 “unless prohibited by an intervening court order.”

Smith would have obtained these records last Wednesday, three weeks after the last activity of the grand jury.

You don’t hold off on indicting someone to obtain such records — the content of which Smith surely already knew from interviews with those who wrote the documents — solely to indict on obstruction.

There’s literally no predicting how Republicans would respond to a stolen documents indictment. But Barr and McCarthy have been laying the foundation to use it to finally split with Trump for months. And if such an indictment included a 18 USC 2071 count, it would present the additional dilemma for Republicans that if an inevitable constitutional challenge of the statute failed, their leading candidate could not legally be President.

It matters, too, that Jack Smith is a white male who has said literally nothing since he was appointed, not an elected Black prosecutor. It matters that Merrick Garland didn’t take the bait last week (though virtually every journalist did), when Trump responded to news of an imminent indictment by trying to turn this into a legal fight between him and Joe Biden’s appointed Attorney General, rather than him and laws his own advisors told him not to break.

I don’t know what to expect from a hypothetical stolen documents indictment; nor does anyone else. But I do know that if it drops in the next month or so, if it is perceived as legitimate and serious, it provides an opportunity for Republicans who have long been seeking an opportunity to split with Trump.

January 6 conspiracy

Finally, there are potential charges tied to January 6, which may have to wait on appellate certainty around the presumed lead charge, 18 USC 1512(c)(2) or may require an interim set of charges against others.

Aside from expecting some conspiracy charge under that obstruction statute, though, we have no idea what such an indictment might look like. Here are some possibilities that would affect how the GOP responds:

Trump could be charged with inciting the attempted assassination of his Vice President. Smith — and DOJ prosecutors before him — spent a lot of time obtaining details about the communications between Mike Pence and Trump in advance of insurrection, as well as on Trump’s inaction that day. While it would be the most aggressive potential charge, there is evidence to support it. How would mainstream Republicans respond if Trump were charged with siccing a mob he knew to be armed on a lifelong GOPer, someone who will be an announced primary challenger to Trump by then?

Trump could be charged with aiding and abetting the near-murder of Michael Fanone. I’ve laid out how distinctly DOJ treated the prosecution of Danny Rodriguez’ co-conspirator. Prosecutors aired footage from Ellipse speeches rather than excluding it from trial, as DOJ has successfully done with dozens of other defendants. DOJ developed evidence to show Rodriguez responding viscerally and violently to Rudy Giuliani and Trump’s Ellipse speeches just hours before he walked to the Capitol and tased a cop defending it. Rodriguez confessed to the FBI he knew in advance such casualties might be necessary. If DOJ were to implicate Trump in such an assault — something Judge Amit Mehta said was at least plausible over a year ago — it would implicate Trump in the worst assault of an officer that day.

Trump could be charged with conspiring with convicted seditionists. As I laid out here, Trump asked Alex Jones to bring his mob to the Capitol, and after Jones brought the mob there, the Proud Boys exploited those bodies to attack the Capitol. Trump is — as an exhibit introduced in the Christopher Worrell case (whose guilty verdict was closely reliant on evidence implicating Roger Stone) showed — literally the coin of the Proud Boys gang.

DOJ emphasized the import of Trump’s Stand Back and Stand By comment from the opening arguments of that sedition trial. Those are just some of the reasons why it is possible DOJ could charge Trump for conspiring not just with Rudy Giuliani and John Eastman, but also with men already convicted of sedition. Such a charge would take more time to develop — but charging Trump with conspiring with the Proud Boys is completely within the realm of conspiracy law.

Trump’s efforts to cheat could damage swing-state Republican parties. Before Trump asked Republicans from seven swing states to help him create fraudulent certificates in an attempt to steal the election, Kenneth Cheesebro wrote down (!!!) that such an effort would be legally problematic in Nevada, Georgia, Pennsylvania, and Michigan. It’s bad enough asking key Republicans to break the law to help win an election; it is insane that Trump’s lawyers wrote down that it would be illegal before asking them. Of those four states, only Republicans in Pennsylvania took adequate efforts to protect themselves legally from Trump’s requests that they submit fraudulent certificates to the Archives. That means it is possible that DOJ will charge some of the most prominent Republicans in precisely the states that Trump proved unable to win in 2020. Such charges could align Trump and those Republican parties on the same side, or it could really piss off those whom Trump’s recklessness endangered. In Georgia, at least, some prominent Republicans have chosen to testify against others if it means avoiding jail time themselves and I could see Republicans in other states making the same choice.

Trump could be accused of cheating Republican small donors. Trump’s success in 2016 and since has always built off his success at fundraising from small donors. But even as he reaped millions from such efforts, he played fast and loose with campaign finance law, violations of the law for which Republican Federal Elections Commissioners have thus far refused to punish him. Now Jack Smith is reportedly considering criminal charges for the same kind of conduct — in fact, criminal charges tied to claiming he was going to pursue election integrity but then paying lawyers for unrelated legal exposure. Such charges for defrauding his supporters — parallel to the successful charges SDNY prosecuted in the Build the Wall case — would make it clear that Trump has been cheating loyal Republicans for years. They may not care in bulk, but some of the Build the Wall victims did. Such charges might also limit the ways Trump could fundraise going forward. Republicans might not care about the fraud itself, but they would care if a presidential candidate might be disadvantaged financially because of alleged crimes he had committed in the past.

Obviously, we don’t know whether these prosecutors will charge and if so with what (though in both the Georgia and stolen documents case, prosecutors look poised to ask a grand jury for an indictment). The Georgia case is the only one where we have a good idea of timing (though that timing is guaranteed to matter for the primary).

Trump actually used the Russian investigation brilliantly to win personal loyalty from Republicans who had previously been tepid to him (something I’ve been meaning to write up). The Alvin Bragg indictment, similarly, helped him at least in the short term. Trump’s bio on his failed media site literally equates the pursuit of him with an attack on his aggrieved supporters.

This is an utterly central part of his brand, the conceit that totally justified legal pursuits of him were really just an attack on the core identities of angry white nationalists.

And that brand has worked stupendously well. They love him because he is a suspected criminal according to the code of their imagined Deep State. There’s some reason to believe that Boris Epshteyn, a political advisor gatekeeping his legal advisors, has pursued a strategy in the stolen documents case that emphasizes this confrontation even while putting Trump at far greater legal risk.

Thus far, Trump has successfully used his own legal exposure as a way to grievance-monger with other Republicans, building loyalty every time his own legal jeopardy increases. If he were able to seal the GOP nomination before more serious indictments drop, he might do the same here.

But the possibility — the likelihood even — of criminal charges before he makes this equation into the GOP slogan for the entire 2024 election may disrupt that power.

The next three months, before the primary formally starts with a debate, are likely to be unprecedented in the history of presidential elections. Because they are unprecedented, literally no one can envision how those events will affect the primary, even if we know what the charges were and who else will get charged.

What we can be sure of, though, is that the old stale horse race analysis won’t apply to this race.

Update: I should have made something clearer. This analysis, about the impact of potential indictments alone, is meant to be separate from the possibility he’ll be convicted of these crimes. It is virtually impossible that Trump would be convicted before November 2024, and barring a successful application of 18 USC 2071, none of these charges would prevent him from being elected.

Rather, the argument here is that these indictments have the ability to alter the loyalty calculus for Republican voters. I’m not even arguing that will work against Trump! There are a number of ways it could actually help him, at least through the primary. All I’m saying is that each of these potential indictments carries with it the possibility of upending the loyalty that the NYT described, and doing so in ways that are so unprecedented (even setting aside the way Trump himself is almost unprecedented in the US), that no one will really know how it’ll all fall out.

And that’s probably why more Republicans keep hopping into the race.

Trump Organization’s Other New York State Case

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[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?

Did Robert Costello Inadvertently Provide New Evidence against Defendant-1?

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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.

Defendant-1 Charged with 34 Counts of Document Falsification to Hide 2016 Crimes

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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.

Trump’s People Have Attempted to Cover Up That He Cheated to Cover Up Cheating in 2016 at Least Six Times

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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.

Pavlov’s Press Corps: Trump Once Again Got Journalists to Willingly Serve as His Incitement Mules

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When we left the mainstream Trump press corps on Friday afternoon, they were all focused on the decision by Beryl Howell to rule that some of Evan Corcoran’s testimony in the stolen document case was crime-fraud excepted. Sure, there were journalists using wildly exaggerated descriptions for the uniqueness or surprise of the development. But, on Friday, reporters covering Trump’s legal woes were providing factual descriptions of actual newsworthy developments.

At the time, there was a general awareness that an indictment from Alvin Bragg may come next week, but the focus was the stolen documents investigation, in part because some journalists appear to believe that the crime-fraud ruling was some new sign that Jack Smith believed a crime had been committed.

Then, on Saturday morning, on his failing social media platform, the former President tweeted out incitement that included the following, in all caps:

  • An unsubstantiated claim about illegal leaks probably based on Fox News reporting about efforts to prepare for potential violence as a response to a Trump indictment next week
  • An attack on Alvin Bragg’s record on crime
  • A claim Bragg is funded by George Soros, the kind of coded antisemitism Trump is including in virtually all his communications these days
  • An assertion that he would be charged on something that “numerous other prosecutors!” had debunked as a fairy tale
  • An overstatement of the degree to which he is leading in polls and an admission that he is the “former” President
  • A day, Tuesday, when he would be “arrested”
  • A call to “protest,” invoking one of the same cries used to incite a coup attempt on January 6, “take our country back”

The response was almost instantaneous, with one after another journalist screen-capping the tweet in its entirety, some like Kyle Cheney adding no other commentary other than, “🚨 Trumps says he expects to be arrested Tuesday,” with the siren adding to its inflammatory nature. Jonathan Lemire repeated select newsworthy bits — while still including the full screen cap — without mentioning the coded slur on Soros or labeling the entire tweet as obvious incitement; Lemire parroted Trump’s all caps for the purported timing and quoted the incendiary line also associated with January 6.

NEW: Trump is suggesting that he will be ARRESTED ON TUESDAY due to Manhattan DA probe

This is historic: he would be the first former president to be indicted

He urges his supporters to “Protest, take our nation back!”

The absolutely most hysterical tweet magnifying Trump’s words unfiltered came from Jared Holt, a supposed expert on radicalization online, who introduced Trump’s full tweet onto Twitter (where Trump has not tweeted under his own ID since being permitted back on) with the following:

It will be hard to think of a bigger tech moderation failure than if Trump uses the platforms he’s been allowed back onto (FB, YouTube, Twitter) to incite protests again.

As of this morning, Holt’s tweet, along with the screen cap of Trump’s tweet unfiltered, had garnered 230,000 views on Twitter, over 300 RTs and almost 1,700 likes. Lemire’s had garnered 300 quote tweets, almost 600 RTs, over 2,000 likes, and 1.3M views. Cheney’s had garnered 770 quote tweets, 1,200 RTs, 7,400 likes, and 2.6M views.

By publishing such an inflammatory tweet on Truth Social, Trump was rightly calculating that even people like Holt would help to make his unfiltered words go viral on Twitter, as Trump has consistently done during the period when he still remained banned on Twitter.

It’s like Pavlov’s dogs, pure reflexive behavior at this point: The more incendiary Trump’s tweets, the more quickly journalists rush to disseminate them unfiltered on Twitter.

Remarkably, neither Lemire nor Cheney noted the import of the fact that a habitual liar like Trump was only claiming that he expected to be arrested Tuesday, not that he knew he would be.

In its report on the tweet, NYT noted, even in the subhead, that the timing was unclear, but given that at least one more witness is expected to testify on Monday, a Tuesday arrest is unlikely. It further described that Trump’s team was already in discussions about how to minimize the kind of showy arrest Trump was promising on Truth Social. NYT went on to report how Trump’s team simply guessed the date of his arrest.

His indictment by a Manhattan grand jury is expected, but its timing is unclear.

[snip]

Two hours later, a spokesman issued a statement saying that Mr. Trump had not written his post with direct knowledge of the timing of any arrest,

[snip]

Prosecutors working for Mr. Bragg have signaled that an indictment of Mr. Trump could be imminent. But they have not told Mr. Trump’s lawyers when the charges — expected to stem from a 2016 hush money payment to a porn star — would be sought or an arrest made, people with knowledge of the matter said. At least one more witness is expected to testify in front of the grand jury, which could delay an indictment, the people said.

One of the people said that even if the grand jury were to vote to indict the former president on Monday, a Tuesday surrender was unlikely, given the need to arrange timing, travel and other logistics.

The statement from Mr. Trump’s spokesman did not explain how he had landed on Tuesday as an arrest date. One person with knowledge of the matter said that Mr. Trump’s advisers had guessed that it could happen around then, and that someone might have relayed that to the former president.

A lawyer for Mr. Trump, Susan R. Necheles, said that his post had been based on news reports,

CNN, including Kaitlan Collins, who was among the first to help disseminate this incendiary tweet, later reported on the legal discussions going on inside Trump’s camp.

Trump’s defense team is expected to be notified following any possible indictment and then they would engage in negotiations for surrender and an initial appearance.

Another witness is expected to testify Monday before the grand jury investigating the hush money payments, according to a source familiar with the investigation. It is not clear whether this would be the final witness before it votes on a possible indictment.

Trump’s team has said repeatedly that he will not accept an invitation to testify before the grand jury. But multiple sources familiar with his legal team’s thinking says that if there is an indictment, he would negotiate an agreed upon surrender date with the district attorney’s office.

Trump’s team has been huddled all week planning for various scenarios, including Trump traveling to New York as well as having a remote hearing where he stays at Mar-a-Lago, according to sources familiar with the meetings.

Some members of his legal team are advising Trump to ask for a remote appearance for security reasons should an indictment occur but it is unclear if he would agree to that as he has also discussed with his team wanting to give a statement at the courthouse, sources said.

But before it got to those details, CNN described that the tweet was just a political ploy based off a guess about timing.

The former president has been agitating for his team to get his base riled up and believes that an indictment would help him politically, multiple people briefed on the matter told CNN.

[snip]

Joe Tacopina, an attorney for Trump, later said the former president had based his claims on press reports.

“No one tells us anything which is very frustrating. President Trump is basing his response on press reports,” Tacopina said in a statement to CNN.

In other words, the most newsworthy detail in Trump’s tweet (beyond the incitement) — the day he would be charged — was just made up, a guess based off the same information all the rest of us have. It was nevertheless treated as newsworthy by a slew of journalists needing an excuse to disseminate unfiltered incendiary speech on Twitter. And no one has since gone back to amend their original tweets to note that Trump’s claims to know the date of his arrest were a lie.

Trump’s team simply guessed what day he’ll be charged so as to make a call to fight newsworthy enough for kneejerk journalists to help it go viral for him.

It worked.

It works every single fucking time Trump does this.

Every. Single. Time.

And it’s not just the fact that a bunch of journalists served as willing data mules for Trump’s incendiary tweet, bringing it onto Twitter for him and helping it to go viral in unfiltered form.

It’s the other effect the tweet had on reporting about Trump.

First, everyone completely dropped the significant development in a case that even a number of diehard Republicans think has real gravity, Trump’s refusal to return all the classified documents he stole. That story — a burning story late into Friday — utterly disappeared by Saturday morning. Trump is so good at playing the media that he can effectively just dictate what even CNN and MSNBC will cover. And his tweet managed to make that more damaging investigation — an investigation led by a white man rather than a Black one, and so harder to use to mobilize Trump’s most racist followers — completely disappear from coverage. Journalists who had broken key details about the crime-fraud ruling Friday were instead asked to cover Trump’s tweet on the cable shows on Saturday.

And it wasn’t just cable coverage that Trump’s incendiary tweet managed to dictate. One after another politician — Kevin McCarthy, Mike Pence, Elise Stefanik (who released then deleted multiple drafts before hers was sufficiently dripping in obsequious propaganda) — was forced to comment on the made up news that Trump has a date when he’ll be indicted. Even poor Asa Hutchinson, who was trying hard to launch a Presidential run that didn’t define itself entirely in terms of Trump, was forced to answer multiple questions about Trump’s tweet.

In other words, by releasing the tweet, Trump not only made it the sole focus of cable programming, but made it the leading political question of the day. He made the presidential race about him again, exclusively about him. And in the case of McCarthy and Stefanik — both of whom cling to power by ceaselessly performing their obeisance to Trump — made it a matter of loyalty, a political litmus test that Trump supporters and opponents alike would be required to publicly adhere to.

Finally, all this was done without any mention of the actual facts of the case. All this was done in a way guaranteed to short-circuit rational thought — that’s the point.

To be clear, I don’t know all that many people who are sure this is going to be a substantive indictment, and there are real questions about how it is not time-barred. Perhaps Bragg will surprise us, but even many lefties are skeptical about the legal soundness and wisdom of this indictment.

But the substance of it stems from Trump fucking a sex worker.

He fucked a sex worker then paid her to cover it up. And then, in his efforts to cover that up, Trump engaged in some dodgy corporate accounting. There may be other exacerbating factors, like witness intimidation. But this is about trying to cover up the fact that he fucked a sex worker so it wouldn’t harm his chances of becoming President.

This case involves a crime for which, under Jeff Sessions, SDNY prosecuted Trump’s personal lawyer, Michael Cohen. One reason Trump wasn’t prosecuted as a result is that Bill Barr interfered; Barr even tried to force SDNY to reverse Cohen’s prosecution. And when Cohen went to jail because he refused to cover up Trump’s efforts to cover up fucking a sex worker, Trump cut him off, making him a pariah. Trump’s tweet falsely claimed that multiple prosecutors had deemed this case bullshit when instead he means his own Attorney General engaged in breathtaking corruption to protect him from it.

We don’t know what the indictment includes. But we know it involves fucking a sex worker. And all the journalists repeating Kevin McCarthy’s bullshit comments about investigating this investigation, or Mike Pence’s comments about how measly an indictment this would be, are not making them go on the record about whether they think voters should know if someone is spending significant money — several times what most Trump supporters make in a year — to cover up that they fucked a sex worker. Does Mike Pence, that god-fearing Christian, think a man who paid six figures then engaged in financial fraud to cover up that he fucked a sex worker should be President? Let’s ask him.

That’s not happening, in significant part because Trump has gotten journalists to shed all rationality when reporting on this story. The point is to make this about emotion, not facts, and journalists’ immediate instincts accommodated that.

Because Trump went on offensive, the substance of the indictment — however flimsy or not — has been largely absent from any reporting on the case.

Trump has these journalists trained to act reactively, without taking the time first to figure out whether he was again making shit up (as he was in this tweet). He has these journalists trained to mindlessly help him disseminate antisemitic incitement on platforms he’s not a part of, usually without commentary identifying that’s what he’s doing. Trump is so good at exploiting journalists who know better that he has made them participants in his incitement.

And it could well get people killed.

Updated: Added the circulation numbers for the three tweets disseminating Trump’s incitement.

Evan Corcoran: You’re the Next Contestant on Trump’s Crime-Fraud Reality Show

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Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?

 

Christina Bobb, Custodian of Records and Coup Conspirator

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According to Donald Trump’s whack-ass filing the other day, he personally has yet to receive a subpoena in the investigation of his  suspected theft of classified documents and obstruction of one or more investigations by hiding, ripping, or flushing documents. Instead, his hospitality company and Christina Bobb have.

DOJ sent the June 22 subpoena for surveillance footage at Mar-a-Lago to the Custodian of Records at the Trump Organization.

On June 22, 2022, the Government sent a subpoena to the Custodian of Records for the Trump Organization seeking footage from surveillance cameras at Mar-a-Lago. At President Trump’s direction, service of that subpoena was voluntarily accepted, and responsive video footage was provided to the Government.

The WaPo explained that it was sent to Trump Organization, not Trump, because that’s who actually owns Mar-a-Lago.

By the way, that means that Trump Organization could have, but thus far has not, intervened in the August 8 search as well as Donald. Indeed, that may have been what Magistrate Judge Bruce Reinhart, who has read the search warrant affidavit, was alluding to when he memorialized his order asking DOJ to provide more justification for its review. He noted that neither Trump nor any other “purported owner” of Mar-a-Lago had intervened.

Neither Former President Trump nor anyone else purporting to be the owner of the Premises has filed a pleading taking a position on the Intervenors’ Motions to Unseal.

In fact, when Trump intervened in the Michael Cohen search in 2018 — and did so after just four days — he did so in the persons of Trump Organization lawyer Alan Futerfas and Futerfas’ partner Ellen Resnick. Having Trump Organization ask for a Temporary Restraining Order would have been another way to intervene in more timely and competent way than Trump has done so far — but Trump Organization has been rather distracted preparing for depositions in Tish James’ investigation and the October trial testimony of their former CFO in a New York City trial.

In any case, it is totally normal for a grand jury to subpoena the “Custodian of Records” of a corporation from which it wants records. In the case of the surveillance video (and presumably a renewed subpoena after the search), that just happened to place the legal obligation to respond on an entity that has a whole heap of other legal problems right now.

In Trump’s whack filing, though, the hero of our story Donald J. Trump magnanimously instructed Trump Organization to accept service and provide the video (it appears that Eric or the failson would have been the ones legally to give that order), otherwise known as “complying with a subpoena.”

It’s the other subpoena I find more interesting.

On May 11, 2022, Movant voluntarily accepted service of a grand jury subpoena addressed to the custodian of records for the Office of Donald J. Trump, seeking documents bearing any classification markings. President Trump determined that a search for documents bearing classification markings should be conducted — even if the marked documents had been declassified — and his staff conducted a diligent search of the boxes that had been moved from the White House to Florida. On June 2, 2022, President Trump, through counsel, invited the FBI to come to Mar-a-Lago to retrieve responsive documents. [italics Trump’s, bold mine]

There’s a lot going on in this passage. Whereas the earlier passage described the government sending the subpoena, here Trump’s team only describes that service for it was accepted, “voluntarily,” it notes in italics, which is not a thing.

It’s a subpoena, you don’t get a choice.

The passage dates that acceptance to May 11 — the day after, we now know, that the Acting Archivist Debra Steidel Wall had informed Evan Corcoran, acting as Trump’s attorney, that she would not respect Trump’s “protective assertion of executive privilege.” The dates are almost certainly related, but we can’t be sure how, because we can’t be sure when DOJ subpoenaed Trump for the rest of the classified documents he was hoarding.

More interesting, to me, is the way this passage introduces a second role (and third) it will rely on heavily to describe what must be a core focus of the obstruction investigation, that Custodian of Records of the Office of Donald J. Trump. The Custodian of Records accepted the subpoena (and so would be on the legal hook for it), “his staff conducted a diligent search,” and then his counsel — Corcoran — “invited” Jay Bratt to come get the additional classified documents that would constitute proof Trump had violated the Espionage Act. Trump doesn’t reveal who did the search (though other reports have said Corcoran did it). But as presented, this process implicated three different roles, at least one role performed by a guy who signed this very whack filing that works so hard to obscure all this.

All that is set-up for the meeting on June 3, which will carry a great deal of legal import going forward, not least in an inevitable Fourth Amendment suppression motion. Here’s the tale the whack filing, written in part by Evan Corcoran, tells:

The next day, on June 3, 2022, Jay Bratt, Chief of the Counterintelligence and Export Control Section in the DOJ’s National Security Division, came to Mar-a-Lago, accompanied by three FBI agents. President Trump greeted them in the dining room at Mar-a-Lago. There were two other attendees: the person designated as the custodian of records for the Office of Donald J. Trump, and counsel for President Trump. Before leaving the group, President Trump’s last words to Mr. Bratt and the FBI agents were as follows: “Whatever you need, just let us know.”

Responsive documents were provided to the FBI agents. Mr. Bratt asked to inspect a storage room. Counsel for President Trump advised the group that President Trump had authorized him to take the group to that room. The group proceeded to the storage room, escorted by two Secret Service agents. The storage room contained boxes, many containing the clothing and personal items of President Trump and the First Lady. When their inspection was completed, the group left the area.

Once back in the dining room, one of the FBI agents said, “Thank you. You did not need to show us the storage room, but we appreciate it. Now it all makes sense.” Counsel for President Trump then closed the interaction and advised the Government officials that they should contact him with any further needs on the matter.

This passage is designed to portray Trump’s response as completely cooperative, which is set up for a claim the warrant was not necessary. As such, it describes an FBI comment undoubtedly designed, legally, to reiterate that a consensual search — of the storage room — was indeed consensual, as if it means something else, that the FBI had had all its questions answered. But when Trump eventually receives the affidavit that relies on this FBI agent’s first-hand observations during a consensual search to show probable cause for a warrant to come back and search the storage room further, Trump will have ceded the consensual nature of it and therefore his ability to suppress the August 8 search.

Evan Corcoran will one day be underbussed for agreeing (and in this filing, attesting) to this consensual search; given the way he’s portrayed in this WaPo story, the underbussing may have already begun. But for now, it is the stated version Trump wants to tell.

What I’m interested in, though, is that according to this version — a version that makes absolutely no mention of the declaration Jay Bratt required Trump’s team provide after that consensual search of the storage room — the roles that Corcoran and Christina Bobb played were different, and different in a way that holds legal weight. They don’t name names, but because Corcoran is known to have done the things attributed to “counsel” in this whack filing, he must be the counsel in the meeting and Bobb, by process of elimination, was the Custodian of Records. So Bobb was the person on the hook for the subpoena response.

As a reminder, here’s the most complete description of the declaration that Corcoran neglected to mention in the whack filing, from an NYT article that studiously avoids mentioning that obstruction is one of the crimes under investigation.

Mr. Bratt and the agents who joined him were given a sheaf of classified material, according to two people familiar with the meeting. Mr. Corcoran then drafted a statement, which Ms. Bobb, who is said to be the custodian of the documents, signed. It asserted that, to the best of her knowledge, all classified material that was there had been returned, according to two people familiar with the statement.

Bobb, performing the role as the Custodian of Records and so the person on the legal hook for the search, is the one who signed the declaration, based off a search that unnamed Trump “staff” members — described as a third role separate from that of Custodian of Records Christina Bobb and counsel Evan Corcoran — conducted.

Who knows whether Bobb really played the legal function of Custodian of Records at the Office of Donald J. Trump? I’ll come back to that in a bit.

Whatever Bobb really is, though, three pages later, Trump’s Custodian of Records gets a dizzying demotion to one of “three attorneys in the general area” who showed up to observe the search. That demotion may serve the legal function of justifying a claim, made another 11 pages later, that the search warrant receipts Bobb signed do not meet the standards required by Rule 41.

Among other actions taken after being notified of this unprecedented event, counsel for President Trump contacted three attorneys in the general area who agreed to go to Mar-a-Lago. Once they arrived, they requested the ability to enter the mansion in order to observe what the FBI agents were doing, which the Government declined to permit.

After approximately nine hours, the FBI concluded its search. An FBI agent provided one of the attorneys who had been waiting outside for nearly the full nine hours with a copy of the Search Warrant. TheFBI also provided a three-page Receipt for Property. Receipt for Property

[Case 9:22-mj-08332-BER, ECF 17 at 5-7 of 7]. That list provided almost no information that would allow a reader to understand what was seized or the precise location of the items.

[snip]

In addition, Movant requests that this Court direct the United States to prepare and provide a specific and detailed Receipt for Property. See Fed. R. Crim. P. 41(f). The “Receipt For Property” provided to Movant on August 8, 2022 is so vague and lacking in specificity that the reader does not know what was seized from Movant’s home.

[snip]

Movant submits the current Receipt for Property is legally deficient. Accordingly, the Government should be required to provide a more detailed and informative Receipt For Property, which states exactly what was seized, and where it was located when seized. In addition, Movant requests that the Court provide him with a copy of the inventory. This, along with inspection of the full Affidavit, is the only way to ensure the President can properly evaluate and avail himself of the important protections of Rule 41. [my emphasis]

Rolling Stone has a piece explaining that this whack filing is not actually the significant Fourth Amendment filing we were promised. That one, a bid to demand that Trump get these files back, is still coming.

[T]he former president’s legal team appears to be working to retrieve at least some of the papers seized during the Aug. 8 federal search. In recent days, the Trump team — led by former federal prosecutor Evan Corcoran — has been quietly prepping additional legal arguments and strategies to try to pry back material that the feds removed from the ex-president’s Florida abode and club, the sources say. Those measures include drafting a so-called “Rule 41(g) motion,” which allows  “a person aggrieved by an unlawful search and seizure of property” to “move for the property’s return,” according to the Federal Rules of Criminal Procedure.

This would be a follow-up measure to the lawsuit, filed Monday by Trump and his attorneys, calling for the appointment of a special master to review the Mar-a-Lago materials for potentially privileged materials. It is unclear when the ex-president’s lawyers plan to file a subsequent motion, which people close to Trump expect to be more narrowly tailored than what the former president apparently wants.

But this whack filing is meant to lay the groundwork for the future promised significant Fourth Amendment whack filing.

And the success of both depends on a claim that poor Christina Bobb, who in her role as the Custodian of Records is either a witness or suspect in the obstruction side of this investigation, was on the day of the search just a pretty little lawyer who happened to be walking her dog in the neighborhood, and who asked the nice FBI agents to let her watch the search but wasn’t allowed to, which is why she signed off on the receipt without asking for more details on the front end. This entire scheme will fail when the FBI points out that a suspected co-conspirator didn’t do the due diligence Trump is now claiming (falsely) is legally required according to the standards of Rule 41.

It would almost certainly fail anyway, but it will especially fail when DOJ points out that Bobb is not just some lady walking her dog in the neighborhood, but played the role of the Custodian of Records, and so had the competence to demand a more complete receipt on the day of the search, but did not. The Office of Donald J. Trump has effectively already waived the issue of the receipts.

But consider the import of the claim that Christina Bobb functioned at the Custodian of Records for the Office of Donald J. Trump, particularly given Paul Sperry’s claim (h/t Ron Filipkowski) that Trump withheld these documents because he knew that if he turned them over, the Archives would in turn provide them to the January 6 Committee (and now, DOJ’s January 6 investigation).

Christina Bobb is not only not just a lady walking her dog in the neighborhood of Mar-a-Lago, she also played a key role in the coup attempt.

She was the first author of the draft Executive Order attempting to seize the voting machines.

That document is nearly identical to a draft executive order the National Archives has shared with the Jan. 6 committee, and that POLITICO published last month. Metadata on the document says it was created by a user named Christina Bobb, and later updated by an unnamed person. A One America News anchor by that name was involved in Giuliani’s work for Trump, and previously worked in the Department of Homeland Security during the Trump administration.

The Washington Post reported that Bobb was on at least one conference call about setting up alternate slates of electors for the Jan. 6 certification vote, and that she was at the Willard hotel “command center” that Trump’s allies used as a home base to coordinate efforts to overturn the election. The emails did not cast light on Bobb’s ties to the draft executive order beyond her name’s appearance in the metadata, and she did not respond to requests for comment.

And as Seth Abramson first confirmed, after leaving the Cannon Office Building at 1PM on January 6, Bobb spent the rest of the day in the Willard right alongside Rudy.

While the Archives spent a year trying to get Trump to return identified documents, some reports say things came to a head in December.

WaPo reports that Trump personally oversaw the packing of boxes to be returned to the Archives, and they were retrieved on January 17.

What followed was a tortured standoff among Trump; some of his own advisers, who urged the return of documents; and the bureaucrats charged by the law with maintaining and protecting presidential records. Trump only agreed to return some of the documents after a National Archives official asked a Trump adviser for help, saying they may have to soon refer the matter to Congress or the Justice Department.

Nearly a year later, on Jan. 17, 2022, Trump returned 15 boxes of newspaper clips, presidential briefing papers, handwritten notes and assorted mementos to the National Archives. That was supposed to settle the issue.

[snip]

It could not be determined who was involved with packing the boxes at Mar-a-Lago or why some White House documents were not sent to the Archives, though people familiar with the episode said Trump oversaw the process himself — and did so with great secrecy, declining to show some items even to top aides. Philbin and another adviser who was contacted by the Archives in April have told others that they had not been involved with the process and were surprised by the discovery of classified records.

What’s clear is that effort to pack up boxes, an effort Trump personally oversaw, was happening during the same period when Trump was trying to prevent the Archives from handing over records to the January 6 Committee.

October 18, 2021: Trump sues to prevent the Archives from complying with January 6 Committee subpoena.

November 10, 2021: Judge Tanya Chutkan denies Trump’s motion for an injunction against NARA. (While it wouldn’t appear in the affidavit, in recent days Paul Sperry has claimed that Trump withheld documents to prevent NARA from turning them over to the January 6 Committee.)

December 9, 2021: DC Circuit upholds Judge Chutkan’s decision releasing Trump records to the January 6 Committee.

On January 17, 2022, NARA retrieved 15 boxes of Records from 1100 S. Ocean Blvd, Palm Beach, FL.

January 19, 2022: SCOTUS upholds Chutkan’s decision.

Any tampering with already packed boxes may have happened after the DC Circuit ruled in favor of the Committee, but in any case, in courts in DC, such tampering happened during a period when Trump was legally fighting to hide records that would implicate him … and Christina Bobb.

I’m still not convinced that the January 6 investigation(s) are the primary thing that Trump was trying to retain, though I think there’s a decent chance they’re included among the investigation(s) that Trump is suspected of obstructing by hiding, ripping, and flushing documents.

But to the extent that Trump was attempting to obstruct parallel investigations of his efforts to steal the 2020 election, Bobb’s role as both a co-conspirator in the coup plan and as Custodian of Records would raise additional concerns for the FBI.

Whinger Verbs: To Investigate … To Prosecute … To Indict

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Because Alvin Bragg chose not to prosecute Donald Trump, the whingers are out again complaining about Merrick Garland, who last I checked was an entirely different person.

I’ve copied the “Key January 6 posts” from my post showing what reporting on the January 6 investigation — rather than simply fear-mongering to rile up CNN viewers or your Patreon readers — really looks like below.

But for now I’d like to talk about the language the whingers — those complaining that Merrick Garland hasn’t shown people who aren’t looking what DOJ is doing. It’s telling.

Take this post from David Atkins that opines, accurately, that “Refusing to Prosecute Trump Is a Political Act,” but which stumbles in its sub-head — “The evidence is clear. It’s time to prosecute the former president, and Merrick Garland shouldn’t wait.” — and then completely collapses when it asserts that there are just two possible reasons why Merrick Garland has not “prosecuted” Trump.

But there is a deeper question as to why Attorney General Merrick Garland and the DOJ have not prosecuted Trump. No one at the department is talking on the record, but there are only two possible answers—neither of which is satisfactory.

It is possible that prosecutors do not believe there is enough evidence against Trump to convince a jury of his guilt. I’m not a lawyer, but this seems somewhat difficult to believe.

[snip]

The second possibility is that the Department of Justice hasn’t prosecuted Trump because of political pressure. Again, this is speculation. But if Garland is succumbing to either internal or external pressure to avoid charging Trump out of fears of civil conflict, or the appearance of political motivation, that would be a grave error—not prosecutorial discretion but prosecutorial dereliction. Allowing fears of violent reprisals to derail a prosecution would be a grave injustice.

Atkins is wrong about the reasons. I wrote here about why the ten acts of obstruction Mueller identified are almost universally misrepresented by whingers, in part because Billy Barr did real damage to those charges (as he did to other ongoing investigations), and in part because the ten acts that existed in March 2019 are not the acts of obstruction that exist today.

We know part of why Trump hasn’t been charged for political crimes: because Trump ensured the FEC remained dysfunctional and Republicans have voted not to pursue them (something that whingers might more productively spend their time pursuing).

It seems nutty to suggest that Trump should be “prosecuted” already for taking classified documents to Mar-a-Lago when that was referred just weeks ago. It’s also worth considering whether it would be easier to prosecute Trump for obstruction for these actions, tied to one of his other malfeasance, and then consider where investigations related to that malfeasance already exist.

Bizarrely, Atkins doesn’t consider it a possibility that it would take Merrick Garland’s DOJ more than 380 days to prosecute the former President. It took months to just wade through Stewart Rhodes’ Signal texts. It has taken 11 months, so far, to conduct a privilege review of Rudy’s phones (for which DOJ obtained a warrant on Lisa Monaco’s first day on the job). DOJ has six known cooperators in the Oath Keeper case (at least four with direct ties to Roger Stone) and one known cooperator in the Proud Boys case (and likely a bunch more we don’t know about). Particularly in the Oath Keeper investigation, DOJ has been rolling people up serially. But that process has taken longer because of COVID, discovery challenges, and the novelty of the crime.

But that goes to Atkins’ curious choice of the word “prosecute” here. I generally use the verb to refer to what happens after an indictment — the years long process of rebuffing frivolous legal challenges, but for an organized crime network, “prosecute” might also mean working your way up from people like militia members guarding your rat-fucker to the militia leaders planning with your rat-fucker to the rat-fucker to the crime boss.

I think what Atkins actually means, though, is “indict,” or “charge.” But his entire post betrays a fantasy where one can simply arrest a white collar criminal in the act after he has committed the act.

What whingers often say, though, is they want Garland to “investigate” Trump. Then they list a bunch of things — like cooperating witnesses or grand jury leaks or raids or indictments — that we’ve already seen, and insist we would see those things if there were an investigation but take from that that there’s not an investigation even though we see the things that they say we would see if there were an investigation.

Whinger brain confuses me sometimes.

The point, though, is that the language whingers use to describe what they imagine is Garland’s inaction or cowardice (none of these people have done the work to figure out whether that’s really the case), is designed to be impossible. That makes it necessarily an expression of helplessness, because their demand is actually that Trump be disappeared from the political scene tomorrow, and that’s hasn’t happened with multiple investigations implicating him, it sure as hell won’t happen if and when he is indicted, and it wouldn’t happen during a hypothetical extended period during which Trump is prosecuted.

Indeed, I’ve lost count of the number of people who tell me Bannon hasn’t been indicted, even though Bannon has been indicted. It’s just that he’s entitled to due process and in many ways being indicted provides him a way to play the victim.

There are multiple investigations implicating close Trump associates and the January 6 investigation is absolutely designed to incorporate Trump, if DOJ manages to continue building from the crime scene backwards. But that’s not actually what people want. None of these verbs — to investigate, to indict, to prosecute — are the ones that whingers are really hoping to see.

And the verbs they’re hoping to see — perhaps “neutralize” or “disappear” — are not ones that happen as part of due process.

And none of the due process verbs — “investigate,” “indict,” “prosecute” — are likely to work unless people at the same time think of things like “discredit.”

Key January 6 posts

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

DOJ Is Treating January 6 as an Act of Terrorism, But Not All January 6 Defendants Are Terrorists

While TV Lawyers Wailed Impotently, DOJ Was Acquiring the Communications of Sidney Powell, Rudy Giuliani, and (Probably) Mark Meadows

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

The Eight Trump Associates Whom DOJ Is Investigating

January 6 Is Unknowable

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

DOJ’s Approximate January 6 Conspiracies

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

How a Trump Prosecution for January 6 Would Work

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland