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Boris’ Shakedown

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By all accounts, CNN was the first to report that lawyers for Trump conducted a review of Boris Epshteyn’s “consulting” for access to Trump. Not long after, John Solomon wrote a more thorough version of the story, including the detail that an announcement for Boris’ appointment as an Assistant to Trump in the White House has been held up as the review concluded.

A week ago, a draft of a press release was handed to transition aides announcing Epshteyn as an assistant to the president, but it was never released, several senior aides confirmed to Just the News. He has told some friends in recent days that he might prefer to stay on the outside rather than go into the administration.

Before I get into what those reports say, consider Hugo Lowell’s take, which focuses not so much on the allegations, but on an assertion that the report itself arises from in-fighting among Trump’s team.

Epshteyn remained part of Trump’s inner circle as of Monday evening, with Trump riding high on the news that special counsel prosecutors had moved to dismiss the two federal criminal cases against him – a victory he credited to Ephsteyn.

The first person that Trump called when prosecutors withdrew the cases against him was Epshteyn, according to two people with Trump at the time, which occurred just as CNN first reported the existence of the review into Epshteyn’s consultancy scheme.

For the remainder of the day, Epshteyn was on the offensive as his allies dismissed the review as an attempt by Warrington to decapitate Epshteyn after he successfully pushed for Bill McGinley to be the White House counsel, rather than Warrington, who had also been in contention for the role.

Epshteyn’s allies later portrayed the review as a political hit job capitalizing on Epshteyn’s role in pushing for the former congressman Matt Gaetz to get the nomination for attorney general before it sank under the weight of sexual misconduct allegations.

It’s unclear the event that predicated the investigation (note that Steven Cheung told multiple outlets that the review focused on others in addition to Boris). But incoming Treasury nominee Scott Bessent’s discomfort with Boris’ entreaties, going back to February and including a pitch for a basketball related business with some ties to Steve Bannon, seem to have played a key role.

Which is one question I have about this process. The various stories quote disgruntled targets, including a defense contractor whose access Boris promised to throttle going forward. CBS includes comment from Don Bolduc, who found the entire process of getting Trump’s neutrality in a New Hampshire Senate primary so distasteful, he left politics thereafter (though a Bolduc staffer was more positive about the experience).

“There’s nothing honorable about politics,” said Bolduc, a retired Army brigadier general. After his failed Senate race, Bolduc enrolled in a police academy and became a rookie small-town cop at age 60.

But it doesn’t say whether Matt Gaetz paid Boris for his support for a reckless bid to be Attorney General just as the ethics report into him was completed.

Boris’ “consulting” has been public for years, in campaign finance disclosures. What seems to have happened here is that someone who, after some brawling, came out of ahead on a contentious cabinet spot, Treasury, complained about the manner in which Boris monetizes his access to Trump.

But the timing of the effort matters: given the dismissal of the federal cases against Trump, he’s unlikely to prioritize the views of those who didn’t help him beat the rap, at least for now. Heck, that may explain the conflicting stories about whether the inquiry is done or not: maybe Trump ended it once the dismissals came out.

And so six people who would like to see him gone have made sure this gets publicized.

It’s sort of cute: People like Solomon claim that Trump’s promise to Drain the Swamp was anything but projection. So whatever else this incident does (Eric Trump has suggested it could lead to Boris’ ouster, but perhaps that’s just from the White House itself), it may disabuse Trumpsters of their fantasy that they’re not part of a very corrupt system.

One more point: I assume there will be a Jack Smith report. And I assume it’ll include Boris’ actions in there, actions that (like this shakedown) seem to tie to Steve Bannon. If people are interested enough in ousting Boris that may provide an interesting dynamic.

Boris Epshteyn’s One-Two Punch on DOJ

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Politico had a detail about the Matt Gaetz selection that I’ve seen no one else pick up.

It was Boris Epshteyn’s idea.

How did we get here? That story is still coming out, but here’s what we know. As of Monday, Gaetz was not on the short list to be Trump’s choice for attorney general. But Trump wasn’t satisfied with those options, our Meridith McGraw tells Playbook.

[snip]

The Gaetz-for-AG plan came together yesterday, just hours before it was announced, Meridith tells us. It was hatched aboard Trump’s airplane en route to Washington, on which Gaetz was a passenger. A Trump official revealed more details to Playbook late last night: BORIS EPSHTEYN played a central role in the development, lobbying Trump to choose Gaetz while incoming White House chief of staff SUSIE WILES was in a different, adjacent room on the plane, apparently unaware.

Maggie and Swan have retconned that detail to describe, only, that Boris, Elon, and Susie Wiles were all on the plane, then fluffed it all into bullshit about clarity of what he wants.

Boris’ role in Trump’s apparent plan to destroy the country has gotten little notice amid the parlor games focused on when the two narcissists, Elon and Trump, will tear each other down. But his apparent role in this decision bears more notice.

After all, he’s unindicted co-conspirator 6 in the January 6 indictment. He had a central (though uncharged) role in the documents case, orchestrating parts of the plan to have Evan Corcoran do the search but have Christina Bobb do the certification. And he was or may still be under investigation, with Steve Bannon, for a cryptocurrency scheme that cheated Trump’s rubes.

His communications with now Chief of Staff designate Susie Wiles appear to have been a subject of interest for investigators — a subject tied to what a witness that is likely Eric Herschmann described as an effort to cover his own past legal exposure with a retroactive claim to have been acting as an attorney.

And the potentially belated access to the contents of his phone are what expanded the focus of the immunity brief to incorporate Bannon as an unindicted co-conspirator and Bannon’s prediction that “All Hell will break loose” part of the plot.

Donald Trump was considering actual lawyers for the role of Attorney General, but (per Marc Caputo) didn’t like them because they talked Constitution and all that.

“Everyone else looked at AG as if they were applying for a judicial appointment. They talked about their vaunted legal theories and constitutional bullshit. Gaetz was the only one who said, ‘Yeah, I’ll go over there and start cuttin’ fuckin’ heads.’”

And then, at least according to Politico, Wiles left the room and Boris convinced Trump to pick Gaetz.

After that, Trump has announced plans to install his defense team — Todd Blanche, Emil Bove, and John Sauer — as Deputy Attorney General, PADAG, and Solicitor General, respectively (note: PADAG is not a confirmed position, so Trump only announced it to make the intent crystal clear).

Now, Bove and Sauer are at least competent to the positions Trump will install them in. All three men know their way around DOJ. Blanche is less horrible than the Gaetz pick — again, if you ignore the symbolism of converting the Department of Justice into the defense firm for the President.

And he’s also Boris’ defense attorney. He was Boris’ defense attorney and then, possibly at Boris’ suggestion, added Trump as a client, creating some challenges regarding discovery.

According to Politico, a key player in Trump’s assault on the Constitution, on the Capitol, is the guy who picked Matt Gaetz to be Attorney General (or who suggested Matt Gaetz be proposed for Attorney General, creating an impossible loyalty test for the Senate).

And the competent people reporting to Gaetz are there to mount a defense.

So Help Me God: Lawyers, Encryption, and Insurrection

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I still owe you a longer post on what I gleaned from my deep dive into the mostly sealed immunity appendix over the weekend. Here’s my evolving understanding of the appendix so far.

Volume I:

  • GA 1 through around GA 660: Interview transcripts
  • Around GA 661 to GA 722: Material justifying treating Eric Herschmann as unofficial role

Volume II:

  • GA 723 through GA 771: Presidential Daily Diaries
  • GA 772 through GA 965: Social media

Volume III GA 968 through GA 1503: State-related documentary evidence

Volume IV:

  • GA 1503 through around GA 1684: Pence and January 6-related documentary evidence
  • GA 1685 though GA 1885: Material justifying treatment of Trump’s statements as unofficial conduct

But for now, I want to share a hypothesis: that Mike Roman and Boris Epshteyn used technical (in the case of Roman) or legal (in the case of Epshteyn) delays to stall the exploitation of their phones.

Again, this is all speculative.

As I laid out here, the superseding indictment does not name either Roman or Steve Bannon as co-conspirators using the designator “CC.” But the immunity filing treats both as co-conspirators, as least for the purpose of admitting their speech via a hearsay exception. In that post, I posited that Jack Smith considered a more substantive superseding indictment, adding charges based (in part) on their actions, but did not do so, possibly because of the timing in advance of the election. I further developed that hypothesis in this post, in which I suggested additional charges might pertain to inciting violence.

It is possible that SCOTUS’ decisions — not just Fischer and the Immunity ones, but also the 14th Amendment one — made Smith reconsider his charging decisions; see this post for how those rulings changed the legal landscape around Trump’s actions, and those of his co-conspirators.

But it may also be that a delay in accessing evidence meant that Smith could not yet consider such charges when he first charged Trump.

The mostly-sealed immunity appendix suggests there are fairly key texts obtained from the phones of Roman and Boris Epshteyn.

Much of the first 50 pages of Volume III, from GA 968 through GA 1014 (right up to the unsealed beginning of Pence’s book), are likely texts from Roman or Epshteyn’s phones. GA 968 to 996 are the texts in which Roman encourages a colleague at the TCF counting center in Detroit to “Make them riot.” The next three pages describe similar efforts in Philadelphia. It’s not clear where those came from, but Roman is from Philly, so it’s likely he’d be involved in any fuckery there.

Then, starting at GA 1004 (after three pages of unsealed transcripts showing Trump conceding in an AZ suit), there are what appear to be 11 pages of texts from Epshteyn’s phone. The texts start with the ones describing Steve Bannon telling Boris that Trump had just fired Justin Clark, he (Boris) would report to Rudy, and that Bannon, “had made a recommendation directly that if [Rudy] was not in charge this thing is over Trump is in to the end.” The apparent Epshteyn texts include his efforts to set up meetings to pressure Pence, ending with texts from January 5 where Epshteyn reported back to Bannon that Mike Pence’s counsel, Greg Jacob, had refused their last entreaty to just throw out all the Biden votes, in response to which Bannon said, “Fuck his lawyer.”

“So help me god,” Mike Pence says via the title page of his book on the very next page of the appendix.

It would probably make a dramatic narrative arc if we could read it in sequence.

These texts are (along with the transcript showing Trump’s campaign team conceding a legal case) the first pieces of documentary evidence presented to Judge Chutkan, to support the section of the immunity brief describing, “Formation of the Conspiracies.” But neither the specifics of the communications nor the treatment of Roman and Bannon as co-conspirators show up in the original and therefore the supseseding indictment.

I’ve been suspecting that Smith first obtained the Roman texts, from a phone seized in September 2022, sometime between August 1, 2023 (the date of the original indictment) and December 5, 2023, when Smith asked to submit the “Make them riot” texts in a 404(b) filing, the same filing that asked to present evidence of Trump ratifying the Proud Boys’s sedition that is entirely absent from this brief. That is, I suspect that in the four months after obtaining the original indictment, Jack Smith grew confident he had evidence to prove more than he had originally charged, but by that point, Trump had already secured his eight months of delay, putting the first chance to charge anything more in the pre-election window.

Mike Roman is technically sophisticated. It would be unsurprising if his phone were protected with the kinds of security that could cause a year long delay breaking into it. The reason I suspect there was a delay in getting these texts is that incredibly damning language that should otherwise merit treating Roman, from the start, as a co-conspirator, language that Smith now uses to open the start of his brief, only appeared in the public record in December 2023.

The reasons and means via which I think Epshteyn may have delayed access to texts that, like the Roman ones, don’t appear in the original indictment are different. These are the texts that got Bannon treated as a co-conspirator in the brief, that provided basis for Smith to use Bannon’s public commentary on his podcast — “all hell will break loose” on January 6– as a reflection of Trump’s own views.

Epshteyn’s phone, like Roman’s, was seized in September 2022. Starting in the months before the phone was seized, Epshteyn expanded his consigliere role for Trump, orchestrating Trump’s legal team that would help to hide stolen documents. It’s not entirely certain whether Jack Smith treats Epshteyn’s role as that of a lawyer in his stolen documents court filings. It was not until some months later that Epshteyn started billing his time as a lawyer. But Epshteyn got the press to describe him as serving in a legal role earlier than that.

According to someone who appears to be Eric Herschmann, Ephsteyn took on this lawyer role in order to obtain cover for his own earlier actions. In a November 2, 2022 interview, someone with Herschmann’s potty mouth and access  [Person 16] described how a “total moron” who looked like Epshteyn [Person 5] was, at that time, trying to give himself legal cover for previous activities.

According to Person 16, he “believed [Person 5] was now trying to create [redacted] to cover [him] for previous activities. [Person 16] believed [Person 49’s] records may reflect recent [redacted] that did not reflect what actually transpired.”

And it’s not just January 6 related crimes that Epshteyn might have been obscuring; prosecutors were also investigating a cryptocurrency scheme that Epshteyn and Bannon used to bilk Trump supporters.

To the extent that Epshteyn could claim there was attorney-client privileged material on the phone seized over three months after Epshteyn was involved in recruiting Christina Bobb to sign a declaration on June 3, it would create real obstacles in accessing material from the phone. And since 2023, Epshteyn’s lawyer, Todd Blanche, has also represented Trump, creating all sorts of complexities regarding the protective order.

It took nine months (April 2021 to January 2022), with the involvement of a Special Master, to exploit Rudy’s phones. It took far longer than that to exploit Scott Perry’s. Prosecutors only recently obtained content from James O’Keefe’s phone seized almost three years ago. It would be unsurprising if Epshteyn’s effort to retroactively create a privilege covering his phone extended how much time it took to access his content. And that might explain why details, like Bannon informing Epshteyn he was reporting to Rudy and Bannon’s treatment as a co-conspirator, would not be substantiated in time for the original indictment.

Again, this is all speculation based on what we see in the immunity brief that we didn’t see in August 2023 in the first indictment. But a delay in accessing the texts that have now become the opening act in Jack Smith’s documentation of Trump’s conspiracy might explain the shifted focus.

Boris Epshteyn’s Absence and Presence in Trump’s Alleged Crime Spree

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ABC had a story yesterday revealing details about Trump attorney Jennifer Little’s role in the former president’s stolen document case. Most commentators are focused on the warning that Little testified she gave Trump: that failing to comply with a subpoena would be a crime.

But the backstory it tells is more interesting to me. It describes that Little — who continues to represent Trump on the Georgia case, though specialists in Georgia’s RICO law have also joined that team — was hired (the implication is, for the Georgia investigation) in March 2021 and only a year later did some other things for him.

Little was first hired by Trump in March 2021, only a couple of months after he left the White House, and shortly after authorities in Georgia launched their election-related probe. But more than a year later, she ended up briefly helping Trump with other matters.

When DOJ subpoenaed Trump in May 2022, Little suggested bringing in someone, “who had handled federal cases,”  which is reportedly why Evan Corcoran — someone totally inappropriate to a classified documents case, but someone who was then representing Steve Bannon in his contempt case — was brought in. In any case, I’m fairly certain Trump was already represented by people who had federal experience.

Little attended a May 23 meeting and, per ABC’s report, told Trump to take the subpoena seriously.

Four months later, believing Trump still possessed even more classified documents, the Justice Department issued its subpoena to him. Little suggested retaining an attorney who had handled federal cases before, so Corcoran was then hired, and she essentially handed over the matter to him, sources said.

On May 23, 2022 — 12 days after receiving the subpoena — Little and Corcoran met with the former president at Mar-a-Lago. It was Corcoran’s first time meeting Trump in person, and Little allegedly wanted to help ease Corcoran into his new role.

But, as sources described it to ABC News, Little told investigators she had a bigger purpose in going to that meeting: She wanted to explain to Trump that whatever happened before with the National Archives “just doesn’t matter,” especially because Trump never swore to them, under the penalty of perjury, that he had turned everything over, sources said. But whatever happens now has “a legal ramification,” Little said she tried to emphasize to Trump, according to the sources. [emphasis of passive voice my own]

That means that Little — and not Boris Epshteyn, as I and others had suspected — is Trump Attorney 2 in the indictment.

The indictment describes that Little and Evan Corcoran informed Trump about the subpoena, after which he authorized Corcoran, not Little, to accept service. The two lawyers met with Trump together on May 23.

53. On May 11, 2022, the grand jury issued a subpoena (the “May 11 Subpoena”) to The Office of Donald J. Trump requiring the production of all documents with classification markings in the possession, custody, or control of TRUMP or The Office of Donald J. Trump. Two attorneys representing TRUMP (“Trump Attorney 1” and “Trump Attorney 2”) informed TRUMP of the May 11 Subpoena, and he authorized Trump Attorney 1 to accept service.

54. On May 22, 2022, NAUTA entered the Storage Room at 3:47 p.m. and left approximately 34 minutes later, carrying one of TRUMP’s boxes.

55. On May 23, 2022, TRUMP met with Trump Attorney 1 and Trump Attorney 2 at The Mar-a-Lago Club to discuss the response to the May 11 Subpoena. Trump Attorney 1 and Trump Attorney 2 told TRUMP that they needed to search for documents that would be responsive to the subpoena and provide a certification that there had been compliance with the subpoena. TRUMP, in sum and substance, made the following statements, among others, as memorialized by Trump Attorney 1:

a. I don’t want anybody looking, I don’t want anybody looking through my boxes, I really don’t, I don’t want you looking through my boxes.

b. Well what if we, what happens if we just don’t respond at all or don’t play ball with them?

c. Wouldn’t it be better if we just told them we don’t have anything here?

d. Well look isn’t it better if there are no documents?

56. While meeting with Trump Attorney 1 and Trump Attorney 2 on May 23, TRUMP, in sum and substance, told the following story, as memorialized by Trump Attorney 1:

[Attorney], he was great, he did a great job. You know what? He said, he said that it – that it was him. That he was the one who deleted all of her emails, the 30,000 emails, because they basically dealt with her scheduling and her going to the gym and her having beauty appointments. And he was great. And he, so she didn’t get in any trouble because he said that he was the one who deleted them.

TRUMP related the story more than once that day.

57. On May 23, TRUMP also confirmed his understanding with Trump Attorney 1 that Trump Attorney 1 would return to The Mar-a-Lago Club on June 2 to search for any documents with classification markings to produce in response to the May 11 Subpoena. Trump Attorney 1 made it clear to TRUMP that Trump Attorney 1 would conduct the search for responsive documents by looking through TRUMP’s boxes that had been transported from the White House and remained in storage at The Mar-a-Lago Club. TRUMP indicated that he wanted to be at The Mar-a-Lago Club when Trump Attorney 1 returned to review his boxes on June 2, and that TRUMP would change his summer travel plans to do so. TRUMP told Trump Attorney 2 that Trump Attorney 2 did not need to be present for the review of boxes.

This section of the indictment relies heavily on Corcoran’s notes. Perhaps the only thing that relies on Little’s testimony is the description that Trump told her she did not have to be present to review the boxes — in retrospect, a weird decision, since the task of reviewing the contents of 35 or so boxes in one day is pretty daunting.

The indictment does not include the warning that ABC describes Little giving.

But, she told Trump, if there are any more classified documents, failing to return all of them moving forward will be “a problem,” especially because the subpoena requires a signed certification swearing full compliance, the sources said.

“Once this is signed — if anything else is located — it’s going to be a crime,” sources quoted Little as recalling she told Trump.

The sources said that when investigators asked Little if those messages to Trump “landed,” she responded: “Absolutely.”

The former president said something to the effect of, “OK, I get it,'” the sources said she recalled to investigators.

ABC notes in the story that they previously broke the news of Corcoran giving Trump warnings, warnings which also don’t appear in the indictment.

ABC News reported in September that, according to the notes and what Corcoran later told investigators, Corcoran had warned Trump that if he didn’t comply with the subpoena, he could face legal trouble and that the FBI might search his estate.

As I noted, I and others had previously assumed that Attorney 2 was Boris Epshteyn. That’s because he was centrally involved in this process: he had previously been credited with hiring Corcoran (which is why I bolded the passive voice reference above), he was reported to have recruited Christina Bobb to be the fall-gal on the false declaration, he pushed an aggressive strategy, and then he attempted to retroactively claim that at the time he was doing that, he was representing Trump as a lawyer, not a political consultant.

Remarkably, reporting on Boris’ role in all this has completely disappeared from the story.

Reports obviously sourced to witnesses friendly to the defendant are often an attempt to share information otherwise covered by a protective order with those potentially exposed: it’s a way to compare stories without leaving an obvious trail of witness tampering.

And this story, revealing details of testimony that would be of interest to the quasi-lawyers who were also involved in this process but who weren’t even mentioned in the indictment, comes just weeks after another such leak, of the video testimony from flipped witnesses in the Georgia case.

There may have been two leaks: one, of just the depositions of Jenna Ellis and Sidney Powell, to ABC, and a second, of fragments of the depositions of all four known cooperating witnesses, to WaPo. The lawyer for Misty Hampton, implicated with Powell in the Coffee County plot, admitted to leaking the videos, or at least some of them. But that doesn’t explain why there appear to be two sets of videos.

The ABC set describes Jenna Ellis describing first learning about the fake elector plot from an text thread Epshteyn initiated.

Ellis, who in her remarks alternated between speaking on and off the record with prosecutors, instead discussed only the context surrounding the two incidents she couldn’t divulge, including saying that she first learned about the concept of the fake electors plot from Giuliani and current Trump adviser Boris Epshteyn.

“There was one group [text] thread that Boris initiated when — which was the first time that I learned of it — asking me to just join a phone call,” Ellis told prosecutors, who then stopped her from discussing the details of the call.

The WaPo report includes a version of that.

The former Trump attorney also told prosecutors that she was asked to join a Dec. 7, 2020, conference call with Giuliani and two other Trump campaign officials — Mike Roman, who is also charged in the Georgia case, and Epshteyn — as they talked “legal strategy” with several Republicans who were slated to serve as Trump electors in Pennsylvania.

Ellis said she had not initially been privy to the “fake elector plot” and believed “it had been shielded from me specifically” — though she did not elaborate on why. Ellis said she became aware of the effort when she was added to a group text chain about the plan that included Giuliani, Epshteyn, Roman and Eastman.

It also adds Kenneth Chesebro’s description that Epshteyn, not Rudy Giuliani, was quarterbacking Trump’s efforts to undermine the election.

At one point, a prosecutor asked Chesebro who he thought was “quarterbacking” the Trump campaign’s legal efforts — Giuliani, Eastman or Epshteyn. Chesebro replied that it appeared to be Epshteyn. Epshteyn declined to comment.

Remember: Epshteyn is not charged in the Georgia indictment; Epshteyn is unindicted co-conspirator 3. Mike Roman is charged for the coordinating that both accomplished.

Epshteyn is, however, believed to be co-conspirator 6 in the DC indictment.

I suggested during the discussions about a protective order in DC that Epshteyn may have been the person prosecutors had in mind when objecting to including “other attorney[s] assisting counsel of record” in the case, not least because Trump attorney Todd Blanche also represents Epshteyn.

Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

I had already contemplated whether some of the exhibits submitted with a discovery motion (which on reflection, was submitted by Blanche) were intended to share information, including details about what Trump is trying to obtain under CIPA. For example, the initial 49-page discovery memo included with the motion would be really valuable to any unindicted co-conspirators who might find a way to access the unredacted copy submitted under seal. Aside from references to the general January 6 database (which is mentioned at more length in another file submitted), it is otherwise only cited for references to this redacted paragraph that by context appears to pertain to discovery relating to the Secret Service.

The motion itself has helpful details about how prosecutors on one Jack Smith investigation sat in on interviews of witnesses in the other Jack Smith investigation.

For example, the Special Counsel’s Office used the same grand jury in this District for matters relating to both cases. Assistant Special Counsel John Pellettieri has appeared on behalf of the Office in this case and in the Florida Case. Senior Assistant Special Counsel (“SASC”) Thomas Windom, who has entered a notice of appearance for the prosecution in this case, participated in at least 27 of the interviews described in discovery produced in the Southern District of Florida. SASC Julie Edelstein, counsel of record in the Florida Case, participated in 29 of the interviews that have been produced in discovery in this case. Jay Bratt, also counsel of record in the Florida Case and Counselor to the Special Counsel, participated in 10 of the interviews that have been produced in discovery in this case. Notwithstanding the clear overlap of personnel and intermixed responsibilities, the Office has sought to artificially narrow its definition of the prosecution team to an unidentified subset of individuals who, apparently in its sole judgment, “are working on this case.” Ex. D. Not so. As the entire Office has participated in this prosecution, both in fact and by General Garland’s Order, the entire Office is subject to the prosecution’s discovery obligations.

This is likely highly misleading: for people who are witnesses in both cases — as, for example, Molly Michael and Alex Cannon would be — DOJ shared both sets of witness 302s in both places (and so some of the Edelstein and Bratt interviews would simply be stolen document interviews shared in January 6 discovery and some of the Windom interviews would be the counterpart). But it is also likely the case that some prosecutors sat in on interviews that would touch on investigative subjects of interest.

Then there’s Blanche’s treatment of it. After objecting back in September when DOJ submitted a filing along with the motion to seal it, that’s what Trump did here (for which Judge Chutkan scolded them), so if DOJ had any objection to the non-redactions in these filings, it would have been too late.

Boris Epshteyn, who was the focus for months of reporting about his role in Trump’s twin federal indictments, has all but disappeared. Indeed, ABC’s scoop about Little makes clear that his reportedly significant role in the stolen documents case never even made the indictment.

But as other recent leaks make clear, his role in both alleged felony conspiracies remains significant.

Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

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The Georgia indictment and Trump’s federal indictment tell the same story. But those stories have some key differences, that will create an interesting prisoner’s dilemma for those involved. The different exposure of Sidney Powell in both and the different treatment of Ruby Freeman show how they’re different.

Sidney Powell’s lawsuits and alleged hacking

The last overt act described in the federal indictment against Donald Trump describes how, at 3:41AM, Mike Pence certified the election for Joe Biden.

123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.

But two of the charged conspiracies — the 18 USC 371 conspiracy to defraud the US and the 18 USC 241 conspiracy against rights — go through January 20. Since they are charged as conspiracies, anything Trump’s co-conspirators said and did after January 6 can also be used to prove the case against Trump.

That’s particularly notable for Trump’s Crazy Kraken Conspirator, Sidney Powell. As noted, the only overt act of hers described in Trump’s federal indictment has to do with her lawsuits targeting Dominion.

Those lawsuits don’t figure in the Georgia indictment at all — not even the November 25 one against Georgia explicitly described in the federal indictment. Instead, Powell’s primary criminal exposure in the Georgia indictment has to do with her conspiracy to get access to Dominion data from Coffee County, a conspiracy that — the Georgia indictment alleges — started on December 1, continued through their access of the data on January 7, after which the data continued to be exploited until at least April. Powell’s larger effort to exploit Dominion data, even that obtained in Michigan, plays a part in the RICO conspiracy.

In the federal case, Powell’s lawsuits serve both to justify backstopping of the electoral certification (meaning, you had to have lawsuits to justify having fake electors) and to prove that Trump was magnifying fraud claims from someone — Powell — everyone openly labeled as batshit. If and when Jack Smith ever adds charges — against Powell, Trump, or his PAC — for fraudulent fundraising, his embrace of claims sourced to Powell will be important to prove he knew he was lying in his fundraising.

In the Georgia case, by contrast, she is charged with outright conspiracy to illegally access computers and election fraud associated with accessing the Dominion data.

The overall arc of the conspiracies is the same; the criminal exposure is radically different.

Death threats and interstate entrapment efforts

Paragraph 26 of the federal indictment describes how Rudy Giuliani lied in a Georgia hearing, including but not limited to about Ruby Freeman and Shaye Moss, which resulted in death threats.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

Prosecutors are well aware of the import of Trump’s bullying — they made it part of their bid for a protective order. But, probably in an effort to stave off any real claim about charging First Amendment protected speech, such bullying is not charged, not even Trump’s targeting of Mike Pence.

The Georgia indictment, as Rick Hasen also notes, focuses much more on crimes targeting Freeman and Moss.

Rudy is charged for the lies he told on December 10 in Count 7. He and Ray Stallings are charged with soliciting Georgia Representatives to violate their oaths in Count 6.

But in addition to that, Lutheran minister Steve Lee is charged with two counts for trying to trick Freeman, once on December 14 and again on December 15, into confessing to voter fraud that didn’t happen. And he is charged along with Kanye’s publicist, Trevian Kutti, and Black Votes for Trump official Harrison Floyd with another attempt to get her to confess to voter fraud on January 4 and an attempt to get her to lie to the state.

These are alleged crimes that arise from Freeman’s status as a Fulton County election worker and as such are properly the concern of Fani Willis, not Jack Smith.

All of which is to say that even though both the RICO charge and Trump’s conspiracies map the same conduct, they tie to different crimes, with different kinds of exposure for different people.

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

In other words, if people who are likely to be indicted by Jack Smith think the charges in Georgia are at all serious, they may flip sooner rather than later, which will likely lead them to cooperate in the DC case as well.

There’s a reason why prisoner’s dilemma is the basis for so much game theory. The way these two competing indictments intersect may rewrite that doctrine, something called Trump defendant dilemma.

Then consider the timing. Later this month — potentially on August 28, three days after all Willis defendants have to turn themselves in — Jack Smith’s prosecutors will fight for a January 2 trial date, which is ambitious. Last night, Fani Willis said she wanted to bring all 19 defendants to trial within 6 months, which would be late February or March.

Even if one or both of those dates would hold, it might require Alvin Bragg be willing to reschedule his own trial on the hush payment cover-up.

But if even just one of these trials goes forward on such an ambitious schedule, it would mean that this Trump defendant dilemma will be playing out even as GOP primary voters go to the polls.

The Bubble Three

One of the most interesting other ways the Georgia indictment and the federal one will interact is in how the three men on the bubble — Mike Roman, Boris Epshteyn, and Mark Meadows — respond. While we’re not yet sure whether Boris or Roman is CC6 in the federal indictment, there’s more support right now for it being Boris. Both men had their phones seized by DOJ in September. Both men sat (or said they’d sit) for proffers with Jack Smith’s team; neither has been (publicly) charged by DOJ yet.

Roman is charged in the Georgia indictment, both with the RICO charge and the Trump side of each of the fake elector charges. He’s the guy who was interacting directly with people in Georgia (and with CC4, Robert Sinners, who cooperated even with the January 6 Committee). If Roman actually did start cooperating with Jack Smith’s team, there’d be no down-side to doing so with Willis’ team, either.

Boris, by contrast, is almost certainly CC3; Act 109, describing a Chesebro email to Eastman and CC3 matches this passage from the January 6 Report.

By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that thereare two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”122

So Boris is not facing the charges that can’t be pardoned but may he facing the charges that can be.

Finally, there is Meadows. The slim exposure for Meadows in this indictment — he is charged in the RICO charge and the solicitation charge tied to the Raffensperger call — may explain why he was not listed as a co-conspirator, yet, for the Jack Smith indictment. The most damning acts attributed to him in the indictment were:

  • Sometime in December: Meeting with Johnny McEntee and asking him for a plan to throw out half the electoral votes in some states
  • December 22: Unsuccessfully attempting to enter the audit site in Georgia
  • December 27: Offering Trump campaign funds if it would help get signature verification done by January 6

Other than that, Meadows’ actions entail setting up phone calls on which Trump lied and solicited unlawful acts. Meadows has a superb lawyer and might try his luck with these charges.

If any of these men cooperated — if any already is (though I really think Meadows is not) — then it would provide both prosecutors a pivotal person in the conspiracies (and, in Boris’ case, the stolen documents conspiracy as well).

As I said above, the interaction of these two indictments, along with the uncertainty as Jack Smith continues to investigate, creates a fierce game of prisoner’s dilemma. And that’s before Smith charges any financial crimes tied to fraudulent fundraising.

Update: Meadows has moved to remove the charges against him to federal court — a move he may have more success doing than Trump.

“Like fatter Tony Soprano” Attending the Arraignment and “Effect[ing]” Liz Harrington’s Pregnancy

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Two amusing phrases from yesterday’s news provide a wonderful opportunity to talk about how Trump will continue to manipulate his prosecution.

First, Peter Navarro continues to seek ways to stall his long-delayed trial on contempt charges, which is scheduled to start next month. In advance of his trial, Judge Amit Mehta has granted him an evidentiary hearing so Navarro can attempt to prove that the former President told him to invoke both testimonial immunity and executive privilege, as Trump did with Mark Meadows and Dan Scavino (which is almost certainly a big part of why they weren’t charged with contempt).

When granting Navarro the hearing, though, Mehta noted that Navarro has thus far not presented any evidence that Trump told him not to testify, and he’ll need to find “formal” evidence.

[T]he court does not at this time prejudge what type or manner of instruction from President Trump might suffice to constitute a “formal” assertion of privilege or immunity. See United States v. Navarro, No. 22-cr-200 (APM), 2023 WL 371968, at *2–3 (D.D.C. Jan. 19, 2023). The court previously left that question unanswered because Defendant had not come forward with any evidence of a presidential invocation. Id.; Jan. Hr’g Tr. at 12. Defendant’s burden will include showing that the claimed instruction to invoke was a “formal” one.

Now, Navarro is attempting to delay both hearings because Liz Harrington, Trump’s spox, is due to give birth.

The first two filings in this dispute (Navarro, DOJ) included redacted bits and exhibits explaining how Trump’s spokesperson could prove that Trump invoked testimonial immunity and executive privilege, though DOJ did make clear that they believe Harrington’s testimony is inadmissible. Navarro’s response provides more detail: He wants Harrington to describe how he wrote a press statement she could release claiming Trump had invoked executive privilege (but not testimonial immunity).

Along the way, he reveals that Harrington testified to the grand jury and DOJ believes his proffer of her testimony materially conflicts with what DOJ locked her into saying.

It’s clear from the Government’s Opposition that it would prefer that Ms. Harrington not testify at the evidentiary hearing.1 Although it claims that her testimony is “generally speaking not in dispute”, it challenges its relevance of the calls she had with Dr. Navarro and the email she received from him on February 9, 2022, the day the J6 Committee served its subpoena. Opp. n.1. Standing alone, Ms. Harrington’s testimony does not prove that former President Trump instructed Dr. Navarro to assert executive privilege in response to the Committee’s subpoena. But the testimony is corroborative of other evidence – including Dr. Navarro’s anticipated testimony – that he was following President Trump’s instructions when he notified the Committee that it should negotiate the privilege issue with its holder.2

Ms. Harrington will explain that after being served with the subpoena, Dr. Navarro called her and then followed up by sending the media statement he planned to publicly issue that day. The statement explained that President Trump had asserted executive privilege and noted that the J6 Committee should negotiate any waiver of the privilege with his attorneys and him. Ms. Harrington conveyed the statement to two of President Trump’s administrative assistants and, later that day, Dr. Navarro publicly released the statement. See Defense Exhibit 7

1 In its zeal to prosecute Dr. Navarro and keep Ms. Harrington from testifying, the Government has implicitly threatened her with perjury “if she intends to testify inconsistent with her grand jury testimony” and that she “must first waive her Fifth Amendment right not to incriminate herself.” Opp. at 3. This assertion is at odds with long-standing precedent that: “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them,” United States v. Wong, 431 U.S. 174, 178 (1977), and so, “[e]ven constitutionally explicit Fifth Amendment privileges do not exonerate affirmative false statements.” United States v. North, 708 F. Supp. 380, 383 (D.D.C. 1988) (citing Wong, 431 U.S. at 178). Regardless of whether Ms. Harrington could assert the Fifth Amendment to avoid what the government submits would be perjured testimony, the reality is that Mr. Harrington’s anticipated testimony is wholly consistent with her grand jury testimony – the government just failed to ask probative follow up questions of her at the time.

Then, Navarro’s lawyers — the lawyer he shares with Kash Patel and Walt Nauta, Stan Woodward, the lawyer he shares with Carlos De Oliveira, John Irving, and the lawyer he used to share with Trump himself, John Rowley — attempt to disclaim simply using Harrington’s pregnancy as an excuse for delay.

The Government alleges without any basis that Dr. Navarro’s request for continuance of the hearing is “strategic” and done for improper reasons. Opp. at 1-2. Leaving aside the personal attack on defense counsel, there is no plausible strategic reason for the request and the Government provides none – Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion. No prejudice to the Government would result from a short continuance and it would be fundamentally unfair to Dr. Navarro to deny calling Ms. Harrington as a witness on his behalf. [my emphasis]

But along the way, because they used “effected” instead of “affected,” they literally deny that the act of filing Navarro’s motion did not cause Harrington’s pregnancy.

I’m sure it didn’t.

But it also appears to be the case that DOJ locked Harrington — who may be the only one in Trump’s camp that Navarro spoke to during the period when he was subpoenaed — into testimony about the substance of their communication. And now Navarro is trying to admit his own hearsay to prove that Trump, absent any written filing, told Navarro to invoke both testimonial immunity (of which there’s no known evidence) and to raise executive privilege in the same informal way he did with Steve Bannon, which did not work for Bannon at trial but which is the substance of his appeal.

Mehta has called a pre-hearing hearing late this afternoon to sort all this out.

That phrase — “Ms. Harrington’s pregnancy is not effected by the timing of the filing of Dr. Navarro’s motion” would have been my favorite Trump-related phrase yesterday, if not for the description of Boris Epshteyn in this story of how he allegedly molested two women after getting drunk and belligerent at a bar in Scottsdale in 2021.

“We have a high tolerance of people like being weird, but that went above and beyond,” she said, adding that the man grabbed the women about 10 times. “I was like, stop touching my sister. Stop touching me. Stop touching my friends.”

Police asked the older sister to describe Epshteyn.

“Fat, ugly, like drooping face. White Ralph Lauren Polo,” she said. “Like fatter Tony Soprano.”

An officer asked: “Would you be willing to press charges?”

She responded: “Yes. (Expletive) that guy.”

The NYT — including Maggie Haberman — had reported directly from the arrest report in a beat sweetener burying this and even more damning criminal exposure earlier this year, but had left out the fat part.

I’m using the phrase “Like fatter Tony Soprano” as my excuse to pick up an observation that William Ockham made yesterday about DOJ’s proposed schedule for a Trump trial on the January 6 charges.

Furthermore, the defendant and his counsel have long been aware of details of the Government’s investigation leading to his indictment, having had first contact with Government counsel in June 2022. Indeed, at his initial appearance, the defendant was accompanied by an attorney familiar with certain relevant pre-indictment information. In sum, the defendant has a greater and more detailed understanding of the evidence supporting the charges against him at the outset of this criminal case than most defendants, and is ably advised by multiple attorneys, including some who have represented him in this matter for the last year.

In addition to noting that Trump’s attorneys have been aware of the course of this investigation because of repeated contacts with prosecutors going back to June 2022 — including Executive Privilege challenges to the testimony of Marc Short, Greg Jacob, Pat Cipollone, Pat Philbin, Mark Meadows, John Ratcliffe, Robert O’Brien, Ken Cuccinelli, and Mike Pence — it also noted that “an attorney familiar with certain relevant pre-indictment information” accompanied him to his arraignment.

I agree with Ockham’s supposition that that’s a reference to Boris “like fatter Tony Soprano” Epshteyn. Boris attended the arraignment — as he has some or all of Trump’s — but was not an attorney of record.

Back in April, before Rudy or Mike Roman or Bernie Kerik did so, Boris spent two days in interviews with Jack Smith and his prosecutors in what the press got told was a “proffer.”

The interview was largely focused on the efforts by former President Donald Trump and his allies to overturn Trump’s 2020 election loss. The second day of questioning was planned in advance, the sources said.

Epshteyn did not immediately respond to a request for comment from ABC News.

Prosecutors’ questions focused around Epshteyn’s interactions with former Trump attorneys Rudy Giuliani, Kenneth Chesebro and John Eastman, in addition to Trump himself, according to sources.

If the allusion in the proposed schedule is a reference to Epshteyn’s interviews, it confirms my general suspicion that Smith is using proffers as a way to get key subjects of the investigation on the record, rather than necessarily flipping them. It suggests that Smith is willing to show a few of the cards he has — at least on the prosecution focused largely on facts that were already public last year — in order to lock key subjects in on their testimony, just as DOJ would have been doing with Liz Harrington’s grand jury appearance.

But because Todd Blanche is an attorney of record for both Trump and Boris, this proffer would have been an especially obvious way for Trump to obtain information about the prosecution against him. In both the January 6 case and the stolen documents one, Boris is playing both a suspected co-conspirator and advisor on how to blow up the prosecution for political gain.

And that is why, I suspect, DOJ is being so particular about whether “volunteer attorneys” might include co-conspirators who also happen to be lawyers.

Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

The method to both of these defense ploys is the same. It rests on an inter-locking and wildly conflicted set of attorney relationships to create — in first instance — an omertà leading many key witnesses to give partial testimony which, as both cases, plus Navarro’s, move toward trial, will evolve into an effort to rework existing sworn testimony to create some flimsy story for Trump or Navarro to use to attempt to stay out of prison. This is what DOJ has spent much of the last 14 months preparing for: Trump’s attempt to move the goalposts once he discovered how much of the truth prosecutors had uncovered.

It’s not, just, that DOJ has to try the former President in at least two venues, an already unprecedented task. It’s that the entire criminal gang is gambling that if they just get beyond the election, any and all lies can be excused in a wave of pardons like Trump used to escape his Russian exposure.

Update: CNN’s Katelyn Polantz suggested that the reference to lawyer accompanying Trump may be Evan Corcoran. Corcoran was a part of all the sealed proceedings going back 9 months.

Trump’s Means of Bullying and His Co-Conspirator Volunteer Lawyers

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There were three developments in the dispute over the protective order in Trump’s January 6 indictment yesterday.

Trump’s team filed their response to Judge Tanya Chutkan’s order and the government’s motion for a protective order, including not just a redline of the government’s proposed protective order, but also a rant claiming that Dark Brandon made public comments about Trump’s indictment he did not.

The government’s reply used John Lauro’s five Sunday show appearances to demonstrate that Trump is explicitly demanding to try this case in the public sphere rather than the courtroom.

Then Judge Chutkan issued an order that they find time for a hearing on this this week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the government’s 10 Motion for Protective Order and Defendant’s 14 Response, as well as the government’s 15 Reply, the court will schedule a hearing on the parties’ respective proposals. The court will waive the requirement of Defendant’s appearance. Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023, the parties shall meet and confer and file a joint notice of two dates and times on or before August 11, 2023 when both parties are available for a hearing. Signed by Judge Tanya S. Chutkan on 08/07/2023.

Both linked filings are worth reading, but I want to focus on two minor details in the government’s filing.

The method of Trump’s bullying madness

The government pitches their argument as one of regular order, about trying the case in the courtroom rather than the public. It is about John Lauro’s stated goals, not Donald John Trump’s.

The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.

[snip]

Defense counsel’s stated goal—to publicly disseminate and discuss discovery materials in the public sphere—is contrary to the general principle against pretrial publicity and inconsistent with this District’s local rule regarding conduct of attorneys in criminal cases, and the Court should not enter a protective order that permits such harmful extra-judicial publicity. As an initial matter, the Court can and should exercise its discretion, with respect to the protective order, to prevent dissemination of discovery material that could prejudice the jury. Accord Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”); United States v. Brown, 218 F.3d 415, 423 n.8 (5th Cir. 2000) (“Other principal dangers [of pretrial publicity] include disseminating to the press inadmissible evidence, the exclusion of which at trial ‘is rendered meaningless when news media make it available to the public,’ as well as creating a ‘carnival atmosphere,’ which threatens the integrity of the proceeding.” (quoting Shepherd v. Maxwell, 384 U.S. 333 (1966)).

This District’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he identity, testimony, or credibility of prospective witnesses.” This is because such statements risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“Because lawyers have special access to information, through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”). The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. See Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). The goal of the defendant’s proposed protective order—prejudicial publicity—is antithetical to the interests of justice.

[snip]

The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings. The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.

As many people have noted, however, as an aside to the description of Lauro’s press blitz over the weekend, the government included this reference to Trump’s attack on Mike Pence.

1 The defendant himself has made a number of additional social media posts related to this case since the Government filed its motion for a protective order. For example, the day before his counsel made comments about Mr. Pence, the defendant posted the following to social media: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!”

Nevertheless, the government doesn’t address whether this tweet violates Trump’s release condition, which would prohibit him from talking to Mike Pence about the case.

Given the inclusion of that tweet, though, I’m more interested in this note addressing one of Trump’s requested changes. It describes why Trump’s lawyers should have to inspect Trump’s own notes of discovery to make sure he’s not taking notes about specific witnesses.

In paragraph 10, the defendant seeks to prohibit his counsel from confirming that his notes do not contain personally identifying information subject to Federal Rule of Criminal Procedure 49.1. But this condition—which is included in the protective order on which the defense claims to model its proposal—is particularly important here because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals. See, e.g., ECF No. 1, Indictment, at ¶¶ 26, 32, 42, 44, 97.

DOJ justifies having Trump’s lawyers babysit his own note-taking because of “the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.”

It then cites as examples the following paragraphs of the indictment:

  • The death threats that followed Rudy Giuliani’s baseless accusations against Ruby Freeman and Shaye Moss.
  • Trump’s accusation that Brad Raffensperger “has no clue” after he refused to find Trump 11,780 votes.
  • The death threats that followed Trump’s public attack on Al Schmidt.
  • Trump’s retweet of a tweet attacking PA GOP legislative leaders for stating that they could not throw out the popular vote in PA.
  • In response to Mike Pence telling Trump he would not throw out the vote certification, Trump telling Pence he would have to publicly criticize him.

It’s the last one I find so interesting. DOJ does not cite the various tweets Trump sent on January 6 or the revisions addressed to Pence Trump made sure to include in his Ellipse speech — comments that led directly to death threats targeted against Pence. Rather, DOJ pointed to what must rely on Pence’s testimony, of Trump telling Pence he would send those tweets and make those public comments.

Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

Trump’s non-attorney of record consigliere

Another specific objection — one of several objections to Trump’s attempts to expand the circle of people with whom he can share discovery — pertains to the definition of lawyers permitted to obtain discovery. In a wildly pregnant comment, DOJ notes that “several” co-conspirators are IDed as attorneys.

In paragraph 2, the defendant proposes including “other attorneys assisting counsel of record.” Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

In fact, four people are identified as attorneys in the indictment’s description of them: Rudy, John Eastman, Sidney Powell, and Kenneth Chesebro.

This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney (perhaps because, while undoubtedly an attorney, he never had an attorney-client relationship with Trump during the conspiracy). Though he is obviously an attorney.

And then there is co-conspirator 6, described in the indictment as a political consultant and so someone who could be either Mike Roman (who does not have a JD) or Boris Epshteyn (who does). One reason it is not confirmed which of these two men it was is both were closely involved in the December recruitment of fake electors, the indictment’s primary focus on CC6’s activities. (The one other overt act was to help Rudy chase down contact information for Senators on January 6.)

As it happens, though, Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

The Three Reported Charges against Trump: 371, 1512, and (maybe) 242

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I want to caution about the reports on the charges named in Trump’s target letter. Even after Jim Trusty got the summons for Trump’s Espionage Act indictment, reporting based on his representation of the charges turned out to be inaccurate — not least, because what was assumed to be one 18 USC 793 charge turned out to be 31.

All the more so here, where Trump’s team has even less information to work with.

That said, since comments on that other thread on the target letter have gotten so long, I’ll note that Rolling Stone says the target letter cites three charges.

The letter mentions three federal statutes: Conspiracy to commit offense or to defraud the United States; deprivation of rights under color of law; and tampering with a witness, victim, or an informant.

Once you’ve translated from the legalese, two of these are totally expected:

18 USC 371: Conspiracy to Defraud the US has generally been discussed in terms of the fake elector scheme — basically, an effort to get 16 electors in all the swing states to submit fraudulent certificates to NARA. That the scheme was fraudulent is easy to prove. What’s harder to prove is Trump’s personal involvement it, which will have required DOJ to breach several levels of privileged communication to prove (something they took steps to do on Lisa Monaco’s first day on the job). That said, we’ve seen that they’ve been doing that, most recently with proffers from both Boris Epshteyn and Rudy Giuliani, who implemented the scheme.

But this is a broad statute, and DOJ could also charge Trump with ConFraudUS for campaign finance crimes, among other known Trump acts.

18 USC 1512(c)(2): What is described as witness tampering here is almost certainly obstruction of an official proceeding, the same crime with which 300 other alleged January 6 criminals have been charged. The title for that crime is witness tampering. (Though Jack Smith could also charge Trump for attempting to tamper with Cassidy Hutchinson’s testimony.) I first started laying out how Trump might be charged for this in August 2021. More recently, I’ve recommended people read Royce Lamberth’s Findings of Fact in the Alan Hostetter case — a VIP, like Trump, who was prosecuted in part for inciting others to obstruct the vote certification — to see how judges are applying this law to January 6.

In summary, if my assumptions that this would be charged in conjunction with January 6 are correct, it would require the government to prove that:

  • Trump took steps to obstruct the certification of the votes. I would expect this to consist both of his pressure on Mike Pence, but also on his support for the mob, including for the threats the mob made on Congress.
  • Trump intended to obstruct the vote certification. This would require proving that he knew the significance of the event, which DOJ will prove with the weeks of plotting he put in before the event.
  • Trump had corrupt purpose in doing so. The standard for corrupt purpose as regards this statute is still being decided by the DC Circuit, but it will end up being some combination of “otherwise illegal activity” and “corrupt benefit.” The former might be proven by showing that Trump knowingly gave an illegal order to Mike Pence. The latter would easily be proven by showing that Trump wanted to retain an office he didn’t win.

Note that DOJ has been charging conspiracy tied to this statute under 18 USC 1512(k) and I would be unsurprised to see that happen with Trump.

The last of these statutes is more of a surprise.

[See correction below] 18 USC 242: It prohibits someone from impeding someone’s rights “under color of law,” which can mean “beyond the scope of one’s official duties.” Charging Trump with 242 may be a way to charge him for attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely. Charging him under 242 would eliminate any dodge Trump might make — for example on the call to Brad Raffensberger — that he was simply acting within his official role as President.

This charge may be why, since last year and increasingly in recent weeks, Jack Smith has focused on the harassment of election officials. Just today, AJC reported that Smith subpoenaed footage from the State Farm arena counting center, suggesting Ruby Freeman might be treated as a victim here as well, which would be well, well deserved.

Two other potential implications of this. When January 6 defendants have argued that Trump authorized them to attack the Capitol, DOJ has always responded that the President has no role in the vote certification. So if DOJ were to include January 6 in such a charge, it would be an area — one of the most clear cut areas in the Constitution — where the President literally has no authority, and so easy to show that Trump was exceeding his authority.

Additionally, as noted above, the standard for corrupt purpose on obstruction is not yet settled. The DC Circuit might yet require “corrupt purpose” to be shown via some “otherwise illegal activity.” If that happens, DOJ may want to have several other crimes charged that will prove that prong of the offense, of which 242 could be one.

In other words, the thinking may be, in part, that it’s clear the President has no authority in the Electoral vote certification. Trump tried to deprive Biden voters of their franchise with his efforts on January 6. And that is one of a number of other crimes he committed in his efforts to obstruct the vote certification.

All that said, note my caution about the giant game of telephone this discussion relies on. Ultimately, we’ll learn what the charges are soon enough.

Update: Both the NYT and Guardian have reported that the third charge is 18 USC 241, not 242. Jack Smith is going to accuse Donald Trump of voting fraud.

Down a Mouse Hole with Bill Clinton’s Cat, Socks

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When I first read this WaPo article yesterday, I was struck by two things: first, the revelation that when Judicial Watch’s Tom Fitton appeared before a Jack Smith grand jury early this year, he was asked both about his central role in convincing Donald Trump he could rely on a case he, Fitton, lost, to justify stealing thousands of government documents (that’s the testimony we knew about), but also his role in January 6.

Fitton, who appeared before the grand jury and was questioned about his role in both the Mar-a-Lago documents case and the investigation into the Jan. 6, 2021, attack on the U.S. Capitol, acknowledged he gave the advice to Trump but declined to discuss the details of their conversations.

I wasn’t aware that Fitton had much of a role in January 6.

I was also shocked that, in the spite of the grave damage Fitton’s crackpot advice had already done to Donald Trump’s future, he was nevertheless permitted to be there with the accused felon Monday night, dining on what was undoubtedly overcooked filet mignon, as Trump and his supporters discussed his plans for beating the rap.

In an interview Wednesday, Fitton said he dined with Trump on Monday night at his club, eating filet mignon with the former president one day before his first court appearance on the document charges. “I saw him last night; he’s in a good mood. He’s serious and ready to fight under the law.”

On top of the sheer stupidity of letting Fitton anywhere close to Trump in the wake of his indictment, Fitton’s presence presumably would breach any privilege claim lawyers present could make in the future.

The report that Fitton has been chatting with Trump this week explains some of the insanely stupid things Trump has said on his failing social media site, not to mention Trump’s deceit in claiming he would see everything presented to the grand jury, much less have already seen it before any protective order is signed and discovery is provided.

By invoking Clinton’s Socks, his term for Fitton’s failed lawsuit, Trump was falsely claiming to have inside knowledge of something that would have legal merit, presumably so his followers would believe Trump had some viable defense (that they would send him money to fund).

I was not, however, surprised by the sheer stupidity of the opinions Fitton expressed to WaPo.

“I think what is lacking is the lawyers saying, ‘I took this to be obstruction,’” said Fitton. “Where is the conspiracy? I don’t understand any of it. I think this is a trap. They had no business asking for the records … and they’ve manufactured an obstruction charge out of that. There are core constitutional issues that the indictment avoids, and the obstruction charge seems weak to me.”

Several other Trump advisers blamed Fitton for convincing Trump that he could keep the documents and repeatedly mentioning the “Clinton socks case” — a reference to tapes Bill Clinton stored in his sock drawer of his secret interviews with historian Taylor Branch that served as the basis of Branch’s 2009 book documenting the Clinton presidency.

Judicial Watch lost a lawsuit in 2012 that demanded the audio recordings be designated as presidential records and that the National Archives take custody of the recordings. A court opinion issued at the time stated that there was no legal mechanism for the Archives to force Clinton to turn over the recordings.

For his part, Fitton said Trump’s lawyers “should have been more aggressive in fighting the subpoenas and fighting for Trump.”

It’s not just that Fitton was allowed to share these legally incorrect opinions with Trump. It’s that he badly misunderstands how his own advice about the “Clinton Socks” case might be viewed as an agreement with Trump to enter into a conspiracy to withhold classified documents.

Remember, after Trump fucked up releasing the Crossfire Hurricane documents, Fitton went after them himself, only to reveal that the collection was just one dumbass binder.

Anyway, after puzzling through what role Tom Fitton might have had on January 6, I started reading through a motion to compel that Ruby Freeman’s attorneys served on pardoned felon Bernie Kerik last week. Bernie was the guy who mailed a key strategy document to Mark Meadows on December 28, 2020. In addition to making clear that Bernie was sharing the document to “move legislators,” not win court cases, it included exhibits laying out the claims about Freeman and her daughter Shaye Moss that Rudy Giuliani would subsequently make publicly — that Freeman counted suitcases of votes multiple times after kicking out poll watchers, using a false claim of a water main break as the excuse — claims that Freeman alleges amount to defamation.

To be clear: those claims about Freeman are false, as is the claim she was arrested for her actions. Thus the lawsuit.

Freeman’s lawyers filed a motion to compel because when Kerik first responded to their subpoena last year, his attorney — Tim Parlatore — simply provided a link to the stuff that Kerik had provided to the January 6 Committee. Since then, Freeman’s lawyers argue, Rudy has disclaimed any work privilege claim over materials prepared for legislatures, as opposed to lawsuits. But when Freeman’s lawyers have gone back to Kerik to get the materials he withheld from J6C under a work product privilege claim that (they argue) Rudy has since waived, Parlatore explained there had been a “technical glitch” that creates some difficulties in consulting with Rudy’s attorney on the issue.

Relations between Parlatore and Freeman’s team have been sour for some time. Around the same time in December when Parlatore was telling a DC grand jury that he had done a diligent search of Bedminster — where at least two and probably a bunch of classified records have been sent, never to be seen again — he was telling Freeman’s team that Kerik didn’t have some documents that Freeman had obtained from other sources.

After Plaintiffs spent months negotiating with Mr. Kerik’s counsel and made more than a dozen unsuccessful attempts to effectuate personal service on Mr. Kerik,5 counsel for Mr. Kerik accepted service of the First Kerik Subpoena on November 14, 2022. (See Houghton-Larsen Decl. ¶ 4.) On November 21, 2022, Plaintiffs agreed to narrow the requests and provided examples of emails produced during discovery that were sent to Mr. Kerik but were not present in his production to the Select Committee. (See id. ¶ 5.) On December 21, 2022, Mr. Parlatore responded that “Mr. Kerik has looked and we do not seem to have any additional responsive documents to provide.” (See id. ¶ 6.) Mr. Kerik has never explained why he does “not seem to have” any of the example communications Plaintiffs provided to him, on which he was copied, and which have been produced by other parties.

By the time former Trump attorney Parlatore claimed a “technical glitch” was creating delays on June 7, the day before Trump was indicted, he also explained that, “there are other more pressing matters that have taken priority.”

The motion to compel includes fragments of both Rudy’s and Kerik’s March depositions in this case. In Kerik’s, Parlatore made a series of dickish responses to Freeman attorney Annie Houghton-Larsen’s questions that Parlatore deemed to ask for work product information, precisely the privilege claim that has since started to collapse.

In Rudy’s, there are a slew of hilarious responses showing how dissolute Rudy has gotten, such as when, struggling to come up with Sidney Powell’s name, he called her the Wicked Witch of the East.

Q. I’ll ask you about who was on it, but the team that was assembled at that point in time, is that the team that Ms. Bobb is referring to as the “Giuliani legal team”?

A. Correct.

Q. Now you can tell me, who was on this team?

A. It was myself, Jenna Ellis, Victoria Toensing, Joe DiGenova, Boris Epshteyn, originally.

We added Christina after about two weeks, and we added — oh my goodness, of course, her name will escape me.

Come on guys, help me. The wicked witch of the east.

Q. It’s — really, in this forum, I’m interested in what you remember.

A. Oh, I remember who it is. I just can’t remember the name. I block it out.

Q. We can come back to it.

A. On purpose. Everybody knows who it is.

Q. We can come back to it.

Anyone else aside apart this —

A. Sidney.

Q. Sidney?

A. It was Sidney.

Q. Sidney who?

MR COSTELLO: How could you forget that?

Q. Are you referring to Sidney Powell?

A. Sidney Powell, yeah.

Both men, however, struggled when asked about this passage of the strategy document, showing who, on December 28, its author considered key members of their team (Freedom Caucus members make the list on the following page), both struggled to remember who some of the members were.

There was little doubt that BK was Kerik and both ultimately decided that BE was Epshteyn.

But both simply couldn’t imagine what close Boris associate “SB” might be. Here’s Kerik’s epic struggle with the question:

Q. Okay. This might help you. Can we please turn to page 6.

Okay. So about two-thirds down the page it says, “Key team members. Rudy Giuliani.”

And then, “BK.” I’m assuming that’s you.

A. That’s probably me.

Q. Okay. “KF.” Do you know who that is?

A. Katherine Friess.

Q. And then, “Media advisors. SB.” Who do you think that is?

A. No idea. Well, I went through this before.

THE WITNESS: Who did I do this with? J6?

MR. PARLATORE: Probably.

THE WITNESS: Yeah. Boris Epshteyn would have been the BE. SB, I have no idea what that  is.

BY MS. HOUGHTON-LARSEN:

Q. Okay.

Sadly, Rudy dodged the TF question altogether and the excerpt cut off before Kerik was quizzed about the same question.

So we will have to wait to learn whether Tom Fitton is the TF who did influencer outreach on the effort to steal the election.

But it might help to explain why he was still welcome in the Boris Epshteyn-led effort to pursue political grievance rather than a sound legal defense.

Tim Parlatore Quit After Trump Lawyers Couldn’t Find the Iran Document

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Tim Parlatore’s decision to quit the Trump team — and the reports on the infighting on Trump’s legal team that followed shortly thereafter — sure look a lot different in light of CNN’s report, from a team that includes the journalist to whom Parlatore has twice given big scoops, Paula Reid, that Trump’s lawyers haven’t been able to find an Iran document Trump got caught on tape claiming to have at Bedminster.

Attorneys for Donald Trump turned over material in mid-March in response to a federal subpoena related to a classified US military document described by the former president on tape in 2021 but were unable to find the document itself, two sources tell CNN.

[snip]

Prosecutors sought “any and all” documents and materials related to Mark Milley, Trump’s chairman of the Joint Chiefs of Staff, and Iran, including maps or invasion plans, the sources say. A similar subpoena was sent to at least one other attendee of the meeting, another source tells CNN.

The sources say prosecutors made clear to Trump’s attorneys after issuing the subpoena that they specifically wanted the Iran document he talked about on tape as well as any material referencing classified information – like meeting notes, audio recordings or copies of the document – that may still be Trump’s possession.

Parlatore, remember, is the guy who oversaw searches in November and December of Trump’s other properties. He then appeared before the grand jury to attest to the thoroughness of the searches, effectively playing the same role that Christina Bobb had last summer. Bobb, an OAN host, was smart enough to include caveats before she did that.

According to Hugo Lowell’s account of the clusterfuck legal team, Parlatore didn’t similarly protect himself. He told the grand jury that there were no impediments to his searches and then brought a transcript back to the team to make clear what he had said.

In fact, the legal team is said to be confident that Parlatore will not flip on Trump after he told the grand jury hearing evidence in the case last year that Trump gave him free rein to search for any remaining documents at his properties last year, according to a transcript of his testimony.

Trump’s team seems to be confident that Parlatore won’t revise that story because he’s already on the hook for perjury for it.

In mid-March, in the same time period Trump’s lawyers would have first learned of the recording Trump made, Parlatore gave my favorite quote of any regarding Boris Ephsteyn: that the rest of Trump’s lawyers would be okay so long as Ephsteyn was not named a target (he didn’t say, in which investigation).

“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”

Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.

“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.

That would also have been around the time that the subpoena — the one that Trump’s lawyers ultimately couldn’t completely fulfil because they couldn’t find the Iran document — would have made the past searches Parlatore vouched for, the searches he reportedly told a grand jury he had unfettered access to conduct, seem incomplete.

Even as Parlatore was publicly hailing the value of Boris, he was staging an attempted intervention, to get him removed as a gatekeeper to Trump.

Parlatore and Trusty’s interpersonal conflicts with Epshteyn reached new levels as they grew increasingly annoyed at what they considered their inability to directly consult Trump without having to go through Epshteyn.

The pair chafed that when they spoke to Trump on the phone, Epshteyn was typically also on the line. At other times, they sniped that Epshteyn would give overly rosy outlooks to Trump and, in March, travelled to Mar-a-Lago to seek Trump’s permission to exclude him from future deliberations.

It was not clear whether the issue was actually resolved. Parlatore came away from the meeting content that he no longer needed to speak to Epshteyn. However, Epshteyn remained Trump’s in-house counsel and the legal team’s liaison with the Trump 2024 campaign.

Around that time, Parlatore and Trusty also started withholding information from Corcoran because they worried that Corcoran was too close to Epshteyn and was briefing him behind their backs.

Just over a month after this attempt to get Boris removed as gatekeeper, Boris spent two days interviewing with prosecutors (but not appearing before the grand jury, the kind of thing someone might do if he were trying to stave off a target letter).

In the same period, Jack Smith subpoenaed Trump Organization for details of his business deals, including the golf deal with the Saudis. He also kept pursuing gaps in the surveillance footage (gaps the details of which Parlatore may know, but the public does not).

And then, after attempting to stage an intervention to get Boris removed, Parlatore quit himself. Shortly after, he provided a public story (to Paula Reid) that seems to dramatically conflict with his grand jury testimony as described by Lowell, specifically citing Boris’ interference with a search of Bedminster.

Boris Epshteyn [] had really done everything he could to try to block us [the lawyers], to prevent us from doing what we could to defend the President, and ultimately it got to a point where — it’s difficult enough fighting against DOJ and, in this case, Special Counsel, but when you also have people within the tent that are also trying to undermine you, block you, and really make it so that I can’t do what I know that I know that I need to do as a lawyer, and when I’m getting in the fights like that, that’s detracting from what is necessary to defend the client and ultimately was not in the client’s best interest, so I made the decision to withdraw.

[snip]

He served as kind of a filter to prevent us from getting information to the client and getting information from the client. In my opinion, he was not very honest with us or with the client on certain things. There were certain things — like the searches that he had attempted to interfere with, and then more recently, as we’re coming down to the end of this investigation where Jack Smith and ultimately Merrick Garland is going to make a decision as to what to do – as we put together our defense strategy to help educate Merrick Garland as to how best to handle this matter, he was preventing us from engaging in that strategy. [my emphasis]

All that may have been an effort to be invited to clarify his testimony.

It didn’t come. As of last Tuesday, Jack Smith had shown no interest in this apparently revised story.

Parlatore noted that Smith’s investigators have not yet reached out to him as of Tuesday night.

Or Parlatore may have changed his tune too late for his own good. NBC reports that this grand jury, which had been on a month-long hiatus, is set to meet again this week.

The notion that four or five real lawyers have tolerated — for months — having a guy whose phone had already been seized by the prosecutor investigating their client to serve as a gatekeeper between them and their client is nuts. Crazier still is that you’d put your career on the line even after that guy had obstructed your effort to do your work diligently.