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How Holes in Ivanka’s Testimony Could Help Make an Obstruction Case against Her Father

February 27, 2023/31 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

When Ivanka Trump was first invited to testify to the January 6 Committee, at least as she tells it, her father encouraged her to testify.

I-after the letter was made public inviting me to attend, I was actually traveling with my children at the time. So I was I was not — I was not in Florida. But I remember him saying something in a subsequent conversation to the effect of, “Great, you should do it,” or something something like that. It was sort of very casual.

Because I told him immediately upon receiving it, I indicated my willingness to participate in these hearings and be as forthright as possible, and he didn’t discourage that in any way.

Her testimony was pretty helpful to him. She had no recall of most damning details of his role in a coup attempt (the record shows that, with the exception of a speech in Georgia on January 4, of which she also claimed to have no recall, Ivanka wasn’t closely involved in the Big Lie). She claimed to “perceive” that he was shocked about the attack on the Capitol, though she could provide no explanation for why she concluded that. And she affirmatively claimed that his failure to respond to the attack on the Capitol was instead a strong response.

Any testimony Ivanka gives to a grand jury in response to a recent subpoena may be less helpful, because in the interim, J6C and — undoubtedly — Jack Smith’s team have developed far more evidence that Donald Trump affirmatively refused to ask rioters to leave the Capitol during the height of the attack, something that would meet a key element of the offense for obstruction and conspiracy to obstruct the vote certification charges.

Per the J6C Report, the process of trying to get Trump to give a statement started before the first breach of the Capitol, by 1:57PM, according to the timing of a call Eric Herschmann placed to Jared.

And I got a call, I think it was from Herschmann, basically saying like, you know, this is getting pretty ugly, people are trying to break into the Capitol, you know, we’re going to, you know — and I said, you know, basically saying — I think he started by saying, “Where are you?”

And I said, “I’m on an airplane.”

And he said, “Okay, we’ve got to deal with this here. People are trying to break into the Capitol. We’re going to see what we can do here. We’re going to try to get the President to put out a statement.”

After the initial breach at 2:13 PM, according to Cassidy Hutchinson, Pat Cipollone pushed Mark Meadows to barge into the dining room and do something to stop the attack.

No more than a minute, minute and a half later, I see Pat Cipollone barreling down the hallway towards our office; and rush right in, looked at me, said, is Mark in his office? And I said, yes. He just looked at me and started shaking his head and went over — opened Mark’s office door, stood there with the door propped open and said something to — Mark is still sitting on his phone.

I remember like glancing and he’s still sitting on his phone. And I remember Pat saying to him something to the effect of, the rioters have gotten to the Capitol, Mark. We need to go down and see the President now. And Mark looked up at him and said, he doesn’t want to do anything, Pat. And Pat said something to the effect of — and very clearly had said this to Mark — something to the effect of, Mark, something needs to be done or people are going to die and the blood is going to be on your f’ing hands.

This is getting out of control. I’m going down there.

But that may have made things worse. Ten minutes later, at 2:24PM, Trump tweeted out his attack on Mike Pence, then attempted to call Tommy Tuberville, effectively ignoring the pleading of his aides and focusing instead on trying to organize objections to the vote.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

While the timeline is uncertain, seemingly after this tweet, Eric Herschmann was involved in two separate efforts to get Trump to call on rioters to leave.

One effort pertained to the contested note — a contest the stakes of which are more clear given Ivanka’s testimony.

As I laid out here, at a time when he believed (having been told as much from Hutchinson’s then-attorney Stefan Passantino) that Hutchinson had completed her testimony with J6C without mentioning this note, Herschmann claimed to remember one thing above all about his interactions with the President that day: that he wrote this note.

In later testimony, Hutchinson said she wrote it, on Meadows’ order.

The difference is subtle. As Hutchinson tells it, Meadows referred to the rioters being present at the Capitol “illegally,” but Herschmann offered “without proper authorization,” to give Trump something more palatable to adopt. Some time later, after Meadows came back from the dining room with the card, the “illegally” language had been crossed out entirely, but with Trump failing to act on either action.

CASSIDY HUTCHINSON: The chief of staff was in a meeting with Eric Hirschman and potentially Mr. Philbin, and they had rushed out of the office fairly quickly. Mark had handed me the note card with one of his pens, and sort of dictating a statement for the president to potentially put out.

LIZ CHENEY: And — no, I’m sorry. Go ahead.

CASSIDY HUTCHINSON: That’s Ok. There are two phrases on there, one illegal and then one without proper authority. The illegal phrase was the one that Mr. Meadows had dictated to me. Mr. Herschmann had chimed in and said also put without legal authority. There should have been a slash between the two phrases. It was an — an or if the president had opted to put one of those statements out. Evidently he didn’t. Later that afternoon, Mark came back from the Oval Dining Room and put the palm card on my desk with illegally crossed out, but said we didn’t need to take further action on that statement.

But it didn’t work. Herschmann concedes that the effort to get Trump to send out the message on the card — “anyone who entered the Capitold ~~illegally~~ without proper authority should leave immediately” — failed. Trump wouldn’t ask rioters to leave the building for at least another hour.

Q So I’m more interested, though, in the “should leave immediately” point which the President didn’t say in his ensuing tweets. Did anybody push back on your suggestion that the President should say that the people who entered the Capitol should leave immediately?

A No, nobody pushed back on that.

Q Do you have any idea why the statement didn’t go out?

A Why what I wrote didn’t go out.

Q Yes?

A I don’t. I mean, he decided not to issue this statement and issued one when lvanka went back there.

Q Okay. Do you know who made the decision not to issue this statement?

A I do not. I don’t think there was an issue of an idea that someone would be saying you shouldn’t leave immediately. I think it was presumed that that was the point of a statement, of any statement, was, no violence, leave the Capitol. But I don’t remember a discussion about that topic individually or particularly.

Before Hutchinson gave her later testimony, Herschmann managed to flush the discussion with Trump about asking rioters to leave down a black hole of his failed memory. With it, though, she changes his own involvement, from taking the lead on the note, to trying to find a palatable statement for Trump to make.

Given the reference to “Ivanka went back there,” his second effort seems to have followed the effort with the card. Herschmann ran to Ivanka’s office and got her to ask Trump to make a statement.

Ivanka’s testimony, given weeks before that of two of her staffers, Rachel Craddock and Julie Radford, was that the first she heard of the violence at the Capitol was when Herschmann burst into her office.

But Radford testified that, after her own spouse texted her to ask if she was alright, she went into Ivanka’s office, turned on the TV, checked Twitter. Then they called in Craddock and they all started drafting Ivanka’s own tweet to call for peace, one she would eventually send out and then delete after catching heat for referring to the attackers as “Patriots.”

That’s when, per the staffers, Herschmann came in to get her.

The difference, of course, is not just whether Ivanka knew of the violence at the Capitol, but whether she knew her father had already targeted Pence. Ivanka claimed not to know what even Trump knew when she went into the dining room, even dodging a question about whether (!!!) he had the TV on.

Q Do you know whether or not he was aware of the violence that you had seen on your television when you first arrived in the dining room?

A I don’t know when he learned of the violence. I believe that he was aware of it because he immediately started the process of crafting a statement, and I don’t recall me bringing him up to speed.

Like I think he generally was aware when I entered. I don’t know when, though, he became aware, and I don’t know we didn’t have a specific conversation about what he knew or didn’t know.

I felt it was incredibly important that he issue a strong statement. Twitter was an obvious place for him to do tt because it was authentic to his voice, He would often a tweet. And it was fast.

So — but I don’t recall who said it should — if there was a discussion about Twitter versus not. I just recall the discussion of the statement itself

In her testimony, Ivanka gave Trump credit for the language used in the tweet.

Q Do you remember the President proposing any specific language, any particular words?

A I think it was all largely his language. I remember at the end we said, you know, in addition to the condemnation of violence and the need to respect law enforcement, I remember there was a discussion about adding the words “be peaceful” that I believe he suggested — he suggested or I suggested. You know, it was part of a discussion.

But I think the content was not in debate while I was present.

But Kayleigh McEnany told J6C that that language came from Ivanka, not Trump. And Sarah Matthews passed on, second-hand, that Kayleigh had described a dispute about even this lukewarm language.

[S]he said that he did not want to put that in and that they went through different phrasing of that, of the mention of peace, in order to get him to agree to include 2 it, and that it was Ivanka Trump who came up with “stay peaceful” and that he agreed to that phrasing to include in the tweet, but he was initially resistant to mentioning peace of any sort.

Most importantly, though, the second effort, too, failed to convince Trump to ask his rioters to leave the Capitol.

When committee personnel asked Ivanka why the tweet didn’t ask rioters to leave and didn’t ask them to condemn violence, she bullshitted, and claimed those ideas were incorporated in the tweet.

Now, the statement doesn’t ask people to leave the Capitol. It actually uses the word “stay,” “stay peaceful.” Do you remember any discussion about whether the tweet should directly encourage people to leave or disperse?

A Well, definitely the intention of “stay peaceful” was not to tell people to remain. It was to – for anyone who was not being peaceful should stop, and anyone who was, don’t get involved.

Q Uh-huh. The tweet also says nothing about violence, doesn’t condemn violence or reference violence. It just calls on people to support law enforcement because they’re truly on the side of the country and stay peaceful.

Do you remember any discussions about more explicitly condemning violence?

A That was the intention. And I believe that a subsequent tweet shortly there after did that. I think the immediate urgency was to try to deescalate the situation–

Q Uh-huh

A – as effectively as possible. So think everyone believed this would be an effective way to do it.

As far as is publicly known, Ivanka is at no risk of charges for obstructing the vote count. Her intention does not matter. Her father’s does. And her statement that the goal was to get people to leave but that Trump, for a second time within an hour, refused to make that ask says a great deal about Trump’s approval of the bodies preventing the certification of the vote count by violently remaining in the Capitol.

This is the kind of ratification of the mobsters obstruction that Amit Mehta talked about when letting a lawsuit against Trump proceed, only with far more detail that Trump affirmatively refused to do anything, not even when his daughter implored him.

Even ignoring the greater tools DOJ will have to clarify both the timing of these two efforts and the contacts involving others — most notably, Kevin McCarthy, who called several of the key players during this time period — interspersed with them, it would be harder for Ivanka to deny remembering this. Four witnesses friendly to Ivanka — Craddock and Radford, Matthews and Kayleigh — have challenged key parts of Ivanka’s earlier testimony. Whatever success Trump would one day have at discrediting Hutchinson’s testimony, it has been backed by multiple other witnesses (and Kayleigh’s testimony that Ivanka, not her dad, wrote the tweet is backed by the former press secretary’s own notes).

Plus, Ivanka would be reckless to assume no one else’s testimony has changed or expanded, particularly given that the two Pats — Cipollone and Philbin — testified under an Executive Privilege waiver last year.

The most important change, however, is the uncertain fallout of suspicions that Hutchinson’s former attorney was trying to limit her testimony in order to protect Herschmann.

Aside from Herschmann’s silence as Trump gave Mike Pence an order to violate the Constitution, there’s nothing independent of attempts to coach Hutchinson’s testimony and involvement in the financial aftermath of the election that give him any legal exposure. A slew of witnesses testified that he made sustained attempts to get Trump to call off his mob. But Passantino’s alleged efforts to alert Herschmann to Hutchinson’s testimony, and Herschmann’s 30-minute phone call to her afterwards, means Herschmann’s forgetfulness about his interactions with Trump on January 6 may evolve as well. One way or another, Hutchinson’s split from Passantino gives Smith one more tool to use to obtain testimony.

At least last year, Jared, Ivanka, her staffers, and Herschman, as well as Alex Cannon and two of Trump’s other gatekeepers were all represented by the same attorney from Kasowitz (one, Molly Michael, has been sucked into the stolen document case).

Ivanka’s grand jury testimony may do little more than lock her into her past testimony to the J6C. But it’s possible either her testimony or Herschmann’s before Smith’s grand jury will be more forthcoming.

Between Herschmann and Ivanka, there are several other conversations from January 6 they disclaimed remembering before J6C: Herschmann called Ivanka just before 10AM on January 6. The two spoke after Ivanka left the Oval Office meeting from which Trump called Pence, directly before both changed plans and went to the rally. Ivanka spoke to her father just before he started speaking at the Ellipse rally, followed, separately, by Herschmann. Anything Herschmann and Trump said to each other as Herschmann oversaw the filming of Trump’s videotaped response. The substance of the five minute call Herschmann had with Trump at 10:50PM on January 6. All of that may well remain unrecalled, to say nothing of Ivanka’s wildly incredible claim that she and Jared never spoke about January 6 afterwards.

But the testimony of all these people put together may well provide Smith enough to prove that Trump affirmatively refused to ask his supporters to leave after he attacked Mike Pence at 2:24PM. And that may be a big factor in whether Smith charges Trump with obstruction and conspiracy to obstruct the vote certification.

Related interview dates

February 23: Cassidy Hutchinson interview (Passantino)

March 7: Cassidy Hutchinson interview (Passantino)

March 31: Jared Kushner interview (Benson)

April 4: Ivanka interview (Benson)

April 6: Eric Herschmann interview (Benson)

May 17: Cassidy Hutchinson interview (Passantino)

May 24, 2:06 to 2:45PM: Rachel Craddock interview (Benson)

May 24, 3:01 to 4:15PM: Julie Radford interview (Benson)

June 28: Cassidy Hutchinson testimony (Hunt)

September 14: Cassidy Hutchinson interview (Hunt)

September 15: Cassidy Hutchinson interview (Hunt)

Trump’s “Receptionist of the US” Deletes Her Trip to Russia

February 24, 2023/101 Comments/in 2020 Presidential Election, emptywheel, Leak Investigations /by emptywheel

When Chamberlain Harris’s name first started getting bandied about as the woman in whose possession additional documents with classified markings were found last year at Mar-a-Lago, her LinkedIn bio described how, in addition to a trip to Spain in summer 2018, she also made a trip to St. Petersburg in Summer 2019, immediately before she took an internship at the White House.

Since then — perhaps today, after the Guardian published a follow-up on the story of those classified documents — the reference to Russia was removed.

In its first story on the documents, Guardian described that Molly Michael, then Trump’s Executive Assistant, ordered the woman in question to make a digital copy of the documents.

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

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

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

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

Today’s update, in addition to identifying the woman as ROTUS — a made-up title that Harris has not yet deleted from her LinkedIn bio — described that the aide in question first had the box at a bungalow at Mar-a-Lago, then brought it to an off-site office, then brought it with her to occupy the desk that Molly Michael once had (in which at least two classified documents likely were found during the August 2022 search).

Known internally as ROTUS, short for Receptionist of the United States, the junior aide initially kept the box at a converted guest bungalow at Mar-a-Lago called the “tennis cottage” after Trump left office, and she soon took it with her to a government-leased office in the Palm Beach area.

The box remained at the government-leased office from where the junior aide worked through most of 2022, explaining why neither Trump’s lawyer who searched Mar-a-Lago in June for any classified-marked papers nor the FBI agents who searched the property in August found the documents.

Around the time that Trump returned to Mar-a-Lago from his Bedminster golf club in New Jersey at the end of the summer, the junior aide was told that she was being relocated to a desk in the anteroom of Trump’s own office at Mar-a-Lago that was previously assigned to top aide Molly Michael.

The junior aide retrieved her work belongings – including the box – from the government-leased office and took them to her new Mar-a-Lago workspace around September. At that time, the justice department’s criminal investigation into Trump’s retention of national security documents was intensifying.

[snip]

But the justice department was not satisfied, and it pressed the Trump legal team to get the contractors to conduct the third known search of Mar-a-Lago in early December – at which point the contractors discovered the box of presidential schedules, some with classified markings.

The Trump legal team alerted the FBI, which sent federal agents down to collect the box and its contents the following day.

A few weeks later, Trump’s lawyers started exploring whether they could get a better understanding of the sensitivity of the small number of schedules marked as classified, for the junior aide had kept sole custody of the box throughout that period.

It was at that point that the junior aide revealed for the first time that she could find out exactly what they were, because Michael – who left the Trump political team at the end of the summer – had told her to scan all of the schedules to her laptop.

Trump’s people are trying to shift the blame to her — but the documents were in Trump’s possession when he was subpoenaed last summer, so the failure to find them still arises from Trump’s failure to do a thorough search of the offices he controlled.

And this woman — whom Trump tried to forestall being subpoenaed in the laptop handover — just gave the FBI reason to look a whole lot more closely at her.

Update: Some have mentioned the report that this got uploaded to the cloud. That’s from this CNN report.

Maggie Haberman’s Foray into Campaign Finance Journalism

February 23, 2023/74 Comments/in 2020 Presidential Election, Financial Fraud, January 6 Insurrection /by emptywheel

I started unpacking this Maggie Haberman story yesterday morning.

It was an unusual story. Love or hate Maggie, she’s a really hard working journalist. But her forté is working phones, not documents.

Nevertheless, Maggie set out alone, without the involvement of an expert on documents generally or the FEC specifically (someone like David Fahrenthold) to explain why Jack Smith’s prosecutors are subpoenaing vendors of Trump’s Save America PAC.

The Justice Department has been subpoenaing documents from vendors paid by the PAC, including law firms, in an effort to determine what they were being paid for.

It seemed to be a follow-up to this story, which, by suggesting that JP Cooney had only joined the team with Smith’s hiring, falsely implied that DOJ had only started pursuing this angle after his appointment.

Three of his first hires — J.P. Cooney, Raymond Hulser and David Harbach — were trusted colleagues during Mr. Smith’s earlier stints in the department. Thomas P. Windom, a former federal prosecutor in Maryland who had been tapped in late 2021 by Attorney General Merrick B. Garland’s aides to oversee major elements of the Jan. 6 inquiry, remains part of the leadership team, according to several people familiar with the situation.

In addition to the documents and Jan. 6 investigations, Mr. Smith appears to be pursuing an offshoot of the Jan. 6 case, examining Save America, a pro-Trump political action committee, through which Mr. Trump raised millions of dollars with his false claims of election fraud. That investigation includes looking into how and why the committee’s vendors were paid.

In December, CNN reported that Cooney had been following the money for a year by that point, and even the NYT noted overt signs of that prong in September.

That earlier story nodded towards the same thing that this Daily Beast story, the January 6 Committee Report appendix on following the money, and this Campaign Legal Center complaint (the latter, focused on the 2020 campaign) did: Trump has apparently been treating campaign fundraising like a money laundering vehicle.

Go figure.

But Maggie, writing on her own, focuses instead on prospective crimes: the possibility that continuing to pay legal bills out of money raised starting in 2020 would be a different campaign finance violation.

Some of the $16 million appears to have been for lawyers representing witnesses in investigations related to Mr. Trump’s efforts to cling to power. But the majority of it — about $10 million — went to firms directly representing Mr. Trump in a string of investigations and lawsuits, including some related to his company, the filings showed.

Back in November, CLC did a report noting that Trump was doing that more generally, not just with lawyers.

All that’s not actually why I was interested in the story, but if you want an accounting of how much PAC money Trump is spending on legal services, Daily Beast’s tally includes the money spent by the MAGA PAC as well, adding up to $29.1 million since leaving office.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.

There are two reasons I was interested in the story. First, having looked at FEC filings, Maggie seems to have discovered that the $195,000 in services that Boris Epshteyn billed to Save America PAC last year were not for legal services, but instead strategic consulting.

Another $1.3 million went to Silverman Thompson Slutkin and White, the firm of Evan Corcoran, a lawyer who began working with Mr. Trump last spring. Mr. Corcoran was brought into Mr. Trump’s orbit by Boris Epshteyn, a strategist who has played a coordinating role with some of the lawyers in cases involving Mr. Trump, as the investigation related to the Mar-a-Lago documents was heating up. (Mr. Epshteyn’s company was paid $195,000, but for broader strategic consulting, not legal consulting specifically.)

This is an important point, but one Maggie did not highlight (nor issue corrections on past stories). For the entirety of the time that Epshteyn was quarterbacking Trump’s response to the stolen documents probe, someone in his immediate vicinity has been telling reporters that he was playing a legal function, all the while billing Trump for the same old strategic consulting his firm, Georgetown Advisory, normally provides (though the two payments the campaign made to Epshteyn after Trump formalized his candidacy, totalling $30,000, were filed under “communications and legal consulting”).

NYT has, in various stories including Maggie in the byline, described Epshteyn’s role in the stolen documents case as “an in-house counsel who helps coordinate Mr. Trump’s legal efforts,” “in-house counsel for the former president who has become one of his most trusted advisers,” and “who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump.” Another even describes that Epshteyn “act[ed] as [a] lawyer [] for the Trump campaign.” The other day, Maggie described his role instead as “broader strategic consulting.”

All the time that NYT was describing Epshteyn as playing a legal role — and NYT is in no way alone in this — he was telling the Feds he wasn’t playing a legal function, he was instead playing a strategic consulting one. Many if not most of these stories also post-date the time, in September, when the FBI seized Epshteyn’s phone, which would give him a really good reason to try to claim to be a lawyer and not a political consultant.

DOJ is more likely to take FEC’s word on this issue than claims Epshteyn made to the press after his phone seizure.

Like I said, virtually every media outlet seems to be repeating the claim that Epshteyn has been playing a legal, not political role. But there’s one Maggie story, in particular, where the question of Epshteyn’s role is central: This story, quoting Eric Herschmann calling Epshteyn (and Evan Corcoran) idiots, a habit that made Herschmann a star witness for the January 6 Committee. Herschmann’s glee about calling Sidney Powell, Jenna Ellis, John Eastman, and now Epshteyn and Corcoran idiots always distracted from sketchier aspects of Herschmann’s behavior, such as Keith Kellogg’s puzzlement about why a lawyer sat in the Oval Office while Trump ordered Mike Pence to break the law and said nothing.

Anyway, this Maggie story focusing on Epshteyn’s role not only called him an idiot, but also insinuated he was witness tampering.

To the extent anyone is regarded as a quarterback of the documents and Jan. 6-related legal teams, it is Boris Epshteyn, a former campaign adviser and a graduate of the Georgetown University law school. Some aides tried to block his calls to Mr. Trump in 2020, according to former White House officials, but Mr. Epshteyn now works as an in-house counsel to Mr. Trump and speaks with him several times a day.

Mr. Epshteyn played a key role coordinating efforts by a group of lawyers for and political allies of Mr. Trump immediately after the 2020 election to prevent Joseph R. Biden Jr. from becoming president. Because of that role, he has been asked to testify in the state investigation in Georgia into the efforts to reverse Mr. Biden’s victory there.

Mr. Epshteyn’s phone was seized by the F.B.I. last week as part of the broad federal criminal inquiry into the attempts to overturn the election results and the Jan. 6 assault on the Capitol.

[snip]

In his emails to Mr. Corcoran and Mr. Rowley, Mr. Herschmann — a prominent witness for the House select committee on Jan. 6 and what led to it — invoked Mr. Corcoran’s defense of Mr. Bannon and argued pointedly that case law about executive privilege did not reflect what Mr. Corcoran believed it did.

Mr. Herschmann made clear in the emails that absent a court order precluding a witness from answering questions on the basis of executive privilege, which he had repeatedly implored them to seek, he would be forced to testify.

“I certainly am not relying on any legal analysis from either of you or Boris who — to be clear — I think is an idiot,” Mr. Herschmann wrote in a different email. “When I questioned Boris’s legal experience to work on challenging a presidential election since he appeared to have none — challenges that resulted in multiple court failures — he boasted that he was ‘just having fun,’ while also taking selfies and posting pictures online of his escapades.”

[snip]

In language that mirrored the federal statute against witness tampering, Mr. Herschmann told Mr. Corcoran that Mr. Epshteyn, himself under subpoena in Georgia, “should not in any way be involved in trying to influence, delay or prevent my testimony.”

“He is not in a position or qualified to opine on any of these issues,” Mr. Herschmann said.

Mr. Epshteyn declined to respond to a request for comment. [my emphasis]

The story ends by reporting that Herschmann’s, “testimony was postponed.”

I’m not aware of any report that describes Herschmann has been called back to testify.

The story is dated September 16, 2022.

Two days earlier, Cassidy Hutchinson had testified to the January 6 Committee (after already beginning to cooperate with DOJ) that after she testified on May 17 that Herschmann was present for a conversation about Trump saying that “Hang Mike Pence” chants were justified, her then-lawyer Stefan Passantino seemingly contacted Herschmann who then called Hutchinson and told her, “I didn’t know that you remembered so much.”

Ms. Cheney. When Stefan said “I’ll talk to some people,” do you know who he was referring to?

Ms. Hutchinson. I didn’t ask. assume it was the same entourage of people that he had been conferring with for the past few weeks.

You know, I had also received a call from Eric Herschmann, I believe on Friday, May 20th. I believe it was Friday, May 20th. It was, because this was after the interview.

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

In the same J6C appearance two days before that Maggie story painting Ephsteyn as a witness tamperer, Hutchinson told the committee that she suspected that Passantino had spoken to Maggie about her testimony, something that, if true, would have had the effect of sharing her testimony with other witnesses without appearing to obstruct the investigation. She also described Alex Cannon to be involved in the outreach to Maggie.

The next day, September 15, Hutchinson provided the committee more detail about Passantino’s alleged efforts to share her testimony with Herschmann and others. Passantino told her to call Trump’s lawyer, Justin Clark, as well as Alex Cannon and Eric Herschmann, Hutchinson told the committee on September 15.

The day after my third interview with the committee, on Wednesday, May 18th, Stefan let me know that I — he spoke with Justin Clark, Alex Cannon, and Eric Herschmann and suggested that I call — that I have a call with all three of them.

I reached out to initiate the call with Alex Cannon and Justin Clark per Stefan’s instruction. And the that Friday, May 20th, received a call on Signal from Eric Herschmann.

So on September 14, Hutchinson told J6C about behavior involving Herschmann resembling witness tampering, including behavior involving Maggie Haberman! On September 15, Hutchinson told J6C about behavior involving Herschmann resembling witness tampering. And on September 16, Maggie Haberman quoted Herschmann blaming Epshteyn for any witness tampering.

All that background is why I find the way Maggie ended her foray into campaign finance journalism so interesting. She quotes anonymous sources — not the public J6C transcripts showing that Passantino and Alex Cannon were sourcing her earlier reporting on this — attributing Hutchinson’s testimony as the genesis of this focus on paying law firms.

The questions of which lawyers and vendors have been paid, and for what, intensified after the House select committee investigating Mr. Trump’s efforts to cling to power told the Justice Department that it had evidence that a lawyer representing a witness had tried to coach her testimony in ways that would be favorable to Mr. Trump. The witness in question was later identified by people familiar with the committee’s work as Cassidy Hutchinson, a former White House aide.

Her lawyer at the time, Stefan Passantino, was a former White House deputy counsel under Mr. Trump and was paid through Save America.

The reason I’m interested in this is because the point of Passantino’s alleged efforts to coach Hutchinson’s testimony was not, primarily, to protect Trump. According to Hutchinson’s testimony, at least, it was to protect Eric Herschmann, someone who has had tremendous success (like his close associate Jared Kushner) laundering his reputation through Maggie Haberman.

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary. didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

And as Hutchinson learned somewhat belatedly, Passantino had business ties to Alex Cannon and, possibly, Herschmann.

So I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson. Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

That is, Hutchinson testified that Passantino’s alleged effort to coach her testimony was not (necessarily) an effort to protect Trump. It was an effort to protect his business scheme, a business scheme that may have included Herschmann.

In Maggie’s foray into campaign finance journalism, she did not calculate payments to Elections LLC in her discussion of law firms paid by Save America PAC, though it was paid upwards of $400,000 since Trump left office. The last of those payments — for $10,000 — was on December 7, after Trump formalized his 2024 presidential bid. So if Maggie’s right that these payments are illegal, then that $10,000 would be one of the first overt acts in this new criminal exposure.

As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.

Update: Anna Bower informed me that Epshteyn told the Fulton County Grand Jury that he,

served as a legal, communications, and policy advisor to President Trump’s 2020 re-election campaign; and he continues to serve as legal counsel to President Trump to this day.

He cited NY state’s bar rules to argue that his ethical obligations extend well beyond attorney-client privilege.

In contrast, the client confidences that Mr. Epshteyn is required to safeguard as a New York-licensed attorney pursuant to Rule 1.6 of the New York Rules of Professional Conduct (“NYRPC”)4 reach a broader and less easily identifiable array of communications and information. Like its corollary rule in virtually every U.S. jurisdiction, NYRPC 1.6 provides that “[a] lawyer shall not knowingly reveal confidential information … or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person” absent client consent or “to comply with other law or court order.” NYRPC l.6(a)-(b). The rule defines “Confidential Information” to mean “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or ( c) information that the client has requested be kept confidential.” NYRPC 1.6(a)(3). The duty to preserve client confidences under Rule 1.6 is much broader that the attorney-client privilege, it includes any information gained during the representation regardless of its nature or source, and it necessarily includes information that is not subject to any other privilege or protection, provided that it is not already generally known in the community.

Epshteyn has always had a far stronger case he was working in a legal role starting in April or May of last year than while he was on the campaign (where he was described by other witnesses, like Jenna Ellis was also described, as playing a PR role).

In public comments from Emily Kohrs, she suggested that Rudy, who was barred in NY still when he represented Trump during the 2020 election, provided thoughtful question by question answers about whether he could answer questions.

Where Alina Habba Didn’t Personally Search

February 19, 2023/28 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

Given the news that Alina Habba appeared before the grand jury investigating Trump’s stolen documents, I wanted to go back to the declaration she submitted in the NY State investigation pertaining to diligent searches for documents in that investigation back in May 2022.

Politico reported on it before the public release about details of the stolen classified documents, and as such was taken as a claim that Habba conducted a search of the locations where documents were known to have been stored.

But it wasn’t.

Obviously, that’s true because (as Habba made a big deal of pointing out just after the original Politico report) the May 2022 searches were just for documents responsive to Tish James’ subpoena focused on the valuation of various properties, not for classified records.

But that’s also true because Habba did not search all the locations known to have stored Trump’s stolen documents.

The certifications involved include a nested certification, on Trump’s behalf, to the diligence of the search. Trump personally signed an affidavit, but he relied on the diligence of searches done by others, including the physical searches of three properties by lawyers.

5. Nevertheless, in an abundance of caution and in accordance with the Order, I authorized the additional, follow-up searches to be performed on my private residences:

a. On May 4, 2022, I authorized my attorney, Alina Habba, to search my private residence and personal office located at Trump National Golf Club in Bedminster, New Jersey for any and all documents responsive to the Subpoena.

b. On May 5, 2022, I authorized Alina Habba to search my private residence and personal office located at The Mar-a-Lago Club in Palm Beach, Florida for any and all documents responsive to the Subpoena.

c. On May 5, 2022, I authorized Alan Garten, General Counsel for the Trump Organization, to search my private apartment located in Trump Tower in New York, New York for any and all documents responsive to the Subpoena

[snip]

It is my understanding that searches of the above-listed locations have been performed by my attorneys, the Trump Organization Legal Department, the Trump Organization IT Department, and others.

Habba was not involved in the searches of business locations in Trump Tower or Trump’s residence there. Alan Garten was.

Garten was similarly responsible for compliance with subpoenas in conjunction with the various Russian investigations, and there are what SSCI called, “known deficiencies in the Trump Organization’s document responses,” including the email between Michael Cohen and Dmitri Peskov’s assistant, among others.

Garten did not submit a declaration in this package. Instead, Habba vouched for the diligence of Garten’s search.

f. On May 5, 2022, I coordinated and communicated with Alan Garten via telephone with regard to his search of Respondent’s private residence in Trump Tower including all desks, drawers, file cabinets, and similar locations likely to house files or documents. The search did not identify any documents responsive to the Subpoena.

So in this filing, Trump relied on the searches done by Habba and Garten, but Garten relied on Habba to attest to the diligence of the search.

And no one searched the storage facility in Florida at which some of Trump’s White House papers were stored, where two classified documents were discovered in follow-up searches by Trump’s lawyers in November.

But even the two properties Habba did search include gaps.

b. On May 4, 2022, I diligently searched each and every room of Respondent’s private residence located at Trump National Golf Club Bedminster, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

c. On May 4, 2022, I diligently searched Respondent’s personal office located at Trump National Golf Club Bedminster, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

d. On May 5, 2022, I diligently searched each and every room of Respondent’s private residence located at Mar-a-Lago, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

e. On May 5, 2022, I diligently searched Respondent’s personal office located at Mara-Lago, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

It’s hard to see how a one day search of these facilities, May 4 at Bedminster and then May 5 at Mar-a-Lago, could be that thorough, in any case.

But on May 5, when Habba was searching MAL, the bulk of the documents that were later seized were probably still in the storage closet from which they were moved in advance of Evan Corcoran’s search leading up to June 3. That’s neither the residence nor Trump’s office.

While there were likely classified documents in the drawers she searched at the time she searched them — a Secret document attached to Roger Stone clemency paperwork, and a Secret and a Confidential document attached to post-Administration messages from others — it’s not clear where the leatherbound box that held the most sensitive documents would have been stored in May 2022 (which was ultimately found in the office). And it’s still not clear where the classified documents in a box with Trump’s White House schedules was when the FBI conducted its search in August.

But there’s no way Habba would have found most documents, because most documents were still in that storage room.

They are understood to have been moved out of the storage room into the residence after the May 11 subpoena, days after Habba’s search.

Habba’s testimony would have been useful for showing that when asked to do a diligent search, Trump specifically hid from her one of the locations where he stored documents. She also would have added testimony about the absence of boxes in the residence when she searched it.

“A Demonic Force:” Dominion Just Gave Jack Smith Useful Evidence

February 17, 2023/253 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As you read through Dominion’s motion for summary judgment against Fox News — and trust me, you should read it! — keep in mind not just how it proves Fox to be nothing but a propaganda platform aiming to help the Republican Party, but also the evidence it makes available to Jack Smith as he considers charges against those who used false claims about voting fraud to gin up a coup attempt.

Just as one example, Sean Hannity has played a role in every Trump legal scandal — serving as a back channel to Trump for Paul Manafort, participating in Rudy Giuliani’s attempts to gin up dirt on Hunter Biden as the first impeachment unfolded, and helping White House officials stave off the resignations of Trump’s White House Counsels in advance of January 6. But in each case, investigators only got his communications via other subjects of the investigation, as when DOJ found Manafort’s WhatsApp texts to Hannity saved in Manafort’s iCloud account or when the January 6 Committee got Signal texts Hannity exchanged with Mark Meadows from the former Chief of Staff’s production. Republicans chose not to call Hannity as a pro-Trump witness in the Ukraine impeachment.

With its filing, Dominion has given a snapshot of the ways and whys in which Fox News helped magnify false voter fraud claims, especially (though not exclusively) those of Sidney Powell.

It all takes place against the backdrop of a huge backlash against Fox after it called AZ for Joe Biden. When Fox presented the truth about the election, viewers started fleeing to Newsmax, with Trump’s encouragement. The filing describes the panic that ensued.

[O]n November 9, the impact of Fox’s Arizona call became more evident to Fox executives. Carlson told [Fox News CEO Suzanne] Scott directly: “I’ve never seen a reaction like this, to any media company. Kills me to watch it.” Ex.211. Scott immediately relayed the email to Lachlan Murdoch. Ex.212 . She told Briganti that Sammon “did not understand the impact to the brand and the arrogance in calling AZ,” which she found “astonishing” given that as a “top executive” it was Sammon’s job “to protect the brand.” Ex.213. And on that day–“day one,” as Scott termed it, Fox executives made an explicit decision to push narratives to entice their audience back. Ex.214 at FoxCorp00056542. Scott and Lachlan Murdoch exchanged texts about the plan going forward: “Viewers going through the 5 stages of grief. It’s a question of trust the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them . at FoxCorp00056541 . Murdoch: “Yes. But needs constant rebuilding without any missteps. Id. Scott Yes today is day one and it’s a process.” [Dominion’s emphasis removed]

Hannity described how much reporting the truth (and Chris Wallace serving as a competent moderator for a Presidential debate) had undermined Fox’s brand.

Hannity told Carlson and Ingraham on November 12: “In one week and one debate they destroyed a brand that took 25 years to build and the damage is incalculable.”

The response to Jacqui Heinrich’s fact check of a Trump tweet is particularly stunning, as Carlson immediately called to have her fired for uttering the truth.

Meanwhile, later that night of November 12, Ingraham was still texting with Hannity and Carlson. In their group text thread, Carlson pointed Hannity to a tweet by Fox reporter Jacqui Heinrich. Ex.230 at FNN035_03890511 . Heinrich was “fact checking” a tweet by Trump that mentioned Dominion–and specifically mentioned Hannity’s and Dobbs’ broadcasts that evening discussing Dominion. Ex.232; Ex.231. Heinrich correctly fact-checked the tweet, pointing out that top election infrastructure officials said that, “‘There is no evidence that any voting system deleted or lost votes ,changed votes ,or was in any way compromised'” Id Ex.232.

Carlson told Hannity: Please get her fired. Seriously …. What the fuck? I’m actually shocked…It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ex.230 at FNN035_03890511. Tucker added: “I just went crazy on Meade over it.” Id. at FNN035_03890512 . Hannity said he had “already sent to Suzanne with a really?” He then added: “I’m 3 strikes . Wallace shit debate [] Election night a disaster [.] Now this BS? Nope. Not gonna fly. Did I mention Cavuto?”

The filing describes how after Hannity “dropped a bomb” about Heinrich’s fact check with Scott, Heinrich deleted her tweet.

Hannity indeed had discussed with Scott. Hannity texted his team: “I just dropped a bomb.” Ex.292 at FNN055_04455643. Suzanne Scott received the message. She told Jay Wallace and Fox News SVP for Corporate Communications Irena Briganti: “Sean texted me–he’s standing down on responding but not happy about this and doesn’t understand how this is allowed to happen from anyone in news. She [Heinrich] has serious nerve doing this and if this gets picked up, viewers are going to be further disgusted.” Ex.233 . By the next morning, Heinrich had deleted her fact-checking tweet. Ex.283.

For over two years, the right wing has squealed about a media outlet prohibiting the dissemination of dodgy claims from a Murdoch outlet. It turns out that Murdoch was, in that same time period, “censoring” true facts about Trump’s dodgy claims.

I wait with bated breath for James Comer to scheduled a hearing on the “censorship.”

Tucker Carlson, especially, recognized Trump’s role in this. He warned that Trump “could easily destroy us if we play it wrong.

“What [Trump]’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”

After January 6, Tucker called Trump,”a demonic force, a destroyer.”

Fox appears to have perceived that they had to play along with Trump’s false claims or risk permanent damage to their brand.

As noted, this lawsuit focuses closely, though not exclusively, on Sidney Powell’s false claims, from which even Trump publicly dissociated on and off. As such, much of this evidence may be more useful to DOJ in any ongoing investigation (if there still is one) of Powell’s monetization of claims she knew to be false. But even there, the evidence is key for Smith’s lawyer inquiry into Trump’s lies.

In an effort to rebut any Fox claim that it was simply reporting on lawsuits, Dominion lays out how the lawsuits filed served only as a vehicle to make false claims publicly.

Infact, none ofthe accused statements even meets the basic requirement that it report on a pending proceeding. As the Court recognized in its prior ruling, any statement made in a broadcast that occurred before November 25, 2020 could not possibly satisfy the “of … proceedings” requirement because the lawsuits filed by Sidney Powell–the only Fox guest who actually filed a lawsuit containing the defamatory allegations about Dominion–had not been filed by that date. See FNN MTD Order, p.46. And even after that date, the broadcasts in question hardly mentioned the existence of legal proceedings concerning Dominion, let alone purported to be a substantially accurate report ofthose proceedings. “[A]t no point did Dobbs or Powell attribute the statements … to an official investigation or a judicial proceeding. A reasonable observer would have no grounds to believe that her statements constituted a report of an official proceeding.” Khalil, 2022 WL 4467622 at 6.

Fox wasn’t covering lawsuits. It was magnifying false claims, and doing so because it knew that’s what its viewers, and Trump, demanded.

One accused false claim is of particular import, given the bases Powell and others used to pursue outrageous actions: A December 10 Lou Dobbs broadcast on which Sidney Powell claimed there had been a Cyber Pearl Harbor.

Nonetheless, on the next day, December 10, Dobbs had Powell on again, where she repeated the false (and repeatedly debunked) story about the Smartmatic and Dominion machines being designed to flip votes to rig elections for Hugo Chavez,and allowing people to login and manipulate votes . See ¶179(q );Appendix D. But rather than questioning Powell’s claims, Dobbs attacked Attorney General Barr for saying he’d seen no sign of any significant fraud that would overturn the election and told Powell “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” noting “we have tremendous evidence already,” id. which he now admits was not true. See Ex.111,Dobbs 46:25-47:10,86:20-24 . Dobbs had seen no evidence from Powell, nor has he since. Id.

Powell had sent her claims about a “Cyber Pearl Harbor” to Dobbs (who forwarded to his team) in advance of the show. Ex.450;Ex.451. Prior to the show, Dobbs published a tweet to the @loudobbs Twitter account with the claim that “The 2020 Election is a cyber Pearl Harbor,” and embedding the very document Powell had sent to him just hours before which stated that Dominion was one off our entities that had “executed an electoral 9-11 against the United States” and “a cyber Pearl Harbor,” that “there is an embedded controller in every Dominion machine,” and that they had “contracts ,program details, incriminating information ,and history” proving these claims.¶179(p); Appendix D.

Later the same day, after Powell appeared on the 5pm broadcast and before the 7pm unedited rebroadcast of the show, Dobbs again tweeted “Cyber Pearl Harbor @SidneyPowell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.” ¶179(r); Appendix D. Dobbs conceded at his deposition that this tweet was false Powell had not presented any such evidence on his program that day. Ex.111,Dobbs 269 :2-271:5.

People have long used Trump’s favored Fox programs to lobby Trump (for example, Roger Stone did so spectacularly well to get a pardon). And this story appeared on one of Trump’s favorite shows just over a week before Powell and Patrick Byrne would use the Solar Winds hack (which would be exposed in the interim week, starting on December 14) as their excuse to get Trump to use a claim of foreign election interference to seize the voting machines. In other words, this was the national security excuse Powell and Byrne were seeking to give Trump an excuse to assert Executive authority to seize the voting machines.

Worse still, as Dominion notes, Fox did all this not just knowing that it would harm Dominion. They did this knowing the intent was to harm the United States.

On November 10, Steve Bannon told Maria Bartiromo, straight out, that THE PLAN was to delegitimize Joe Biden.

“71 million voters will never accept Biden. This process is to destroy his presidency before it even starts; IF it even starts … We either close on Trumps victory or del[e]gitimize Biden … THE PLAN.” Steve Bannon to Maria Bartiromo, November 10, 2020 (Ex. 157)

Carlson, too, knew what he was doing.

On November 18, [Tucker producer Alex] Pfeiffer texted Carlson that powerful election fraud allegations like Powell’s “need to be backed up” and could lead to undermining an elected president if Biden’s confirmed,to which Carlson responded, “Yep. It’s bad.”

“It’s bad,” Tucker recognized from the start. But that didn’t stop him from participating in efforts to undermining the duly elected President.

We’ve long known that Fox was better understood as a wing of the Republican party than as a news organization (indeed, the filing describes Rupert Murdoch looking for ways to “help[] any way we can” in Georgia).

But this filing makes it clear that in a bid to cater to viewers who were fed false claims by Trump, Fox played right along with the false claims that would lead to insurrection. Jack Smith is already examining multiple parts of this effort. This filing makes evidence that would otherwise be unavailable accessible to prosecutors.

Fox News knew their platforming of Trump’s false claims was doing damage to the country. And they did it anyway.

Update: Corrected that Tucker, not Hannity, is the one who immediately said Heinrich should be fired for speaking the truth.

The “Escalating,” “Aggressive,” “Intensifying” Step of Subpoenaing Key Witness Mark Meadows

February 16, 2023/74 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

CNN and WSJ have reported, using all the typical hype words (see this thread for a collection of similar bullshit language), that Jack Smith’s team has subpoenaed Mark Meadows. But neither has included the most important information about the subpoena: what they’re really looking for.

They report only that Smith wants documents and testimony pertaining to January 6.

Special counsel Jack Smith’s office is seeking documents and testimony related to January 6, and Meadows received the subpoena sometime in January, the source said.

Neither Meadows’ attorney, the very good George Terwilliger, nor DOJ commented on this news, meaning it almost certainly came from one of the Trump lawyers who feeds all these stories, possibly even with the inflammatory adjectives.

It is not “aggressive” to subpoena one of the centrally important witnesses. It was not “aggressive” for the January 6 Committee to subpoena Meadows among their first investigative steps. It was not “aggressive” for Fani Willis to subpoena Meadows.

What is unusual is subpoenaing someone who is likely a key subject if not a target of the investigation, two years into the investigation, especially after he spent at least nine months trying to retroactively comply with the Presidential Records Act by providing the Archives communications he should have preserved in the first place, after which prosecutors obtained the communications from the Archives directly.

Indeed, DOJ’s Justice Manual requires specific approvals before subpoenaing someone if the person is a target.

If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a “target,” careful attention will be paid to the following considerations:

The importance to the successful conduct of the grand jury’s investigation of the testimony or other information sought;

Whether the substance of the testimony or other information sought could be provided by other witnesses; and

Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege.

Mind you, DOJ’s investigation, going back long before Smith joined it, has had to reach this bar on the testimony or legal process covering others by dint of various privileges, including attorney-client, executive, and speech and debate. But thus far, DOJ has usually used warrants, not subpoenas, with people who might be subjects or targets of the investigation.

There’s one known exception, of a person at the center of suspected crimes who nevertheless received a subpoena: Rudy Giuliani, in November (the CNN report on the subpoena emphasized the request for documents, but Reuters’ coverage said the subpoena asked for testimony as well). Notably, though, given how centrally involved Rudy was in suspected crimes leading up to the coup attempt, that subpoena asked for documents pertaining to the potential criminal behavior — the misspending of money raised by Save America PAC — of others. Indeed, DOJ seems to be treating subpoenas about discreet topics individually, meaning a witness who might have a good deal of exposure in one area may nevertheless be asked to testify about another area.

Something similar could be true here.

Trump’s PAC gave Meadows’ NGO, Conservative Partnership Institute, $1 million long after January 6, and CPI received the bulk of the money spent by the PAC.

Trump’s Save America PAC on July 26 gave $1 million to the Conservative Partnership Institute, the group where Meadows is a senior partner.

The donation came less than four weeks after the House voted to establish a select committee to investigate the January 6, 2021, insurrection at the US Capitol. In December, the House voted to recommend that the Department of Justice pursue criminal charges against Meadows for refusing to cooperate with the committee’s probe.

Trump’s political organization has amassed $122 million in cash reserves, his team announced Monday.

The $1 million to Meadows’ non-profit made up most of the $1.35 million in donations that Trump’s PAC disbursed to political organizations and candidates in the second half of 2021.

Since then, the organization has been described as the “insurrectionists’s clubhouse,” the key player in efforts to push the Republican Party even further right, including during Kevin McCarthy’s fight to be Speaker. The policies pursued by Meadows’ organization are not, on their face at least, criminal; they would be protected by the First Amendment. But Trump’s decision to fund it using funds raised promising the money would be used for something else might be.

Who knows? Maybe the subpoena seeks information more central to the events leading up to January 6. Perhaps it’s an effort to obtain Signal texts that Meadows didn’t otherwise turn over to the Archives. Perhaps Terwilliger is just that good, and Meadows is out of legal danger for his role in stoking a coup attempt.

But the most interesting detail of this subpoena is not that DOJ sent it, but that someone so obviously exposed himself would get one.

Update: Roger Sollenberger, one of the best campaign finance reporters, has a long discussion of how Trump laundered money from the Save America PAC through other entities, including CPI.

Trump’s National Security Adviser Responded to an Attack on the Capitol by Sending Personal Tweets

February 13, 2023/30 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q Okay.

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

[snip]

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

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

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

Q Yeah, you did.

[snip]

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

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

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

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

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

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

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

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

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

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

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

Q 9 o’clock at night on the 21st.

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

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

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

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

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

A Yes.

Q With whom?

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

Q Your chief of staff. I see.

A Right.

Q How about Mark Meadows or the President himself?

A No. I don’t believe I did.

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

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

A I think this came from your production.

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

O’Brien wasn’t giving anything up.

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

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

A I did.

Q Okay. Which of those platforms did you use?

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

Some People Have Sex Toys; Trump [Claims He] Has Empty Classified Evening Briefing Folders

February 12, 2023/45 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

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

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

[snip]

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

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

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

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

[snip]

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

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

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

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

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

There are several problems with this story, though.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He certainly does appear to have an empty folder fetish.

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

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

Timeline

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

June 3: Corcoran hands over folder with 38 classified records

June 24: DOJ serves a subpoena for surveillance footage

July 6: Trump provides surveillance footage

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

November 18: Merrick Garland appoints Jack Smith Special Counsel

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

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

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

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

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

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

February 2: Tom Fitton appears before grand jury

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

“Classified Evening Briefing:” Mishandled and Stolen Documents Update

February 11, 2023/35 Comments/in 2020 Presidential Election, Leak Investigations /by emptywheel

There has been a bunch of news in the various investigations into various constitutional officers who took documents home. Here’s my updated handy table.

Biden

On February 1, the FBI did a consensual search of President Biden’s Rehoboth home. No additional documents with classified marks were found, though the FBI did take some notes from Biden’s time as Vice President. Those kinds of notes are what I include among potential “trophy” documents, because they may reflect mementos.

NARA released information relating to Biden’s initial turnover of documents under FOIA. I assume they would have had to get DOJ’s permission to do so.

Pence

Mike Pence’s team announced that, after a consensual search of his Carmel, IN home, the FBI found one additional document with classification markings and six additional pages.

The FBI discovered an additional classified document at former Vice President Mike Pence’s Indiana home Friday during a voluntary five-hour search of the house, a Pence adviser said in a statement.

The adviser, Devin O’Malley, said “the Department of Justice completed a thorough and unrestricted search of five hours and removed one document with classified markings and six additional pages without such markings that were not discovered in the initial review by the vice president’s counsel.”

“The vice president has directed his legal team to continue its cooperation with appropriate authorities and to be fully transparent through the conclusion of this matter,” O’Malley said. He also noted that Pence and his legal team had “agreed to a consensual search of his residence that took place today.”

A source familiar with the search said DOJ was given unrestricted access to Pence’s home, and a member of his legal team was present through its duration.

The scope of the search included looking for documents that DOJ believed might be considered original documents that should have been sent to the National Archives, the source said, which could explain the six pages of additional material that were taken.

Given those six pages, I’ve changed the table to reflect possible “trophy” documents, things taken as keepsakes.

Pence has another weekend home in IN that has not been searched.

Trump

Trump may have used the news of Pence’s classified document as an opportunity to dump more news of his own. Multiple outlets reported that he had turned over:

An empty folder marked “Classified Evening Briefing”
Some additional classified files
The laptop and thumb drive onto which digital versions of those files were copied

Here’s how ABC described the new materials:

The folder with classification markings was discovered in a box with additional papers, the sources said. A copy of the box’s contents was made electronically, raising the question about the existence of any additional electronic records that may be relevant to the special counsel’s investigation.

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

Given the position of the person reportedly involved — who works for Trump’s PAC — it is possible that this person is the one who did a “compilation” of messages from a pollster, a faith leader, a book author, with two classified documents, one Secret and one Confidential.

Separately, there have been reports of at least three witnesses who have testified in the stolen document case:

In the second week of January, Evan Corcoran appeared before the grand jury. He’s the one who did the search that happened not to find the 100 documents Trump had hidden.
Late last year DOJ reached out to Alina Habba (she is represented by the same lawyer who had represented Christina Bobb). Habba filed a declaration in a NYS case claiming to have done a diligent search of Trump’s property for subpoenaed documents.
On February 2, Tom Fitton appeared before the grand jury. Fitton, who is not a lawyer, gave Trump catastrophically stupid advice saying that a suit he filed against Bill Clinton that was unrelated meant Trump could just determine what documents he could keep.
Robert O’Brien was subpoenaed in both the stolen documents and the attempted stolen election case and is asserting Executive Privilege over some matters. O’Brien would know the circumstances by which Trump was briefed, so this could be a follow-up to items more recently turned over to DOJ.

Maggie Haberman Claims Asking a Witness to Repeat What He Said in Print Is “Most Aggressive” Move Yet

February 10, 2023/61 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Exactly three months ago, I noted how some journalists were sowing false drama over whether DOJ would subpoena Mike Pence, given that he wrote up key details about January 6 in the WSJ (and his book).

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

That post preceded, by almost two weeks, a 1,600-word piece from Maggie and Mike, squawking about how unprecedented it would be.

The effort to seek an interview with Mr. Pence puts both the department and the former vice president in uncharted territory.

For the record, it is not unprecedented for a Vice President to appear before a grand jury: Dick Cheney was interviewed by Pat Fitzgerald in what was treated as a grand jury appearance (though it was in Jackson Hole); he did so while he was still VP.

In that November piece, Maggie and Mike allowed Pence to make bullshit claims about profound separation-of-powers issues, even though they noted Pence already wrote it up.

However, in interviews for the release of his new book, “So Help Me God,” Mr. Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.

“There’s profound separation-of-powers issues,” Mr. Pence told The New York Times in an interview. “And it would be a terrible precedent.”

[snip]

Mr. Pence has written in detail in his book about Mr. Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.

Maggie continues the hype in her story about the subpoena, with Glenn Thrush, from yesterday, claiming the mere act of asking a witness to repeat for a grand jury claims he already made in print is an aggressive act.

The move by the Justice Department sets up a likely clash over executive privilege, which Mr. Trump has previously used to try to slow, delay and block testimony from former administration officials in various investigations into his conduct.

The existence of the subpoena was reported earlier by ABC News.

It was not immediately clear when the special counsel, Jack Smith, sought Mr. Pence’s testimony. The move is among the most aggressive yet by Mr. Smith in his wide-ranging investigation into Mr. Trump’s role in seeking to overturn the outcome of the 2020 election. He is also overseeing a parallel inquiry into Mr. Trump’s handling of classified documents.

It’s not until the 16th paragraph before Maggie reveals that Pence wrote all this up in his book — which is nine paragraphs after NYT reveals that talks about voluntary testimony broke down.

Mr. Pence’s team held discussions with the Justice Department about a voluntary interview, according to the person familiar with the matter, but those talks were at an impasse, leading Mr. Smith to seek the subpoena.

[snip]

Mr. Pence described some of his ordeal in his recently published book, “So Help Me God.”

When a politician resists saying under oath what he has said in a book, you start the story with that fact. And if a politician has already said something in print, then stop pretending it’s really aggressive to expect him to say that to a grand jury.

This story should be about why Mike Pence is resisting repeating, under oath, claims he made as part of a presidential run.