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Whiskey Pete Hegseth Finally Finds Some White Men to Purge

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Amid all the other news, the purge of suspected leakers Pete Hegseth announced last month has netted three targets — all white men, for a change! Politico has not only provided a roster, but described the scope of the leak investigation.

The Pentagon put a third top official on administrative leave Wednesday as part of a wide-ranging leak investigation, according to a defense official and a person familiar with the matter.

Colin Carroll, chief of staff to Deputy Defense Secretary Stephen Feinberg, was suspended a day after two other political appointees were placed on leave following a probe into potential leaks of sensitive information.

The leaks under investigation include [1] military operational plans for the Panama Canal, [2] a second carrier headed to the Red Sea, [3] Elon Musk’s controversial visit to the Pentagon to discuss China and a [4] pause in the collection of intelligence for Ukraine, according to the official.

[snip]

Dan Caldwell, a senior adviser to Defense Secretary Pete Hegseth, and Darin Selnick, the Defense Department’s deputy chief of staff, were escorted out of the Pentagon by security officers and had their building access suspended pending further investigation, the official said. Caldwell and Selnick both previously worked at Concerned Veterans for America, the nonprofit that Hegseth once led. [my annotation]

An Air Force Special Forces Command Chief Master Sergeant was also removed on Monday, though no one has said the investigation described to be targeting him is Pete Hegseth’s purge.

When this investigation was first reported by CNN, it focused on the disclosure to NYT, for a story published on March 20  [1], that Hegseth was about to give Elon Musk a briefing on US war plans against China.

The memo comes after President Donald Trump pushed back on a New York Times report that DOGE head Elon Musk would be briefed on US military plans for a potential war with China while at the Pentagon on Friday. Trump said he wouldn’t show such plans “to anybody.”

And surely that’s a big focus of this investigation. As news of these ousters broke, Marc Caputo released a story ret-conning Trump’s unhappiness with the briefing, claiming, against all sense, that Trump got mad at Elon but not, also, Hegseth about it.

  1. Defense Secretary Pete Hegseth suspended two top Pentagon officials, Dan Caldwell and Darin Selnick, as part of an investigation into who leaked word of a planned top-secret briefing on China for Elon Musk.
  2. Axios learned that Musk or Hegseth didn’t just decide to call off that briefing after the leak. President Trump himself ordered staffers to kill it.
  • “What the f**k is Elon doing there? Make sure he doesn’t go,” Trump said, a top official recalled to Axios.

Why it matters: Musk has annoyed several administration officials with his constant presence at the White House, his haphazard social media posts and his slash-and-burn tactics at his Department of Government Efficiency.

  • The planned Pentagon briefing, however, got him cross with the boss at the Resolute Desk.

Anyway, no one made sure Elon “doesn’t go;” the currently operative story is Elon went to the Pentagon, but didn’t get the briefing. If Trump were unhappy with the planned briefing, rather than its exposure, I doubt we’d have this kind of leak investigation, which purportedly prevented the briefing from happening.

But Politico mentions three more leaks targeted by the investigation:

  • A widely disseminated story [1] disclosing that DOD had developed military plans targeting the Panama Canal; NBC’s story was published March 13.
  • The deployment [2] of the USS Carl Vinson from Asia to the Red Sea; the Politico version, which noted USNI reported the news first, was like USNI’s report dated March 21. Both versions report the move first as a month-long extension of the deployment of the USS Harry S. Truman, which was damaged and then repaired in February after being struck by a merchant ship, with the Vinson sailing from East China to the Red Sea to overlap with it. On March 16, the Houthis attempted to attack the Truman in retaliation for the strikes on March 15 ordered up by Pete Hegseth’s signal chat, and potential Houthi disinformation has very recently claimed the Truman has been struck.
  • Stories [4] about a pause in intelligence sharing with Ukraine that were quickly and publicly confirmed by John Ratcliffe; here’s Politico’s March 5 version, bylined by one of the guys closely tracking the purge.

So in order, the leaks are:

  • March 5 story on Ukraine intelligence sharing
  • March 13 story on targeting Panama
  • March 20 story on the Elon briefing
  • March 21 story on the Vinson redeployment from the East China Sea to the Middle East

With that list in mind, let’s look at several aspects of the memo, dated the same day as the Vinson deployment, March 21, asking for the investigation.

It does, in fact, identify, “unauthorized disclosures of national security information involving sensitive communications with principals within the Office of the Secretary of Defense,” plural. So while the coverage focused on the Elon briefing, it reportedly entailed the others from the start, including the seemingly routine report on the Vinson deployment.

It not only mentioned “sensitive communications with principals within the Office of the Secretary of Defense,” but it asked for cooperation from “those responsible for maintaining and overseeing information security systems and in coordination with federal partners as required.” At first, in the days before Jeff Goldberg revealed Pete Hegseth conducts these discussions (including discussions about the Middle East operations like the Vinson deployment) via Signal chat, it seemed this might have been an investigation into DOD’s secure communications.

But given the inclusion of Dan Caldwell — the guy whom Hegseth instructed Mike Waltz to add as his representative to the famous Signal chat — as the first guy purged suggests this leak investigation could also be about the Signal chat.

Or other Signal chats. Mike Waltz apparently did this all the time.

American Oversight’s lawsuit seeking to preserve the signal chats Goldberg published already disclosed that the actual content of the chats did not get preserved on John Ratcliffe’s personal phone, and that between March 26 and March 28 — after Congress was already investigating — participants changed message settings.

In a filing asking James Boasberg to find that Ratcliffe defied his order submitted yesterday, American Oversight included this timeline of what we know from filings in that suit:

March 24: Excerpts of the Signal chat appear in The Atlantic.1

March 25: American Oversight files this action. On the same day, Defendant Ratcliffe testifies before the Senate Select Committee on Intelligence regarding his use of Signal.2

March 26: American Oversight files a motion for temporary restraining order. ECF No. 6. The same day, changes occur in the Signal chat “participants’ administrative settings . . . such as profile names and message settings.” Suppl. Blankenship Decl. ¶ 4, ECF No. 15-3. Also on the same day, The Atlantic publishes further excerpts from the Signal chat.3

March 27: This Court orders Defendants to “promptly make best efforts to preserve all Signal communications from March 11–15, 2025.” Min. Order, Mar. 27, 2025. The same day, the CIA’s Office of General Counsel reportedly issued a litigation hold notice. Blankenship Decl. ¶ 4, ECF No. 10-3.

March 28: Changes occur again in the Signal chat participants’ profile names and message settings. Suppl. Blankenship Decl. ¶ 4, ECF No. 15-3.

March 31: Defendant Ratcliffe’s Signal account is “reviewed” for the first time and found to contain no substantive messages from the Signal chat. Suppl. Blankenship Decl. ¶ 4, ECF No. 15-3.

1 See Jeffrey Goldberg, The Trump Administration Accidentally Texted Me Its War Plans, The Atlantic (Mar. 24, 2025), https://www.theatlantic.com/politics/archive/2025/03/trumpadministration-accidentally-texted-me-its-war-plans/682151/.

2 Sen. Select Comm. on Intel. Hr’g to Examine Worldwide Threats Tr., Mar. 25, 2025, available at https://www.dia.mil/Portals/110/Images/News/DIA%20in%20the%20News/Committee_Hearing _2025.pdf.

3 See Jeffrey Goldberg & Shane Harris, Here Are the Attack Plans that Trump’s Advisers Shared on Signal, The Atlantic (March 26, 2025), https://www.theatlantic.com/politics/archive/2025/03/signal-group-chat-attack-plans-hegsethgoldberg/682176.

All of that took place after Hegseth himself ordered an investigation into leaks including the extension of the Harry S. Truman deployment to fight the Houthis on March 21, the kind of thing that might have been on that Signal chat.

While American Oversight didn’t ask for any other declarations, it did note that the existing declarations [docket] raise real questions about who else, including Whiskey Pete, might have deleted these texts from their devices.

For example, rather than specifying which messages were preserved, the Supplemental DoD Declaration vaguely references the preservation of “existing Signal application messages,” which, as shown by the Supplemental Blankenship Declaration, could be none. Suppl. Bennett Decl. ¶ 2, ECF No. 15-1. Similarly, without specifying whether any substantive messages were preserved, the Supplemental State Declaration merely states that “images of the Signal chat”—including “any” images captured from the Secretary’s devices—have been preserved. See Decl. of Timothy J. Kootz ¶ 4, ECF No. 15-4. As with CIA, those “images of the Signal chat” may simply be the title of the group chat. The Supplemental State Declaration also suggests that Secretary Rubio accessed the Signal chat from multiple devices. Id. More broadly, the evidentiary issues identified in the Supplemental Blankenship Declaration raise substantial questions regarding what these other Defendants actually preserved.

In forthcoming filings, American Oversight will probe the clear deficiencies in Defendants’ recordkeeping practices evidenced by these standout omissions of whether and what substantive messages from the Signal chat still exist, as well as when and how any such messages were lost. [my emphasis]

All of which brings me to the last detail of the original leak announcement that has always struck me: it was set up not as conventional leak investigations are, as a referral to the FBI based on stories that include classified information. That’s how you find out who leaked what if you want all possible culprits involved. Rather, it was set up such that Hegseth himself would get reports on the findings, and from that point, the criminal referrals would go out.

This investigation will commence immediately and culminate in a report to the Secretary of Defense. The report will include a complete record of unauthorized disclosures within the Department of Defense and recommendations to improve such efforts. I expect to be informed immediately if this effort results in information identifying a party responsible for an unauthorized disclosure, and that such information will be referred to the appropriate criminal law enforcement entity for criminal prosecution. [my emphasis]

That is, this so-called leak investigation implicating the guy Hegseth would add to his inappropriate Signal chats was set up such that Hegseth himself gets to gatekeep who gets targeted by it.

He appears to have set it up that way, importantly, before he realized a journalist had witnessed him add Dan Caldwell to a Signal chat on which he himself would disseminate battle information to the personal cell phones of multiple list participants, including journalist Jeff Goldberg.

Update: Adding this for timeline considerations. Roger Wicker and Jack Reed asked DOD IG to investigate this on March 27, while participants in the Signal chat were altering names and retention.

[W]e ask that you conduct an inquiry into, and provide us with an assessment of, the following:

1. The facts and circumstances surrounding the above referenced Signal chat incident, including an accounting of what was communicated and any remedial actions taken as a result;

2. Department of Defense (DOD) policies and adherence to policies relating to government officers and employees sharing sensitive and classified information on non-government networks and electronic applications;

3. An assessment of DOD classification and declassification policies and processes and whether these policies and processes were adhered to;

4. How the policies of the White House, Department of Defense, the intelligence community, and other Departments and agencies represented on the National Security Council on this subject differ, if at all;

5. An assessment of whether any individuals transferred classified information, including operational details, from classified systems to unclassified systems, and if so, how;

6. Any recommendations to address potential issues identified.

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Things Go Boom When You Attempt to Retcon the Economy

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I keep writing about how Trump keeps retconning what he is doing legally, attempting to alter his explanations for what he’s doing, legally, when a first legal theory runs into trouble. The Trump administration has tried to retcon:

Trump has only accelerated these dizzying gyrations in attempting to explain how Kilmar Abrego Garcia ended up in a prison in El Salvador.

Thus far, Trump has dodged repercussions for this Choose Your Own Adventure lawyering, thanks in part to SCOTUS’ disruption of the Alien Enemies Act class act before Judge James Boasberg before he could hold anyone in contempt. There is a pending contempt request before Judge Paula Xinis in the Abrego Garcia case, but she will need to dot some Is and cross some Ts before she imposes sanctions and even there it would take time to target the sanctions against the people who deserve them.

I first IDed this Administrative retconning in the legal context because in the legal context there are rules about saying one thing and then changing your mind (though actually, I first IDed Trump’s reliance on retconning after the Haitian dogs and cats attack during the election). That is, it matters in a legal context because it may blow a legal case even in a context — such as deportations — where the President has expansive authority. The Supreme Court vastly expanded Trump’s power with the immunity decision, but his DOJ is so feckless it may end up losing anyway because they do something stupid (or at least wildly inconsistent) legally.

That’ll take time, though. Xinis will not rule quickly to avoid giving the government easy cause for reversal, and so won’t deliver the immediate punishment the government deserves.

But Trump has been retconning policies elsewhere, most especially in his rollout of tariffs.

Over the course of the last week, Trump rolled out:

  • Liberation day tariffs on everyone, including penguins, except the axis of authoritarians Trump idolizes
  • A blink
  • Tariffs on China
  • More tariffs on China
  • Still more tariffs on China
  • Even more tariffs on China
  • The Tim Apple exemption
  • A seeming reversal of the Tim Apple exemption

This is the very same policy ineptitude as we see with DOGE and in the legal context, but this time with the world’s biggest economy, and just as importantly, the glue that holds the global economy together.

In the legal context, this fecklessness — and the public retaliation on government lawyers for admitting that they’re being compartmented from real information — results in the gradual erosion of presumption of regularity, the equivalent of a house advantage that lets the government make seemingly unreasonable claims without immediate consequence.

But the presumption of regularity dissolves much more quickly in the financial context.

Justin Wolfers, who doesn’t have a substack but does have TikTok, described how Trump’s attempts to retcon his tariff policy has created two economic crises: the first created by Trump’s tariffs themselves, the second created by the retconning itself.

One of the reasons you saw the markets respond so strongly is there this crisis of confidence. It’s a crisis of confidence in the competence of the Administration. They’ve rolled out tariffs based on formula that make no economic sense. They stick with a plan where they say it’s all about one thing and then they roll it all back and say, you know what? we’ve been lying to you since Sunday when they already decided to change paths. They — tariffs on China yesterday, we were told, were 125% and today they’re 145%. I want you to stick with that for just a moment. You’ve got tariffs between two of the world’s great economic powers and people in the White House couldn’t tell you the correct tariff within 20 percentage points, which would normally be the entire trade war and they forgot whether it was 125 or whether it was 145.

In his substack, Paul Krugman likens the response to the treatment of the US economy like a developing economy.

The obvious explanation is that crazy policies have shaken investors’ faith in America, which has traditionally been viewed as a safe haven.

The topic of how Trump’s policies have messed with the bond markets – including the market for US Treasuries — is too difficult for me to cover today, but here’s more. The key point is that massive tariffs have disrupted the plumbing of the financial system, leading to soaring interest rates on U.S. government debt. That’s abnormal: rising odds of a recession usually lead to falling long-term interest rates, because the prospect of a recession raises the likelihood of future cuts by the Fed, which controls short-term rates. This time, however, rates are spiking, especially for very-long-term instruments like 30-year bonds, shown at the top of this post.

The common thread in currency and bond markets is that, thanks to Trump, dollar assets — traditionally the foundation of the global financial system — are no longer perceived as safe.

The combination of interest rates soaring amid a slump and the currency plunging despite rising interest rates isn’t what we normally expect for advanced countries, let alone the owner of the world’s leading reserve currency. It is, however, what we often see in emerging-market economies. That is, investors have started treating the United States like a third-world economy.

Did I see this coming? No, not really. Unlike the sanewashers, I knew that Trump’s policies would be irresponsible and destructive. However, even I didn’t expect him to destroy credibility accumulated over 80 years in less than three months. But he has.

And even if Trump were to backtrack on everything he’s done, we wouldn’t get the lost credibility back. The whole world, sanewashers aside, now knows that America is run by a mad king, surrounded by enablers, who can’t be trusted to behave rationally.

In court, Trump may have ways of dodging the consequences of getting caught retconning his story.

In the economy, there’s no way to unring the bell — probably not even the replacement of Trump, if that were to happen in the near term.

American financial hegemony has been built on a decades of reliability. That financial hegemony has given the US, and even US consumers, privileges other people don’t have. Importantly, that financial hegemony is the basis for tools — such as sanctions on Russia on Iran — that Trump claims to be threatening if he doesn’t get his way.

Things go boom when you try to retcon your economic explanations.

I alluded to this on Friday’s podcast with Nicole. It was inevitable that bankers and hedgies would have less patience with Trump’s equivocations than judges do, partly because of judicial comity and partly because SCOTUS will go some lengths to protect Trump.

But these are related issues. The utter fecklessness of Trump’s policy logic is consistent between law and the economy (indeed, DOGE occupies the sweet spot between the two of them). That doesn’t mean the bankers will care about all the other damage Elon Musk has been doing to the US. But it means Trump’s claim to omnipotence will start to unravel in ways that may provide opportunities elsewhere, including with Republicans who actually understand the privilege that arises from the US economic hegemony Trump is squandering.

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Supreme Court Starts Cleaning Up Kristi Noem’s Sloppy Messes

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The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.

First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.

Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).

I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.

The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.

I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.

Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.

As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.

So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.

Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.

This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.

Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)

Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.

The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.

As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4

3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).

4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]

With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)

I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.

That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.

The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.

5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.

Indeed, Sauer did just that.

In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44

Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.

The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.

Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.

Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.

Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.

Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.

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Kristi Noem Invokes State Secrets to Cover-Up Her Inability to ID Women as Women

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One of the transphobic right wing’s most annoying taunts is that Democrats can’t decide whether women are women. It is central to the long-running campaign to demonize trans people to claim that birth sex, which transphobes claim is a person’s true and immutable sex, is always immediately apparent.

Yet yesterday, Kristi Noem invoked State Secrets to cover-up the fact that she — and the agencies she runs — were unable to identify women as women. DOJ included Noem’s declaration as part of package invoking State Secrets in the Alien Enemies Act lawsuit yesterday.

The declarations, in general, are ridiculous given filings submitted by ACLU earlier yesterday.

Both Rubio and Noem’s declarations include language claiming that official acknowledgement of details of the deportation flights — the kinds of details Judge James Boasberg might use to hold them in contempt — is different than, “assumptions, speculation, public investigation, or informal statements.” This, mentioning “informal” reports or statements five times, is from Noem’s declaration:

Disclosure of the information sought in the Court’s Minute Order would cause significant harm to the United States’ national security even assuming some of that information has already entered public sources as a result of assumptions, speculation, public investigation, or informal statements. It is both true and well known that official acknowledgement of a fact may be damaging to national interests in a way that informal suggestions or speculation about that information is not. If the government were to confirm or deny the information sought by this Court’s Minute Order, there would arise a danger that enemies of our national security would be able to stitch together an understanding of the means and methods used to thwart their unlawful and sometimes violent conduct.

[snip]

There is a difference between official acknowledgement and informal reports: Official disclosures or acknowledgements threaten the United States’ national security interests in a way that informal reports or statements do not, because informal statements leave an important element of doubt that provides an essential layer of protection and confidentiality. That protection would be lost if the United States were forced to confirm or deny the accuracy of unofficial disclosures or speculation. [my emphasis]

But the plaintiffs’ declaration notes that after Nayib Bukele posted a propaganda video showing three planes that had brought detainees to El Salvador, with tail numbers visible, both Trump and Rubio effectively ratified by reposting the video.

In addition, public information shows that two planes were still in the air when the Court issued both its oral and written Orders. Most significantly, based on information publicized by U.S. government officials and publicly available flight data, at least two flights took off during the hearing on March 15—one at 5:26pm EDT and the other at 5:45pm EDT—and landed well after this Court’s written Order had been filed. See Pls. Resp. to Defs. Notice (ECF No. 21); see also Joyce Sohyun Lee and Kevin Schaul, Deportation Flights Landed after Judge Said Planes Should Turn Around, Wash. Post (Mar. 16, 2025). 2 And the video released by President Bukele that shows Plaintiff class members being hauled off the planes in El Salvador includes each plane’s tail number.3 That video was then reposted by both President Trump4 and Secretary of State Rubio.5

2 https://www.washingtonpost.com/immigration/2025/03/16/deportation-flights-trump-elsalvador [https://perma.cc/Q6NH-ATY8]

3 https://x.com/nayibbukele/status/1901245427216978290 [https://perma.cc/BM73-547H].

4 https://truthsocial.com/@realDonaldTrump/posts/114173862724361939 [https://perma.cc/67LY-FREW].

5 https://x.com/SecRubio/status/1901252043517432213 [https://perma.cc/RXH4-XH4R].

The Xitter post from Rubio, using his official Secretary of State Xitter account, specifically says, “Thank you for your assistance and friendship, President Bukele” in response to his claim that 238 members of Tren de Aragua “arrived in our country” effectively ratifying that those planes were the ones used, and that the number Bukele used was the one given to him.

Perhaps the government is prepping a claim that these are “informal” statements. But Donald Trump has fired people by tweet, over and over, and nominated a good number of cabinet members by tweet, including Noem herself.

Trump’s tweets have official effect. To claim Trump’s tweet didn’t ratify Bukele’s post is nonsense.

Rubio and Noem’s focus on the danger of official confirmation is about refusing to provide Boasberg details showing that DHS had not done adequate vetting of the detainees to sustain the claim they really were members of Tren de Aragua. Again, this is from Noem’s declaration:

In addition to flight operations, the number of TdA members on a given removal flight is also information that, if disclosed, would expose ICE’s means and methods, thus threatening significant harm to the national security of the United States. Revealing and/or confirming the number of TdA members involved would reveal key details about how the United States conducts these sorts of operations and would allow other aliens (members of TdA and otherwise) to draw inferences about how the Government prioritizes and uses its resources in immigration enforcement and counterterrorism operations.

[snip]

When the United [sic] seeks to remove individuals to a foreign country, the United States must negotiate the details of that removal with the foreign country. This requires nonpublic, sensitive, and high stakes negotiation with the foreign State, particularly where, as here, the aliens being removed have been deemed enemy aliens and members of a foreign terrorist organization. Those negotiations cover sensitive issues, including representations regarding the bases on which the individuals are being removed from the United States, which can impact the foreign State’s willingness to accept the removed aliens and the procedures it will employ in doing so.

[snip]

Similarly, if sensitive information covered by a compelled disclosure — for example, the number and nature of aliens removed to the foreign State — were to come to light — the receiving foreign State’s government could face internal or international pressure making that foreign State and other foreign States less likely to work cooperatively in the future with the United States on matters affecting its national security.

Moreover, if a disclosure were to in any way undercut or, in the eyes of a foreign State (fairly or not) cast doubt on representations made by the United States during sensitive negotiations, that could likewise make that foreign State and other foreign States less likely to work cooperatively with the United States on matters affecting its national security.

Noem is not entirely making shit up (nor is she lying, elsewhere in her declaration, that confirmation that the flights landed in Honduras could cause problems).

Bukele said he was given 238 members of TdA. It was key to his propaganda campaign. If Boasberg now finds that’s false, it might well embarrass Bukele (though he’s pretty immune from embarrassment).

The problem for Noem and Rubio, is ACLU already presented two sworn declarations asserting that the Trump Administration’s public representations were false. EEPB, for example, described being told that El Salvador would not accept him, a Nicaraguan, because it would cause “conflict.”

I overheard a Salvadoran official tell an ICE officer that the Salvadoran government would not detain someone from another Central American country because of the conflict it would cause. I also heard him say that they would not receive the females because the prison was not for females and females were not mentioned in the agreement. I then saw the ICE officer call someone, and after the call, I overheard him saying we had to be sent back.

They included a guy whose accent undoubtedly makes it clear he’s not Venezuelan, but claimed he was a Venezuelan anyway.

More alarming still, Venezuelan woman SZFR — who, like other women on one of the planes, had not yet been formally deported and so by definition should only have been on one of the planes alleged to carry TdA members — described guards on the plane acknowledging that they knew an order prohibited the departure of the plane. She also described that guards were trying to force the male detainees on the plane to sign forms admitting they were TdA members.

10. When we got on the plane there were already over 50 men on the plane. I could see other migrants walking to the plane but we took off before any additional people boarded.

11. Within a couple of minutes of take off I heard two US government officials talking and they said “there is an order saying we can’t take off but we already have.”

12. I asked where we were going and we were told that we were going to Venezuela.

13. Several other people on the plane told me they were in immigration proceedings and awaiting court hearings in immigration court.

14. We were not allowed to open our window shades.

15. We landed somewhere for refueling. We were there for many hours. We were arm and leg shackled the whole time.

16. We took off again and landed fairly quickly. I was then told we were in El Salvador.

17. While on the plane the government officials were asking the men to sign a document and they didn’t want to. The government officials were pushing them to sign the documents and threatening them. I heard them discussing the documents and they were about the men admitting they were members of TdA.

18. After we landed but were still on the plane a woman opened the shade. An officer rushed to shut the shade and pushed her down by her shoulders to try and stop her from looking out. The person that pushed her down had HOU-02 on his sleeve.

19. I saw out the window for a minute and I saw men in military uniforms and another plane. I saw men being led off the plane. Since I’ve been back in the U.S. I have seen news coverage and the plane I saw looks like the one I’ve seen on TV with migrants from the U.S. being delivered to El Salvador.

20. All the men got off the plane. The remaining women asked what happens to us? I was told that the President of El Salvador would not accept women. I was also told that we were going back to detention in the U.S. [my emphasis]

But the most important part with respect to Noem’s sworn statement that she can’t reveal details about who was on the plane is that the agreement with Bukele said he would not accept women.

And yet Kristi Noem’s DHS sent women — around nine of them — anyway.

There’s a lot that Noem is trying to cover up with her State Secrets declaration, starting with how incompetent her DHS is.

But one of the key details she’s trying to cover up is that a committed transphobe like Noem couldn’t even properly identify the sex of the detainees she was sending to El Salvador.

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Todd Blanche Kicks Off His Tenure Chasing Leaks Implicating His Own Conduct

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Around 8AM on Friday, Deputy Attorney General Todd Blanche announced an investigation of a leak to the NYT pertaining to Venezuelan gang Tren de Aragua.

The Justice Department is opening a criminal investigation relating to the selective leak of inaccurate, but nevertheless classified, information from the Intelligence Community relating to Tren de Aragua (TDA). We will not tolerate politically motivated efforts by the Deep State to undercut President Trump’s agenda by leaking false information onto the pages of their allies at the New York Times. The Alien Enemies Proclamation is supported by fact, law, and common sense, which we will establish in court and then expel the TDA terrorists from this country.

While DHS and DOJ and FBI have made less formal announcements about leak investigations, most notably an evolving claim that leaks from the FBI or maybe DHS or who knows whether this is all a lazy excuse had tipped off alleged TdA members of imminent immigration operations, this was notable in its formality (which, admittedly, may stem exclusively from the fact that Blanche not a Xitter addict like Kristi Noem, Pam Bondi, and Kash Patel). The announcement was even more notable given Blanche’s claim that the leak was “inaccurate,” which would seem to undercut any claim it was classified.

This was, formally at least, maybe just the third public announcement that Blanche made as DAG (though he has already made a stink defending his client Donald Trump in court cases), with one of the others inviting people to claim they’ve been victims of DEI discrimination.

It appears, though no one has said explicitly, the investigation is into the leak claiming that the Intelligence Community disagrees with Trump about TdA’s ties to the Venezuelan government.

President Trump’s assertion that a gang is committing crimes in the United States at the direction of Venezuela’s government was critical to his invocation of a wartime law last week to summarily deport people whom officials suspected of belonging to that group.

But American intelligence agencies circulated findings last month that stand starkly at odds with Mr. Trump’s claims, according to officials familiar with the matter. The document, dated Feb. 26, summarized the shared judgment of the nation’s spy agencies that the gang was not controlled by the Venezuelan government.

The disclosure calls into question the credibility of Mr. Trump’s basis for invoking a rarely used wartime law, the Alien Enemies Act of 1798, to transfer a group of Venezuelans to a high-security prison in El Salvador last weekend, with no due process.

The intelligence community assessment concluded that the gang, Tren de Aragua, was not directed by Venezuela’s government or committing crimes in the United States on its orders, according to the officials, speaking on the condition of anonymity to discuss internal deliberations.

Analysts put that conclusion at a “moderate” confidence level, the officials said, because of a limited volume of available reporting about the gang. Most of the intelligence community, including the C.I.A. and the National Security Agency, agreed with that assessment.

Only one agency, the F.B.I., partly dissented. It maintained the gang has a connection to the administration of Venezuela’s authoritarian president, Nicolás Maduro, based on information the other agencies did not find credible.

The story was published on March 20, before the investigation announcement, but only published in the dead tree NYT after it.

If that’s correct, the investigation that Blanche rushed to formally announce implicates his own behavior.

Blanche’s announcement came the same day that he filed an insolent declaration before Judge James Boasberg, adopting the claim made by a regional ICE official in a declaration submitted one day earlier: The government is considering invoking State Secrets to withhold from Boasberg even the most basic details of deportation flights that brought Venezuelans to El Salvador after he ordered them to turn.

2. On March 20, 2025, the Government submitted a declaration from Robert L. Cerna II, which stated: “I understand that Cabinet Secretaries are currently actively considering whether to invoke the state secrets privilege over the other facts requested by the Court’s order. Doing so is a serious matter that requires careful consideration of national security and foreign relations, and it cannot properly be undertaken in just 24 hours.”

3. I attest to the accuracy of those statements based on personal knowledge of the events described by Mr. Cerna, including my direct involvement in ongoing Cabinet-level discussions regarding invocation of the state-secrets privilege.

DOJ wants to withhold those details even though some details of which were leaked to Fox News Deportation Propagandist Bill Melugin right away, other details of which are readily available on flight tracker websites.

Judge Boasberg’s order demanding such a cabinet-level declaration came before Blanche’s leak investigation announcement.

Which is to say NYT was working on this intelligence assessment story even as DOJ was stonewalling Boasberg about why it deported two or three planeloads of Venezuelans after he ordered DOJ not to.

Whether or not Trump’s DOJ invokes State Secrets Tuesday, there’s plenty of information in the public record — including the NYT story — that would undercut, but also explain, such an invocation.

CBS published a list of the Venezuelans who were deported — the kind of leak that elicited heavy pushback when they involved Gitmo under George Bush, and almost certainly had to come from some kind of internal documentation but was not obviously implicated in Blanche’s investigation announcement.

The plaintiffs filed declarations debunking the government’s claims that the men deported or targeted to be were criminals, much less members of TdA. There was plenty of other reporting on missing family members who seem to have been deported based on soccer tattoos.

NYT and WaPo both have stories suggesting the underlying reason this trade happened: Because El Salvador’s authoritarian President Nayib Bukele is anxious to get MS-13 members who could implicate him in terrorism out of US custody. Here’s WaPo’s (later) story:

Some say Bukele is trying to hide his government’s own involvement with the gangs.

More than two dozen high-ranking Salvadoran gang leaders have been charged with terrorism and other crimes in a Justice Department investigation that has lasted years. Several of them are jailed in the United States. One of the indictments details how senior members of Bukele’s government held secret negotiations with gang leaders after his 2019 election. The gang members wanted financial benefits, control of territory and better jail conditions, the court documents say. In exchange, they agreed to tamp down homicides in public areas and to pressure neighborhoods under their control to support Bukele’s party in midterm elections, according to the 2022 indictment.

Bukele’s government went so far as to free a top MS-13 leader, Elmer Canales Rivera, or “Crook,” from a Salvadoran prison, according to the documents — even though the U.S. government had asked for his extradition. (He was later captured in Mexico and sent to the U.S.)

Last weekend, the Trump administration sent back one of the MS-13 leaders named in the indictments, César Humberto López Larios, alias “Greñas,” along with the 238 Venezuelans and nearly two dozen other Salvadorans allegedly tied to gangs.

Some Salvadoran analysts believe Bukele wants the gang leaders back so they won’t testify about his government’s involvement with them — and potentially put him in legal trouble.

“If these returns [of Salvadoran gang members] continue, it takes away the possibility that the U.S. judicial system will open a case against Bukele for negotiations and agreements with terrorist groups,” said Juan Martínez d’Aubuisson, an anthropologist who has studied the gangs.

The possibility that this effort to outsource detention and torture to Bukele is part of a quid pro quo helping a fellow authoritarian to cover up his own criminal ties is not dissimilar from details about Saudi complicity in 9/11 that the Bush Administration spent years invoking State Secrets to cover up.

And then finally, in plain sight, on Friday Trump disclaimed that he personally had signed the Alien Enemies Act declaration, that someone used an autopen for his signature. If true (I certainly don’t rule out Stephen Miller autosigning half the stuff that comes out under Trump’s name), that would undermine the Article II claims the government is making.

In other words, even as the government claims to be contemplating invoking State Secrets (which would require declarations to Boasberg I’m not sure they’re willing to provide), the following details have come out:

  • Names and details of the detainees, debunking the claims of TdA affiliation on which Trump based their deportation, making it clear that Trump rushed these deportations to avoid disclosing that TdA isn’t what he says it is
  • Good reason to question the underlying quid pro quo with Bukele
  • Trump’s claim that the AEA order was not backed by the Article II authority DOJ has spent a week claiming it is.
  • The likely subject of the leak investigation: Claims from spooks that any intelligence to support this AEA effort is based on flimsy intelligence

This is the kind of fact set that has the potential to snowball.

Meanwhile, just two months into this Administration, it’s already investigating leaks about purportedly internal spats. Unrelated to Venezuela, there was the NYT leak disclosing Pete Hegseth was about to brief Elon Musk about DOD’s plans for war with China, in response to which Elon called for leak prosecutions.

The chief Pentagon spokesman, Sean Parnell, initially did not respond to a similar email seeking comment about why Mr. Musk was to receive a briefing on the China war plan. Soon after The Times published this article on Thursday evening, Mr. Parnell gave a short statement: “The Defense Department is excited to welcome Elon Musk to the Pentagon on Friday. He was invited by Secretary Hegseth and is just visiting.”

About an hour later, Mr. Parnell posted a message on his X account: “This is 100% Fake News. Just brazenly & maliciously wrong. Elon Musk is a patriot. We are proud to have him at the Pentagon.”

Defense Secretary Pete Hegseth also commented on X late on Thursday, saying: “This is NOT a meeting about ‘top secret China war plans.’ It’s an informal meeting about innovation, efficiencies & smarter production. Gonna be great!”

Roughly 30 minutes after that social media post, The Wall Street Journal confirmed that Mr. Musk had been scheduled to be briefed on the war planning for China.

In his own post on social media early Friday, Mr. Musk said he looked forward to “the prosecutions of those at the Pentagon who are leaking maliciously false information to NYT.”

The leak served a very important (and presumably, its intended) purpose: NYT subsequently reported that Trump had not known about the briefing.

Mr. Trump made clear he had been caught by surprise by The Times’s report, saying he called his White House chief of staff and Mr. Hegseth to ask about it; he said they said it was “ridiculous.” But he also said that Mr. Musk — who has extensive business in China — should not be made aware of such sensitive information. It was one of the first specific statements from the president about what he would consider a bridge too far for Mr. Musk, who has expansive potential conflicts of interest created by a portfolio as a part-time government staff member and adviser.

Yet CNN reported that DOD would conduct an investigation, using polygraphs, which the article explicitly suggests is a reference to this leak.

We’re used to these people doing suspect things to cover up Trump’s alleged crimes. But it took just days for Todd Blanche to involve himself personally in all this, even while siccing investigators on those who might debunk the legal claims he’s making in court. And the DOD leak suggests these are not just — as Blanche claimed in his investigation announcement — the Deep State undermining Trump.

These are, in part, people trying to prevent Trump from making bigger fuck-ups than he’s already making.

Update: Corrected date State Secrets declaration is due.

Update: I said the Todd Blanche announcement was 8AM, based off the time listed on the press release. But it was not sent out until hours later, after the status hearing.

Timeline

[docket]

March 14: Trump issues but does not publish AEA proclamation

March 15: Proclamation posted

March 15: Boasberg certifies class, issues TRO

March 15: Emergency hearing

March 15, 7:25: Boasberg order

March 17: NYT Bukele story

March 17: Boasberg orders briefing on post-order deportations by March 18 at noon

March 17, 5PM: Boasberg hearing

March 18: First Cerna declaration

March 18: Boasberg orders March 19 declarations on details of deportation

March 19: Boasberg partially grants request for extension

March 20, 12:11PM: Second Cerna declaration

March 20, 3:49PM: Boasberg orders a cabinet level declaration

March 20: WaPo Bukele story

March 20 (around 6PM?): NYT publishes intelligence assessment story

March 20, 8:18 PM: CBS publishes list of deported Venezuelans

March 21, AM, 8AM: Blanche announces the investigation

March 21, 12:18: Blanche submits a declaration

March 21, 2:30PM: Motion hearing

March 21: Trump disclaims signing AEA declaration

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Secret Documents! The Ten Month Privilege Fight Whingers Claim Didn’t Happen

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As always happens when people who don’t bother to check the public record get afraid, folks are complaining about Merrick Garland again, both that they didn’t notice the number of times Garland explained publicly that back in June 2021 DOJ had set up a special Election Task Force to prepare for this moment, and to complain that (they say) Garland hasn’t charged Donald Trump.

I was working on a timeline already when Politico’s two year effort to get the DC District Court to unseal grand jury proceedings bore fruit yesterday. Kyle Cheney has a story describing how the documents he liberated show both Beryl Howell and her successor as Chief Judge, James Boasberg, kept swatting back at Trump’s efforts to delay precisely because of the upcoming election.

More than 18 months ago, as Donald Trump sought to delay several high-profile witness’ testimony to a grand jury investigating his effort to subvert the 2020 election, Washington’s top federal district judge sensed a potential calamity.

“The special counsel’s investigation is moving quickly. There is an imperative that it moves quickly particularly so as not to interfere with the 2024 election cycle,” Chief Judge James Boasberg said on April 3, 2023, according to a newly unsealed transcript of the secret proceeding. “So when the former President’s pleading says that there will be a nominal impact from a delay, I think that is a vast understatement, that there would be a serious and deleterious impact from a delay.”

Boasberg’s warning in the early stages of special counsel Jack Smith’s investigation of the former president now rings prescient. A series of delays engineered by Trump, most notably an eight-month freeze while the Supreme Court considered his claim to be immune from the charges altogether, have caused the criminal proceedings to collide with the 2024 election cycle — and made it impossible for Trump to stand trial on the most serious charges he faces before Election Day.

The documents also confirm dates that, just yesterday, anti-Garland whingers claimed I made up. The fight over executive privilege started with a June 15, 2022 subpoena (probably to Greg Jacob and Marc Short) and continued through the next April, when Jack Smith — having come on after the precedents on executive privilege had already been set — got Mike Pence’s testimony on April 27.

Here’s the timeline mapped by the documents Politico liberated:

June 15, 2022: Subpoena to two officials (possibly Jacob and Short)

September 28, 2022: Order and opinion requiring testimony from two officials (possibly Jacob and Short)

October 6, 2022: Order and opinion denying stay of decision

November 19, 2022: Order and opinion requiring testimony (probably the two Pats, Cipollone and Philbin)

December 18, 2022: Order and opinion denying stay

January 23, 2022: Order and opinion extending appeal

December 9, 2022: Order and opinion requiring testimony (possibly Eric Hershmann, given description of his emails demanding written instructions)

January 10, 2023: Order and opinion denying stay

March 15, 2023: Order and opinion requiring testimony (this is the omnibus order covering eight people — see redacted list on page 2 — including Mark Meadows, Stephen Miller, and Dan Scavino)

March 25, 2023: Opinion requiring testimony, probably involving Mike Pence

April 3, 2023: Transcript of hearing, probably involving Mike Pence

April 10, 2023: Transcript of hearing, probably involving Mike Pence

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An Egyptian Bank Claimed Details of a Suspected $10 Million Payment to Trump Might be in China

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Back on September 19, 2018, then DC Chief Judge Beryl Howell denied a motion brought by an Egyptian bank to quash a subpoena for information on a suspected $10 million payment made to then-candidate Trump in fall 2016. That set off litigation that continued, at the District, Circuit, and Supreme Courts, for at least nine months.

As CNN described in 2020, not long after the investigation got shut down under Bill Barr, investigators had been trying to see whether Egypt (or some entity for which Egypt served as go-between) provided the money that Trump spent on his campaign weeks before the election.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

It took months of legal fight after Judge Howell denied that motion to quash before the Egyptian bank in question complied, and once they got subpoena returns, prosecutors repeatedly complained that the bank was still withholding information, which led prosecutors to reopen the investigation with a new grand jury.

That much we know from documentation unsealed back in 2019 (part one, part two, part three), in response to a Reporters Committee for Freedom of the Press request for unsealing.

On August 17, 2023, while she was still Chief Judge, Beryl Howell ordered the government to post newly unsealed sets of some of the orders she issued during the litigation. On Thursday, Chief Judge Boasberg ordered that newly redacted set of opinions to be released. While Howell released six opinions in June 2019 along with the other materials from the case — with redactions done digitally, thereby hiding the length of redactions — just three new versions of her orders got released last week:

These may be limited to orders incorporated as appendices in prior appeals, which might also explain why the first two appear twice in the newly-released materials.

Much of the newly unsealed material pertains to a fight over how much Alston & Bird, the law firm representing the Egyptian bank, could say about the litigation publicly. Among other things, prosecutors under Robert Mueller objected to their own names appearing publicly, out of a desire to tie this litigation to the narrow scope of Mueller’s investigation into interference in 2016.

One thing made clearer by a redaction in that January 2019 opinion on public comments is that the DC Circuit considered what public comments the two sides could make, in addition to SCOTUS, as part of its denial of cert.

It’s possible that the DC Circuit has weighed in, secretly. Among the details newly unsealed in the original opinion are the names of two of the bank’s other lawyers: Ashraf Shaaban (who appears to be or have been in-house counsel) and Mona Zulficar (who runs a Cairo corporate law firm). Those lawyers were named in conjunction with declarations they submitted arguing some part of the claim that Egyptian Anti-Money Laundering law would prohibit compliance with the subpoena as would unspecified law in a third country, described as Country B. 

Howell described that Alston & Bird are relying on,

conclusory declarations by [redacted] own Country A in-house and retained counsel, which themselves cite no legal authority on this question of [redaction] See Decl. of Ashraf Shaaban,, Mov’s Group Legal Counsel (“Shaaban Decl.”)¶7, ECF No. 3-6; Suppl. Decl. of Mona Zulficar, “Suppl. Zulficar Decl.”)¶ 4, ECF No. 12. The Court gives these declarations little weight. [bold newly unsealed, compare this passage with this one]

So if we can figure out who Shaaban works or worked for to ID the bank.

It’s the unspecific third country, Country B, that is the most interesting new disclosure, however.

The newly unsealed passages do not identify which country, described as Country A and which CNN identified as Egypt, owns this bank. But they do show that the bank or its lawyers wanted to share the subpoena with personnel in Cairo.

The newly unsealed passages do identify which third country’s laws, unspecified laws, might prohibit lawyers from searching for responsive documents in that country: China.

In other words, a bank owned by Egypt said it couldn’t comply with a subpoena seeking information on a suspected payment to Trump during the 2016 election, in part, because China’s laws would prevent that.

Update: Ashraf Shaaban works for the National Bank of Egypt.

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Elon Musk’s Xitter Stalls a Criminal Investigation, Again

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On Friday, DC Chief Judge James Boasberg released a redacted version of a March 29 opinion on another attempt by Xitter to refuse compliance with legal process based on a complaint about a gag order (formally, a non-disclosure order, referred to as an NDO below). Kyle Cheney, who first posted on it and who tends to have a good read on these things, noted that it seems important.

As you recall, Xitter successfully delayed Jack Smith’s access to Trump’s Xitter account for 23 days in January and February of last year (from when then-Chief Judge Beryl Howell approved the warrant on January 17 until when Xitter finally complied on February 9), then spent several more months arguing that it should be able to inform Trump they had provided the information and should not have to pay fines for being in contempt.

This time around, Xitter delayed DOJ’s access to the mere subscriber records — that is, records showing who owns the accounts in question — for two Xitter accounts for over two months (January 25 through March 29 of this year) based on a similar complaint: that before it complied, it should be able to tell the subjects of the criminal investigation about the request.

While (as Cheney noted) there’s no clear tie to Trump, this investigation is focused on public figures of some sort.  We know that because Xitter argued that notifying the targets would not harm the investigation, and then claimed there was nothing publicly known about the targets to suggest informing them would lead to witness intimidation or any of the other bases DOJ provided for delaying notice for a year.

Judge Boasberg debunked Xitter’s claim. There was information in the affidavit, he said, even just “based on what is publicly known about the investigation’s targets,” to show that disclosure might result in witness intimidation. Xitter also complained that the government offered more information to justify its gag after Xitter challenged it, but Boasberg declined to “infer” from that the initial basis was lacking.

And while there’s no reason to believe that those public people have a tie to Trump, Boasberg cited last year’s legal dispute in three places to justify denying Xitter’s demand.

He invoked Yogi Berra (and the government’s filings) to explain why Xitter’s “imagined categorical prohibition on omnibus NDOs” was little different than the arguments it made last year.

On that question, much of X’s argumentation may be characterized by Yogi Berra’s immortal line, “It’s déjà vu all over again.” That is because the company mostly regurgitates the arguments that it made — which both this Court’s predecessor and the D.C. Circuit rejected — just last year in a case involving the same parties. See In re Sealed Case, 77 F. 4th 815, aff’g in the Matter of the Search; see also Redacted Gov’t Mot. at 13 (asserting that X “knows [its arguments] are losing arguments — having just had the D.C. Circuit reject them last year when it challenged a different NDO”); see also id., at 1, 7-8. The NDO at issue in In re Sealed Case accompanied a search warrant directing Twitter to produce information related to former President Trump’s account. See 77 F.4th at 821. Twitter challenged the NDO on much the same grounds as it does here, and the Circuit did not bite.

Boasberg likened Xitter’s glib offer to tell only the subjects of the investigation to Xitter’s similar offer last year to tell only Trump, which the DC Circuit rejected.

The company believes that “[a] less restrictive means of furthering the government’s interests . . . would be to permit X to disclose the Subpoena’s existence to the targeted users, while prohibiting disclosure . . . to anyone else.” Id. at 24. That is akin to asking for the donut minus the hole.

Indeed, the Circuit rejected an analogous alternative in In re Sealed Case. There, the company proposed notifying just Trump–the target of the warrant that the challenged NDO accompanied–of the warrant’s existence. Yet the Circuit considered that alternative a “nonstarter[]” because it “would not have maintained the confidentiality of the criminal investigation and therefore risked jeopardizing it.” In re Sealed Case. 77 F.4th at 831. Nor would it have safeguarded the security and integrity of the investigation, as the whole point of the nondisclosure was to avoid tipping off the former President about the warrant’s existence.” Id. at 832. X’s proposal here falls flat for precisely the same reason: permitting it to disclose the subpoena’s existence [redacted] would neither protect the investigation’s confidentiality nor safeguard its integrity. See Redacted Gov’t Mot. at 12 n.4.

[Paragraph redacted]

Notably, last year Xitter at least relied on a purported interest in preserving Executive Privilege. Here, there’s no such claim; just a specious argument that DOJ should have to get individualized NDOs for every subpoena it submits in this investigation, even if all of them ask for no more than basic social media account information. So this is not some protected class, like a member of Congress or staffer.

Perhaps Boasberg’s most interesting invocation of Xitter’s earlier attempt to tamper in the Trump investigation is where, in almost entirely redacted language, he compares the urgency of this investigation with that of Jack Smith’s investigation into, “activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government.”

He spends three (redacted) paragraphs describing the import of the investigation.

To be sure, the Government’s interest in In re Sealed Case “was particularly strong” because of the goal of the investigation at issue: “[T]o ferret out activity intended to alter the outcome of a valid national election for the leadership of the Executive Branch of the federal government . . . and to assess whether that activity crossed lines into criminal culpability.” In re Sealed Case. 77 F4th at 830. The United States does not purport to target election interference in this case. But it submits that its interest are nevertheless heightened here for another reason: [1.5 lines redacted] The Court wholly agrees based on the evidence outlined in the Government’s ex parte briefing. [3 paragraphs redacted]

Whether or not this has a direct tie to Trump, it’s worth noting that Musk met with Trump (on March 2) during the pendency of this fight; last year, Musk met with Jim Jordan twice during Xitter’s challenge to the Trump warrant.

Whatever that three paragraph description was, Boasberg described the type of investigation using a short word — four or maybe five characters. This could be a FARA investigation or a leak investigation, for example, or perhaps he cited code to describe it.

Update: I guess I should explain why I used Musk’s Council of Nicea tweets as my featured image? In this post (linked above), I noted that on the day Xitter started complying with the Trump warrant, Musk posted this tweet:

So I went to Musk’s tweets from the day after Boasberg’s order and noted that he tweeted obliquely about “trac[ing] to source documents.”

If this is a leak investigation, it could be a reference to an attempt to source a leak.

Timeline

December 11, 2023: Application for omnibus NDO

January 5, 2024: DOJ serves Xitter with subpoena for subscriber information

January 24: Xitter moves to vacate the NDO, review the affidavit, and stay compliance

January 25: Initial deadline for compliance

March 2: Musk meets with Trump in Florida

March 29: Boasberg orders Xitter to comply

April 12: Boasberg released redacted opinion

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The Seth DuCharme Confession in the Charles McGonigal Sentencing Memo

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In his sentencing memo for Charles McGonigal’s DC case, former Bill Barr flunky Seth DuCharme twice misstated the nature of the false statement for which Kevin Clinesmith was sentenced.

In a passage comparing other government officials who had omitted information from government filings, as McGonigal pled he had, DuCharme asserted that Clinesmith was prosecuted for making “false statements,” plural, “in application for” FISA warrant.

United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020) (imposing probation against FBI attorney for false statements in application for a Foreign Intelligence Surveillance Act (“FISA”) warrant); [my emphasis]

Even before that, in arguing that Judge Colleen Kollar-Kotelly should not apply a sentencing enhancement, he turned to Clinesmith. This time, he accused Clinesmith of causing false information to be submitted to FISC.

Mr. McGonigal disagrees with the application of the cross reference in Section 2B1.1(c)(3), which would increase his base offense level to 14, as inconsistent with case precedent. In United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020), the government did not seek and the sentencing court did not independently apply the cross reference to the obstruction Guideline at the sentencing of an FBI attorney who caused false information to be submitted to the U.S. Foreign Intelligence Surveillance Court (“FISC”) in an application for a Foreign Intelligence Surveillance Act (“FISA”) warrant sought in connection with an active FBI investigation. The government’s position that false statements to the FISC during an active investigation does not warrant application of the cross reference while Mr. McGonigal’s conduct does is perplexing. While Mr. McGonigal concedes that this Court in United States v. Hawkins, 185 F. Supp. 3d 114 (D.D.C. 2016) held that it may consider conduct in the statement of the offense, and the court in United States v. Saffarinia, 424 F. Supp. 3d 46 (D.D.C. 2020) held that at the motion to dismiss phase Section 1519 is broad enough to cover false statements on OGE-278 forms, it is difficult to reconcile these cases with the Clinesmith court’s more recent analysis. In Clinesmith, the District Court declined to apply the obstruction cross reference in determining the applicable Guidelines range, and we respectfully request that this Court similarly decline to apply the cross reference to the facts at issue here. [my emphasis]

Kevin Clinesmith altered an email and with it, misled a colleague, thereby preventing the FBI from fully informing the FISA Court on something material to the application. In that, he “caused” information not to be shared with the FISC. He did not make false statements in the application (and in any case, the original decision not to notify the court that Page had years earlier shared information with the CIA about Russian spies, which Clinesmith had no part of, had in significant part to do the the fact that Page had not been an approved contact of the CIA for several years before 2016, when he went out of his way to contact the Russians about his role in a counterintelligence investigation). Nor did Clinesmith cause affirmative false statements to be made.

His was a crime of omission, not commission, as DuCharme claimed. I emailed DuCharme about the basis for these claims but got no response.

More importantly, whether you agree with him or not, Judge James Boasberg explained why he sentenced Clinesmith to probation: because he didn’t think Clinesmith believed he was lying and the former FBI lawyer got no benefit from his false claim.

First, he obtained no real personal benefit from his actions and he had no active intent to harm.

Although the government has contested this, my view of the evidence is that Mr. Clinesmith likely believed that what he said about Dr. Page was true, namely that he was a subsource but not a source of the Other Government Agency. By altering the e-mail, he was saving himself some work and taking an inappropriate shortcut. But I do not believe that he was attempting to achieve an end he knew was wrong.

I’m on the record saying Clinesmith should have gotten some jail time, even in spite of the wildly unsubstantiated claims Durham’s team made about politicization. I think DuCharme is totally right to compare how lenient courts have been with government officials who fail to disclose things, including by invoking the Clinesmith sentence. That’s all sound lawyering.

But his sloppy treatment of Clinesmith — the appointment of John Durham to prosecute for which DuCharme played a central role — comes off as petulant and partisan. Indeed, Barr’s office took personal interest in this prosecution all the way through the time DuCharme swapped back to EDNY, as revealed by a text exchange Barr had with his Chief of Staff, probably complaining that Boasberg remained on this case, after the plea deal.

There are few factual similarities to the two cases, and by focusing so much on him, DuCharme seems to be saying, “if Kevin Clinesmith didn’t have to go to jail based on our conspiracy theories about him, my guy shouldn’t have to either.”

All the more so given another enhancement argument DuCharme made. He argues that a 3-level enhancement should not be applied because McGonigal trumped up a FARA investigation into the rival of the Albanian paying him to travel around Europe, the thing he failed to disclose.

Mr. McGonigal further disagrees with the application of Section 2J1.2(b)(2) resulting in a three-level enhancement for “substantial interference” with the administration of justice. According to the PSR, the enhancement is applied to Mr. McGonigal because he admitted to “speaking with a foreign official about a matter in which Person A had a financial interest, and opening a criminal investigation based on information provided to him by Person A.” PSR ¶ 57. While the enhancement is appropriately applied to the “premature or improper termination of a felony investigation,” we are aware of no authority supporting its application to the opening of a felony investigation, as is the case here. 7 As Special Agent in Charge (“SAC”) of Counterintelligence for the New York Field Office, it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity. Had Mr. McGonigal taken the alternative route and concealed or withheld the information he received from Person A concerning potential criminal activity in the United States, that would be troubling. Instead, he passed the tip and lead to the FBI, to be appropriately vetted by the Bureau and the U.S. Attorney’s Office. Accordingly, the application of Section 2J1.2(b)(2) is unwarranted.

7 U.S.S.G. § 2J1.2 (“Substantial interference with the administration of justice” means “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.”); see e.g., United States v. Baker, 82 F.3d 273 (8th Cir 1996) (applying enhancement to police officer who improperly terminated a felony investigation). [my bold, italics original]

The technical issue — whether this enhancement can be used because someone initiated an improper investigation rather than improperly ending one — will make an interesting appeal if Kollar-Kotelly applies the enhancement and and sentences McGonigal to serve his sentence concurrent to the 50-month sentence Judge Jennifer Rearden gave McGonigal for trying to trump up sanctions against an Oleg Deripaska rival in SDNY, something DOJ is not requesting. But it’s likely that would be unsuccessful: As the government notes in its sentencing memo and even the footnote here makes clear, after the termination language DuCharme focuses on, the guideline continues, “or the unnecessary expenditure of substantial governmental or court resources.” And McGonigal’s opening an investigation against his business partner’s rival used counterintelligence resources that should have been spent on more serious threats.

FBI officials even questioned the propriety of opening up the criminal investigation at the time it was initiated, but cited the defendant’s directive. See Ex. 1 at 1.

[snip]

Here, initiating the investigation based on Person A’s information was particularly egregious given its lack of substantiation, which is why it was promptly closed following the defendant’s retirement.

DOJ provided records showing that one of McGonigal’s colleagues was genuinely troubled about the propriety of opening a FARA case against someone who had already registered under FARA regarding a country, Albania, that isn’t among the countries of priority for such things. By opening an investigation into a lobbyist for an Albanian political party (reportedly former Ted Cruz Chief of Staff Nicholas Muzin), McGonigal was drawing resources away from more pressing threats.

So my question is with all the talk of shortage of resources and most field offices having difficulty covering Band 3 and 4 threats, and FARA cases from banded threat countries rarely prosecuted by DOJ, why is NY requesting a SIM FAR investigation be opened on Albania for an improper FARA registration as a threat to national security?

I of course will fully support anything NY wants to do in their AOR, but once the paperwork to restrict the case gets reported up my chain of command, I would like to be able to explain to them why we are working an Albanian SIM/FARA case when every day I am in there fighting for resources on some national security matters pertaining to banded countries such as [redacted]. I am assuming since this directive is coming from SAC McGonigal there is more to this story?

Per those records, McGonigal appears to have caused a politically connected Republican to have nine of his bank accounts scrutinized before the investigation got closed. The Albanian section of Oversight Democrats’ report on Trump’s acceptance of emoluments provides more background on the political wranglings involved; Albanian Prime Minister Edi Rama and two aides spent almost $3,500 at Trump’s hotel on a trip when they met with McGonigal.

Notably, the investigation against this lobbyist, like Crossfire Hurricane, was opened as a Full investigation from the start.

And after the FBI discovered that McGonigal had opened up an investigation to help his business partner, the FBI has had to review all the other cases he was working on to make sure he hadn’t similarly used criminal investigations for self-interested purposes.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

The misrepresentation of the Clinesmith plea might be reasonable coming from someone else. Like all criminal defendants, McGonigal deserves zealous advocacy.

But this argument came from Seth DuCharme.

It came from someone who opened a four year follow-on investigation in which the only crime ever identified was that Clinesmith alteration — and that crime was discovered by someone else, and could easily have been, and should have been, prosecuted by the very same prosecutors who did prosecute it, only instead reporting to the Trump appointed US Attorney in DC rather than Durham. And among the prosecutions pursued as part of that four year investigation that Seth DuCharme opened was a false statements case against Michael Sussmann based off logic directly contrary to what DuCharme argues here, that McGonigal would have failed to do his duty if he hadn’t opened the investigation into his business partner’s rival. That logic, applied to the Durham investigation, says it would have been remiss not to investigate the Alfa Bank allegations that Sussmann shared with Jim Baker — which is exactly what Sussmann said from the start.

Worse still, that argument DuCharme makes, that, “it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity,” is precisely the argument that Bill Barr made to explain a similar laundering of self-interested information that Seth DuCharme effected: the channeling of information from Rudy Giuliani to the Hunter Biden investigation.

The DOJ has the obligation to have an open door to anybody who wishes to provide us information that they think is relevant.

That is, the dishonest argument that Seth DuCharme is making, trying to dismiss the seriousness of Charles McGonigal’s use of FBI resources to conduct an investigation in which he had an undisclosed personal interest? It’s an argument that might also exonerate his own twin efforts to launch massive investigations into Donald Trump’s political rivals.

In fact, in McGonigal’s Deripaska-related sentencing hearing, DuCharme said something shocking. In that case, he said that McGonigal’s enthusiasm for working with someone whom the former FBI agent himself had identified as a Russian spy was only a problem because he was no longer covered by public authority defense. “[O]ne of the critical mistakes he makes in embracing this is that he no longer has the public authority that he had as an FBI agent.” That is, Seth DuCharme, who did set up a way to use dirt from a known Russian spy for a politicized investigation, argued that’s all cool if you’ve got the legal cover of official employ.

By all means, lawyers for Charles McGonigal should point out that DC judges rarely punish government officials who lie by omission that harshly. But in attempting to do that, Seth DuCharme said as much about his own ethics and actions than he did about his client’s crimes.

 

 

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The MAGA Tourist Geofence and the Violent Confederate Flag-Toting Geofence

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By my rough count, Judge Tanya Chutkan has presided over the cases of more than 25 January 6 defendants, in addition to Donald Trump. Nevertheless, Trump keeps trying to lecture Chutkan about what happened, often by pointing to reports from journalists who have not otherwise covered the investigation closely.

Contrary to their false claims about how much video she has seen, Judge Chutkan knows these details far better than Trump’s attorneys.

For example, Trump keeps pointing to a December 2021 piece from Will Arkin to argue, using very dated numbers regarding the investigation, just one percent of his mobsters qualify as insurrectionists.

The Secret Service and the FBI estimated that at least 120,000 Americans gathered on the Mall for President Trump’s speech. 6 Government agencies estimated that about 1,200 people—at most 1% of the size of the crowd gathered to listen to President Trump—entered the Capitol, and a smaller percentage than that committed violent acts. 7 Thus, we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol. Moreover, as the Indictment recognizes, a crowd had gathered at the Capitol before President Trump finished speaking, further proving he had nothing to do with those events.

6 William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec. 23, 2021), at https://www.newsweek.com/exclusive-classified-documentsreveal-number-january-6-protestors-1661296. The January 6 Committee estimated the crowd on the Mall at 53,000, while President Trump estimated it at 250,000. Compare Final Report, SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL (Dec. 22, 2022), 585, at https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf with Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial, NPR (Feb. 10, 2021), at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-ofimpeachment-trial (emphasis added).

7 Id. (“[T]he facts seem to indicate that as few as one percent of the people who were there fit the label of insurrectionist.”).

There are a slew of problematic assumptions in Arkin’s piece (as well as the follow-up piece that appears to be the actual source cited in footnote 7): about the relationship between militias and others, about the role of non-militia organized groups like QAnon or anti-vaxxers, about the role and increasing percentage of military participants.

The most important misconception is that only people who entered the building, as distinct from the often more violent crowds outside it or Proud Boy seditionists orchestrating things from afar, could be an insurrectionist.

Plus, Arkin’s 2021 numbers were outdated at the time — most outlets put the number of insiders at 2,000 to 2,500 at the one year anniversary and the Sedition Hunters have identified 3,200 specific people who went inside the Capitol (though this includes people, including at least one WaPo journalist, who weren’t rioters).

Given Trump’s reliance on such outdated numbers, however, I wanted to look at a filing in the latest challenge to one of the geofence warrants used in the investigation, this time from Isreal Easterday, a Confederate-flag toting rioter who sprayed two cops before entering the Capitol through the east door.

There have already been two failed challenges to geofence warrants used in the investigation. In August 2022, then-Chief Judge Beryl Howell rejected Matthew Bledsoe’s challenge to a geofence of those who live streamed to Facebook during the riot; he is appealing his conviction, but not that ruling. In January, then-presiding FISA Judge Rudolph Contreras rejected David Rhine’s challenge to the Google geofence tied to voluntary use of Google’s Location History service (there’s no FISA component to this, but FISA judges see more novel Fourth Amendment issues). Rhine does appear to be including that ruling in his appeal, in which his initial brief is due in February.

Like Rhine, Easterday is challenging the Google geofence, but from a Fourth Amendment standpoint, he is different than Rhine in two key ways. First, the investigation into Rhine started from some tips called in as early as January 10, 2021; the FBI didn’t need the Google geofence to find him, though it made it easier to pinpoint video of his path through the Capitol.

With Easterday (probably because two distinctive aspects of his appearance changed that day — he dropped his flag and took off his hat — making it harder to track him), the first really good lead on his identity was the geofence.

The second difference between Rhine and Easterday arises from the technicalities of how the FBI did the geofence.

The FBI did three rounds of geofence with Google. In the first, starting with a January 13, 2021 warrant to Google, they:

  • Obtained the identifiers for all the phones that hit the geofence during the riot
  • Took out the identifiers that were present in the building in the 15 minutes before and after the riot (assuming those were people who were lawfully present in the Capitol)
  • Sorted out hits that were in places (for example, areas where surveillance footage showed no rioters to be present) inconsistent with unlawful activity
  • Eliminated identifiers without at least one hit entirely within the Capitol factoring in margin-of-error radius
  • Added back in identifiers with lower confidence radius that deleted Location History with the week after the attack
  • Asked Google to deanonymize that data

For the second round, they submitted a second request for deanonymization on April 14, based on the logic that those for whom there were only low confidence hits within the Capitol would be high confidence hits for the larger restricted area.

Based on the same logic, on May 21, 2021, the FBI obtained a second geofence warrant to include (per Easterday’s filings) the entire restricted area on January 6.

This time, to cull the data, they:

  • Obtained the identifier for all the phones that hit the geofence during the riot
  • Removed identifiers previously deanonymized
  • Took out the lawfully present identifiers either voluntarily identified by Congressional offices or obtained by law enforcement
  • Removed identifiers present in the 15 minutes before or after the riot
  • Eliminated identifiers without at least one hit entirely within the restricted grounds
  • Asked Google to deanonymize that data

Rhine’s phone identifier was included in the first batch of identifiers the FBI asked to be deanonymized, a group of about 1,500 identifiers; Easterday’s was not. His phone was included in the second batch deanonymized, an additional 2,200 identifiers obtained in the first warrant. His phone was also IDed in the second warrant, but by that point had already been deanonymized.

The details of how the Google geofence worked were described in filings in the Rhine case (see this post and this post), but because Easterday was not identified until the second batch, the second cull gets more attention in Easterday’s filings.

Easterday did enter the Capitol. There are pictures of him wandering hallways and stairs. On October 26, a jury convicted him of trespassing inside the Capitol, 40 USC 5104, along with the more serious assault and riot felonies he committed outside the building.

Easterday was only inside the Capitol itself for 12 minutes — he entered at 2:39 and exited at 2:51; Easterday entered three minutes before Rhine but left 13 minutes before Rhine. But he would have been at the east door — not inside the Capitol, but helping to violently break into it — for at least 22 minutes; the assault on one of the cops was captured in video that starts at 2:17.

There are a number of possible explanations for why Easterday phone would not have had a high confidence hit inside the Capitol geofence but did trigger the broadened geofence. For example, the original hit or hits on Easterday’s phone may have been in a location (such as the east door) where the confidence radius of the location was partially outside the Capitol itself. Some of the relevant hits were surely entirely within that area outside the Capitol but inside the restricted area that day. As the government noted in their response to this challenge, being in that area was also a trespassing crime, 18 USC 1752, even if DOJ charged fewer of the people who were in that area. The jury convicted Easterday of that crime, too.

The government provided a supplement answering specific questions Chief Judge James Boasberg posed after the guilty verdict that provides more possible explanations why Easterday did not trigger the geofence within the building at high confidence. For example, it describes that iPhones capture a lot less activity in Location History than Androids do.

[Location History] is sometimes collected automatically, but is primarily and most frequently collected when a user is doing something with his or her device that specifically involves location information (such as following Google Maps directions or taking photographs or videos that record location as part of their metadata).

Moreover, in the government’s experience examining Google LH returns, the range of activities that generate a LH point is narrower on Apple’s iPhones than Android phones. Apple iPhones apparently collect LH data primarily when the user is specifically using Google Maps.

[snip]

In contrast, Android phones can collect LH data when the user uses a wider array of Google-based applications, or even when the device is not in use at all, such as when it is sitting on a user’s bedside table overnight. Additionally, if an Android phone detects that a user is moving, the Android phone specifically and automatically requests location data from the server about every two minutes, leading to a LH data point being collected by Google. However, if the phone determines that the user is standing relatively still, or remaining within the same Wi-Fi network’s range, Android phones will request location data much less frequently, as the phone is effectively not moving. Similarly, devices will not automatically request location data from the server—or will do so less frequently—when they are low on battery.

Easterday appears to have made a call while inside the building (which would trigger a different kind of location data, but data that DOJ only obtained with individualized warrants), but that’s less likely to be captured in Location History than taking a picture would.

Judge Boasberg’s request for more information — an order he made after the guilty verdict — appears to stem, in significant part, from the fact that FBI’s initial exclusion set of 215 people is obviously a mere fraction of the people who were lawfully in the Capitol that day.

(2) how could the Control List searches for the Initial Google Geofence Warrant have generated hits for only 215 unique devices/accounts when Google applications are so ubiquitous and presumably between 1,500-2,000 people were lawfully present in the Capitol building in the time periods before and after the riot?

It its earlier filings, DOJ used a dated stat that only 30% of Google users actually use the Location History service, a service that takes several steps to turn on. In this filing, DOJ argues that as the proportion of iPhone users increase, the number of people who trigger Location History will be smaller still, unless they’re using Google maps.

Boasberg is suggesting (and DOJ is not contesting) that their initial exclusion effort may only have included about 15% of those lawfully in the Capitol. While there would be some subset of people lawfully present who weren’t excluded in the first batch (people who were not moving in the 15 minutes before and after but who fled or took pictures during the riot, for example), this filing suggests all these numbers are low — very low.

If just one third of the people who entered the building could be expected to trigger the Google geofence, then the number who entered may be well over 4,000 (a reasonable number given the number Sedition Hunters have IDed).

If just a third of the people who were at the Capitol but not necessarily taking pictures inside it triggered the Google geofence, that number might be closer to 7,000 additional bodies, including those assaulting cops. And there could be another 23,000 people outside the Capitol — some no more than MAGA tourists, but others among the most violent people that day.

Using the Arkin numbers that were outdated when he published them in December 2021, Trump claims that, “we can easily conclude that well over 99% of the attendees at President Trump’s speech did not engage in the events at the Capitol.”

That’s not what the geofence shows. Using the same 120,000 number he uses for his own calculations, about one in ten were right at the building and a quarter may have made it to restricted ground, and the numbers could be double that.

One thing is clear though: the violent mobsters literally carrying the banner of insurrection as they attack cops may not be the ones you’ll find taking pictures inside the Capitol. And once you figure that out, the numbers of potential Trump insurrectionists starts to grow.

And Judge Chutkan knows that.

Take, Robert Palmer, whom Trump raised to complain that Chutkan had presided over the prosecution of someone who said he went to the Capitol at Trump’s behest, where he serially assaulted cops because he believed he needed to stop the voter certification. Robert Palmer never entered the Capitol. But it’s quite clear he believes Trump sent him.

Update: Distinguished between the two trespassing crimes to show one can be applied to both locations.

Timeline Easterday Google Geofence Challenge

June 30, 2023: Motion to Compel, Declaration

August 22, 2023: Opposition Motion to Compel

September 26, 2023: Motion to Suppress Geofence

October 10, 2023: Opposition Motion to Suppress

October 17, 2023: Reply Motion to Suppress

October 26, 2023: Guilty Verdict

November 25, 2023: Supplement Opposition Motion to Suppress

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