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How Jeff Bezos Smothered Pete Hegseth News because Hunter Biden Was Pardoned of Already Declined Charges

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When I went to bed last night, the WaPo was feeding me the following stories at the top of its digital front page.

WaPo has since added a story about Biden’s attempt to surge weapons to Ukraine before Trump cuts them off.

There was not and is not any story dedicated to Kash Patel’s promises to target Trump’s enemies at FBI — a story that not only is more urgent than any of the seven Hunter Biden pardon stories, but is fundamentally tied to the how and why of the Hunter Biden pardon.

There was not and is not any story on Jane Mayer’s report about how Pete Hegseth,

was forced to step down by both of the two nonprofit advocacy groups that he ran—Veterans for Freedom and Concerned Veterans for America—in the face of serious allegations of financial mismanagement, sexual impropriety, and personal misconduct.

Even as Hegseth made visits with the Senators whose vote he would need to be confirmed (definitely watch this video), the rag owned by defense contractor Jeff Bezos chose to litter its front page with seven stories and columns about Hunter Biden’s pardon rather than report out that Hegseth has a history of failing to manage the budgets of even just two medium-sized non-profits.

And it’s not just that Bezos’ rag buried far more urgent news about Trump’s nominees.

It’s that (with the exception of this column explaining the risks and difficulty of seizing weapons from addicts) the Hunter Biden stories were not all that useful.

Will Lewis has again chosen to platform Matt Viser’s dick pic sniffing about Joe Biden, this time trying to drive the controversy about the pardon; as far as I’m aware, Viser still has not disclosed to WaPo’s readers that an error in his own reporting caused a false scandal about Hunter’s art sales.

Viser’s 1800-word post includes 22 words that address, with no specifics, Pam Bondi and Kash Patel’s promise to persecute Trump’s enemies: “His picks for attorney general, Pam Bondi, and for FBI director, Kash Patel, have urged retribution against Trump’s political adversaries and critics.” It does, however, float an inaccurate quote also included in this Aaron Blake piece (as well as these Betsy Woodruff and Ken Vogel stories), claiming that Hunter’s pardon is broader than any since Nixon’s pardon.

Former Pardon Attorney Margaret Love hates this pardon and she’s not afraid to mislead reporters to criticize it, as when she told Woodruff that Nixon was the only precedent.

“I have never seen language like this in a pardon document that purports to pardon offenses that have not apparently even been charged, with the exception of the Nixon pardon,” said Margaret Love, who served from 1990 to 1997 as the U.S. pardon attorney, a Justice Department position devoted to assisting the president on clemency issues.

“Even the broadest Trump pardons were specific as to what was being pardoned,” Love added.

Love’s claim conflicts with what she herself laid out to Politico, the very same outlet, when Mike Flynn was pardoned four years ago.

“Pardons are typically directed at specific convictions or at a minimum at specific charges,” said Margaret Love, former pardon attorney for Presidents George H.W. Bush and Bill Clinton, who now leads the Collateral Consequences Resource Center. “I can think of only one other pardon as broad as this one, extending as it does to conduct that has not yet been charged, and that is the one that President Ford granted to Richard Nixon.”

“In fact, you might say that this pardon is even broader than the Nixon pardon, which was strictly cabined by his time as president,“ Love said. “In contrast, the pardon granted to Flynn appears to extend to conduct that took place prior to Trump‘s election to the presidency, and to bear no relationship to his service to the president, before or after the election.“ [my emphasis]

And I believe even then, Love misstated the intended scope of Flynn’s pardon.

Like Hunter’s pardon, Flynn’s pardon excused the crimes included in his charging documents (false statements, including false statements about being an unregistered agent of Turkey). While Hunter’s pardon specifically invoked the conduct in his Delaware and Los Angeles dockets, Flynn’s pardon excused conduct reviewed in two jurisdictions, DC and EDVA. Like Hunter’s pardon, which would cover the false statements referral from Congress, Flynn’s pardon would have covered the contradictory sworn statements he made as he tried to renege on his plea deal. But Flynn’s pardon also covered,

any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel,

This pardon attempted to excuse any crime based on a fact that once lived in Robert Mueller’s brain or case files.

As I laid out here, that certainly would have covered referrals from Mueller elsewhere (including to DOD), it might have attempted to pardon crimes in process, if (for example) Flynn’s relationship with Russia developed into something more in the future. Flynn’s pardon, unlike Hunter’s didn’t have an end date, and as a result, if Congress wants to continue to harass Hunter about stuff he just accepted a pardon for, he’ll have less protection than Trump intended Flynn to have.

And while Republicans might argue that Hunter’s allegedly false claim to Congress — regarding how he cut Tony Bobulinski out of a deal with CEFC to protect his family’s name — served to protect his father, even the most feverish Republican fantasies would amount to three Biden men profiting from a Chinese company after Biden left the Obama Administration and before he decided to run again. Flynn’s conflicting claims about whether “The Boss is aware” of his conversations with Sergey Kislyak, including regarding undermining sanctions, served to protect Trump’s actions as incoming President. (Another thing WaPo decided was less important than seven pieces about Hunter’s pardon was that Chinese national Justin Sun, who has been charged with fraud by the SEC, just sent Donald Trump $18 million.) That is, you can measure the pardon in terms of familial closeness to the President granting it (none of these stories mention Charles Kushner, much less his nomination to be Ambassador to France); you can also measure the pardon in terms of the silence or lies about the guy giving the pardon it buys. And any one of about ten pardons from Trump, including the Flynn one, were far more corrupt by that measure.

But here’s the other reason why Blake’s piece, one of the seven pieces littering the front page instead of stories about Kash Patel or Hegseth’s unfitness, is not useful. Here’s how Blake introduces the scope of Hunter’s pardon.

Biden didn’t just pardon his son for his convictions on tax and gun charges, but for any “offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014, through December 1, 2024.”

That’s a nearly 11-year period during which any federal crime Hunter Biden might have committed — and there are none we are aware of beyond what has already been adjudicated — can’t be prosecuted. It notably covers when he was appointed to the board of the Ukrainian energy company Burisma in 2014 all the way through Sunday, well after the crimes for which he was prosecuted.

Hunter Biden hasn’t been charged for his activities with regard to Burisma or anything beyond his convictions, and nothing in the public record suggests criminal charges could be around the bend. Congressional Republicans have probed the Burisma matter and Hunter Biden extensively and could seemingly have uncovered chargeable crimes if they existed, but haven’t done so.

Blake glosses over a great deal with his reference to things that have “already been adjudicated,” and in doing so, ignores the problem. Yes, both prosecutors and Republicans in Congress looked long and hard for something to hang a Burisma charge onto; yes, none of them found it. But — here’s the important bit — they still want to pursue one anyway.

The investigation into Hunter Biden started six years ago, based off a Suspicious Activity Report tied to a payment to a sex worker. Investigators tried to turn that into a criminal investigation based on the same Burisma focus that Rudy Giuliani was chasing; in fact, investigators first got data from Apple on the day Trump released the Perfect Phone Call, a transcript that may or may not have expunged a specific reference to Burisma. According to Joseph Ziegler, his supervisor at the time documented the problem of chasing a tax investigation that tracked Trump’s public demands for dirt on the Bidens related to Burisma.

You can actually trace how investigators cycled through one or another potential FARA violation — Burisma, Romania, CEFC — each time, with even the disgruntled IRS agents conceding they couldn’t substantiate those FARA cases (not least because Hunter was pretty diligent about not doing influence peddling himself, at bringing in others to do any of that kind of lobbying). Tips from Gal Luft — awaiting extradition on foreign agent charges — and Alexander Smirnov — awaiting trial on false statements — were key elements of that investigation.

But we know that in the precise period when someone was leaking to try to pressure prosecutors to bring certain charges, David Weiss had decided not to charge 2014 and 2015. Here’s how Gary Shapley wrote up the October 7, 2022 meeting that set him off.

In 2022, David Weiss told Shapley he would not charge 2014 and 2015, which is one thing that led Shapley to start reaching out to Congress to complain.

Prosecutors included more detail in Hunter’s tax indictment.

a. The Defendant timely filed, after requesting an extension, his 2014 individual income tax return on IRS Form 1040 on October 9, 2015. The Defendant reported owing $239,076 in taxes, and having already paid $246,996 to the IRS, the Defendant claimed he was entitled to a refund of $7,920. The Defendant did not report his income from Burisma on his 2014 Form 1040. All the money the Defendant received from Burisma in 2014 went to a company, hereafter “ABC”, and was deposited into its bank account. ABC and its bank account were owned and controlled by a business partner of the Defendant’s, Business Associate 5. Business Associate 5 was also a member of Burisma’s Board of Directors. The Defendant received transfers of funds from the ABC bank account and funds from the ABC bank account were used to make investments on the Defendant’s behalf. Because he owned ABC, Business Associate 5 paid taxes on income that he and the Defendant received from Burisma. Starting in November 2015, the Defendant directed his Burisma Board fees to an Owasco, PC bank account that he controlled.

One reason Hunter wasn’t charged for 2014 and 2015 is because Devon Archer was paying taxes in that period.

But the point is (as reflected in Blake’s note this was all adjudicated), a prosecutor made that decision. And Republicans in Congress and, specifically, Kash Patel, squealed about the injustice of not charging Hunter because the evidence didn’t merit charges.

This decision and the backlash with those dissatisfied by it dictates the lengthy period of Hunter’s pardon. Not just because they want to charge Burisma whether or not there’s evidence of a crime. But because the five year statute of limitations for FARA and the six year SOL on tax crimes, to charge anything related to Burisma, they’d have to apply crimes — like Espionage or certain kinds of Wire Fraud — that have ten year statutes of limitation.

Kash Patel and Republicans in Congress have already said they want to charge Hunter Biden regardless of whether there’s evidence to do so. When David Weiss first offered a plea deal, Trump posted that Hunter should instead have gotten a death sentence.

These people have made it clear they want to prosecute Hunter regardless of what the evidence supports. They have said that over and over. That’s what dictates the pardon, not any corruption by Biden. And to flip that on its head — to flip Trump and Kash Patel’s demand for prosecutions regardless of evidence — on its head is to cooperate in Trump’s assault on rule of law.

This is a point reflected by experts quoted in Vogel’s piece (and expanded by Kim Wehle in her own post).

Mr. Morison, who worked for years in the Office of the Pardon Attorney before going into private practice, added that the Bidens may have seen risk in crafting the pardon grant more narrowly.

“I assume that Hunter’s lawyers were worried that an especially vindictive Trump DOJ would have looked for something to charge him with if they were too specific, so they asked for a blanket pardon, subject only to a fairly broad date range,” he wrote in an email.

Kimberly Wehle, a law professor at the University of Baltimore, predicted that if Mr. Trump’s Justice Department were to charge Hunter Biden, he would raise the pardon in a motion to dismiss the case.

Ms. Wehle, the author of a recent book detailing how the lack of constraints on presidential clemency powers invite abuse, said in an email that it was Mr. Trump — not President Biden — who initiated “the norm-violating behavior” by pledging to use the Justice Department to prosecute his enemies.

“This is not a corrupt pardon,” she said in an email. “It’s about taking care of a family member knowing what Trump will do otherwise.”

The reason you have to pardon broadly is because Trump has demanded an outcome divorced from evidence. And to get to his desired outcome, he would have to do something expansive, something that could not be foreseen by the scope of the existing investigation that (as Blake notes) has already been adjudicated.

You can tell this story about how broad the pardon is — structured very similarly to the Mike Flynn one.

But if you leave out the story of how this investigation from the start paralleled Trump’s extra-legal effort to gin up dirt on Joe Biden’s son, if you leave out the fact that even in his first term, Trump’s DOJ solicited information from at least one Russian spy and a Chinese agent to pursue dirt on Hunter Biden, then you are flipping the matter of justice on its head. That’s what Trump did already, in his desperation to find something to hang on Hunter Biden. And particularly given his picks of Bondi and Patel (the latter of whom played a role in extorting a foreign country for such dirt, too), there’s no telling what Trump will do in a second term.

That’s what dictates the terms of this pardon. A prosecutor issued a declination for charges related to 2014 and 2015, and almost the entire Republican party said, we’re going to find something anyway. And if you hide that detail, you’re burying the most crucial information, just like you’re burying detrimental information about Hegseth and Patel below a seventh post on Hunter Biden.

This is what a captive oligarch press looks like: Burying detrimental information on the guy who might oversee Jeff Bezos’ defense contracts, while hiding the reasons why the Hunter Biden pardon looks like it does.

America Just Failed the Test of Responding to Trump’s Politicized Prosecutions

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Let’s imagine that, two years from now, Pam Bondi rolls out charges against some onetime adversary of Donald Trump. To the extent that journalists will still be employed and reading court filings, to the extent that prosecutors under Emil Bove (who at SDNY oversaw a team sanctioned for discovery violations) comply with discovery requirements, the adversary in question learns the following about his prosecution:

  • The case started when an investigator started looking into a transnational trafficking network
  • The investigator discovered that the prominent adversary had paid one of the sex workers trafficked in the network
  • Rather than pursuing the traffickers, the investigator used the payment for sex as cause to open an investigation
  • Of course, no one is going to charge a John … so the investigator starts pulling divorce records and four year old tax returns to try to move from that payment for sex work to something that can be charged
  • Then the investigator started incorporating oppo research from Peter Schweizer into his investigation
  • Kash Patel’s FBI set up protected ways to accept tips from Trump supporters who’ve doctored documents to create a crime
  • Trump called up Bondi and told her to take more aggressive steps
  • Trump called up foreign leaders asking for help on this prosecution
  • Bondi then set up a way to launder that information from foreign sources, including known spies, into the investigation of the adversary
  • Patel’s FBI asked a partisan informant to fabricate claims against the adversary
  • Trump publicly called out prosecutors — resulting in them and their children being followed — because they had not yet charged his adversary
  • Ultimately, the adversary got charged on 5-year old dirt, and only then, after charging, did prosecutors quickly do the investigative work to win the case at trial

Now, as I’ve described it, you surely imagine you’d say, wow, that looks like a thoroughly corrupt prosecution, a clear case of Trump using DOJ to punish his adversaries.

Right?

It’s not so much that investigators didn’t, after the fact, find a crime to charge. They did. If you investigate most high profile people long enough, you’ll find something to charge, particularly if multiple people come to DOJ with doctored evidence to help create that crime.

It’s that someone found the name of an adversary in the digital records of crimes that were more important to investigate, and instead of pursuing that crime, used the electronic record as an excuse to keep looking until they found some evidence of a crime against Trump’s adversary.

Everyone would recognize that’s what happened, right?

Of course not. Of course no one would recognize that that was a political prosecution.

We need no further proof than the fact that none of those very same details showed up in any of the coverage of the Hunter Biden investigation. Not now that he has been pardoned. Not when all these details came out last year. Not in any of the retrospectives of the times Trump demanded investigations on his adversaries.

What will happen instead is that a bunch of self-important DC scribes will chase the most salacious allegations, provide endless headlines about sex workers and wild parties. The DC scribes will ignore every detail about the legal investigation — every one!! — and instead use the prosecution as an opportunity to sell political scandal. And also, they will point to their Tiger Beat coverage as proof, they say, they are not politically biased.

Rather than diligently rooting out the obviously politicized prosecution, the press will be complicit in it.

And rather than deciding that the adversary was the target of an obviously politicized prosecution, American public opinion would instead decide that the adversary was icky, and because he is icky, his statements about Trump cannot be credited.

That is what political prosecutions look like. That is, of course, precisely what the Hunter Biden prosecution was (ignoring the assurances from prosecutors who say no one with the fact set Hunter faced would be charged). Every single bullet has an analogue in the Hunter Biden case. That obviously political prosecution is what happened.

Once the GOP got the House majority, they did nothing else but platform these claims, which a different set of self-important scribes treated as an interesting process story, not an obvious case of a great abuse of government power.

And now that Biden has pardoned his son, the very same self important scribes who ignored all the signs this was a political prosecution, are giving non-stop coverage to a pardon that — unlike those of Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker — are not about self-protection, most with no mention of all the evidence Trump ordered up this prosecution to target Joe Biden.

The question is, what are we going to do about this, now that we have rock solid proof the press establishment is not only incapable, but wildly uninterested, in rooting out this kind of politicized prosecution — at least not when they can instead sell scandal?

In the face of seeing Pam Bondi and Kash Patel preparing to redouble efforts to find politicized prosecutions against Donald Trump’s adversaries, Joe Biden chose to end the process, with his son, at least.

I’m actually on the record opposing the pardon — but not for the reasons everyone else is. I don’t think pardoning Hunter in this circumstance is corrupt. I take Biden at his word that he changed his mind about pardoning Hunter. I’m far more interested in Trump admitting he was lying about his plans to implement Project 2025 than that Biden reneged on assurances no one much believed anyway.

I oppose the pardon because it eliminates Hunter’s standing to appeal and with those appeals to begin telling the story that the media chose to ignore. I oppose the pardon because if we don’t start laying out how Trump already politicized DOJ while there’s a good base of legitimate judges in place, it’ll be far too late.

And don’t get me wrong. I think Biden fucked this one up. Not just for saying he wouldn’t pardon Hunter, but for not taking action far earlier — like firing David Weiss the day he was inaugurated, citing Trump’s first impeachment, or pardoning Hunter and firing Weiss on November 6 — to do something about this. I think Merrick Garland shouldn’t have given Weiss himself SCO status (not least, because Weiss continues to investigate crimes — the alleged attempted framing of Joe Biden by Alexander Smirnov — to which he is a witness). I think Garland’s supervision of Special Counsels allowed the abuse of the system, repeatedly.

I’ve never, as far as I’m aware, spoken with Hunter Biden. I have, however, spoken to a good number of the people who were and who would be politically prosecuted in Trump’s second term (not including myself, of course). And the thing I’ve learned from them is because the press is complicit in their politicized prosecution, it guarantees they’ll be isolated, regardless of guilt or innocence. Because the press has unquenchable thirst for lazy dick pic sniffing, they don’t do the work of reading the court filings. Because the press thirsts for a false appearance of both sides neutrality, they’re always on the hunt for something to fit into their both sides scandal box.

And meanwhile, those very same self-important scribes were largely silent in 2020 when Trump pardoned his way out of Russian trouble, and even more silent in 2024 when they could have explained to voters that he had done so.

Whatever else you think about the Hunter Biden case and the way Joe Biden pardoned him, it is crystal clear proof that the thing defenders of democracy swear they’ll do in a second Trump term — rise to the defense of those targeted for political prosecution — they already failed to do. Whatever you think about the Hunter Biden case, the vast majority of people talking about it have absolutely no clue that it is precisely what people fear in Trump’s second term, not (just) because Hunter was charged in two indictments when others would not be, but because Trump and his people repeatedly ordered up this prosecution.

Update: Peter Baker, who wrote an otherwise thorough piece during the election about Trump’s corruption which ignored Hunter, claims to be unable to tell whether Biden’s claim that Hunter’s prosecution was politicized is true or not.

Update: Here’s a copy of a white paper Hunter’s attorneys released to describe the politicization of the case. It adds the Parnas and Scott Brady allegations to the stuff in the selective prosecution motions.

How Trump Rolled Out this Kash Patel Pick Is Part of Spinning False Claims about Rule of Law

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I was busy serving Thanksgiving Dinner and watching Irish election returns yesterday when Trump announced Kash Patel as his pick to be FBI Director. I’ve long been assuming that, wherever Patel ended up, he would have access to any files at FBI (look to John Solomon and Catherine Herridge to have a lot of inside tracks on propaganda). So the question was just a matter of how Trump gave Patel access to politicize FBI. By picking Patel as the Director rather than Deputy Director (only the former of which requires confirmation), Trump did so in the maximally confrontational way.

Here are four thoughts on how that confrontation plays out.

First, by picking Kash and including false claims about the Deep State in his announcement, Trump forces journalists to address his false claims. Here’s how Devlin Barrett and Maggie Haberman chose to replicate Trump’s false claims with no correction, for example.

Mr. Patel has been closely aligned with Mr. Trump’s belief that much of the nation’s law enforcement and national security establishment needs to be purged of bias and held accountable for what they see as unjustified investigations and prosecutions of Mr. Trump and his allies.

Mr. Patel “played a pivotal role in uncovering the Russia, Russia, Russia Hoax, standing as an advocate for truth, accountability and the Constitution,” Mr. Trump said in announcing his choice in a social media post.

He called Mr. Patel “a brilliant lawyer, investigator and ‘America First’ fighter who has spent his career exposing corruption, defending Justice, and protecting the American people.”

Mr. Patel, a favorite of Mr. Trump’s political base, has worked as a federal prosecutor and a public defender, but has little of the law enforcement and management experience typical of F.B.I. directors.

It is provably false that the investigations into Trump were partisan. There were three investigations of Hillary during the 2016 election (the server investigation, the Clinton Foundation investigation predicated off of right wing oppo research, and a third that was probably the Emirates’ effort to cozy up to her campaign). Joe Biden was investigated for retaining classified documents, just like Trump was. Thousands of other people were investigated for January 6.

Your choice to describe Trump’s false claim (and describing it as a belief, which you cannot know) without correction is simply participation in propaganda. (Politico at least called out Patel for “perpetuating conspiracy theories about the 2020 election.”)

And what Trump calls a hoax resulted in judgments that Trump’s Coffee Boy, National Security Adviser, campaign manager, personal lawyer, and rat-fucker all lied to cover up what really happened with Russia in the 2016 election. Journalists could choose to state that every time Trump calls it a hoax. NYT has almost never chosen to do that, which is how Trump’s propaganda works so well.

But longtime FBI journalists like Barrett will offer some other reason why Patel is a terrible pick — here, insinuating he doesn’t have the experience to do the job. I don’t know: After babysitting Ric Grenell at ODNI, Kash babysat Christopher Miller at DOD. That’s high level — if brief — experience.

Others — like CNN — look to the 10-year term set by statute to suggest Patel’s appointment is problematic.

FBI directors serve 10-year terms in part to shield the bureau’s leader from political pressure. FBI directors serve decadelong terms as the result of a post-Watergate law passed in response to J. Edgar Hoover’s controversial 48-year leadership of the agency.

The breaking of this norm is not new for Trump, who fired Comey shortly after taking office in 2017. Comey, who helmed the FBI during the investigation into Russian interference in the 2016 presidential election as well as the Hillary Clinton email controversy, was fired by Trump in May 2017 after serving in the position for over three years.

It’s true there’s a 10-year term. But I looked: Only William Webster served 10 and only 10 years. Robert Mueller was kept overtime, in part because he had authorized surveillance programs that were under fire. Louis Freeh resigned in the midst of scandals, leaving the seat open in advance of 9/11. Comey, of course, was fired because he wouldn’t kill the investigation into Mike Flynn before Mike Flynn confessed to lying to cover up his calls with Russia’s ambassador.

I raise that point because the question of whether Kash’s politicization of the Bureau would be so detrimental that it would lead to threats against the US going undisturbed should be the key issue in this confirmation fight. Undoubtedly, corruption (including in the form of Jared’s father being appointed to be Ambassador to France, which Trump also announced yesterday) will start to erode US remaining integrity, up and down government and the economy. It’s certainly possible that counterintelligence and hacking threats will go ignored; already in the first Trump Administration, people with expertise on Russia were driven out, and that would presumably continue. Mis- and disinformation would be protected.

Are those who oppose a Kash appointment able to explain those risks, which is what has really driven Director’s terms?

The Kash appointment heightens my interest in what DOJ Inspector General Michael Horowitz will do going forward. Trump has threatened to fire the Inspectors General and Horowitz is the most prominent — but Chuck Grassley has pushed back. That said, Horowitz has survived where he is by catering to Republican demands. So I’m wondering not just whether Horowitz could survive in the job, which would serve as a strong check on Patel. But also whether we’ll get two reports that will expose Trump’s past politicization in ways important to a potential Patel pick.

The report on January 6, for example, will lay out how Jeffrey Clark tried to take over DOJ to make it into an object of Trump’s reelection. It will also describe how FBI’s treatment of right wing extremists as informants undermined DOJ’s ability to anticipate January 6. Horowitz has committed to try to release this report by inauguration, but if he does, it could precipitate his firing.

There’s also a report on the investigation of journalists and Members of Congress to find sources for anti-Trump coverage in the first Trump term. This is precisely the kind of politicized investigation that Kash has promised (he has specifically promised to go after people who accurately report on things like the Hunter Biden laptop). The report is badly overdue, but it also threatens to trigger a backlash.

Finally, consider two aspects of the timing of this pick. First, by announcing it now, Trump has made Chris Wray a lame duck. Anyone investigating something that might implicate Trump — such as those investigating Polymarket CEO Shane Coplan — will know that they will have no top cover in a matter of weeks. That was already true, mind you: Pam Bondi would see to that. Plus, it was already clear that Trump was going to replace Wray. Still, this could have a chilling effect on ongoing investigations — or it could create very interesting martyrs at the beginning of Trump’s term.

Then there’s another aspect to the timing. Trump announced this pick — as he did the decision implanting all his defense attorneys at DOJ — while Jack Smith’s prosecutors are working on their report. And Kash should show up in that report, at least to lay out his false public claims that Trump had declassified all the documents he took with him (and possibly even his demand that he got immunity before giving that testimony). I’m not sure how central that will be to a report. But Trump had a choice about how confrontational to be with how he installed Kash in a place to dismantle the so-called Deep State, and his choice to be maximally confrontational may have a tie to this report.

People are currently thinking of all the other ways Kash has helped serve Trump’s false claims in the past — the false claim that the Russian investigation was predicated on the Steele dossier, efforts to override Ukraine experts during that impeachment, attempts to misrepresent the Russian investigation. But the Smith report may well explain that Trump’s FBI Director nominee played a more central role in Trump’s effort to spin Trump’s efforts to take hundreds of classified documents home. So when Kash gets a confirmation hearing, it will put the veracity of the Smith report centrally at issue. If Senators find the report convincing, they should have renewed cause to reject Patel’s nomination, but Trump has almost without exception forced GOP Senators to believe his false claims to avoid scary confrontations with him, so I wouldn’t bet against Trump and Kash.

Trump has spent eight years sowing propaganda about his own corruption and crimes. Not just Patel’s nomination to a position in which he could thoroughly politicize rule of law, but also the means by which Trump made that nomination, is part of that same project.

We have a brief two months to try to reverse eight years of propaganda, propaganda often assisted by journalists playing data mule for Trump’s Truth Social propaganda or exhibiting laziness about correcting his false claims. If Trump succeeds, it will grow far more difficult to sort out truth from crime anymore.

That was always going to be true. But the means by which Trump is conducting his effort is all part of the propaganda campaign.

Update: Roger Parloff linked the 302 interview with someone who is likely Eric Herschmann describing someone who is almost certainly Kash Patel lying about having a standing declassification order.

Also, LOLGOP re-released our Ball of Thread episode that focuses closely on Patel’s propaganda about Crossfire Hurricane.

Kash Patel’s Deep State: How Trump Trained the GOP to Hate Rule of Law 2

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I realized after I wrote my first post on how Trump trained Republicans to hate rule of law that I didn’t lay out what I meant by that. After all, that first post showed that for decades before Trump ran for President, Republicans were already willing to gin up criminal investigations against people named Clinton for political gain.

If that’s the baseline, what did Trump change? And to what degree was that change driven by Russian interference, which I argued did little more than drop a match on an already raging bonfire in 2016?

So I want to show the trajectory, using this Politico piece about the concerns a bunch of spooks have about Trump’s plans to remake the Deep State in his image. The story is not all that new — there have been a bunch of stories that included Trump’s goal to remake the Deep State in his image, both during his Administration and in more recent descriptions of Trump’s plans for a second term. But it does certain things that make it helpful to explain what I mean.

The spooks described three concerns with Trump in a second term. He would:

  • Selectively ignore intelligence on certain issues [cough, Russia], blinding the Intelligence Community and weakening our collective alliances
  • Leak [more of] America’s secrets
  • Staff the agencies with loyalists

POLITICO talked to 18 former officials and analysts who worked in the Trump administration, including political appointees from both parties and career intelligence officers, some who still speak to the former president and his aides and had insight into conversations about his potential second term. A number of them were granted anonymity to avoid provoking backlash and to speak freely about their experience working with him. Others are now vocal Trump critics and spoke publicly.

“He wants to weaponize the intelligence community. And the fact is you need to look with a 360 degree perspective. He can’t just cherry pick what he wants to hear when there are so many U.S. adversaries and countries that don’t wish the U.S. well,” said Fiona Hill, a top Russia adviser on the National Security Council in Trump’s administration who has regularly criticized his policies. “If he guts the intel on one thing, he’ll be partially blinding us.”

Many of the former officials said they opted to speak to POLITICO because they believe the extent to which Trump could remake the intelligence community remains — despite the copious media coverage — underestimated.

Trump’s demands for “loyalty” — often read as a demand to skew findings to fit his political agenda — have not been limited to his spy agencies, but in the intelligence world, those demands carry particularly dire risks, they said.

If Trump is cavalier with his treatment of classified information or material — as alleged in a June 2023 indictment of the former president — it could endanger those who supply much-needed intelligence, said Dan Coats, who served as director of national intelligence early in Trump’s tenure.

Kash Patel gets special mention as someone who would both burn intelligence and spin fantasies by Politico.

Kash Patel, former top adviser to Devin Nunes, a former representative from California, and director of counterterrorism at the National Security Council, served as an informal adviser to Grenell but was also considered for a top post at the CIA. He later became chief of staff to the acting secretary of defense in Trump’s final months. Patel also helped advise on an initiative to declassify material related to the origins of the Russia investigation.

Patel is likely to return to serve under Trump if he is elected, raising worries among current and former intelligence officials about the preservation of sources and methods of U.S. intelligence.

“There were often a lot of appointments that seemed designed to make sure that the intelligence assessments could be shaped to paint certain pictures that simply didn’t match up with what the intelligence community had come up with,” said one former Trump administration intelligence official.

The guy who rose to prominence by turning an investigation into a Russian attack on democracy into a counterattack on the FBI, the guy who spends his time writing children’s books in which he, Kash, protects his liege from imaginary threats from the Deep State, is presumed to be the future steward of Trump’s efforts to politicize the intelligence community.

You could argue that the replacement of civil servants with Trump partisans in the IC is little different than what Trump plans everywhere else in government, if he’s elected. That’s true with regards to the means — gutting civil service protections and replacing them with loyalty oaths to a person rather than the Constitution. But not the effect.

One reason Trump floated putting Kash in charge of the FBI, after all, was because efforts to punish Trump’s enemies weren’t producing the results he desired. The Durham investigation didn’t exact revenge on FBI figures like Jim Comey, Andrew McCabe, and Peter Strzok; when it finished, Kash complained that it “failed” precisely because people who tried to protect the country from Russia weren’t prosecuted for doing so. Five years of investigating the Clinton Foundation failed to find a chargeable crime. After he left government, a Kash Patel charity started funding right wing FBI agents accused of the same thing McCabe and Comey were — improper disclosures — but did so to discredit investigations into the right wing.

An IC led by Kash Patel would not just be a politicized intelligence community, intentionally blinded to the threat from countries like Russia, and by degrading intelligence on certain adversaries corroding the alliances built on that shared intelligence.

But it would be an instrument for exacting loyalty.

That instrument can and would be targeted at disloyal Trump party members. Look at efforts by the GOP House to investigate Cassidy Hutchinson, for example.

It’s not just Jack Smith or Nancy Pelosi’s spouses who get targeted with threats for challenging Trump, but also Don Bacon’s.

This, then, is the trajectory along which Trump has coaxed Republicans. At first, a goodly many Republicans defended the integrity of the Mueller investigation, until they didn’t anymore. With the first impeachment, virtually all Republicans excused Trump’s defiance of their own appropriations choices. With the second, reportedly fearful Republicans made excuses for an attack that threatened their own lives rather than fulfill their constitutional duty to check Trump. Since then, Trump has used his legal woes not only as an electoral plank, but also as leverage to demand that the party continue to pay his bills, diverting funds that otherwise might help to reelect down-ticket candidates.

What used to be the Grand Old Party has become, literally, a criminal protection racket serving one man.

The fate of the party depends on that man defying the law.

In a post examining why Elise Stefanik might have parroted Trump’s assertion that January 6 felons were, instead, hostages, I laid out a taxonomy of potential motives that would convince Republicans to follow Trump down this path. Aside from ideological true believers, I think Republicans are motivated because they’ve fallen for Trump’s grift, they’re afraid, or they calculate they can stay on Trump’s good side long enough to advance their career.

One way or another, a series of individual choices brought Trump’s party to this point.

Moments ago, Mitch McConnell endorsed a man who launched a terrorist attack targeting, among others, McConnell himself.

A series of individual choices have brought the party that used to be Mitch McConnell’s to this point.

Update Mike “Moses” Johnson is bragging about defunding the FBI and DOJ.

Alex Cannon and the Missing Russian Binder

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CNN reports that the classified version of the Russian binder Trump tried, but failed, to release before leaving office has not been found.

A binder containing highly classified information related to Russian election interference went missing at the end of Donald Trump’s presidency, raising alarms among intelligence officials that some of the most closely guarded national security secrets from the US and its allies could be exposed, sources familiar with the matter told CNN.

Its disappearance, which has not been previously reported, was so concerning that intelligence officials briefed Senate Intelligence Committee leaders last year about the missing materials and the government’s efforts to retrieve them, the sources said.

In the two-plus years since Trump left office, the missing intelligence does not appear to have been found. [my emphasis]

I would contest that the disappearance of the binder is entirely new. It is consistent with Cassidy Hutchinson’s testimony, on which this story explicitly relies.

What is new in this story is that “last year” (so, 2022) Intelligence Community leaders briefed SSCI; the story is silent about whether the spooks briefed HPSCI, whence much of the materials came.

What is also new is that, according to a single US official, which is a moniker often used to describe members of Congress or their staffers, the binder was not among the things found at Mar-a-Lago last year.

The binder was not among the classified items found in last year’s search of Trump’s Mar-a-Lago resort, according to a US official familiar with the matter, who said the FBI was not looking specifically for intelligence related to Russia when it obtained a search warrant for the former president’s residence last year.

The Intelligence Committees got briefed on what was seized from MAL. It’s not entirely clear that they got briefed on what was returned in the first and second tranches.

That’s important because Alex Cannon — who was the key lawyer involved in the first set of boxes returned to NARA in 2022 — asked NARA for a copy of the declassified materials in 2021. In a response sent on September 27, 2021 (and later resent to John Solomon), NARA explained that NARA didn’t have the binder because when Meadows sent it to DOJ for the privacy review, it became a federal record, and what remained at the White House was not a binder but 2,700 disorganized pages the intended classification markings of which conflicted.

That’s because NARA General Counsel Gary Stern provided Kash and Solomon with the explanation of what happened with the attempted declassification over and over and over. First, Trump didn’t declassify the documents. He ordered the binder of Crossfire Hurricane documents be sent to the Attorney General, who would implement the final declassifications, then send the document back to the White House.

I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.

Then the next day, January 20, 2021, Mark Meadows sent all that to the Attorney General to conduct a Privacy Act review before releasing anything.

As Stern explained to Kash and Solomon, what remained at the White House at that point was a collection of 2,700 “undifferentiated pages,” a cursory review of which revealed conflicting redactions and some documents lacking the requisite declassification stamp. The stuff that got sent to DOJ was a Federal Record, not a Presidential Record, and by the time Kash and Solomon started this process, it was already being processed as part of a Judicial Watch FOIA lawsuit (the first two releases in which — one, two — recently came out).

In other words, Trump and Mark Meadows fucked this up. NARA didn’t. Trump did.

Shortly after getting this response, Cannon oversaw the attempt to return Trump’s documents, with the now-indicted Walt Nauta and the now-cooperating Molly Michael juggling boxes back and forth from the storage room so Trump could hand-curate what would be returned.

After it became public that a bunch of those documents were classified, Kash invented the story that Trump had declassified everything, focusing on the Russian documents, though not exclusively.

Then, in the weeks after Trump returned a folder of documents on June 3, 2022, Kash Patel and John Solomon made a panicked effort to find out what was at NARA. Evan Corcoran, only recently brought in to serve as fall guy for the document handover, was closely involved in that process.

During that same period, Trump made several unexpected trips back to Mar-a-Lago.

And the government and Stan Woodward apparently agree that the government still doesn’t know where all the boxes hidden from Evan Corcoran’s search on June 2 ended up.

All of Trump’s stolen classified documents aren’t accounted for. And the Russian binder may be only part of what’s missing.

Update: I did a post on what was known to be in Trump’s “dumbass Russian binder.” It’s quite the cherry pick.

Judge Rules Trump Had the Purpose of Inciting Insurrection on January 6

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Thus far, I haven’t engaged with the lawsuits attempting to keep Trump off the ballot under the Fourteenth Amendment. I think people absolutely have the right to make the case Trump’s actions on January 6 disqualify him from being President. But the only decisions that will matter on this front are what various Supreme Courts have to say and whether the Republican Party chooses to nominate Trump notwithstanding the risk he’ll be disqualified (to say nothing of whether Trump is disqualified in one of the six states that will really decide the election).

But Colorado Judge Sarah Wallace’s opinion finding that Trump did engage in incitement, but can’t be disqualified because the President is not clearly an “officer” under the Fourteenth Amendment, is worth reading.

The Court concludes, based on its findings of fact and the applicable law detailed above, that Trump incited an insurrection on January 6, 2021 and therefore “engaged” in insurrection within the meaning of Section Three of the Fourteenth Amendment. First, the Court concludes that Trump acted with the specific intent to disrupt the Electoral College certification of President Biden’s electoral victory through unlawful means; specifically, by using unlawful force and violence. Next, the Court concludes that the language Trump employed was likely to produce such lawlessness.

[snip]

The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place.

[snip]

His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established.

[snip]

The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

[snip]

As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

Wallace’s opinion is best understood as a punt to Colorado’s Supreme Court: a finding of facts which they will eventually decide how to apply. She says as much in a footnote: She made the finding of fact that Trump did engage in insurrection so the Colorado Supreme Court can resolve any appeal without coming back to her.

The Court is denying Petitioners the relief they request on legal grounds. Because of the Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of law on all remaining issues before it. The Court does so because it is cognizant that to the extent the Colorado Supreme Court decides to review this matter, it may disagree with any number of the legal conclusions contained in this Order and the Orders that precede it. The Court has endeavored to give the Colorado Supreme Court all the information it needs to resolve this matter fully and finally without the delay of returning it to this Court.

But it’s also a preview of Trump’s January 6 trial.

Perhaps the most interesting aspect of Wallace’s ruling is that she found, over and over, that Trump’s side did not present evidence to fight the claim of insurrection. Trump’s legal expert, Robert Delahunty (who contributed to some of the most outrageous War on Terror OLC opinions), presented no definition of insurrection that wouldn’t include January 6. Kash Patel presented no evidence to back his claim that Trump intended to call out 10,000 members of the National Guard. Trump presented no evidence that criminal conviction was required before disqualification. There was no evidence presented that Trump did not support the mob’s purpose.

Once Wallace dismissed Kash (and Katrina Pierson’s) claims that Trump intended to call the National Guard, all Trump had left was Brandenburg: a claim that his speech did not count as incitement, the same claim Trump has made in his efforts to defeat gags, the same claim Trump attempted to use to get Judge Chutkan to throw out any reference of the mob in his January 6 indictment.

Wallace used three things to show that Trump did intend to incite the mob.

First, she relied heavily on the testimony of Chapman University (!!!) professor Peter Simi, who described how Trump used the coded language of the far right to endorse violence. She mapped out what Trump added into his January 6 speech. And she talked about how Trump’s later statements — about Pence, and telling the mob he loved them — ratified their violence (an argument Amit Mehta also made), which Wallace used to distinguish Trump from Charles Evers.

As I have shown, Trump has tried to simply wish away the role of the mob in his indictment, a wish that Tanya Chutkan already rejected. Judge Wallace’s opinion makes it clear that’s all Trump has.

Gary Shapley’s Handlers Revisit Past Leak Investigations into Chuck Grassley’s Staff

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According to a press release on the website for Empower Oversight–the group handling Gary Shapley’s now-debunked media tour–Empower’s founder, Jason Foster, was the subject of an FBI subpoena to Google in 2017.

Google first alerted Foster to the September 12, 2017 subpoena on October 19, 2023. That’s one of the reasons I find this FOIA so interesting. The notice came more than six years after the subpoena, suggesting FBI likely continued to investigate someone tied to the investigation for at least a year longer than statutes of limitation would normally extend.

Empower seems to suggest there’s a tie between the subpoena and one served on Google pertaining to Kash Patel’s personal email two months later, on November 20, 2017, as does Margot “Federalist Faceplant” Cleveland in this propaganda piece reporting on the subpoenas. While Empower says that this subpoena asked for information on other staffers, it only cites Kash to substantiate its claim that other staffers had also gotten notice of a past subpoena (Cleveland does report that a HPSCI staffer was also included).

Empower Oversight has information indicating that the other accounts listed in the subpoena belonged to other staffers, both Republicans and Democrats, for U.S. House and Senate committees also engaged in oversight investigations of the Justice Department at the time pursuant to their authorities under the U.S. Constitution.

[snip]

Other former staffers have publicly referenced receiving similar notices, including former U.S. House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) staffer Kashyap Patel.

They’re from the same grand jury (16-3). But they not only have different file numbers, but the one on Kash’s subpoena — that is, the later subpoena, by two months — has a lower file number, 2017R01887, as compared to 2017R01896.

Kash is suing roughly the same people over his subpoena as Empower is FOIAing: Empower is asking about former DC US Attorney Jessie Liu, Rod Rosenstein, his one-time Principal Associate Robert Hur (currently the Special Counsel investigating Joe Biden’s classified documents), and Ed O’Callaghan, who replaced Hur, along with then DOJ Spox Sarah Isgur. Kash is suing Liu, Rosenstein, Hur, and O’Callahan, plus FBI Director Chris Wray and the two AUSAs behind the subpoena.

There are problems with both of their target sets. For example, Liu wasn’t even sworn in as US Attorney until September 25, 2017 — after the Foster subpoena (though before the Kash one). So Empower’s suggestion that Liu had some influence on the subpoena on him is nonsense. Rosenstein wasn’t sworn in until April 26, 2017, almost five months after the request for conversations with the press starts.

Similarly, Ed O’Callaghan, whom Kash describes as, “the Principal Associate Deputy Attorney General for Mr. Rosenstein at the time in question,” didn’t move from the National Security Division to Rosenstein’s office until April 2018, after Hur was confirmed as US Attorney for Maryland and long after both the subpoena implicating Kash and his blow-up with Rosenstein. Though if these were really sensitive leak investigations, NSD may have had a role in them. (Empower includes NSD within its FOIA.)

Those details don’t seem to matter for their projects: both men appear to be using the subpoenas as an excuse to settle scores.

Kash, ever the conspiracy theorist, brought a Bivens claim insinuating that Rosenstein and others violated Kash’s Fourth Amendment rights because DOJ served a subpoena — something not requiring probable cause under the Fourth Amendment — to obtain the subscriber information for a list of around 14 identifiers, of which his personal email was just one. There’s nothing on the face of the subpoena to suggest that DOJ knew his email was tied to someone who was a Congressional staffer at the time of the subpoena (though again, Federalist Faceplant seems to know at least one other person listed was a staffer). In fact, the subpoena asked for contact information going back to April 2016, a year before Kash moved from DOJ to HPSCI, so it could have pertained to a leak internal to DOJ.

Nevertheless, Kash spins a tale where the November 2017 subpoena is in some way connected with what he claims is Rosenstein’s threat, over a month later, to subpoena HPSCI staffers.

5. The illegitimate grounds for the subpoena were made clear when, shortly after the FBI and DOJ previewed what would become the “Nunes Memo,” which outlined significant issues with FBI’s and the DOJ’s manner of opening and conducting the Crossfire Hurricane investigation, then-Deputy Attorney General Rod Rosenstein (“DAG Rosenstein”) threatened to subpoena the records of the House Permanent Select Intelligence Committee staff, including Mr. Patel, during a closed-door meeting about producing documents requested by the Committee for their investigation into DOJ’s and the FBI’s, its subagency, conduct in the Crossfire Hurricane investigation.

6. The Department of Justice attempted to defend against the allegation of this threat to Legislative Branch employees, but admitted, at a minimum, that DAG Rosenstein did threaten to subpoena records of Congressional staff in contempt proceedings over the DOJ’s noncompliance with multiple subpoenas. Regardless, this characterization was disputed by multiple Committee staffers, and the matter was referred to the House General Counsel and Speaker of the House as a threat to subpoena records of staffers to halt their investigation.

7. DAG Rosenstein made this threat in January of 2018, approximately one month after his Department of Justice had already subpoenaed Mr. Patel’s email records from Google. This confrontation establishes that DAG Rosenstein and other Defendants were searching for a reason to subpoena Mr. Patel’s official accounts as well as the personal ones that DOJ was already improperly pursuing.

Contrary to Kash’s claim, DOJ didn’t concede Rosenstein threatened to subpoena the HPSCI records. According to a Fox News article Kash himself cites in his suit, DOJ said that Rosenstein was advising staffers to retain their emails so he could use them to defend against any accusation of contempt. Though Rosenstein did threaten to ask the House General Counsel to investigate Kash and whoever else was involved.

A DOJ official told Fox News that Rosenstein “never threatened anyone in the room with a criminal investigation.” The official said the department and bureau officials in the room “are all quite clear that the characterization of events laid out here is false,” adding that Rosenstein was responding to a threat of contempt.

“The Deputy Attorney General was making the point—after being threatened with contempt — that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false,” the official said. “That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so. (We have no process to obtain such records without congressional approval.)”

Further, the official said that when Rosenstein returns to the United States from a work trip, “he will request that the House General counsel conduct an internal investigation of these Congressional staffers’ conduct.”

This all seems like a retroactive attempt to politicize the investigation into some contact Kash had, potentially even before he joined HPSCI with a lawsuit claiming a violation of the Fourth Amendment under Bivens for a subpoena for toll records that a former DOJ prosecutor, especially, should know are not entitled to any expectation of privacy.

Foster’s claim, which is only a FOIA, not a lawsuit, is a bit less ridiculous (so long as you ignore his demand for communications involving Liu before she started as US Attorney and Rosenstein before he was DAG).

He seems certain that the subpoena for his phone (which he says was used by his spouse) pertained to a leak investigation. He’s filing it to find out if Rosenstein’s office ever got the same scrutiny in leak investigations that (he seems sure) some Congressional staffers got in 2017.

It begs the question of whether DOJ was equally zealous in seeking the communication records of its own employees with access to any leaked information.

[snip]

(5) All communications exchanged between members of the press and DAG Rosenstein, Robert Hur, Edward O’Callaghan, Sarah Isgur, aka Sarah Isgur Flores, and/or Jessie Liu for the period from December 1, 2016 to September 26, 2017, regarding (a) communications between Michael Flynn and Sergey Kislyak, (b) Carter Page, (c) Joe Pientka, (d) Bill Priestap, (e) congressional oversight requests, (f) Senator Charles Grassley, (g) Jason Foster, and/or (h) the Crossfire Hurricane investigation.

(6)All grand jury subpoenas issued for personal communications of DAG Rosenstein, Robert Hur, Edward O’Callaghan, and/or Jessie Liu between May 1, 2017 and May 1, 2018.

(7) All communications exchanged between the U.S. Attorney’s Office for the District of Columbia, the National Security Division, the Deputy Attorney General’s Office and/or the FBI and Verizon between March 15, 2016, and the present regarding obtaining communications data associated with devices that Verizon serviced for U.S. House Representatives or U.S. Senate. [my emphasis]

The time range of the Foster subpoena, December 1, 2016 to May 1, 2017, covers the period of the known leaks about Mike Flynn and Carter Page — the former, especially, one of the leaks Republicans have never stopped bitching because it wasn’t charged. Yet here, a key Republican is complaining there was “no legitimate predicate” in investigating people who were briefed on information that subsequently got leaked.

There appears to have been an extensive and far-reaching effort to use grand jury subpoenas and perhaps other means to gather the personal communications records of innocent congressional staffers and their families with little or no legitimate predicate.

Empower’s mention of Carter Page also situates the subpoena temporally. The subpoena that included a number associated with Foster was served in precisely the same time period that — the Statement of the Offense and sentencing memo for James Wolfe case show — FBI was investigating the leak of the Carter Page FISA. DOJ opened that investigation in April 2017. They had shown enough probable cause against Wolfe to obtain a warrant to covertly image his cell phone by October 2017. No one complained that Wolfe was prosecuted for his presumed role in leaking some of these stories, and his prosecution alone shows that the subpoena had predicate.

Foster may have other specific stories in mind too: In addition to the leaked stories about Flynn undermining US foreign policy with the Russian Ambassador, the FOIA asks about other Russian investigation stories, including Joe Pientka, whose role in briefing Mike Flynn Grassley made into a personal crusade.

Curiously, the Steele dossier is not on here, even though that was another personal crusade of Chuck Grassley.

All that said, the timeline included in the FOIA is broader than that. Here’s how the various timelines overlap, or don’t:

  • Scope of Foster subpoena: December 1, 2016 through May 1, 2017
  • Rosenstein sworn in as DAG: April 26, 2017
  • Date of Foster subpoena: September 12, 2017
  • Jessie Liu sworn in as US Attorney: September 25, 2017
  • Scope of Foster’s FOIA for DAG communications with the press: December 1, 2016 through September 26, 2017
  • Date of Kash subpoena: November 20, 2017
  • Scope of Kash subpoena: May 1, 2016 through November 20, 2017
  • Scope of Foster’s FOIA for grand jury subpoenas targeting DAG: May 1, 2017 through May 1, 2018
  • Scope of Foster’s FOIA for Verizon records of Congressional staffers March 15, 2016 through October 24, 2023

Foster is FOIAing Rosenstein’s office, first, for conversations with the press — including about him — starting on December 1, 2016, before Trump was inaugurated and months before Rosenstein was sworn in on April 26, 2017. He is FOIAing conversations with the press that continue through the day after Liu was sworn in September 2017, still months before O’Callaghan was part of DAG.

Then he’s asking for any grand jury subpoenas (which he knows would be protected under grand jury secrecy rules and so won’t get) from the end date of the subpoena targeting him, after which point both the Flynn and Page investigations were underway, until May 1, 2018 — still four months before Legistorm shows Foster leaving his SJC job on September 4, 2018, but perhaps not coincidentally ending before the time when the Mueller investigation started to more closely probe fellow SJC staffer Barbara Ledeen’s role in Mike Flynn’s 2016 rat-fucking and two weeks shy of an interview when Mueller asked Flynn about Ledeen’s investigation of the investigation. A September 17, 2018 interview asked very specific questions about people leaking claimed details of the investigation to Flynn, as well as Flynn’s contacts with unidentified Congressional staffers.

Again, this request is a test about whether Rosenstein’s office was targeted for leaks, but the leaks that Foster suggest this subpoena pertains to — Mike Flynn’s contacts with Sergey Kislyak and Carter Page’s FISA — happened before any of these people were in DAG. Foster seems interested in leaks about leak investigations, not the leaks themselves.

It’s the final bullet I find the most interesting though. None of the subpoenas he raises in his FOIA — not the subpoena of Kash’s personal email, not the subpoena of his own Google voice phone, and not the subpoena to Apple targeting HPSCI members — target official phone records. But Foster FOIAs for official records as well: All communications between DC USAO, NSD, DAG, and FBI with Verizon — communications that might be something other than a grand jury subpoena — about obtaining phone records for the Congressional devices serviced by Verizon. He’s asking for a much broader period of time, too: March 15, 2016 — early enough to include the start date of Kash’s subpoena, but also to include some of Barbara Ledeen’s rat-fucking with Mike Flynn — through the present, late enough to include any contacts in which Chuck Grassley staffers used their official devices to share information about the Hunter Biden investigation with the press.

This last request is not about Rosenstein; Rosenstein was only DAG for two of the seven and a half years covered by this part of the FOIA.

This FOIA is, on its face, totally uncontroversial (though it attempts to do with a FOIA what DOJ IG is already doing, which it notes). It purports to test whether Rod Rosenstein exempted his own top deputies from the kind of investigative scrutiny to which Rosenstein — always a leak hawk — subjected Congressional staffers. Hell, I’m fairly certain Rosenstein and his top deputies were key undisclosed sources for a bunch of bullshit comments (though most of them were false, and therefore not criminal leaks). Some of those anonymous comments were to the same stable of journalists who also happen to serve as mouthpieces for Chuck Grassley propaganda (and as such, Foster may have specific reason to believe that Rosenstein teed up journalists’ questions to or about him).

And the FOIA for contacts with Verizon gets at important separation of powers issues: under what terms the Executive Branch can investigate the official business of the Legislative Branch, including times when the Legislative Branch is screaming for investigations into leaks that probably (and provably, in the case of Carter Page) include Legislative Branch staffers.

But it also serves as a fishing expedition, by the entity that championed the now debunked claims of Gary Shapley, into potential investigations into transparent ongoing efforts by Chuck Grassley to release details of criminal investigations in the guise of oversight.

In a meeting agenda sent September 3, 2020, Joseph Ziegler included the Senate investigation led by Chuck Grassley and Ron Johnson among topics for discussion.

No later than December 2020, a document shared by Empower Oversight client Gary Shapley reveals, the IRS agents running this investigation cared more about catering to demands from Congress, including from Chuck Grassley, than preserving the investigation.

The USAO and FBI received congressional inquiries concerning this investigation and have repeatedly ignored their requests, openly mocking the members of congress who made the request.

Another document shared by Empower Oversight client Gary Shapley shows that, in May 2021, the IRS agents running the investigation continued to be aware of — and interested in catering to — requests from Congress.

The USAO and FBI received congressional inquiries concerning this investigation and it’s believed they have ignored their requests.

A document released by Empower Oversight client Gary Shapley reflecting a January 6, 2023 call with IRS’ Deputy Field Officer Michael Batdorf alerting him — among other things — that he expected the Delaware US Attorney to make “nefarious” allegations against him, also recorded that by the time, two days after he notified IRS and DOJ IG Inspectors General he was seeking formal whistleblower status which happens to have happened on the day the GOP took the House, his attorney had already, “participated in calls and/or meetings” with “the Congressional Judiciary committees.”

DFO asked about the process and Shapley responded that the Congressional Judiciary committees, OSC, IRS OGC and TIGTA have been notified and have participated in calls and/or meetings with my counsel.

Yet when one of Shapley’s attorneys, Mark Lytle, formally contacted the Chairs and Ranking Members of those same “Congressional Judiciary committees,” the Chairs and Ranking Members of the relevant finance committees, along with Chuck Grassley on April 19, 2023, he did not treat those contacts with the judiciary committees as protected disclosures. The letter mentions that Grassley is a member of the Finance Committee, but doesn’t mention that Grassley is a member and former Chair of the Judiciary Committee.

That was the first moment, publicly at least, that Empower Oversight client Gary Shapley sought protection to share IRS protected information with Congress. That is, even according to Lytle, if Shapley shared any IRS protected information — to say nothing of grand jury protected information — prior to that, by the plain terms of his letter it was not under a grant of protection.

A month after Gary Shapley’s claims — facilitated by Empower Oversight — were soundly debunked by his own documentation and his colleagues, Empower Oversight filed a FOIA that would, among other things, attempt to learn whether the FBI was conducting any investigation of leaks to the press from Chuck Grassley’s staffers, covering the period in 2016 when a Chuck Grassley staffer attempted to reach out to hostile intelligence services to find dirt on Hillary Clinton, the period when a Grassley staffer was seeding press stories — some that were fabrications — about the Russian investigation, and the period of time when those investigating Hunter Biden were more solicitous of requests from members of Congress like Chuck Grassley than they were in protecting the ongoing investigation.

The Espionage Act Evidence WaPo Spins as Obstruction Evidence

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

Donald Trump’s Dumbass Russia Binder

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There is some tie between Donald Trump’s effort — as one of his last acts as President — to declassify a binder of materials from the Crossfire Hurricane investigation and his hoarding of still-classified documents that could get him charged under the Espionage Act.

It’s not yet clear what that tie is, though.

On May 5 of last year, Kash Patel offered the declassification effort as an alibi, claiming Trump had declassified a bunch of materials, including not just the Crossfire Hurricane materials, but everything else discovered in boxes returned to NARA in January 2022. Kash’s claim would be included in the search affidavit for Mar-a-Lago and ultimately lead to his compelled testimony in the investigation.

Last fall, at a time when Alex Cannon and Eric Herschmann would have been under some scrutiny for their role in Stefan Passantino’s dubious legal advice to Cassidy Hutchinson, Maggie Haberman told a story in which the Trump lawyers heroically warned Trump about the risks of holding classified documents. That story claimed Trump had offered to swap the documents he did have for the Russian-related documents the former President believed NARA had.

It was around that same time that Mr. Trump floated the idea of offering the deal to return the boxes in exchange for documents he believed would expose the Russia investigation as a “hoax” cooked up by the F.B.I. Mr. Trump did not appear to know specifically what he thought the archives had — only that there were items he wanted.

Mr. Trump’s aides — recognizing that such a swap would be a non-starter since the government had a clear right to the material Mr. Trump had taken from the White House and the Russia-related documents held by the archives remained marked as classified — never acted on the idea.

The story doesn’t mention Cannon’s role in a fall 2021 inquiry to NARA about the Russian documents. Nor does it say that National Archives General Counsel Gary Stern told Cannon and Justin Clark that NARA had 2,700 undifferentiated documents, but that the binder Trump wanted declassified had been rendered a Federal Record when it got sent back to DOJ.

That’s what NARA told John Solomon on June 23, 2022 — that Trump’s lawyers had requested the binder in fall 2021 — in Stern’s first explanation for why NARA didn’t have the binder.

John, fyi, last fall Justin Clark, another PRA representative of President Trump, also asked us for a copy of this declassified binder. Upon conducting a search, we learned that the binder had been returned to the Department of Justice on January 20, 2021, per the attached memo from Chief of Staff Mark Meadows to the Attorney General, titled “Privacy Act Review of Certain Declassified Materials Related to the FBI’s Crossfire Hurricane Investigation.”

Accordingly, we do not have the binder containing the declassified records. As we explained to Justin, what we were able to locate is a box that contains roughly 2700 undifferentiated pages of documents with varying types of classification and declassification markings, but we could not be certain of the classification status of any of the information in the box. We are therefore obligated under Executive Order 13526 to treat the contents of the box as classified at the TS/SCI level.

Then on August 9 and again on August 10 last year, immediately following the search on Mar-a-Lago, Solomon asked for all correspondence between Cannon and NARA up until days before the search.

Gary, John: My research indicates there may be a new wrinkle to the Russian declassified documents. As part of my authorized access, I would like to see all correspondence between NARA and attorney Alex Cannon between December 2020 and July 31, 2022. I think the information will have significant value to the public regarding current events. Can that be arranged?

[snip]

Checking back on this. It’s time sensitive from a news perspective. Can you accommodate?

Stern, no dummy, likely recognized that this information would not just have news value, but would also have value to those under criminal investigation; he responded with lawyerly caution. As NARA representative for Trump, he explained, Solomon was only entitled to access Presidential records — those that predate January 20, 2021 — and communications between Cannon and NARA post-dated all that. But, Stern helpfully noted, Cannon was cc’ed on the request for the Russian binder.

It’s important to clarify that, as a designated PRA representative of President Trump, you may receive access to the Presidential records of the Trump Administration that have been transferred to NARA, which date from January 20, 2017 to January 20, 2021.

Alex Cannon has represented President Trump on PRA matters (along with Justin Clark) only since the summer of 2021, principally with respect to the notification and review process in response to special access requests. Accordingly, there would not be any Trump Presidential records between NARA and Alex Cannon.

FYI, in my June 23 email to you (which is below within this email thread), I noted that “last fall Justin Clark, another PRA representative of President Trump, also asked us for a copy of this declassified binder.” Alex Cannon was cc’d on Justin’s request and our response. I am not aware of any other communications that would exist between NARA and Alex about this matter. [my emphasis]

That would be the only communications “about this matter,” seemingly distinguishing the Russian binder from the missing Presidential records.

At the time Maggie was distracting the chattering classes with the swap story, ABC had a very thorough story that revealed some of what Stern had explained to Solomon last year. That story suggests the month-long focus on the Russian binder had led overall compliance with the Presidential Records Act to be lacking. As Hutchinson tells it, it was worse, with 10 to 15 NSC staffers madly copying classified documents in the last days Trump was in office, with two sets of four copies — one still classified, one less sensitive — circulating to who knows where.

The tie between the Russian documents and the documents Trump stole may be no more than the alibi Kash tried to use them as, an attempt to claim that the limited declassification was instead a blanket effort. Perhaps it was also a failed effort to use Kash and Solomon as moles to figure out what NARA got back. Or perhaps some of these materials madly copied at the last moment were among the classified documents Trump took with him. Perhaps some of those materials were among the still-classified documents Trump took and hoarded in a storage closet with a shitty lock.

But that tie is one of the reasons I read the version of the binder released earlier this year in response to a Judicial Watch FOIA closely (release 1, release 2).

That is one dumbass binder. If you’re going to expose yourself and your assistants to Espionage Act prosecution, this is one dumbass document to do so over.

Having reviewed it — even with great familiarity with the unending ability of certain frothers to get ginned up over these things — I cannot believe how many people remain obsessed about this document.

The document, as released to Judicial Watch, is little more than a re-release of a bunch of files that have already been released. Perhaps the only released documents I hadn’t read closely before were memorializations that Andy McCabe wrote of conversations he had in the wake of Jim Comey’s firing with and about Trump, including the one that described Rod Rosenstein offering to wear a wire to meetings at the White House.

And because DOJ subjected the documents to a real Privacy Act review, unlike declassifications effectuated by Director of National Intelligence John Ratcliffe when Kash babysat him as his Chief of Staff, a number of the documents actually are more redacted than previous versions, something that will no doubt be a topic of exciting litigation going forward.

Mark Meadows ordered DOJ to do a Privacy Act review and as a result great swaths of documents were withheld, page after page of b6/b7C exemptions as well as b7D ones to shield confidential information.

Here’s what got released to Judicial Watch, along with links to the previous releases of the documents:

The Bruce Ohr 302s are the only documents that include much newly released materials, mostly reflecting Igor Danchenko’s subsequent public identification. Both the candidate briefing and the Carter Page FISA application include significantly more redaction (and those are not the only interesting new redactions); given the redactions, it doesn’t look like Trump contemplated disseminating any Page material that was sequestered by the FISA Court, which would have been legally problematic no matter what Trump ordered, but references to the sequestration were all redacted.

As noted above as Requests 1, 5, 6, 14, and 17, there were five things Trump asked for that were still pending at DOJ when Trump left office. Two of those are identified: A request for materials on Perkins Coie lawyers, which (DOJ informed Trump) had no tie to Crossfire Hurricane, and a request for details on an August 2016 meeting involving Bruce Ohr, Andrew Weissmann, and one other person “concerning Russia or Trump.”

There were a number of communications between Ohr, Weissmann, and others later in 2016, including communications potentially relating to an effort to flip Dmitry Firtash, as well as October 2016 communications between Ohr and McCabe. But the jumbled timeline of Ohr’s communications has often been used to insinuate that the Crossfire Hurricane team learned of the Steele allegations earlier in the investigation than the September 19 that DOJ IG reflects. In any case, some of these meetings likely touched on Oleg Deripaska and some might touch on the suspected Egyptian donation Trump used to stay in the race past September 2016, not the dossier.

Between other then-pending requests and big chunks of withheld information (I’ve noted the biggest chunks above, but it would be around 300 pages total), there are things I would have expected to see in this binder that are not there. For example, almost none of the material released as part of DOJ’s attempt to undermine the Flynn investigation (links to which are in this post) is included here. Most of that stuff constitutes information that would never normally be released. It was egregiously misrepresented by Barr’s DOJ. Some of the files were altered. If these were requested, I can think of a number of reasons it would take DOJ a while to provide the materials. Even still, though, the materials didn’t persuade Emmet Sullivan to overturn Flynn’s prosecution, and documents left out of this bunch — such as Flynn’s later 302s, including some where he obviously told the same lies he had told in January 2017, would easily rebut any claims Trump might offer with the Flynn documents.

The documentation showing Strzok learning of a Russian intelligence product claiming not very damning things about Hillary is not in here. That, too, is something that would never have been released with a normal DNI not being led around by Kash Patel and it’s one that would take DOJ a good deal of time to clear. But as I laid out here, the report came after Trump had already demonstrably started pursuing files stolen by Russia. By the time Hillary purportedly decided to call out Trump for encouraging the Russian hack, Trump was encouraging the Russian hack.

Given that Mike Rogers’ 302 from the Mueller investigation is included here, you’d expect those of Trump’s other top intelligence officials to be included as well. Dan Coats and Mike Pompeo were interviewed in the weeks after Rogers. Coats’ aide Mike Dempsey and NSA Deputy Director Rick Ledgett were also interviewed about Trump’s March 2017 effort to get the IC to deny he had a role in Russian interference, as was Trump’s one-time briefer Edward Gistaro (Gistaro was interviewed a second time in 2018, in an interview treated as TS/SCI, which likely pertained to his involvement in briefing at Mar-a-Lago during the transition). Details of these interviews show up in the Mueller Report, and his request only helps to make Trump look more guilty.

It doesn’t include materials released as part of the failed Sussmann and Danchenko prosecutions. But like Barr’s effort to overturn the Flynn prosecution, none of that evidence sustained Trump’s conspiracy theories either. Indeed, during a bench conference in the Danchenko trial, Durham fought hard to keep the substance of the discussions — ostensibly about energy investments — between Sergei Millian and George Papadopoulos starting in July 2016 out of the trial because, “it certainly sounds creepy.” The Sussmann trial showed how justified people were in wondering about Trump’s Russia ties in the wake of his “Russia are you listening” comment. It provided a glimpse of how time-consuming being a victim of a nation-state hack had been for Hillary in 2016. Durham even demonstrated that FBI badly screwed up the Alfa Bank investigation. When subjected to the rules of evidence, none of Trump’s hoax claims hold up.

The point is, nothing in this binder — particularly as released — supports Trump’s claims that the investigation into him wasn’t independently predicated and didn’t lead to really damning information implicating at least five of his top aides and his own son.

Trump keeps trying to collect some set of evidence that will make go away the far more damning ties to Russia that his National Security Advisor, his Coffee Boy, his personal lawyer, his campaign manager, and his rat-fucker all lied to hide. And in this case, it may have led Trump to do something far dumber, to defy a subpoena and hoard highly classified documents.

Which possibility only makes the dumbass Russia binder even more of a dumbass Russian binder.

Kash’s Castles of Scatter and Evan Corcoran’s BCC

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More than seven months after seemingly threatening to sue the National Archives because Mark Meadows and Donald Trump fucked up their effort to declassify the Russian investigation documents, John Solomon finally did sue on March 21, represented by the America First Legal Foundation — Stephen Miller’s gig.

I’d be shocked if the lawsuit went anywhere.

That’s because NARA General Counsel Gary Stern provided Kash and Solomon with the explanation of what happened with the attempted declassification over and over and over. First, Trump didn’t declassify the documents. He ordered the binder of Crossfire Hurricane documents be sent to the Attorney General, who would implement the final declassifications, then send the document back to the White House.

I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.

Then the next day, January 20, 2021, Mark Meadows sent all that to the Attorney General to conduct a Privacy Act review before releasing anything.

As Stern explained to Kash and Solomon, what remained at the White House at that point was a collection of 2,700 “undifferentiated pages,” a cursory review of which revealed conflicting redactions and some documents lacking the requisite declassification stamp. The stuff that got sent to DOJ was a Federal Record, not a Presidential Record, and by the time Kash and Solomon started this process, it was already being processed as part of a Judicial Watch FOIA lawsuit (the first two releases in which — one, two — recently came out).

In other words, Trump and Mark Meadows fucked this up. NARA didn’t. Trump did.

The likely futility of the lawsuit notwithstanding, the lawsuit and its timing may have more to do with publicly sharing the correspondence Solomon and Kash Patel had with NARA last year, between the time Trump would have realized he had a legal problem with this stolen classified documents, and the immediate wake of the search that made that legal problem a far bigger problem.

As the correspondence Solomon released with the lawsuit reveals, Evan Corcoran initiated this process, on June 17, 2022, informing Stern that “because of his schedule” on June 17 and 18, he would sign a letter designating Kash and Solomon NARA representatives on June 19, after which the two wanted to immediately (Solomon explained in reply) get access to the Russian documents.

Because of his schedule today and tomorrow, former President Donald J. Trump will sign a letter on Sunday afternoon, June 19, 2022, informing the Acting Archivist of the United States that he has designated Kash Patel and John Solomon (copied) to be his NARA representatives.

I will transmit that letter to the Archivist and you (and John Laster) via email when I receive it.

Kash and John would like to begin work reviewing documents at the Archives on Tuesday, June 21, 2022.

I will leave it to the three of you to work out logistics (and feel free to move me to bcc)

Think about that! By April 29, Corcoran was the guy with whom Stern was coordinating on the FBI request for access to the documents Trump belatedly returned in January 2022. On May 5, Corcoran asked to access what had been returned and on the very same day — the search affidavit notes — Kash claimed that not just the Russian documents had been declassified, but a bunch of other documents had too. On May 11, FBI subpoenaed Trump for remaining classified documents. On June 3, Corcoran provided just a subset of the remaining documents.

And then, two weeks after participating in a shell game to facilitate withholding classified documents, Corcoran contacted Stern to arrange fairly urgent access for Kash and Solomon to the materials he had first asked to access in May.

The guy in charge of staving off criminal exposure for hoarding classified documents is the guy who arranged to have Kash and Solomon made NARA representatives!

And then, Stern noted, he moved Corcoran to “bcc.” That means it’s not clear whether Corcoran remained on bcc or not. We don’t know whether Corcoran, as was his intent, remained part of the rest of this exchange. Which makes the timing of this probably futile lawsuit — the second business day after Beryl Howell ruled that Corcoran must testify and the day before Corcoran was initially due to comply — all the more interesting.

There are other interesting tidbits of the correspondence Solomon includes — most notably Kash’s increasing frustration because he couldn’t name via what agency he retained clearance.

On July 18, for example, Kash wrote an email riddled with typos bitching because Stern did not take, from the letter Patel’s one-time contractor employer sent, as approval to access classified records at NARA.

Actually, that’s only part of the communications your security team and you received. The rest states:

they (NARA) could look up your clearance in DISS or Scattered Castles and your need to know came from working directly for President Trump. Per policy- In order to access anything – you would need a clearance and a need to know. You have both of these based on your position with President Trump.

If you are going to provide a correspondence on this matter and directly site a communication, please do not cut out the important, substantive portion that resolves the matter. As you can see, you can validate my clearance and my need to know is satisfied. The only question that remains is why I am getting poor/incorrect information, and why you haven’t used the data bases to verify my clearance, when that is clearly within your agencies ability (its literally how every agency in government validates said clearances). Again, I expect to be reviewing these records tomorrow since the data bases search to validate my clearance is instantaneous. Direct your security office accordingly and stop blocking my access. Thanks much

Kash

[my emphasis]

Much of this section of the exchange reads like a sloppy attempt to social engineer access. Which makes Kash’s claim that the NSC was a more recent employer of his than ODNI of particular interest.

Thanks for the update, please go to DoD and the NSC at the White House, those being my last employers in govt, they would be best suited to verify my clearance (they would not be held at ODNI) but anyone with access to Scattered Castles can easily verify the clearance and who holds it. Thanks much Kash

It’s not clear how this part of the exchange was resolved. The whole exchange led me to wonder whether Kash had a clearance during his time running DOD at all. But none of this would have amounted to a need to know in any case, notwithstanding what a former employer had said.

There was great urgency in this period to get into the archives, to see what Trump had actually turned over in January 2021. Then the correspondence ended — at least as Solomon has it — on August 17.

Incidentally, the correspondence provides at least some corroboration for my speculation that Kash was disseminating parts of the Carter Page FISA applications that had been sequestered under an order from the FISA court — sequestered, as it happens, by an order from Jeb Boasberg, who just took over as DC’s Chief Judge. It also may explain some curious metadata in the copy of the Mark Meadows order that John Solomon released on July 20, 2022. Solomon’s copy of Meadow’s order showed a creation date of September 27, 2021, but a modification date of June 23, 2022.

June 23 is the first of two times that Stern sent Solomon and Kash a copy of the memo. The modification date likely reflects NARA resending the document.

The September 27, 2021 creation date likely reflects the time when, in fall 2021, NARA first discovered the memo after Justin Clark and Alex Cannon came looking for it.

There’s one more reason this is significant. After receiving (or being described) that Mark Meadows’ memo last fall, Cannon — the guy who repeatedly advised Trump to return the classified documents — would have known the Russian documents were not declassified. But if those got returned as a result, it would mean that any other copies out there, including copies shared with Solomon, would be illegally disseminated classified records.

Update: I’ve updated my stolen documents resource page with some of the dates from Solomon’s lawsuit and caught up to my past posts.

Update: This led me to go back and review the stories John Solomon wrote in the aftermath of the search, which unsurprisingly include numerous bullshit claims.

August 11, 2022: Solomon regurgitates story describing “cooperation” in June, including Secret Service involvement in June 3 meeting and aftermath.

August 22, 2022: JustTheNews posts the text of letter from Debra Steidal Wall to Trump.

Update: Corrected which year Trump returned some documents.