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19 Minutes: The Tuberville Call and DOJ’s Use of Obstruction in January 6 Prosecutions

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Nine minutes after President Trump called Tommy Tuberville at 2:26PM on January 6 to ask him to raise more objections in an effort to delay the vote count, riot defendant Brady Knowlton entered the Capitol in what DOJ alleges was an intentional effort to delay the vote count.

Nineteen minutes after Trump placed that call, at 2:45PM, Knowlton entered the Senate Gallery, maybe fifteen minutes after Tuberville had told the President he had to hang up because the Senators were being evacuated because people like Knowlton were invading the Capitol.

A number of people have pointed me to this article on Tuesday’s hearing before Judge Randolph Moss in Knowlton’s challenge to DOJ’s use of 1512(c)(2) to charge those who, DOJ alleges, came to the insurrection with the intention of delaying or stopping the certification of the votes. Here’s my live thread of the hearing and my own post on it; I’ve linked some of my other posts on the application of obstruction below.

The article is a good summary of the legal questions around the application. But in my opinion, its emphasis does not adequately convey what went on at the hearing. For example, the headline and first three paragraphs emphasize Judge Moss’ concerns about constitutional vagueness, which Moss didn’t focus on until an hour into the hearing.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

U.S. District Judge Randolph D. Moss identified the latest hurdle for federal prosecutors investigating January’s attack on Congress during a two-hour hearing this week over whether to dismiss the “obstruction of an official proceeding” charge from a 10-count indictment against two men from Colorado and Utah.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

It doesn’t mention how Moss started the hearing — by expressing skepticism about Knowlton’s argument — until the last line of the fourth paragraph.

Attorneys for Brady Knowlton and Patrick Montgomery claimed that specific offense did not apply to them, arguing that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. Moss made clear he was not persuaded by that claim at this point. [my emphasis]

At least before Moss, then, this challenge faces an uphill climb (some of the other challenges to this application of obstruction make a slightly different legal argument that may have more promise of success). And while the WaPo piece notes that Moss asked for additional briefing from both sides, it doesn’t note what I consider a fairly major strategic error from Knowlton’s team: choosing to define an “official proceeding” as one in which the ultimate decision of the proceeding is an adjudication that has real import to the life and liberty of those involved.

In effect, Knowlton lawyer Brent Mayr claimed that Joe Biden (and the 81 million Americans who voted for him) would have suffered no harm if Congress had been so intimidated by the people roaming the hallways threatening their assassination that they certified Donald Trump as the victor of the 2020 election instead of Biden, or if the insurrectionists managed to cause lasting unrest that delayed the certification indefinitely, giving Trump a chance to attempt another desperate ploy to remain in power.

By making that argument, Mayr provided DOJ the opportunity to lay out — in the additional briefing Moss ordered — the real adjudication that took place on January 6 and the import to justice and rule of law that the adjudication had, something DOJ has done, albeit in less focused fashion, in other filings in this investigation. Mayr gave DOJ an opportunity to explain that there was a very real risk that the lawfully elected President of the United States would not have his victory officially recognized, which was precisely the goal, DOJ would argue, that Brady Knowlton sought.

Mayr gave DOJ that opportunity even amid heightened coverage of how real the threat of a travesty of justice was.

The reporting on Jeffrey Rosen’s testimony about Jeffrey Bossert Clark’s attempt to force DOJ to endorse Trump’s Big Lie makes it clear how corrupt all this was (showing corrupt intent is key to proving Knowlton or anyone else guilty of the obstruction charge).

Filling in just one more detail will tie together Trump’s efforts to recruit DOJ in telling his Big Lie and Brady Knowlton’s response to that Big Lie of flying to DC, invading the Capitol, and heading to the place where the vote was supposed to be counted.

[B]ody-worn camera footage from the Metropolitan Police Department [] shows Knowlton and [Knowlton’s co-defendant Patrick] Montgomery outside the Capitol at around 2:00 p.m.  In the video, Knowlton confronts officers who are making their way through the crowed and yells at them saying, “You took an oath! You took an oath!” and pointedly asking them, “Are you our brothers?” Montgomery is standing right behind Knowlton. The government also located another body-worn camera video of both defendants after they left the Senate Gallery, confronting officers inside the Capitol in a hallway near Senate Majority Leader Schumer’s office. In the video, both Knowlton and Montgomery direct officers to move out of the way. Knowlton tells the officers, “We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

That detail is that Donald Trump made an effort to ensure the Senators would still be there when Knowlton and others arrived.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

To be clear: there’s no evidence that Knowlton had direct ties to Trump (though Knowlton is one of just seven defendants thus far from Utah, and a week after the riot, Rudy Giuliani appears to have been in contact with James Sullivan, the brother of defendant John Sullivan, who told Rudy he had gotten his “agent” and three others from Utah out of trouble). There’s even less evidence that, at the moment Knowlton crossed the threshold of the Capitol, he knew Trump had just tried to convince Tuberville to delay long enough for Knowlton to arrive in the Senate.

This is not yet a conspiracy that ties the President’s actions to obstruct the vote count with Brady Knowlton’s alleged actions to achieve the same goal.

But even as Brady Knowlton’s lawyers have argued that an official proceeding is one in which the parties can suffer dire consequences if rulings don’t go in their favor, more evidence is coming out about how Knowlton’s actions fit into a larger, undeniably corrupt scheme to deprive Joe Biden (and Kamala Harris, who was present and participating on that day) of their electoral win.

If that’s the standard, then Knowlton’s lawyers have made a compelling argument against his case.

The WaPo’s not wrong about the seriousness of this larger challenge. And whether or not this argument succeeds, it’s still not clear that DOJ will be able to prove that Knowlton had the requisite corrupt intent to delay the vote.

But Knowlton’s argument may be overtaken by the new evidence proving just how corrupt this effort was.

Posts on obstruction

July 17, 2021: General thoughts on the application of obstruction in advance of the Paul Hodgkins’ sentencing

June 4, 2021: How Ethan Nordean’s challenge to the application of obstruction degrades the challenge

June 14, 2021: How the III Percenter conspiracy indictment might use the threats of violence enhancement from the obstruction statute

July 31, 2021: How DOJ blew an opportunity to explain the difference between the Brett Kavanaugh protests and the January 6 rioters

July 27, 2021: How Donald Trump might be charged with obstruction

August 3, 2021: Brady Knowlton’s lawyer falsely claimed his client’s alleged obstruction posed no harm of injustice

August 4, 2021: Trump’s Big Lie demonstrates the threat of harm from insurrectionists’ obstruction

List of all obstruction challenges

 

DOJ Unimpressed by Mo Brooks’ Kickass Conspiracy Defense

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Last night, DOJ refused to certify that Mo Brooks’ actions laid out in a lawsuit by Eric Swalwell were done in the course of his employment as a Congressman. To understand why, and why Brooks may have given DOJ an easy way to prosecute him in conjunction with January 6, you have to look at the sworn declaration Brooks submitted in support of a claim that his call on Trump rally attendees to “kick ass” was part of his duty as a Congressperson.

Broadly, the Swalwell lawsuit accuses Brooks of conspiring with Donald Trump, Donald Trump Jr, and Rudy Giuliani to violate his civil rights by trying to prevent him from performing his official duties. One of the descriptions of the conspiracy is:

169. As described more fully in this Complaint, the Defendants, by force, intimidation, or threat, agreed and conspired among themselves and with others to prevent members of Congress, including the Plaintiff, and Vice President Mike Pence from counting the Electoral College Votes and certifying President Biden and Vice President Harris as the winners of the 2020 presidential election.

It alleges Brooks committed a number of overt acts, which include a series of Tweets that mirror and in one case anticipate the public claims the other alleged co-conspirators made, as well as his speech at the January 6 Trump rally where he incited listeners to “kick ass” to save the Republic.

Mo Brooks addressed the large crowd at the January 6 rally. He said “America is at risk unlike it has been in decades, and perhaps centuries.” He told the crowd to start “kicking ass,” and he spoke with reverence, at a purportedly peaceful demonstration, of how “our ancestors sacrificed their blood, sweat, their tears, their fortunes, and sometimes their lives,” before shouting at the crowd “Are you willing to do the same?!” Brooks intended these words as a threat of violence or intimidation to block the certification vote from even occurring and/or to coerce members of Congress to disregard the results of the election.

In general, Brooks’ sworn declaration, submitted in support of a petition to certify that he was acting within the scope of his office as a Congressperson, claimed over and over that the actions he admits to (he claims all but one of the Tweets in question were sent by his staffers) were done,

pursuant to my duties and job as a United States Congressman concerning presidential election dispute resolution obligations imposed on Congress by the U.S. Constitution, Amendment 12 in particular, and the United States Code, 3 U.S.C. 15 in particular.

That includes, for example, when Brooks claims he,

drafted my January 6, 2021 Ellipse Speech in my office at the Rayburn House Office building on my Congressional Office computer. I also timed, reviewed and revised, and practiced my Ellipse Speech in my office at the Rayburn House Office Building.

Claiming such actions were part of his duties as a Congressperson is how Brooks responds to most of the allegations against him. One notable exception is when he claimed,

I only gave an Ellipse Speech because the White House asked me, in my capacity as a United States Congressman, to speak at the Ellipse Rally. But for the White House request, I would not have appeared at the Ellipse Rally.

The far more notable exception came when, presumably in an effort to disclaim intending to invite rally participants to “kick ass” on January 6, Brooks explains that the “kicking ass” was instead an effort to get Republicans to start focusing on the 2022 and 2024 elections.

Swalwell errs by splicing one sentence and omitting the preceding sentence in a two-sentence paragraph that emphasizes I am talking about “kicking ass” in the 2022 and 2024 ELECTIONS! The full paragraph states, in toto:

But lets be clear, regardless of today’s outcome, the 2022 and the 2024 elections are right around the corner, and America does not need and cannot stand, cannot tolerate any more weakling, cowering, wimpy Republican Congressmen and Senators who covet the power and the prestige the swamp has to offer, while groveling at the feet and the knees of the special interest group masters. As such, today is important in another way, today is the day American patriots start by taking down names and kicking ass.

My intent in uttering these words was to encourage Ellipse Rally attendees to put the 2020 elections behind them (and, in particular, the preceding day’s two GOP Senator losses in Georgia) and to start focusing on the 2022 and 2024 elections.

“As such” is the key phrase in the second sentence because it emphasizes that the paragraph’s second sentence is in the context of the paragraph’s first sentence’s 2022 and 2024 election cycles (that began November 4, 2020).

Consisted with this is the middle part of the paragraph’s second sentence, which states, “taking down names”. Whose names are to be “taken down”? The names of those Senators and Congressmen who do not vote for honest and accurate elections after the House and Senate floor debates later in that afternoon and evening. Once we get and “take down” their names, our task is to “kick their ass” in the 2022 and 2024 election cycles. [emphasis original]

This claim is inconsistent with many of the other claims that Brooks makes. And claiming that he means to replace Senators and Congresspeople who don’t vote against the legal outcome of the election only defers the threats against those who don’t participate in an election scam.

But the most important part, for the purposes of Brooks’ efforts to dodge this lawsuit, is that he has just confessed, in a sworn declaration, to have been campaigning when he delivered the speech that he wrote using official resources.

That’s one of the points that Zoe Lofgren made, in her role as Chair of the Committee on House Administration, when providing a response from Congress in lieu of one from the House General Counsel. After noting that Members of Congress cannot, as part of their official duties, commit a crime, she then notes that members are also prohibited from using official resources for campaign purposes.

Conduct that is campaign or political in nature is also outside the scope of official duties and not permissible official activity. For example, regulations of the Committee on House Administration provide that a Member may use their official funds only for “official and representational expenses,” and “may not pay for campaign expenses” or “campaign-related political party expenses with such funds.”5

Similarly, the Committee on Ethics notes that, “Official resources of the House must, as a general rule, be used for the performance of official business of the House, and hence those resources may not be used for campaign or political purposes.”6 For purposes of this rule, “official resources” includes not only official funds, but “goods and services purchased with those funds,” “House buildings, and House rooms and offices,” “congressional office equipment,” “office supplies,” and “congressional staff time.”7 The limitations on the authorized use of official time and space for campaign or political purposes extends to activities such as “the drafting of campaign speeches, statements, press releases, or literature.”8 Moreover, the scope of campaign or political activities that may not be conducted with official resources is not limited to the Member’s own reelection campaign. As the Committee on Ethics explains:

Members and staff should be aware that the general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking. Thus the prohibition applies to, for example, campaigns for the presidency, the U.S. Senate, or a state or local office, and it applies to such campaigns whether the Member is a candidate or is merely seeking to support or assist (or oppose) a candidate in such a campaign.9

In his motion, Representative Brooks represents to the court that he intended his January 6, 2021, speech to incite action by the thousands of attendees with respect to election activity. Representative Brooks states that he sought “to encourage Ellipse Rally attendees to put the 2020 elections behind them (and, in particular, the preceding day’s two Georgia GOP Senate losses) and to inspire listeners to start focusing on the 2022 and 2024 elections, which had already begun.”10 For example, Representative Brooks affirms that in his speech, he said, “Today is a time of choosing, and tomorrow is a time for fighting.” 11 According to Representative Brooks, the first half of that statement, “Today is a time of choosing,” is not a “call for violence,” but is instead a reference to “[w]hich Senators and Congressmen to support, and oppose, in future elections.”12 Further, he explains that the second half of that statement, “tomorrow is a time for fighting,” is a reference to “fighting” “[t]hose who don’t vote like citizens prefer … in future elections, as is emphasized later in the speech.”13

Similarly, Representative Brooks also declares that in his speech, he said, that “the 2022 and 2024 elections are right around the corner” and that “As such, today is important in another way, today is the day American patriots start taking down names and kicking ass.” 14 As he said “the 2022 and 2024 elections are right around the corner,” Representative Brooks withdrew a red cap that stated “FIRE PELOSI” from his coat, donned the cap, and wore it for the remainder of his speech.15 Representative Brooks says that, “The phrase, ‘As such’ emphasizes that the second sentence is in the context of the first sentence’s ‘2022 and 2024 elections’ time frame … and the desire to beat offending Republicans in those elections!”16 He asks and answers his own question about the timing: “When do citizens kick those Republican asses? As stated in the first sentence, in the ‘2022 and 2024 elections that are right around the corner.’”17 He later affirms that, “My ‘kicking ass’ comment referred to what patriotic Republicans needed to do in the 2022 and 2024 elections and had zero to do with the Capitol riot.”18

For Lofgren’s purpose, the important part is that Brooks has sworn under oath that the specific language that seemed to invite violence was instead campaign activity outside the scope of his official duties.

Essentially, in deflecting the allegation that his speech was an incitement to violence, Representative Brooks has sworn under oath to the court that his conduct was instead in furtherance of political campaigns. As noted, standards of conduct that apply to Members and precedents of the House are clear that campaign activity is outside the scope of official duties and not a permissible use of official resources.

She doesn’t say it, but Brooks’ declaration, including his confession that he wrote the speech in his office, is also a sworn declaration that he violated campaign finance laws by using his office for campaign activities.

The DOJ response to Brooks’ request for certification cites Lofgren’s letter while adopting a similar approach to it, one that would extend beyond Brooks’ actions to Trump himself. The entire rally, they say, was a campaign rally, and therefore outside the scope of Brooks’ employment as a Congressperson — or the scope of employment of any elected official.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

The current House Ethics Manual confirms that the official business of Members of the House does not include seeking election or reelection for themselves or others. House resources generally cannot be used for campaign purposes, and Members’ staff may engage in campaign work only “on their own time and outside the congressional office.” House Ethics Manual, Committee on Standards of Official Conduct, 110th Cong., 2d Sess., at 121 (2008). For instance, Representatives cannot conduct campaign activities from House buildings or offices or use official letterhead or insignia, and congressional staff on official time should terminate interviews that focus on campaign issues. See id. at 127–29, 133. Of direct relevance here, a Member of Congress also cannot use official resources to engage in presidential campaigns: “[T]he general prohibition against campaign or political use of official resources applies not only to any Member campaign for re-election, but rather to any campaign or political undertaking,” and this “prohibition applies to, for example, campaigns for the Presidency.” Id. at 124; see Lofgren Letter 2.

First, the record indicates that Brooks’s conduct was undertaken as part of a campaign-type rally, and campaign activity is not “of the kind he is employed to perform,” or “within the authorized time and space limits” for a Member of Congress. Restatement §§ 228(1)(a), (b). Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

Brooks might object to DOJ’s determination that the entire rally was a campaign event; he claims the other parts of his speech were part of his duty as a Congressperson. But if pressed on that point, the inconsistencies within his own sworn declaration would either support the view that Trump’s actions also weren’t part of his official duties, or that he himself meant the “kick ass” comment to refer to events of the day and therefore did incite violence. That is, the inconsistencies in Brooks’ sworn declaration may corner him into statements that go against Trump’s interests as well.

Importantly, DOJ’s filing treats the question of whether Brooks committed a crime as a separate issue entirely, asking Judge Amit Mehta not to rule in Brooks’ favor without first analyzing Brooks’ conduct to determine if the conduct alleged in the complaint — which happens to be but which DOJ doesn’t spell out — is a conspiracy to obstruct the vote count, the same charge used against three different militias charged in January 6.

Once again, DOJ emphasizes that this language applies to any Federal employee.

Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint.

[snip]

Here, the Complaint alleges that Brooks conspired with the other Defendants and the “rioters who breached the Capitol on January 6” to prevent Congress from certifying the Electoral College votes. Compl. ¶ 12. To serve that end, the Complaint alleges that, among other things, the Defendants conspired amongst themselves and with others to “injure members of Congress . . . and Vice President Pence” in an effort to disrupt the peaceful transfer of power. Compl. ¶¶ 1, 12, 171, 179. Such a conspiracy would clearly be outside the scope of the office of a Member of Congress: Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative—or any federal employee— and thus is not the sort of conduct for which the United States is properly substituted as a defendant under the Westfall Act.

Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations that he conspired to incite the attack on the Capitol. See Brooks Aff. 17–18.5 The Department of Justice does not address that issue here. The campaign or electioneering nature of Brooks’s participation in the January 6 rally independently warrants denial of certification, and the Department is engaged in ongoing investigations into the events of January 6 more broadly.6 But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. Cf. Osborn v. Haley, 549 U.S. 225, 252 (2007) (recognizing that scope-of-employment questions may overlap substantially with the merits of a tort claim).

6 As this Court is aware, the U.S. Attorney’s Office for the District of Columbia and the Federal Bureau of Investigation have for several months continued their investigation and prosecution of those responsible for the attack. This investigation is ongoing. More than 535 defendants have been arrested across the country and at least 165 defendants have been charged on counts ranging from destruction of government property to conspiracy to obstruct a congressional proceeding. See Department of Justice Statement, https://www.justice.gov/usao-dc/six-monthsjanuary-6th-attack-capitol. [my emphasis]

Someone could write a book on how many important cases Judge Mehta has presided over in recent years. But he’s got a slew of January 6 defendants, including all the Oath Keeper conspirators. And so Mehta is not just aware that DOJ is conducting an ongoing investigation, he has also presided over four guilty pleas for conspiring to obstruct the vote count, close to (but charged under a different law) as the claim Swalwell made in his complaint.

So Mehta has already accepted that it is a crime to obstruct the vote count, four different times, with Jon Schaffer, Graydon Young, Mark Grods, and Caleb Berry. He’d have a hard time ruling that, if Swalwell’s allegations are true (as noted, Brooks contends that some of them are not, and they certainly don’t yet present enough proof to support a criminal prosecution), Brooks would be exempt from the same criminal conspiracy charges that the Oath Keepers are pleading guilty to.

DOJ’s declaration is not (just) an attempt to create space — by distinguishing campaign activities from official duties — between this and DOJ’s decision to substitute for Trump in the E. Jean Carroll lawsuit. It is an effort to preserve the principle that not just Congresspeople, but all Federal employees, may be charged and convicted of a conspiracy to obstruct the vote count, particularly for actions taken as part of campaign activities.

The Available Evidence Says Merrick Garland *Is* Prosecuting Controversial Cases from Trump Years

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I’m waiting for the arraignment hearing for the Chair of the former President’s Inauguration Committee, which I thought would be a good time to respond to this Jennifer Rubin column that starts by discussing whether DOJ will rule that Mo Brooks’ actions related to the insurrection are his job (and therefore DOJ must substitute themselves for Brooks as a defendant); as Michael Stern laid out, that question is actually a complex one legally.

But Rubin goes from there, a civil lawsuit, to conclude that that Merrick Garland is “determined to sweep” Trump’s misconduct around January 6 “under the rug.” She goes from there to conclude that Garland is “refusing prosecution of controversial cases from the Trump years.”

We are not talking only about Trump’s actions on Jan. 6 or about possible misconduct (e.g., obstruction of justice, misleading courts) in the Justice Department that Garland seems determined to sweep under the rug. Trump’s attempts to strong-arm Michigan and Georgia election officials after he lost the 2020 election were not only a violation of his oath but also may have violated state and federal law prohibiting election fraud and manipulation.

In the case of Georgia, we have Trump on tape telling the secretary of state to “find” enough votes for him to win. What stronger indication of a serious election crime could possibly exist? So far the Justice Department seems to have left any investigation to the Fulton County prosecutor, who unsurprisingly has more pressing priorities. There is no legitimate reason for the feds’ refusal to investigate and, if warranted, prosecute Trump for conduct that no other president in history ever contemplated. If any other American’s participation in this set of facts would prompt a serious federal investigation, Garland must not exempt the former president. That is the meaning of “no one is above the law.”

Garland may think he is attempting to avoid politics by refusing prosecution of controversial cases stemming from the Trump years. If so, he has it backward. If the current president wants to pardon individuals from the previous administration for political reasons, that is his prerogative — not Garland’s. Especially when it comes to any post-election conduct abetting sedition and attempting to corrupt the ballot tabulation, we need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted. If not, Garland would have inadvertently affirmed Trump’s argument that he was above the law.

As noted above, I’m on hold awaiting the arraignment for Tom Barrack, believed to be worth around a billion dollars and someone whose business ties to Trump go back four decades, on charges that he served as an agent (not a lobbyist!) for the United Arab Emirates to change the policy of the United States to benefit that country.

Now’s a good time to respond to this column, I guess, and all the hundreds like it, not least because it’s insane to say that Garland is refusing controversial prosecutions when he is prosecuting this one (and investigating Rudy Giuliani, in spite of serving as the former President’s lawyer while he was President).

Not only is the fact that this case is being prosecuted evidence that Garland is not shying away from such prosecutions, but it tells us two more things about any hypothetical controversial prosecutions.

First, even for a prosecution that was largely set to go over a year ago, those cases might not be charged — for whatever reason — yet, 137 days into Garland’s tenure. (It’s worth noting that grand juries have been backed up on account of COVID.) So it’s too early to say whether Garland is refusing to prosecute other controversial cases, in addition to this one, because for any such prosecution that wasn’t all wrapped up in a bow over a year ago, it might still take some investigative work.

Additionally, this case didn’t leak!! Unlike Billy Barr’s hyper-politicized DOJ, we’re not getting leaks about what’s coming via Sidney Powell or other Fox News talking heads.

So even if there were ten more similarly controversial prosecutions coming down the pike, we might not know about them. Which is how it’s supposed to be.

Both item one — prosecutions take time — and item two — with the exception of Michael Sherwin’s public support for sedition charges, in response to which Garland referred him to OPR for investigation, Garland’s DOJ is not leaking like a sieve — presumably also apply to any investigations involving Trump and those close to him that didn’t take place 4 years ago.

What I do know is that Garland has repeatedly told prosecutors to go wherever the evidence leads on January 6. What I also know is that the complex militia conspiracy cases most likely to lead in that direction (as well as the one defendant who was discussed by the President’s lawyer) are making progress, in the Oath Keeper case, at a faster clip than many of the other prosecutions. What I also know is that complex conspiracy cases take time, more than seven months.

I get that people have gripes about the decisions Garland made about sustaining the Barr DOJ’s position on civil cases. But you simply cannot draw conclusions from that about whether Garland is opposing certain prosecutions. The only evidence we have so far — in cases taking aggressive actions against the former President’s lawyer and the former President’s long-time friend — is that Garland is happy to let prosecutors pursue cases for which they have evidence.

Update: I want to add one more point because people seem to believe that unless Garland appoints a Special Counsel, there’s no way DOJ is investigating the controversial cases. That misunderstands why Special Counsels get appointed: not because cases are important, but because DOJ or a particular prosecutor has a conflict that must be managed in some other way. There’s no known conflict for any potential Trump investigations, so we shouldn’t expect a Special Counsel.

Update: Thanks to those who pointed out I had made Rudy Trump’s client instead of his lawyer.

Update: Because a bunch of people on Twitter appear to continue to believe the false claim that Garland declined Wilbur Ross’ prosecution for lying to Congress, I’m going to link to this post noting that the declination happened under Billy Barr and also noting that DOJ IG likely had their own investigation into the allegations the outcome of which is not yet public.

The Significance of Tom Barrack’s Obstruction and False Statements Charges

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I want to expand on something I said in this post about Tom Barrack’s charges: the obstruction and false statements charges against Trump’s big fundraiser make this case much more solid than many in the press (usually the same people claiming it’s a FARA case) are suggesting.

 In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The headline charges are the foreign agent and conspiracy charges. But in addition to those charges, Barrack is also charged with obstruction and false statements. Most likely, if he were found guilty only on those charges, he’d face less time than from the foreign agent charge, but he’d still face prison.

Here’s what we know of the timeline: According to the Rashid Al Malik complaint, he was interviewed by the FBI on April 5, 2018. If the Intercept’s report that Mueller’s team conducted this interview is correct, this is likely his almost entirely redacted 302 (for an investigation that was ongoing in September 2020). Three days earlier, someone represented (as Barrack was) by Steptoe and Johnson had a pre-grand jury interview led by Zainab Ahmad that Andrew Weissmann joined while in progress. On April 8, three days after his own interview, Al Malik left the country and has been gone ever since.

In early 2019, Mueller’s team started handing off referrals, which may be why, in February 2019, the FBI sent subpoenas to Colony Capital.

In or about February 2019, Federal Bureau of Investigation (“FBI”) special agents served federal grand jury subpoenas on several individuals employed by or associated with Company A, including individuals that reported directly to the defendant THOMAS JOSEPH BARACK, in connection with the criminal investigation of the activities of the defendants RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and MATTHEW GRIMES.

Following the service of these federal grand jury subpoenas, the defendant THOMAS JOSEPH BARRACK volunteered to speak with FBI special agents. On or about June 20, 2019, FBI special agents interviewed BARRACK, in the presence of counsel, regarding the activities of the defendant RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and the defendant MATTHEW GRIMES. At the outset of the interview, United States government officials advised BARRACK, and confirmed that he understood, that lying to federal agents is a federal crime. Thereafter, during the course of the interview, BARRACK knowingly made numerous materially false statements relating to the activities of ALSHAHHI, BARRACK, and GRIMES.

At the time, of course, Barrack’s close ally was still President and Bill Barr was newly installed at the helm of DOJ, working hard to cover up the true results of the Mueller investigation and even beginning to take steps to protect Rudy Giuliani from his own foreign agent charges. Why wouldn’t Barrack lie?

Interestingly, the obstruction charge against Barrack suggests others were part of this.

On or about June 20, 2019, within the Eastern District of New York and elsewhere, the defendant THOMAS JOSEPH BARRACK, together with others, did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruction, influence and impede, an official proceeding, to wit: a Federal Grand Jury.

In any case, Barrack is well-resourced and he’ll no doubt offer some solid defenses here, possibly including that he had earlier told the truth about some of this stuff, and so, any inaccuracies in his 2019 interview weren’t material.

But assuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ as “boss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

Five days after Barrack’s interview, the FBI obtained an arrest warrant for Al Malik, one that made Al Malik look like the bad guy here, taking advantage of poor Tom Barrack and poor Paulie Manafort.

But then DOJ kept investigating Barrack’s role in all this. According to CNN, before this time last year, EDNY prosecutors believed they had enough to add Barrack to the charges, but the appointed US Attorney “expressed misgivings.”

Federal prosecutors in Brooklyn investigating Tom Barrack, a prominent ally to former President Donald Trump, for allegedly violating foreign lobbying laws had enough evidence to bring charges last year, but held off doing so until the arrival of the new presidential administration, according to people briefed on the matter.

Prosecutors wanted to move forward on the case and believed they could obtain an indictment, one source familiar with the matter said. The source said the investigation was mostly done well before the time period when prosecutors are discouraged from advancing politically sensitive matters ahead of an election.

But two sources tell CNN the US attorney in Brooklyn at the time, Richard Donoghue, expressed misgivings about the case. It’s unclear if he delayed the case outright or if prosecutors chose not to move forward at the time knowing the US attorney would not support it.

Then-Attorney General William Barr was also known inside the department to have reservations, in general, about foreign lobbying cases, which the Justice Department has struggled to prosecute in the past.

A spokesman for the Brooklyn US attorney’s office declined to comment. [my emphasis]

This is a hugely important report, but it also lets the Barr DOJ off easy. That’s true, first of all, because this is not a foreign lobbying case (this is one of the many reasons I harp on the import of getting the charge right here). DOJ hasn’t struggled to prosecute 951 cases, though at the time prosecutors deferred these charges, Barr was busy letting Mike Flynn blow up the Bijan Kian case, which included both FARA and 951 in the conspiracy charge, along with 951 separately, but which charged only Ekim Alptekin with false statements. Had Mike Flynn held to the terms of his plea agreement, that case likely would have been a far easier guilty verdict.

What happened last year, though, is that after EDNY prosecutors had continued to investigate for a year after discovering that Barrack was in no way the innocent victim of accused foreign agent Rashid Al Malik and were prepared to try to hold Barrack, as well, accountable for a pretty dramatic undisclosed role in setting a pro-UAE foreign policy, Richard Donoghue, faced with evidence that one of Trump’s closest advisors wasn’t telling the truth about why he was doing the things he was doing (or even, that he was doing them), “had misgivings.”

Or maybe he had misgivings about how Trump and Barr would respond if he approved this.

In fact, all this must have happened more than a year ago, because on July 10, 2020, Barr announced he was swapping Donoghue for Seth DuCharme, his DOJ fixer. This CNN report doesn’t explain why this didn’t get charged under DuCharme, but maybe that’s the point.

So Donoghue — or maybe DuCharme — left all the repercussions to US foreign policy of Barrack’s undisclosed actions earlier in the Trump Administration remain in place.

Frankly, it’s not surprising that Donoghue and DuCharme — who were, at the time, also in charge of limiting any damage to Rudy for his undisclosed influence-peddling — didn’t approve this prosecution. That’s their job.

What may be the most interesting detail is that whereas Lisa Monaco approved the raid on Rudy on her first day in office, this prosecution has taken three more months to charge.

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now. It’s possible there’s some complicating factor (again, I think it possible that he told the truth about some of these questions when interviewed by Mueller in December 2017). But if not, then the alleged lies become the building blocks to proving the Foreign Agent charges.

In any case, the alleged false statements charges make the questions about why Barr’s DOJ thought it was okay to keep these secrets all the more important.

Judge Paul Oetken Eliminates Lev Parnas’ Last Attempt to Weaponize the Former President’s Former Lawyer in His Defense

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Yesterday, Judge Paul Oetken ruled on all but one of the pre-trial motions in the Lev Parnas trial(s). The rulings have the effect of neutralizing any benefit that Parnas might have tried to get from his association with the former President’s former lawyer, Rudy Giuliani. But the order also appears against the background of the Special Master review in Rudy’s own case in interesting ways, and in ways that might change Parnas’ incentives.

The only request that Oetken granted was a request to sever the campaign finance charges — what Oetken describes as the Straw Donor scheme (funneling money to pro-Trump entities) and the Foreign Donor scheme (funneling Russian money to pro-marijuana politicians).

The “Straw Donor Scheme” (Parnas and [Igor] Fruman): First, the Government alleges that Parnas and Fruman conspired in 2018 to disguise and falsely report the source of donations to political action committees and campaigns, thereby evading federal contribution limits, in order to promote their nascent energy business venture and boost Parnas’s profile.

The “Foreign Donor Scheme” (Parnas, Fruman, and [Andrey] Kukushkin): During the same time period, Parnas and Fruman were working with Kukushkin on a separate business venture: a nascent cannabis business. Among their activities was making political contributions to candidates in states where they intended to seek licenses to operate a cannabis business. The Government alleges that Parnas, Fruman, and Kukushkin conspired to disguise a one-million-dollar contribution from a Russian national to evade the prohibition on political contributions from foreign nationals.

Oetken will sever those charges from the Fraud Guarantee charges, which currently involve only Parnas (and in which David Correia already pled guilty and cooperated with the government).

The “Fraud Guarantee Scheme” (Parnas): Parnas was also working with David Correia on pitching another business venture to be called “Fraud Guarantee.” The Government alleges that Parnas and Correia defrauded several investors in Fraud Guarantee by making material misrepresentations to them, including about the business’s funding and how its funds were being used.

That puts the trial involving Rudy, in which only Parnas is currently charged, after the non-Rudy trial, which is due to start on October 4.

Then, in two steps, Oetken denied Parnas’ bid to claim to 1) get access to Rudy and Victoria Toensing’s seized content to prove that 2) he was selectively prosecuted to protect the former President. Mind you, Parnas requested those in reverse order (indeed, in its response to Parnas on the selective prosecution claim, the government claimed that some of what he was asking for might be privileged). So Oetken denied those requests in order, first by ruling that Parnas hadn’t provided proof of either basis to claim selective prosecution, that he was discriminated against or that it was done out of some discriminatory purpose.

Parnas does not meet either required prong. Regarding discriminatory effect, Parnas fails to show that others who are similarly situated have not been prosecuted. This requires showing that individuals outside the protected class committed roughly the same crime in roughly the same circumstances but were not prosecuted. See United States v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008). However, individuals similarly situated to Parnas were prosecuted along with Parnas, including two who share his national origin (Fruman and Kukushkin) and one (Correia) who does not. Moreover, while Parnas was subject to a Congressional demand for information at the time of his arrest, Fruman was as well, and while Parnas complied with that demand several months later, Fruman did not.

Regarding discriminatory purpose, Parnas’s argument is not just speculative, but implausible. Citing Twitter posts, Parnas argues that “[m]illions of Americans already believe that [former] Attorney General Barr may have interfered in some aspect of Mr. Parnas’s investigation and prosecution, based on the public record.” Parnas asserts that his indictment and arrest were a means to thwart Parnas’s testimony in the impeachment inquiry of former President Donald Trump. But the theorizing of Twitters users, and Parnas’s own speculation, do not constitute evidence of an improperly motivated prosecution. Indeed, Parnas was, by his own admission, not cooperating with the Congressional demand as of the day of his indictment. To accept Parnas’s conspiracy theory, the Government would have to have known that, one day in the future, Parnas would change his mind and decide to cooperate with the Congressional demand. Furthermore, the Government’s conduct since Parnas’s arrest undermines his theory. The Government consented to allowing Parnas to produce documents to the House impeachment committee, and it has not objected to Parnas’s media interviews and television appearances.

It’s actually not a conspiracy theory that Parnas was prosecuted in the way he was partly as an attempt to shut him up, though when Parnas first argued this, he claimed he was prosecuted to prevent him from testifying in the Former’s first impeachment which, as Oetken notes (and I noted in the past) doesn’t accord with the known facts. And Parnas chose not to present some of the most damning evidence of this, probably because it would incriminate himself.

In any case, having denied Parnas’ selective prosecution claim, in the very next section, Oetken denies Parnas’ request (in which the other defendants joined) to get access to the Rudy-Toensing content, citing his decision rejecting Parnas’ selective prosecution claim.

The Giuliani and Toensing warrants do not authorize the Government to search for evidence related to this case, nor do any of the accounts or devices involved belong to Defendants. The Government represents that it will not use any of the evidence seized pursuant to these warrants at trial in this case. Thus, the only bases for discovery of these materials would be (1) if they contain statements by Defendants that are “relevant” to the charges in this case, or (2) if they are “material” to preparing a defense to the Government’s case.

First, Defendants contend that the search warrant returns are likely to contain communications between Giuliani and Toensing and Parnas. But such communications are likely to have already been produced from Parnas’s and Fruman’s own accounts and devices, and Defendants have not shown that they are related to the charged case, material, and noncumulative.

Second, Parnas suggests that the warrant returns may contain evidence relevant to his selective prosecution claim. The Court has already rejected that claim, and nothing in Parnas’s letter alters the fact that Parnas has failed to make the requisite showing for such a claim.

This is unsurprising on a matter of law, but several points about it are worth closer focus: First, Oetken notes that the government can only access that information seized from Rudy and Toensing that relates to the crimes for which probable cause was laid out in the warrants, that is, Rudy’s influence-peddling, which also implicates Parnas. By description, those warrants do not include any claim that Rudy, with Parnas, attempted to obstruct the impeachment inquiry by hiding details of the influence-peddling scheme. So the warrants would not have provided access to the content of most interest to Parnas, content he’s pretty sure exists or existed.

Oetken is silent about whether any warrants have been obtained since the government finally got access to the first tranche of material seized in 2019.

Oetken then claims that if useful communications existed, they would not have been turned over in the warrant returns served on Parnas and Fruman’s own devices, because those warrants obtained permission for evidence of different crimes. Except there’s very good reason to believe that’s not true: that’s because, by October 21, 2019, the government and Oetken both know, Parnas attempted to delete his own iCloud account. Parnas did not succeed in that attempt — the government had already gotten a preservation order with Apple. But that doesn’t mean there isn’t some other content he once had that he thinks Rudy or Toensing may have retained. Indeed, in his request for the information, Parnas asserted the information seized from Rudy and Toensing likely included conversations — conversations that may have been deleted — about how to address their prior relationships and the unfolding investigation.

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation.

Those materials might help Parnas describe why John Dowd attempted to assert an interlocked attorney-client relationship that ultimately put the then-President in a joint defense agreement with at least one pretty sketchy Ukrainian, which in turn might explain how this investigation proceeded as it did (including why it didn’t expand into Rudy’s dalliance with a different Ukrainian agent of Russia). But Parnas as much as describes it as an obstruction attempt — an obstruction attempt he, when he attempted to delete his own iCloud account, would have been a part of before he wasn’t a part of it anymore. Given Rudy’s  descriptions of the crimes covered by the warrants, that attempt was not a part of the warrants originally obtained on Rudy and Toensing in 2019, and it wasn’t a part of the warrants obtained in April, but given the new evidence (Parnas’ own declaration), and given that Jeffrey Rosen is no longer around to obstruct investigations into the Former, SDNY (or EDNY) could ask for new warrants for permission to search for evidence of that crime.

If SDNY asked for such warrants, Oetken would have been the one they would ask.

Meanwhile, a month after Special Master Barbara Jones first described how she would proceed in reviewing Rudy and Toensing’s seized materials, including her promise to, “provide the Court with a timeline for concluding the privilege review once she better understands the volume of the materials to be reviewed,” she has made no public reports. Given the pace at which she worked to review Michael Cohen’s content in 2018, in which her first report was issued 38 days after she was appointed, we should expect a report from her in the near future (the same 38 days would have been July 13, though COVID has slowed everything down).

Meanwhile, yesterday’s ruling took a curious approach to privilege issues. One thing Kukushkin complained about was that, by choosing to share information with the impeachment inquiry, Parnas shared information in which they had an attorney-client privilege. Oetken dismissed this concern (and Kukushkin’s larger bid to sever his trial from Parnas’) in part by relying on prosecutors’ representation that they would not rely on privileged material

Kukushkin also argues that because Parnas waived the attorney-client privilege by providing certain materials to Congress, the Government may be able to introduce privileged materials against Parnas, prejudicing Kukushkin. This argument is speculative, and the Government disavows any intent to seek to offer privileged materials.

Finally, all the defendants complained that a key email used against them in the superseding indictment was privileged, and argued that that, plus all fruit of that (a number of other search warrants), should be thrown out.

Defendants assert that an email, quoted in several search warrant applications, is protected by the attorney-client privilege and that, as a result, the returns from the search warrants should be suppressed and the Superseding Indictment itself should be dismissed. This issue will be addressed in a separate opinion and order.

This is a different attorney-client dispute, not the claims of privilege that John Dowd invented to protect a cover-up in 2019. The government argued that it was not privileged, but even if it were it would be covered by the crime-fraud exception. “[T]he crime-fraud exception applies because the email furthered a criminal effort by the defendants to utilize attorneys to structure a new business to conceal the involvement of a foreign national.” But Oetken, who presumably approved of those allegedly poisoned fruit warrants like he approved of the warrants against Rudy and Toensing, has deferred it to a separate opinion.

Oetken knows far more about the substance of these attorney-client disputes, and this is actually the third attempt in this case where a defendant attempted to hide evidence by invoking privilege. In the third, prosecutors successfully argued that materials pre-existing attorney-client privilege are not privileged.

But given all these claims of attorney-client privilege he has been watching, it’s likely he’s unimpressed with the third one.

Merrick Garland Agreed He Would Go after January 6 Kingpins, if Evidence Merits

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There continue to be questions about how we’ll ever get accountability for January 6 without a January 6 commission to do that work.

In an exchange yesterday, for example, Bart Gellman asked what questions we’d most want a January 6 commission to answer, and I responded, “Why there’s such a broad belief that a criminal investigation won’t answer those questions.” In response, NYT’s Alan Feuer speculated that,

DOJ’s 500ish criminal cases will not ultimately touch the potential liability in 1/6 of political figures including but not restricted to the former president.

This prosecution writ large is (speculation alert) likely to be restricted to verifiable perpetrators, not possible instigators. The range of crimes (s.a.) are likely to include the known ambit: obstruction, assault, civil disorder, trespass etc. Sedition may not be charged.

Things can change. Evidence can emerge. But after five months, it seems unlikely (speculation alert) that DOJ is assuming the responsibility for searching out root causes as opposed to building demonstrably provable cases.

I think Feuer’s is a fair observation, though I disagree that holding “instigators” accountable is at all the same as “searching out root causes.”

In my opinion, it is way too premature to judge where a complex investigation will lead after only five months, which is an infancy in terms of such things (it took almost exactly a year from the time that FBI got the tip about George Papadopoulos until he was arrested, the first arrest of the Mueller investigation, which itself was lightning fast). And while it is true that the current universe of charges includes those crimes Feuer lays out — obstruction, assault, civil disorder, trespass — even that list leaves out conspiracy. The boilerplate description DOJ uses to describe the complexity of the investigation notes that such a list (which includes conspiracy) is non-exclusive.

The spectrum of crimes charged and under investigation in connection with the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assaults on federal and local police officers, firearms offenses, civil disorder, obstruction of an official proceeding, possession and use of destructive devices, and conspiracy.

Importantly, if we believe Merrick Garland’s response to a Sheldon Whitehouse question in his confirmation hearing, the Attorney General is committed to let the investigation proceed wherever the evidence leads, specifically to include “funders, organizers, ring leaders” and even any kingpins to this insurrection.

Whitehouse: With respect to January 6, I’d like to make sure that you are willing to look upstream from the actual occupants who assaulted the building, in the same way that in a drug case, you would look upstream from the street dealers to try to find the kingpins, and that you will not rule out investigation of funders, organizers, ring leaders, or aiders and abettors who were not present in the Capitol on January 6. Fair question?

Garland: Fair question. And again, your law enforcement experience is the same as mine, investigations — investigations, you know, I began as a line Assistant US Attorney and was a supervisor, we begin with the people on the ground and we work our way up to those who were involved and further involved. And we will pursue these leads wherever they take us. That’s the job of a prosecution.

That’s why I wrote these three posts:

Together, those posts argue that if any kingpins will be held accountable, it will be through a conspiracy prosecution. I note that one of the conspiracies has already reached back to the Willard Hotel, where Roger Stone was staying and where the call patterns suggest possible consultation with people present at the hotel. And I suggest that not only will there will be further conspiracies (I’m pretty confident about that prediction) but there may be more complex prosecutions tied to people who were involved in the rallies rather than the riot or who were discussed explicitly with Rudy Giuliani (I’m far less confident about that possibility).

That doesn’t mean Donald Trump, or even Roger Stone or Rudy Giuliani, are going to prison. It’s not clear what kind of evidence is out there. It’s not clear how loyal these famously paranoid people will be without the constant dangle of pardons that Trump used to buy silence during the Mueller investigation.

But even in what we’ve seen, we’ve seen a focus on who paid for things (such as the payment to Joshua James’ wife tied to “protecting” Roger Stone), who organized buses (there are at least four defendants involved with such things) or otherwise funded transportation, as well as media promotion both before and media communications while at the insurrection worked. Thus far, Charles Donohoe is the primary person who was charged in an organizational role but who didn’t enter the Capitol, but the Proud Boys and Oath Keeper conspiracies seem pretty focused on Enrique Tarrio and Stewart Rhodes (I’m not sure how useful Rhodes would be to map out the larger conspiracy).

And that’s just what we’ve seen. We recently learned that the President’s own lawyer still doesn’t know that the investigation of Michael Cohen had started eight months before he got involved in an effort to dangle pardons, long after Mueller had already obtained Cohen’s Trump organization emails. We have no idea whose lives the FBI are unpacking with warrants that are not showing up in arrest affidavits. Certainly, the FBI and DOJ are getting far more thoughtful about what gets shared publicly when.

My point is assuredly not to promise that Roger Stone and Rudy Giuliani will go to prison. But the question of the possible scope of the January 6 investigation, as distinct from the likely one, is dictated primarily by the structure of the conspiracy uniting people who legitimately entered into an agreement with each other to achieve the goal that every currently charged conspiracy shares: to obstruct the certification of the vote count on January 6. If Trump’s associates entered into an agreement with the Proud Boys and Oath Keepers, if there’s evidence of them doing so, and if marginally credible witnesses are willing to trade cooperation for less time in prison, then some kind of accountability is possible, albeit still highly unlikely.

That probably does rule out some accountability, even assuming a best case scenario. For example, with a few possible exceptions, I see no way that the conduct of members of Congress would get beyond Speech and Debate protections. Similarly, I don’t see how any conspiracy investigation would work its way up from the crimes at the Capitol to incorporate anyone at DOD stalling the National Guard response.

But as I noted to Gellman, I want to know the basis for certainty about what the investigation might discover. Because the investigation is already just two degrees of separation from Donald Trump via both Rudy and Stone, and that’s just what we can see looking at what prosecutors have been willing to share.

Barbara Jones’ Special Mastery of Releasing Donald Trump’s Lawyers’ Crime-Fraud Excepted Communications

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I knew Rudy Giuliani was in trouble when I read him — along with his lawyer Robert Costello, who allegedly tried to bribe Michael Cohen with a pardon in the wake of an SDNY seizure of his phones — claim that SDNY had first accessed Michael Cohen’s communications after SDNY seized Cohen’s phones in a search of his house and office.

In April 2018, the Government was in this exact same position it is in now in dealing with seizures made from the personal attorney to the President. This is now the second dawn raid of the office and home of an attorney for then President Trump. A year before they searched Giuliani’s iCloud account in November 2019, they were dealing with the raid of Michael Cohen’s home and law office. In Cohen v. United States, 18-mj-3161 (KMW), after conducting a search of President Trump’s personal lawyer’s home and law office, the Government opposed the appointment of a Special Master in a letter to the Court dated April 18, 2018. Counsel for Michael Cohen and intervening counsel for President Trump both requested that a Special Master be appointed and that the Special Master review the evidence, but only after counsel for the respective parties had reviewed the evidence and made their own claims of privilege. On the day of a scheduled conference to decide the issue, the Government, in a letter to Judge Wood, withdrew their opposition to the Special Master, but requested that the Special Master, and not defense counsel, review all the evidence and make the initial determinations of privilege. Judge Wood adopted the compromise and appointed a Special Master to review all materials. One of the Government’s counsel that signed that letter is counsel on this matter as well.

As a result, the Government was well aware that it had agreed to a Special Master in a case involving claims of attorney-client and executive privilege regarding the search and seizure of an attorney’s home and office when that attorney was the personal attorney for the President of the United States. Here, when faced with the exact same situation in November 2019, the Government decided on its own, to use its own Taint Team to sift through all of the evidence gathered and decide what materials were privileged. To make matters worse, not only was Giuliani not informed about this practice, but the Government also continued to keep him, the President and his counsel in the dark for 18 months while Giuliani cooperated with another office of the United States Attorney. Based on its experience in the Cohen case, the Government knew better, or should have known better, that it should not make unilateral, uninformed secret decisions about privilege, but clearly threw caution to the wind in its attempt in this investigation in search of a crime.

Was it really possible, I asked myself, that the President’s own lawyer, as well as the President’s lawyer’s lawyer, had no idea that Mueller’s team had obtained Michael Cohen’s Trump Organization emails from Microsoft with an August 1, 2017 warrant, content which they later shared with SDNY?  Was it really possible, I wondered, that Rudy and Costello didn’t know that Mueller also obtained Cohen’s Google and iCloud content, obtained a non-disclosure order for it, and then later passed it on to SDNY, which obtained a separate warrant to access it? Did they not know that that process started 8 months before SDNY raided Cohen’s home and office and took his devices, which then led to the appointment of Special Master Barbara Jones? Did they really not know that SDNY first obtained Cohen’s content with some covert warrants, reviewed that information with the use of a filter team, and only after that got some of the very same information by seizing Cohen’s phones, only with the later seizure, used a Special Master to sort out what was privileged and what was not?

After the government’s reply, I thought for sure they’d start to cop on. I figured Rudy and Costello — who collectively, allegedly tried to bribe Cohen’s silence about the crimes he had committed while purportedly providing legal representation for Donald Trump — would understand the significance of this passage of the government reply:

Giuliani also analogizes this case to Cohen, suggesting that the Government should have known to use a special master because it had just agreed to use one in that case. (Giuliani Ltr. at 11). But Cohen favors an opposite conclusion: there, as here, the Government first obtained covert search warrants for accounts belonging to the subject. The returns of those covert warrants were reviewed by a filter team—a process which was not challenged. Although Judge Wood ultimately appointed a special master in Cohen, she repeatedly made clear her view that the use of a filter team was acceptable and was consistent with the substantial body of law in this Circuit. (See, e.g., Cohen, Dkt. 38 at 8). However, based on the unique circumstances of the case—Cohen’s principal and perhaps only client was then the President, and the case was subject to significant public attention—Judge Wood believed, and the Government agreed, that the use of a special master was needed for the “perception of fairness, not fairness itself.” (Cohen, Dkt. 104 at 88). But even after appointing a special master, Judge Wood continued to recognize the appropriateness of the use of a filter team: at the end of the special master’s review, there was one cellphone that had not been decrypted, and Judge Wood ordered that the if the cellphone was ultimately extracted, the privilege review could be conducted by the Government’s filter team. (Cohen, Dkt. 103 at 6). Thus, following Cohen, it was entirely appropriate for the Government to use a filter team during the covert phase of its investigation, but in light of the intense public interest in this matter following the overt execution of the 2021 Warrants, the Government agrees that while the appointment of a special master is not necessary for fairness, it is in the interest of ensuring that the privilege review process is perceived as fair.

But I didn’t write up the implications of that yet, because I figured there was still something that might save Rudy and Victoria Toensing. Maybe they’d pick a Special Master who would apply dramatically different rules than Special Master Barbara Jones had with Cohen, particularly an approach that said Cohen and Trump could claim privilege and hide the content, but any legal argument about that privilege had to be public. Surely they would be smart enough not to pick Jones, right? Surely, I thought, Rudy and Costello wouldn’t be dumb enough to be lulled into agreeing to appoint Jones herself, perhaps based on a false sense of confidence that since she works at Rudy’s former firm, she’ll go easy on the Mayor?

And yet, yesterday the government wrote to inform Judge Paul Oetken that the parties had agreed on a single choice to serve as Special Master: Barbara Jones.

The Government writes on behalf of the parties to propose the appointment of the Honorable Barbara S. Jones, a retired federal judge with the law firm of Bracewell LLP, to serve as the court-appointed special master for this matter.

They further asked that Oetken write up an order applying the same approach as Jones used with Cohen with Rudy.

The Government respectfully requests that the Court appoint Judge Jones to serve as the special master in this matter because her background and the resources available to her at her law firm will allow her to complete a privilege review in a fair and efficient manner. Mr. Giuliani and Ms. Toensing, through counsel, have both agreed to the appointment of Judge Jones. The Government has conferred with Judge Jones and she is available to accept this appointment. The Government respectfully suggests that the Court issue an Order of Appointment similar to the one issued by Judge Wood in the Cohen matter, setting forth the duties of the special master, the reporting and judicial review requirements, terms of compensation, terms of engagement of other professionals, and other relevant provisions. Cohen, No. 18 Misc. 3161 (S.D.N.Y. Apr. 27, 2018) (Dkt. 30). Judge Jones is available to speak with the Court directly should the Court have any questions about her potential appointment.

Understand, the government has now gotten Rudy on the record begging that he get the same treatment as Michael Cohen. It has gotten Rudy on the record saying he prefers to have a Special Master rifle through his potentially privileged communications than a filter team.

Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time.

It has also gotten Victoria Toensing to agree on the value of a Special Master (even though she requested she get first shot at reviewing her content).

Appoint a Special Master from the list of candidates proposed by the parties or another suitable candidate identified by the Court to oversee the process and resolve any disputes that may arise;

When former SDNY US Attorney Rudy Giuliani and former Deputy Assistant Attorney General Victoria Toensing made those comments, though, they probably didn’t think through the implication of filter team protocols that both presumably know or once knew, but which the government was kind enough to spell out in their reply to the lawyers’ letters:

As is its practice, the filter team did not release any potentially privileged materials based on the possible application of waiver or crime fraud principles, even if the applicability of those exceptions was apparent on the face of the document.

SDNY filter teams will not pass on potentially privileged materials seized from an attorney even if there is an obvious crime-fraud exception. By description, SDNY suggests that “the applicability of [such] exceptions was apparent on the face of” some of the communications — new copies of which SDNY seized last month — SDNY’s filter team reviewed already. But they couldn’t pass them on because that’s not how SDNY filter team protocols work.

And yet, as a result of Barbara Jones’ review of material seized from Donald Trump’s attorney’s devices, SDNY obtained evidence — of Michael Cohen negotiating hush payments with two women — that might otherwise have been privileged, but that was clearly evidence of a crime. In fact, Trump thought about fighting the release, except after Judge Kimba Wood ruled that legal disputes have to be public, Trump decided not to challenge its release.

An SDNY filter team cannot share evidence that shows a lawyer breaking the law in the service of doing Donald Trump’s dirty work.

But Special Masters can. And Barbara Jones already has.

When I first read these filings — especially SDNY’s very generous offer to pick up the tab for a Special Master — I thought it was just about timeliness, about getting Rudy’s evidence in hand as quickly as possible. But it’s not. It’s the only way that they can obtain materials that they know exist that show Rudy committing a crime in the guise of serving as a lawyer. Admittedly, it might just be materials implicating Lev Parnas and Igor Fruman. But, as happened to Cohen, it might also cover things Rudy did while allegedly doing lawyer stuff for Donald Trump.

Remember, this whole process started when John Dowd claimed that Parnas and Fruman helped Rudy represent Trump, Rudy represented Parnas and Fruman, and they also helped Toensing represent Dmitro Firtash.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

John Dowd made an absurd claim that, even then, was a transparent attempt to hide real dirt behind attorney-client privilege. That’s precisely the material that SDNY is asking Barbara Jones to review to see whether it’s really privileged.

Update: Lev Parnas renewed his bid to force DOJ to go look for materials that help him at trial and support his selective prosecution claim. Along with describing some communications that he believes to exist that would be in Rudy’s files (such as proof of Rudy saying that one of their mutual Fraud Guarantee victims did no due diligence), Parnas outlines the evidence that he was prosecuted to shut him up. The Dowd actions are central to that.

The Government argues that, since Parnas was not yet attempting to cooperate with Congress at the time he was arrested, his selective prosecution claim is without merit. However, by the time of Parnas and Fruman’s arrest, Parnas had received a demand letter seeking evidence from the House Intelligence Committee, and been referred by Giuliani and Toensing to Attorney John Dowd—who had previously represented former President Trump. Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. Next, Dowd met with Parnas and took custody of materials that he believed were responsive to Parnas’ demand letter. Then, Dowd informed the Intelligence Committee that Parnas would not be appearing as requested, and the evening before Parnas and Fruman were arrested wrote an e-mail to Giuliani, Jay Sekulow, Toensing, and others assuring that Parnas and Fruman would not be appearing to give a deposition or evidence against the former President. Giuliani then backed out of a planned trip to Vienna with Parnas and Fruman, and they were arrested as they boarded their flight. The following day, then-Attorney General William P. Barr made a “routine” visit to the SDNY, and, in the following months, sought the removal of SDNY U.S. Attorney Geoffrey Berman under still-undisclosed circumstances that may well have related to prosecutorial decisions made in Parnas and his co-defendants’ case.

Update: Oetken has indeed appointed Jones.

The [Thus Far] Missing Seth DuCharme Emails Pertaining to Rudy Giuliani’s Russian Disinformation

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As I’ve been harping of late, Billy Barr and Jeffrey Rosen went to great lengths to protect Rudy Giuliani’s efforts to obtain and disseminate what the Intelligence Community already knew was Russian-backed disinformation laundered through Andrii Derkach. That effort included the following:

  • For whatever reason, not warning Rudy that the Intelligence Community knew Russia was targeting him for an information operation before he traveled to his December 2019 meeting with Derkach
  • Prohibiting SDNY from expanding its existing investigation into Rudy’s foreign influence peddling to include his efforts with Derkach by making EDNY a gate-keeper for any such decisions
  • Asking Pittsburgh USA Attorney Scott Brady to accept the information that the IC already knew was Russian disinformation from Rudy
  • Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election
  • After belatedly opening an investigation into the Derkach effort that the IC had known was Russian disinformation for a year, opening it at EDNY and scoping it to ensure that Rudy’s own actions would not be a subject of the investigation

As a result of this remarkable effort, led by the Attorney General and Deputy Attorney General, to protect Russian disinformation, DOJ willingly ingested a bunch of Russian disinformation and used it to conduct an investigation into the son of the President’s opponent.

Last year, when it was disclosed that Barr had directed Brady to willingly accept this Russian disinformation, American Oversight FOIAed and then sued for the paper trail of the effort, submitted as four separate FOIAs:

  1. [To OIP and USAPAW] “Brady Order and Written Approval” — which specifically asked for “two readily-identifiable, specific documents” — described as:
    • The written approval of the Attorney General or Deputy Attorney General authorizing U.S. Attorney for the Western District of Pennsylvania (USAPAW) to create and/or administer a process for receiving purported investigatory information from Rudy Giuliani concerning matters that relate to former Vice President Biden
    • A copy of the Attorney General’s order directing USAPAW to conduct an evaluation, review, probe, assessment, “intake process,” preliminary investigation
  2. [To OIP and USAPAW] “Giuliani Directives, Guidance, & Communications,” described as:
    • All directives or guidance provided to USAPAW regarding an evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information that may concern former Vice President Biden
    • All records reflecting communications between (1) the Office of the Attorney General or the Office of the Deputy Attorney General and (2) USAPAW regarding an evaluation, review, probe, assessment, preliminary investigation, or other investigation of any information received from Rudy Giuliani
    • All records reflecting communications within the OAG or the ODAG regarding any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information which may concern former Vice President Biden
  3. [To USAPAW] “Brady-Giuliani Communications,”described as all records reflecting communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) Rudy Giuliani, or any of Mr. Giuliani’s personal assistants or others communicating on his behalf, including but not limited to Jo Ann Zafonte, Christianne Allen, or Beau Wagner
  4.  [To USAPAW] “Brady-White House Communications,” described as any communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) anyone at the White House Office

Before American Oversight filed the lawsuit, the Trump Admin did two things that will have an effect on what we’re seeing. First, DOJ combined requests one and two above; as we’ll see, that had the effect of hiding that Barr didn’t put anything in writing. In addition, USAPAW told American Oversight that they were going to refer the request for such an order to Main Justice for referral.

While the lawsuit was filed under the Trump Administration, the substantive response to it started in February. The FOIA is a way to understand more about this effort — both how willing Barr’s DOJ was to put this scheme in writing, as well as the volume of paper trail that it generated.

The first status report, submitted on February 22, revealed the following based on an initial search:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 8,851 items
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW: 1,400 pages
  3. “Brady-White House Communications:” none

The second status report, submitted on April 1, reported that of the initial search, the following was deemed potentially responsive:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 30 pages referred
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 272 pages reviewed so far:
    • 3 pages released in full
    • 189 pages referred to other agencies for consultation
    • 83 duplicates or non-responsive

Here is the USAPAW production.

The third status report, submitted on May 3, reported the following:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ:
    • 18 pages released in partly redacted form
    • 4 pages withheld entirely under b5 deliberative exemption
    • 6 pages awaiting a response from some other component
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 263 pages reviewed this month:
    • 5 pages released, 3 of which include b6, b7A and b7C redactions
    • 14 pages referred to another component
    • 244 pages non-responsive or duplicates

Here is the USAPAW production and here is the Main DOJ production.

Here’s what has currently been provided to American Oversight (go here for live links).

Note, this may be clarified in upcoming dumps, but for now, there appears to be something very irregular with the OIP response. At first, DOJ said there were up to 8,851 items that were responsive to American Oversight’s request. But with the next status report, DOJ said there were just 30 pages. The most recent release claimed to account for 28 of those 30 pages.

In the second joint status report, OIP stated that it had completed its search and its initial responsiveness and deduplication review of potentially responsive documents and identified approximately 30 pages of material likely responsive to Plaintiff’s request. See ECF No.7, ¶ 2. OIP further stated that it had sent these records out for consultation pursuant to the Department’s regulations, 28 C.F.R. § 16.4(d), and expected to be able to provide its first response to Plaintiff on or around April 29, 2021. Id. On April 29, 2021, OIP made its first interim response. It released 18 pages in part with portions redacted pursuant to Exemptions 5 and/or 6 and withheld four pages in full pursuant to Exemption 5. OIP is awaiting responses from other components on the remaining six pages.

The math looks like this:

18 pages released

4 pages withheld under b5 exemption*

6 pages referred to another component

Total: 28 pages

Remaining: 2 pages

That’s a problem because there are at least two pages of emails that were part of the USAPAW response that must have had a counterpart at DOJ, as well as one missing from both (though USAPAW has 1000 pages to release):

  • A January 3, 2020 email from Seth DuCharme to Scott Brady asking, “Scott do you have time for a quick call today in re a possible discreet assignment from OAG and ODAG?” (Brady’s response, which includes DuCharme’s original, is included in both, but the copy released by OIP was printed out from Brady’s account, not DuCharme’s).
  • A February 11, 2020 email from Brady to DuCharme, asking “Seth, do you have a few minutes to catch up today?” The email should exist in both accounts, and should be included in both OIP and USAPAW’s response.
  • A March 5, 2020 email from Brady to DuCharme, asking “Seth: do you have 5 minutes to talk today?”

Brady resigned effective February 26 and DuCharme resigned effective March 19. At the time he resigned, DuCharme was supervising an investigation into this Derkach stuff, one that excluded Rudy as a subject.

I assume this will become more clear with further releases (indeed, American Oversight may have the next installment already). Perhaps there’s a sound explanation. But thus far, it looks like only the Brady side of exchanges between him and DuCharme have been provided in response.

* The response letter to Jerry Nadler was two pages long, and the draft was sent twice (or there were two drafts), so those probably account for the 4 pages withheld on b5 exemptions.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

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Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.

The Rudy Giuliani Warrants Likely Go Up To the Andrii Derkach Meeting

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For a variety of reasons, I’d like to look at the probable scope of the Rudy Giuliani warrants. I believe the warrant obtained on April 21 probably goes up to, but not far beyond, the meeting Rudy had with Andrii Derkach on December 5, 2019.

This post is based in part on what Rudy Giuliani, Victoria Toensing, and Lev Parnas have telegraphed about these warrants. None of these people are reliable, but Rudy and Toensing, at least, are clearly trying to share information with potential co-conspirators and therefore would want to be accurate. And whether or not the redaction fail in Parnas’ letter was intentional, I believe Parnas was trying to maximize the discomfort that these warrants might pose to powerful people (Parnas knows the targets and dates of the warrants, but it’s not clear whether he knows the date ranges). The post also includes claims from the government response to Parnas’ request for access to the Rudy and Toensing content; the government is reliable but still obviously hiding stuff.

Per Parnas, he knows of three warrants targeting Rudy:

  • A November 4, 2019 warrant targeting Rudy’s iCloud and email accounts
  • An April 13, 2021 warrant obtaining historical and prospective cell site information from Rudy (and Toensing)
  • An April 21, 2021 warrant targeting what ended up being 18 devices from Rudy

Here’s what these letters claim about the warrants:

  • The November 4, 2019 warrant “commences when Mayor Giuliani began to represent Donald Trump”
  • The start date of the November 4, 2019 warrant was “the commencement of Giuliani’s representation of former President Donald Trump”
  • Rudy believes the iCloud warrant obtained “communications with, and on behalf of, the sitting President, containing material relating to the impending impeachment”
  • The date range for the April 21, 2021 warrant began “three months later than the iCloud account”
  • The end date for the April 21, 2021 warrant went “56 days” later than the iCloud warrant
  • The warrant required Apple turn over “subscriber and payment information, device information and settings, transactional records, address book information, call history and voicemails, text message content, email content, photos and videos, documents, search and web histories, third-party application data, location date and iOS device backups” (this is boilerplate, but most people don’t understand how comprehensive a cloud warrant, to Apple or Google, can be)
  • The government showed probable cause that the iCloud account included evidence of “22 USC §§612 and 618 [FARA], 18 USC §951 [Foreign Agent], 18 USC §2 [Abetting], and 18 USC §371 [Conspiracy to defraud the US]”
  • Two days after the warrants targeting Rudy and Toensing, SDNY obtained a warrant targeting Yuri Lutsenko; later warrants targeted two other Ukrainians, Roman Nasirov and Alexander Levin
  • The treatment of information pertaining to someone Toensing represents (possibly, but not definitely, Dmitro Firtash) was more limited in her later warrant
  • Parnas believes that some of the information (though he doesn’t specify whether from the November 2019 or the April 2021 search) would include information “that may have been deleted”
  • Parnas believes that the warrants obtained “the communications immediately following the defendants’ arrest” on October 10, 2019
  • The 2019 returns do not contain any evidence relating to Parnas’ campaign finance charges and no non-duplicative statements from Parnas about Fraud Guarantee

Particularly given the way DOJ removed Parnas and Igor Fruman’s influence peddling for Yuri Lutsenko in their September 17, 2020 superseding indictment, it is virtually certain that this investigation involves, at a minimum, the ultimately successful Lutsenko-backed efforts to get Marie Yovanovitch fired in 2019.

This JustSecurity timeline is enormously helpful for reviewing the entanglements between Parnas and Fruman with Lutsenko (as well as the other events that SDNY is likely interested in). Rudy formally became Trump’s lawyer in April 2018, though there were discussions about him (and Toensing and her spouse Joe DiGenova) joining the team in March 2018, after John Dowd quit. Parnas and Fruman made their first pitch to Trump to fire Yovanovitch on April 30, 2018. In May and June, Parnas and Fruman heavily lobbied Pete Sessions to help get Yovanovitch fired. Then in August 2018, Fraud Guarantee hired Rudy. That puts the likely start dates of Rudy’s warrants sometime between March 20 and April 17, 2018 (for the iCloud warrant), and between mid-June and July or August 2018 (for the device warrant).

Depending on how narrowly the investigation is scoped on Yovanovitch, there are three likely end dates for the iCloud warrant: sometime between April 25 and May 6, 2019, when the effort to fire Yovanovitch succeeded, on October 10, when Parnas and Fruman are arrested, or on November 4, or whatever “present” day Apple complied with the warrant (the gag was issued days later so there may have been a delay in obtaining that approval).

I think one of the later dates is far more likely. That’s because Rudy continued to chase the same effort in Ukraine after Yovanovitch was fired. Plus, the most likely explanation for how SDNY was able to get warrants and a non-disclosure order for the November 2019 warrants against Rudy and Toensing is that they had proof, obtained on October 21, 2019, that Parnas had unsuccessfully attempted to delete information from his own iCloud account. And Rudy, who knows the date ranges of the warrant, claims that it obtained information, “containing material relating to the impending impeachment,” which, if true, would entirely rule out a May 6 end date.

Parnas believes the first warrant extended beyond his October 10 arrest. But it’s not entirely clear whether he knows the date range of the warrants. The government response explained they gave him material from him they had been withholding under a non-disclosure order relating to the investigation in which Rudy is a subject (that is, the Lutsenko campaign) on January 28. But in response to Parnas’ request for materials “immediately following” his arrest, the government got coy about whether they exist in the November 2019 returns (the only ones they have reviewed yet).

For similar reasons, the request for communications by Giuliani and Toensing “immediately following the defendants’ arrests” and “subsequent to” Parnas’s provision of information to the House Intelligence Committee are not subject to disclosure. (Def. Letter at 3.) Not only do these communications have nothing to do with the Government’s case-in-chief, but even if Parnas was entitled to discovery relating to his selective prosecution claim—and he plainly is not—these communications would not even be relevant to such a defense because, to the extent they exist, they post-date the defendants’ arrest.

Besides, there’s a more logical reason to expect that the November 2019 warrants ended on the day of Parnas’ arrest, October 10: because that’s consistent with SDNY’s investigation being limited to its original scope and the entirety of the investigation into Andrii Derkach being at EDNY, as NYT reported is the case.

On December 3, 2019, Rudy met in Budapest with Lutsenko. On December 4, he flew to Kyiv to meet with Derkach, the meeting that begins the relationship that EDNY has ownership of.

A 56-day extension on an end date in response to a November 4 warrant would be December 31, a logical end date for a warrant, but one that would encompass the aftermath of the Derkach meeting scoped to EDNY. Whereas a 56-day extension to an October 10 end date would take you to December 5: through the Derkach meeting associated with the Lutsenko one, but not any further.

That would also be inclusive of communications relating to the pending impeachment (which Rudy says would have been included in the iCloud return), but would be more protective of Rudy’s conversations with Trump as impeachment drew nearer.