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When John Eastman Acknowledged that Candidate Trump Spoke in His Personal Capacity

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In Sri Srinivasan’s opinion in Blassingame holding that presidents, when speaking as candidates, are not immune from civil suit, he pointed to a key moment in the 2020 transition period to illustrate the distinction he was making between when a president running for re-election speaks as an office-seeker, rather than an office-holder: When Trump intervened in the Texas v. Pennsylvania lawsuit.

As an example, consider a situation directly germane to the cases before us in which President Trump publicly volunteered that he was acting—and speaking—in an unofficial, private capacity. In the period after the 2020 election and before January 6, the Supreme Court considered an effort by Texas to challenge the administration of the election in several battleground states in which then-President-elect Biden had been declared the winner. Texas v. Pennsylvania, No. 22O155 (U.S. 2020). President Trump moved to intervene in the case. In doing so, he specifically explained to the Supreme Court (and captioned his filing accordingly) that he sought to “intervene in this matter in his personal capacity as a candidate for re-election to the office of President of the United States.” Motion of Donald J. Trump, President of the United States, to Intervene in his Personal Capacity as Candidate for ReElection, Proposed Bill of Complaint in Intervention, and Brief in Support of Motion to Intervene 14, Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 9, 2020) (Trump Mot. to Intervene). He relatedly elaborated that he wished “to intervene to protect his unique and substantial personal interests as a candidate for re-election to the Office of President.” Id. at 24.

President Trump, then, affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his “personal capacity” as a candidate for reelection—indeed, he explained that his reason for wanting to participate in the case was a “substantial personal” one rather than an official one. That stands in sharp contrast with other cases in which he—like all Presidents—had filed briefs in the Supreme Court in his “official capacity as President of the United States.” See, e.g., Brief for the Petitioners at II, Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). But while President Trump’s effort to participate in Texas v. Pennsylvania was made in an expressly and self-consciously personal, unofficial capacity, the content of his speech in his submission undoubtedly involved a matter of significant public concern: his challenge to the election results in various pivotal states, whose “electors [would] determine the outcome of the election.” Trump Mot. to Intervene 27.

As that example illustrates, an immunity for all presidential speech on matters of public concern—without regard to the context in which the President speaks—would be grounded purely in “the identity of the actor who performed it” rather than “the nature of the function performed.” Clinton, 520 U.S. at 695 (quoting Forrester, 484 U.S. at 229). Such a result is “unsupported by precedent.” Id. And it is unsupported by the basic object of granting a President official-act immunity: assuring that the President is not “unduly cautious in the discharge of his official duties.” Id. at 694 (emphasis added) (quoting Nixon, 457 U.S. at 752 n.32). That concern necessarily has no salience when the President acts—by his own admission—in an unofficial, private capacity.

b.

As President Trump’s intervention motion in Texas v. Pennsylvania highlights, whether the President speaks (or engages in conduct) on a matter of public concern bears no necessary correlation with whether he speaks (or engages in conduct) in his official or personal capacity. And because it is the latter question that governs the availability of presidential immunity—as a matter both of precedent and of the essential nature of an immunity for (and only for) official acts—we must reject President Trump’s proposed public-concern test as illsuited to the inquiry. [my emphasis; links added]

Remember that time, weeks before the actions alleged in these lawsuits, Srinivasan might have been nudging the six Republican appointees to the Supreme Court, where even Donald Trump admitted that sometimes when the president speaks, he speaks only in his personal capacity?

It was more than that, though, and in ways that might be significant to both the civil cases and Jack Smith’s case.

This was not just Donald Trump acknowledging that, at that moment in December 2020 when he asked the Supreme Court to make him the winner of the 2020 election, he was speaking in his personal capacity. It was John Eastman, Counsel of Record on that motion, who described Trump as such. Eastman filed that motion to intervene, representing Trump in his personal capacity, in a period when he was discussing with Clarence Thomas’ spouse about lawsuits to challenge the results of the election (though she told the January 6 Committee she had no involvement “at all” in Texas v. Pennsylvania). Even Republican members of Congress got into the act, starting with now-Speaker Mike Johnson and including Jim Jordan and Scott Perry.

When Ken Paxton asked the Supreme Court to throw out the votes of four swing states, a bunch of people who would go on to play key roles in the attack on Congress were party to an action in which Co-Conspirator 2 described that Defendant Trump spoke in his personal capacity.

In days ahead, we’ll learn more about how the DC Circuit civil decision being sent back to Amit Mehta will intersect with Tanya Chutkan’s criminal decision that former president Donald Trump is entitled to no immunity as former president. These two decisions may literally and figuratively pass each other in the halls of Prettyman Courthouse, as one decision heads back to the older District chambers and another heads up to the fancier Circuit chambers.

Srinivasan’s opinion is limited, inviting very specific fact-finding.

As I described, in a passage citing the Blassingame decision released just hours earlier, Chutkan very pointedly stopped short of that specificity. She declined to weigh in on whether a former president’s immunity from criminal prosecution would be different if he was acting “within the outer perimeter of the President’s official” duties than if he was engaged in official acts, effectively inviting Srinivasan and his colleagues to do that.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Chutkan’s decision might well be sufficient. There are plenty of things a president might do, claiming to do so in his official capacity, which would also break the law; DOJ raised five pretty familiar looking examples in their response to Trump’s bid for absolute immunity.

DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

[snip]

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

It would be nice if first DC Circuit and then SCOTUS could put this matter to bed, so it stops holding up Trump cases.

But judges like to move cautiously, testing the easy cases before they test the harder ones. With the Srinivasan decision in hand, the DC Circuit might treat the criminal appeal differently than they otherwise might.

For example, they might note, as DOJ did in its response, that five of six Trump described co-conspirators are also private citizens: Trump’s personal attorney Rudy Giuliani, Eastman representing Trump in his personal role, Sidney Powell, whom Trump recent said would be conflicted from representing him personally), Ken Chesebro who also claimed to be representing Trump personally, and Boris Epshteyn, who nominally remained an employee of the campaign.

If invited to do further briefing in light of Srinivasan’s opinion, DOJ might note that after SCOTUS denied Texas v. Pennsylvania cert, Trump’s campaign lawyers gave up the fight, as the January 6 Committee Report describes, ceding the fight to Rudy and the other co-conspirators.

Not everyone on the campaign was eager to pursue the fake elector plan. OnDecember 11th, the U.S. Supreme Court rejected a high-profile lawsuit filedby the State of Texas challenging the election results in Pennsylvania, Georgia, Michigan, and Wisconsin.42 After that decision, the Trump Campaign’s senior legal staffers said that they reduced their involvement in thefake elector effort, apparently because there was no longer a feasible scenario in which a court would determine that President Trump actually won any of the States he contested.43 Justin Clark, who oversaw the Trump Campaign’s general counsel’s office, said that he basically conveyed, “I’mout,” and encouraged his colleagues on the legal team to do the same.44 Findlay told the Select Committee that “we backed out of this thing,” and Morgan, his boss, said he had Findlay pass off responsibility for the electorsas “my way of taking that responsibility to zero.”45

Clark told the Select Committee that “it never sat right with me that there was no . . . contingency whereby these votes would count.”46 “I hadreal problems with the process,” Clark said, because “it morphed into something I didn’t agree with.”47 In his view, the fake electors were “not necessarily duly nominated electors” despite being presented as such.48 Hesaid he believed he warned his colleagues that “unless we have litigationpending like in these States, like I don’t think this is appropriate or, you know, this isn’t the right thing to do.”49

DOJ might also note that, as charged in the indictment, the suit played a specific role in the Georgia allegations, when Chris Carr refused Trump’s request that he join in Texas’ lawsuit, because none of Trump’s claims had merit.

And it’s not just Trump’s personal lawyer co-conspirators. The invocation of Texas v. Pennsylvania even weighs heavily on the role Jeffrey Clark, then serving as Acting Assistant Attorney General at DOJ and so in a far better position to claim to be acting in an official role, played in the alleged conspiracy.

That’s because Trump’s bid to replace Jeffrey Rosen with Clark was directly tied to an effort to get DOJ to file a similar lawsuit. Here’s how Jeffrey Rosen described it to the January 6 Committee.

Q Okay. And want to talk to you also about the December 27th call where | believe you conferenced in Mr. Donoghue. ~ And that involved the President as well. In Mr. Donoghue’s notes, he references John Eastman and Mark Martin and has a note that says: P trusts him.

What do you remember about that aspect of the conversation?

A So I think that day someone had sent over to us a draft Supreme Court brief modeled on the Texas v. Pennsylvania case that the Supreme Court had rejected. And I was I think Rich Donoghue and Steve Engel and I had a meeting that we were there for t0 address an oversight set of issues that had produced some controversy that Members of Congress who – I won’t get nto all that, other than that Mr. Meadows had asserted to me that the thing had – that he and AG Barr had resolved it. But now AG Barr was gone, and it wasn’t resolved, and he wanted to talk to me about getting it resolved.

But at that discussion Mr. Meadows raised with us: ~ Did you guys see the Supreme Courtbrief that was sent over?

And I think we said: Haven’t read it carefully, but it doesn’t look viable.

And he responded in some sense — and, again, I’m paraphrasing, because I don’t I’m repeating the substance rather than the words was: Well, Mark Martin and John Eastman, who are, you know, these great legal scholars, think it’s great idea.

And we said: Well, you know, we’ll get back to you. But preliminary take is it has problems, that it doesn’t look like a good idea to us. But we’ve only had it 2 hours or something like that, you know, whatever the timeframe was, which it was relatively brief.

Trump followed up twice, pushing DOJ to sue as the government.

What I remember better was that, on Wednesday, after the Kurt Olsen incident, I spoke to the President. I think that was just me, or Rich may have been in my office, but I don’t think it was on the speakerphone. Some of these were on speakerphone with me and Rich, and some, it was just me, but Rich could’ve been in my office.

And the way I remember it is, on Wednesday, I wound up telling the President, “This doesn’t work. ~ There’s multiple problems with it. And the Department of Justice is not going to be able todo it” And–

In the same exchange, there was discussion of whether a DOJ attorney, like Jeffrey Clark, could represent the president in his personal capacity.

Q Okay. So is it fair then to say that this was not partof the Department’s official businessatthe time?

A Yes

Q And, to your knowledge, can Jeff Clark as the assistant — Acting Assistant Attorney General for the Civil Division, can he represent the President in a personal capacity while also maintaining his role at the Department of Justice?

A Let me just make sure I understand the question. You’re saying, can he outside of his DOJ role represent the President in a personal capacity? And I’m trying what I’m trying to distinguish is sometimes the President or others get sued in their individual capacity. But they have some form of governmental immunity or the like. And so the government can represent them as individuals. That’s not what you’re getting at. You’re talking about, can a – can someone who’s a government employee, You know, have like a side gig representing a private person?

But then, after Jeffrey Rosen refused to make DOJ Trump’s own personal law firm, Trump took steps to make Jeffrey Clark, who was willing to do that, Acting Attorney General.

This application may even have critical import to the application of 18 USC 1512(c)(2) and (k) to Trump’s actions. Weeks before Trump and Eastman allegedly conspired to obstruct the vote certification on January 6, Eastman described that Trump had “unique and substantial personal interests” in throwing out the votes of four states that voted for Joe Biden. That’s the kind of admission from co-conspirator 2 that would make any analysis of Trump’s corrupt purpose in obstructing the vote certification quite easy.

Srinivasan’s use of Trump’s motion to intervene was, at one level, a very convenient use of Trump’s own legal claims — made before a conservative Supreme Court that will eventually answer both of these questions — against him.

But it maps onto the criminal case, too, in ways that DC Circuit might choose to apply as a way to tiptoe their way into sanctioning the first prosecution of an ex-president for actions he took as an office-seeker, rather than an office-holder.

Update: Ben Wittes and Quinta Jurecic similarly discuss how these two rulings work in tandem.

Judge Tanya Chutkan Had to Tell Trump That, “There is no ‘Presidential Immunity’ Clause”

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Less than twelve hours after the DC Circuit ruled that an office-seeker does not enjoy presidential immunity from civil suit, Judge Tanya Chutkan issued her order ruling that Trump does not enjoy presidential immunity for crimes committed while president.

Her opinion can be summed up in one line.

[T]he United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass.

The timing of Chutkan’s decision is almost certainly not accidental. The key issue in this opinion, absolute immunity, has been fully briefed (as Trump noted on November 1 when he asked to stay all other proceedings until this was resolved) since October 26.

Chutkan said she was ruling now because the Supreme Court requires immunity to be resolved as early as possible.

Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for selective and vindictive prosecution, ECF No. 116. The court will address those motions separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the Constitutional Motion—in which Defendant asserts “constitutional immunity from double jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).

She did not source that cite to Trump’s request for a stay, nor did she say she was also ruling on Trump’s motion to dismiss on Constitutional grounds, which includes a Double Jeopardy claim, because Molly Gaston asked her to,

But by ruling as she did (without a hearing), she simply mooted Trump’s request to stay any further proceedings with a minute order.

MINUTE ORDER as to DONALD J. TRUMP: In light of the court’s [172] Order denying Defendant’s [74] Motion to Dismiss Based on Presidential Immunity; Defendant’s [128] Motion to Stay Case Pending Immunity Determination is hereby DENIED as moot.

This puts the onus on Trump to appeal, which he reportedly will (though he has dilly-dallied on some of these motions, so we’ll see how much time he kills in the process).

It seems clear that Chutkan waited for Blassingame, the civil immunity opinion, because she found a way to cite it twice and still release her own opinion on the same day.

But it also seems likely that Judge Chutkan and her clerks simply reviewed that opinion to make sure nothing wildly conflicted with her already completed opinion, because her opinion doesn’t incorporate details of the absolute immunity argument — such as the significance of the fact that five of six co-conspirators described in the indictment (everyone but Jeffrey Clark) is a private citizen, which would be important if the DC Circuit applied any of their civil immunity test to the criminal context.

Indeed, one of Chutkan’s citations to Blassingame effectively admitted she didn’t get into its test — whether Trump was acting in his official role when he did the things alleged in the indictment.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Instead, Chutkan argued — in language that likely preceded the Blassingame opinion, in a section on whether holding a former President criminally accountable will pose some of the harms to the presidency and government that suing a current or former President might — that no matter what the analysis is for civil immunity, criminal immunity is different.

The rationale for immunizing a President’s controversial decisions from civil liability does not extend to sheltering his criminality.

[snip]

For all these reasons, the constitutional consequences of federal criminal liability differ sharply from those of the civil liability at issue in Fitzgerald. Federal criminal liability will not impermissibly chill the decision-making of a dutiful Chief Executive or subject them to endless post-Presidency litigation. It will, however, uphold the vital constitutional values that Fitzgerald identified as warranting the exercise of jurisdiction: maintaining the separation of powers and vindicating “the public interest in an ongoing criminal prosecution.” 457 U.S. at 753–54. Exempting former Presidents from the ordinary operation of the criminal justice system, on the other hand, would undermine the foundation of the rule of law that our first former President described: “Respect for its authority, compliance with its laws, [and] acquiescence in its measures”—“duties enjoined by the fundamental maxims of true liberty.” Washington’s Farewell Address at 13. Consequently, the constitutional structure of our government does not require absolute federal criminal immunity for former Presidents.

The analysis has to be different of course. If you can be impeached for using your office to extort campaign assistance, it should not be the case that you cannot, though, be criminally charged for that extortion.

This is an opinion about whether impeachment provides the sole recourse for holding a former President accountable.

Judge Chutkan provides a very neat solution to that problem, by noting that impeachment is just one of two ways to remove a President who has misused his office.

[T]here is another way, besides impeachment and conviction, for a President to be removed from office and thus subjected to “the ordinary course of law,” Federalist No. 69 at 348: As in Defendant’s case, he may be voted out. The President “shall hold his Office during the Term of four Years.” U.S. Const. art. II, § 1, cl. 1. Without reelection, the expiration of that term ends a Presidency as surely as impeachment and conviction. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit Justice) (“[T]he president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.”). Nothing in the Impeachment Judgment Clause prevents criminal prosecution thereafter. [my emphasis]

Because voters saw fit to remove Trump, Chutkan held, he can now be charged criminally.

Chutkan punts the other questions upstairs to the DC Circuit and from there to SCOTUS.

And while I think Chutkan’s analysis of the two impeachment issues — immunity and double jeopardy — is sound, I do worry that her treatment of several other issues — the things Trump included in his motion to dismiss on Constitutional grounds besides double jeopardy — got short shrift as a result.

Those issues have only been briefed since November 22. She and her clerks probably wrote that part of the opinion over Thanksgiving weekend. And far less of her opinion addressed those issues — seven pages for the First Amendment issues and four for matters of fair notice — than addressed the impeachment issue:

Background (what the indictment really charges) 1

Standard 5

Executive Immunity 6

    • Text of Constitution 6
    • Structure (concerns of public policy, addressing Fitzgerald) 14
      • Burdens on the Presidency 15-20
      • Public Interest 20-25
    • History 25-29
    • Summary 29-31

First Amendment 31

    • Core political speech of public concern 33
    • Statements advocating govt to act 35
    • Statements on 2020 Election 37

Double Jeopardy 38

Due Process 44 (4 pages)

Importantly, while she noted at the outset of her opinion (in the five page “background” section) that Trump totally misrepresented the indictment against him, she didn’t lay out how, in addition to speech-related actions charged as conspiracies, there are some actions that are more obviously fraud, such as the effort to counterfeit elector certificates or the knowingly false representations about Mike Pence’s intent. Trump’s misrepresentation of the indictment is really egregious, but Chutkan barely explains why that’s a problem in this opinion.

Both the First Amendment issues and the notice issues (particularly on 18 USC 1512, though there’s readily available language on 18 USC 241 charge in the Douglass Mackey case) have been addressed repeatedly in other January 6 cases. Since those cases will be appealed on a more leisurely pace than this one, I worry that the issues are not fully addressed. And those are the issues about which Clarence Thomas and Sammy Alito were most likely to intervene in any case.

This is an opinion about holding a former President accountable before he becomes President again. The danger is real: On the same day two courts ruled that Trump didn’t have absolute immunity for his conduct while he was President, his Georgia lawyer argued that if he wins in 2024, he can’t be tried on that case until 2029.

But for now, the matter has been sent to the DC Circuit to deal with.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TRUMP related the story more than once that day.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The WaPo report includes a version of that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Donald Trump Insists He’s Too Special To Use Same Database 1,200 Other January 6 Defendants Have Used

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In addition to his claim that he needs a bunch of intelligence so he can try to distinguish his influence operations from those of Russian spies, Donald Trump also submitted a filing claiming that Jack Smith has not done an expansive enough search on discovery.

To understand how frivolous this filing is, consider that it complains that Jack Smith has not included DC USAO materials on the January 6 investigation in its discovery to Trump.

Since the Order, the Special Counsel’s Office has enjoyed constructive access to USAODC documents. In an August 11, 2023 discovery letter, the Office wrote that the USAO-DC “maintains a separate database of materials comprising discovery in the criminal cases related to the breach of the United States Capitol on January 6, 2021.” Ex. G at 6. The letter stated that the “investigative team” in this case had “accessed certain materials within that database and has taken into its possession certain materials that the investigative team may rely upon or use at trial.” Id. Given these alignments, there is no question that the USAO-DC is part of the prosecution team.

Twice over the course of these discovery letters, DOJ has told Trump if he wants access to the full database provided to all the other January 6 defendants, he can get it.

As we advised you, in the course of our investigation, we accessed certain materials within that database, took into our possession certain materials that we may rely upon or use at trial, and produced them to you in discovery in our case. In our August 11 letter, we also offered to facilitate your access to the USAO database. We reiterate that offer now.

In response, Trump complained about DOJ’s unwillingness to identify everything in the database that might be helpful.

Seeking to avoid that obligation, the prosecution’s November 25 letter again directed our attention to a “a separate database of materials comprising discovery in criminal cases related to the breach of the Capitol on January 6, 2021.” Ex. F at 3; see also Ex. G at 6. Like SASC Windom’s “full access to the FBI’s trove of evidence about Oath Keeper and Proud Boy extremists involved in the riot,” Doc. 116-1 at 9, the Office’s conceded access to the USAO-DC’s database further supports President Trump’s position that the USAO-DC is part of the prosecution team.

However, it is not enough for the prosecution to offer the defense access to materials produced in those cases. “The government cannot meet its Brady obligations by providing [the defendant] with access to 600,000 documents and then claiming that [the defendant] should have been able to find the exculpatory information in the haystack.” United States v. Hsia, 24 F. Supp. 2d 14, 29-30 (D.D.C. 1998). In United States v. Saffarinia, the court relied on Hsia and agreed with the defense that “the government’s Brady obligations require it to identify any known Brady material to the extent that the government knows of any such material in its production of approximately 3.5 million pages of documents.” 424 F. Supp. 3d 46, 86 (D.D.C. 2020); see also United States v. Singhal, 876 F. Supp. 2d 82, 104 (D.D.C. 2012) (directing prosecutors to disclose the “identity (by Bates number) of the specific witness statements and documents” that are “producible as Rule 16(a)(1)(E)(i) documents material to preparing the defense, regardless of whether those documents are inculpatory or exculpatory”). The discovery in this case dwarfs that at issue in Hsia and Saffarinia, and the prosecution must identify information that is subject to Brady by doing more than pointing to another huge database.

This issue has already been litigated, repeatedly, in other January 6 cases. His demand for more is a demand to be treated better than the people at the Capitol, the people actually depicted in and/or who took the video.

The argument itself is largely an attempt to exploit the fact that the defendant was once the President and so interacted with all parts of government. As DOJ quipped in an October 24 letter:

To point out but a few of the exceedingly broad errors in your assertion, the prosecution team does not include the almost three million civilian, active duty, and reserve members of the Department of Defense; the 260,000 employees of the Department of Homeland Security (or its CISA component); or the Intelligence Community writ large. Furthermore, your attempt to serve Rule 17(c) subpoenas, ECF No. 99—definitionally reserved for non-party witnesses—on the House Select Committee’s successor entity and a member of the White House Counsel’s Office confirms your understanding that those entities are not members of the prosecution team.

It is not rooted in the actual evidence in the case or — as with virtually all the filings Trump’s teams have made — the actual charges against him.

That said, the associated filings are of some interest. It’s just that Trump’s team submitted them in the least useful way possible. I’ve put them below, in order.

Reading them together reveals that some of what Trump requested in his unclassified discovery request last night — such as the request for the classified backup to the 2016 ICA or the opportunity for foreign powers to hack the 2020 election — were already covered in DOJ’s motion to strike his CIPA 5 request.

Reading them together also shows a progression. As I’ve noted, his original request asked for:

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden.

In the first response, DOJ addressed that question (and question 37(b) for materials on Executive Privilege) by describing five Executive Privilege waiver reviews

37b. The defendant was party to five miscellaneous matters regarding assertion of the executive privilege. Attachments to filings in those five matters included letters from the incumbent White House declining to invoke executive privilege over certain witness testimony. The defendant already has those materials.

Trump must have made a follow-up at the November 21 meet-and-confer, because DOJ addressed it again, saying that whatever he wants is not in the prosecution team’s possession and not covered by discovery obligations.

Requests 33, 40, 42, 43, and 44 seek information that exceeds the scope of our discovery obligations, is not within the possession of the prosecution team, and/or does not exist.

One interesting redaction in this most recent exchange pertains to Trump’s request for injuries of law enforcement on January 6.

2. If you intend to introduce evidence at trial of any injuries sustained to law enforcement or anyone else at the Capitol on January 6, 2021, please provide all documents regarding those injured during the protest at the Capitol, including medical records.

DOJ’s response to that is entirely redacted, suggesting that DOJ may well submit records of injuries, such as the heart attack Danny Rodriguez caused after being especially riled up at Trump’s rally.

Finally, of significant interest: Trump asks for the identities of all the people who’ve flipped.

16. Please provide all documents regarding offers of immunity, forgoing of prosecution, diversion, USSG 5K1.1 reductions, or any other consideration to persons under investigation or charged regarding activities related to January 6th.

DOJ included that request among those about which it said Trump was not entitled to discovery.

Requests 15-19, 34-36. All of these requests—regarding the pipe bomb investigation, offers of immunity to January 6 defendants, “Antifa,” sources, and various named and unnamed January 6 offenders—appear to be focused on others’ actions related to the January 6 attack on the Capitol. Many of them request information that exceeds the scope of our discovery obligations and/or is not within the possession of the prosecution team. To the extent that we possess any such materials, we have produced them to you. Relatedly, in our meet and confer, you stated that you believe that in certain other cases, the Department of Justice has taken a position inconsistent with the indictment’s allegations that the defendant is responsible for the events of January 6. We disagree. The Department’s position in other January 6 cases that the defendant’s actions did not absolve any individual rioter of responsibility for that rioter’s actions—even if the rioter took them at the defendant’s direction—is in no way inconsistent with the indictment’s allegations here.

Trump continues to argue he’s better than the members of his mob. And he’s trying to avoid being held accountable for any near murders his incitement caused.

August 11 DOJ letter accompanying first classified discovery; includes redacted reference to Secret Service at 6,

October 6 Trump letter addressing Document 1 and Document 5

October 23 Trump discovery letter with seven requests redacted (Unredacted copy)

October 24 DOJ response to classified discovery letter, describing scope of prosecution team

November 3 DOJ response to October 23 discovery letter rejecting most requests and telling Trump where to find some of it in discovery; this has a number of specific references to the requests in the October 23 letter

November 15 Trump discovery letter making broad requests for January 6 discovery

November 25 DOJ response to November 15 letter and November 21 meet-and-confer, providing additional responses to October 23 requests

Exhibit H (sealed; pertains to reason Bill Barr changed Public Integrity’s approach to voter fraud claims)

Exhibit I (sealed; follow-up to letter Molly Gaston and JP Cooney sent about PIN)

Exhibit J (sealed; involvement of National Security Division in January 6 cases)

Exhibit K (sealed; involvement from FBI WFO on January 2)

Exhibit L (sealed; involvement from FBI WFO on January 3)

Exhibit M (sealed; reference to DHS I&A as attempt to get to CISA Election Task Force; ODNI involvement)

Exhibit N (sealed; related to DHS involvement in March 2021 report on 2020 election)

Exhibit O (sealed; related to DHS involvement on January 6)

Donald Trump Confesses He Can’t Distinguish His Own Influence Ops from that of a Russian Spy

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To understand the startling confession at the core of Donald Trump’s motion to compel discovery submitted last night, it helps to read a caveat included in Trump’s discovery request, but not included in this motion.

In a letter requesting the same things described in the motion to compel in discovery, Trump’s team admitted it was using a different definition of “foreign influence” than the one he himself adopted in Executive Order 13848 requiring the Intelligence Community to provide a report on any, “foreign interference that targeted election infrastructure materially affect[ing] the security or integrity of that infrastructure, the tabulation of votes, or the timely transmission of election results.”

Rather than just reports of attempts to tamper with election infrastructure to alter the vote count, Trump intended his discovery request to include efforts by foreign governments and non-state actors to influence US policy.

As used herein, the term “foreign influence” is broader than the definition of the term “foreign interference” in Executive Order 13848 and includes any overt or covert effort by foreign governments and non-state actors, as well as agents and associates of foreign governments and non-state actors, intended to affect directly or indirectly a US person or policy or process of any federal, state, or local government actor or agency in the United States.

A vast majority of Trump’s discovery requests claim to need backup about intelligence on potential compromises that could not have affected the election tabulation. Not a single one in the 37-page motion addresses the specific lies the January 6 indictment accuses him of telling:

dozens of specific claims that there had been substantial fraud in certain states, such as that large numbers of dead, non-resident, non-citizen, or otherwise ineligible voters had cast ballots, or that voting machines had changed votes for the Defendant to votes for Biden.

Here are some of the totally irrelevant things Trump is demanding:

  • The classified backup to the 2016 Intelligence Community assessment, which Trump claims was the source of his purported genuine concern about elections that led him to issue Executive Order 13848, when instead he was probably attempting to stave off a law, proposed by Marco Rubio and Chris Van Hollen, requiring stronger election protection measures
  • The backup to the Cybersecurity and Infrastructure Security Agency statement asserting that the election was the most secure in history (which led Trump to fire Chris Krebs by Tweet)
  • Details about the Solar Winds hack, which was made public after the CISA statement, and which is not known to have compromised any election infrastructure, but which Patrick Byrne offered as an excuse in real time to start seizing voting machines
  • Debates about the findings in the 2020 election report ultimately released that pertain to China’s influence operations, not interference operations
  • Details of a January 2 briefing John Ratcliffe gave Jeffrey Clark (which is not described in the indictment), which Trump insinuates is the reason that Clark strengthened language about election irregularities totally unrelated to the things described in the election report, even though — as the indictment notes — Ratcliffe, “disabused the Defendant of the notion that the Intelligence Community’s findings regarding foreign interference would change the outcome of the election”
  • The FISA Court opinion describing improper efforts to query 702 information regarding possible foreign influence — possibly directed at things like Nick Fuentes’ cryptocurrency donation and Charles Bausman’s ties to Russia — which wouldn’t have affected Trump’s lies at all

Not a single one of these items pertains to whether Ruby Freeman added votes in Fulton County, Georgia, whether 10,000 dead people voted in one or another state, whether non-citizens voted in Arizona, whether there was a vote dump of 149,772 illegal votes in Detroit, whether Pennsylvania received 700,000 more absentee ballots than they had sent out.

That is, not a single one of Trump’s main demands pertains to the specific lies he is accused of telling.

This stunt might have been effective if Trump were charged with moving to seize voting machines after the famous December 18 meeting, at which Byrne and Sidney Powell urged Trump to use EO 13848 and the discovery of the Solar Winds hack to seize voting machines. But that’s not in the indictment — the famed meeting is unmentioned. As I’ve previously noted, Powell is only in the indictment for the way in which Trump adhere to her views about Dominion, not for the December 18 meeting. In this request, Trump repeats an earlier request for investigations into Dominion in passing, but focuses his attention instead on Solar Winds.

Instead of asking for evidence pertaining to the actual lies Trump told, Trump argues that because he had the same goal and effect that Russia pursued in 2016 — to erode faith in democracy — it somehow means his own lies weren’t cynical, knowing lies.

Moreover, whereas the Special Counsel’s Office falsely alleges that President Trump “erode[d] public faith in the administration of the election,” the 2016 Election ICA uses strikingly similar language to attribute the origins of that erosion to foreign influence—that is, foreign efforts to “undermine public faith in the US democratic process.” Compare Indictment ¶ 2, with Ex. A at 1; see also id. at 6 (describing “Kremlin-directed campaign to undermine faith in the US Government and fuel political protest”).

The problem is that the lies Russia and Trump told in common in 2020 — primarily a false claim that Joe Biden corruptly fired a Ukrainian prosecutor — don’t have anything to do with the specific lies that Trump told to mobilize thousands of his followers to attack the Capitol.

That both Russia and Trump want to undermine democracy is not a specific defense to the charges against him.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This time, to cull the data, they:

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

And Judge Chutkan knows that.

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

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

Timeline Easterday Google Geofence Challenge

June 30, 2023: Motion to Compel, Declaration

August 22, 2023: Opposition Motion to Compel

September 26, 2023: Motion to Suppress Geofence

October 10, 2023: Opposition Motion to Suppress

October 17, 2023: Reply Motion to Suppress

October 26, 2023: Guilty Verdict

November 25, 2023: Supplement Opposition Motion to Suppress

In an Attempt to Claim Vindictive Prosecution, Trump Confesses Biden Hasn’t Interfered Like He Has

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To substantiate a claim that Joe Biden ginned up the twin prosecutions against him (motion, reply), Donald Trump picked two clauses (in italics) in an article (live link) that repeatedly describes the various ways that Biden and Merrick Garland have restored the independence to the Department of Justice from what it had been under Trump.

The attorney general’s deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Mr. Biden confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Mr. Garland, he has said privately that he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.

[snip]

In a statement, Andrew Bates, a White House spokesman, said the president believed that Mr. Garland had “decisively restored” the independence of the Justice Department.

“President Biden is immensely proud of the attorney general’s service in this administration and has no role in investigative priorities or decisions,” Mr. Bates said.

A Justice Department spokesman declined to comment.

The Jan. 6 investigation is a test not just for Mr. Garland, but for Mr. Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Mr. Trump had tried to weaponize for political gain.

[snip]

Complicating matters for Mr. Biden is the fact that his two children are entangled in federal investigations, making it all the more important that he stay out of the Justice Department’s affairs or risk being seen as interfering for his own family’s gain.

The department is investigating whether Ashley Biden was the victim of pro-Trump political operatives who obtained her diary at a critical moment in the 2020 presidential campaign, and Hunter Biden is under federal investigation for tax avoidance and his international business dealings. Hunter Biden has not been charged with a crime and has said he handled
his affairs appropriately.

Justice Department officials do not keep Mr. Biden abreast of any investigation, including those involving his children, several people familiar with the situation said. The cases involving Hunter Biden and Ashley Biden are worked on by career officials, and people close to the president, including Dana Remus, the White House counsel, have no visibility into them, those people said.

[snip]

Officials inside the White House and the Justice Department acknowledge that the two men have less contact than some previous presidents and attorneys general, particularly Mr. Trump and his last attorney general, William P. Barr.

Some officials see their limited interactions as an overcorrection on the part of Mr. Garland and argue that he does not need to color so scrupulously within the lines. But it may be the only logical position for Mr. Garland to take, particularly given that both of Mr. Biden’s children are involved in active investigations by the Justice Department.

The distance between the two men is a sharp departure from the previous administration, when Mr. Trump would often call Mr. Barr to complain about decisions related to his political allies and enemies. Such calls were a clear violation of the longtime norms governing contact between the White House and the Justice Department.

Mr. Biden, a former chairman of the Senate Judiciary Committee, came to his job as president with a classical, postWatergate view of the department — that it was not there to be a political appendage. [my bold and italics]

Since the two clauses on which Trump relies conform with the evidence presented in the rest of the article — which is to say, they show that Biden has taken no steps to share his views with the Attorney General — Trump simply invents something that’s not in the article: a claim that Biden deliberately planted these quotes as a way to give Garland an order to prosecute Trump.

The Biden administration intentionally leaked these comments to the media in early 2022 so that President Biden could improperly provide instructions to and exert pressure on prosecutors and investigators without engaging in direct communications, as is clear from the fact that the article sourced the operative remark to “two people familiar with his comments.” Id.

Trump then dismisses prosecutors’ argument that such anonymous claims are not evidence by likening the misrepresentation of the article to three times Jack Smith prosecutors cited newspaper reports.

The reports at issue are not, as the prosecution claims, based on “rumor and innuendo.” Doc. 141 at 6. The Washington Post article is “based on internal documents, court files, congressional records, handwritten contemporaneous notes, and interviews with more than two dozen current and former prosecutors, investigators, and others with knowledge of the probe.” Doc. 116-1 at 3. The New York Times article is attributed to “interviews with more than a dozen people, including officials in the Biden administration and people with knowledge of the president’s thinking, all of whom asked for anonymity to discuss private conversations.” Doc. 116-2 at 2. For example, President Biden’s instruction that President Trump “should be prosecuted” is sourced to “two people familiar with his comments.” Id

7 See, e.g., Doc. 97 at 10; Doc. 109 at 30; Doc. 140 at 11.

Those three reports are:

A citation to a threat included in a WaPo report.

6 See Washington Post, FBI Joins Investigation of Threats to Grand Jurors in Trump Georgia Case, (Aug. 18, 2023), https://www.washingtonpost.com/nationalsecurity/2023/08/18/fbi-joins-investigation-threats-grand-jurors-trump-georgia-case/ (citing an online post stating, “These jurors have signed their death warrant by falsely indicting President Trump”)

A reference to the fact that Clinton entered into a deal to avoid indictment when he left office:

The same is true for President Clinton’s “forthright admission that he gave false testimony under oath” about matters occurring during his presidency in order to avoid indictment after his presidency. See John F. Harris & Bill Miller, In a Deal, Clinton Avoids Indictment, Washington Post (Jan. 20, 2001). 12

12 https://www.washingtonpost.com/archive/politics/2001/01/20/in-a-deal-clinton-avoids-indictment/bb80cc4c-e72c-40c1-bb72-55b2b81c3065/.

Factual details about the identities and now proven — all have now either been convicted or pled guilty — crimes of members of the J6 choir with whom Trump made a video.

The January 6 Choir includes defendants who assaulted law enforcement officers on January 6 and one who used chemical spray on a Capitol Police officer who died the next day. See Washington Post, Behind Trump’s Musical Tribute to Some of the Most Violent Jan. 6 Rioters (May 7, 2023), https://www.washingtonpost.com/investigations/interactive/2023/trump-j6-prison-choir/

This insane argument, which effectively insists on the truth value of the NYT article that states over and over that Biden has not done what Trump did to politicize investigation as part of a bid to claim that Biden has politicized this investigation comes after Hunter Biden made a bid to subpoena Trump for evidence of how he did interfere in the investigation of Joe Biden’s son.

Instead of anonymous quotes that actual confirm Biden hasn’t spoken with Garland about these investigations, Abbe Lowell relied on eight public tweets, including one blasting David Weiss and calling for a death sentence for Hunter.

D. Trump Truth Social post on July 11, 2023: “Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. Because of the two Democrat Senators in Delaware, they got to choose and/or approve him. Maybe the judge presiding will have the courage and intellect to break up this cesspool of crime. The collusion and corruption is beyond description. TWO TIERS OF JUSTICE!”

Another of the tweets in the bid for subpoenas denied any involvement in the prosecution ten days before — notes from Richard Donoghue show — Trump interjected a complaint about Hunter Biden’s treatment amid complaints that DOJ wasn’t backing Trump’s false claims about election fraud, both of which led up to a threat to replace Jeffrey Rosen with Jeffrey Clark.

For example, on December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”

[snip]

D. Trump tweet on December 17, 2020: “I have NOTHING to do with the potential prosecution of Hunter Biden, or the Biden family. It is just more Fake News. . . .” [emphasis original]

Side note: Lowell very graciously didn’t point out that Donoghue, in his January 6 testimony, tried to spin these notes to make them less damning then they are, possibly up to including adding an “H” after the fact to pretend that Trump didn’t also consider the investigation of the son to be an effort to get to the father, as Trump’s earlier tweet made clear he did and does.

It wasn’t just Jeffrey Rosen with whom Trump raised the Biden investigation. Lowell also cited the passage from Barr’s book where Trump raised Hunter directly with the Attorney General.

Additionally, former Attorney General Barr’s latest book recalls an instance in mid-October 2020 in which President Trump called Mr. Barr and inquired about the investigation of Mr. Biden, which Mr. Barr says ended with Mr. Barr yelling at Mr. Trump, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

And Lowell cited the reference to the briefing Scott Brady’s team did with David Weiss’ team to share an allegation Mikola Zlochevsky made sometime close to the time when, according to Chuck Grassley, Barr’s DOJ shut down an investigation into Zlochevsky.

Gary Shapley Aff. 3, attach. 6 (IRS CI Memorandum of Conversation, Oct. 22, 2020), (“Pittsburgh read out on their investigation was ordered to be received by this prosecution team by the PDAG.”), available at https://gopwaysandmeans.house.gov/wp-content/uploads/2023/09/T87-Shapley-3_Attachment-6_WMRedacted.pdf.

Lowell did not close the loop on this to show Barr confessing to personal knowledge of Brady’s project and the details of how the FD-1023 memorializing the Zlochevsky allegation got shared with Weiss, tantamount to a confession that he lied in his book. Nor did Lowell mention the Perfect Phone Call in which Trump asked the President of Ukraine to work with Barr to investigate the Bidens or the allegation that Trump’s handlers had removed a damning reference to Burisma.

You’re with me so far, right? In support of a claim that Joe Biden has interfered in the prosecutions of Trump, Trump demands that DOJ treat as reliable an article that says, in about seven different ways, that Biden doesn’t do that. And Trump did that a week after Hunter’s lawyer laid out eight tweets, two memorializations of conversations with Trump, two primary documents, and two congressional depositions, all of which show high level involvement and, at least on Trump’s part, attempted interference in the Hunter investigation, which ignores some of the most important public documents memorializing Trump’s interference.

But it gets crazier!

In response to AUSA Thomas Windom’s observation that, “the defendant does not provide the Court with even the roughest sketch of what this ‘fact finding’ would entail or uncover,” Trump says his discovery request already laid that out.

Finally, the Special Counsel’s Office professes confusion about what the fact finding “would entail” and claims that it requires a “rough[] sketch.” Doc. 141 at 14. The Supreme Court has provided one, in a case the Office cited: “the Government must assemble from its own files documents which might corroborate or refute the defendant’s claim.” Armstrong, 517 U.S. at 464. So too have our discovery requests. See Ex. 2 (10/23/23 Requests 10-12, 24, 39-40, 43, 55).

The requests he points to are:

Conduct alleged in the indictment, and responses by witnesses described in the indictment (as well as a letter he includes with this filing, showing two prosecutors in this case attempted to persuade Bill Barr to adhere to normal procedures after the election).

11. Please provide all documents related to views and opinions expressed by Department of Justice personnel, including from the Public Integrity Section and National Security Division, discouraging, disagreeing with, or resisting investigations of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

12. Please provide all documents related to or reflecting decisions by the Department of Justice, federal law enforcement, state law enforcement, election officials, or other government officials declining or refusing a review or investigation of election fraud, interference (including foreign interference), anomalies, or irregularities related to the 2020 election.

Advice from Steve Engel (who would go on to join in an effort to thwart Trump’s efforts to replace Jeffrey Rosen with Jeffrey Clark), any of which Trump relied upon he could cite specifically.

24. Please provide all documents, including communications, memorandums, and opinions (whether formal written opinions, drafts thereto, or informal analyses), of the Department of Justice Office of Legal Counsel concerning the Electoral Count Act, election fraud, any litigation related to the 2020 election, or any advice provided directly or indirectly to any Executive Branch official concerning the outcome of the 2020 election.

Any discipline DOJ pursued for Michael Sherwin for violating rules that were routinely violated under Trump.

40. Please provide all documents relating to the March 2021 “60 Minutes” interview of Michael Sherwin, including all documents relating to investigations of potential violations of applicable rules, policies, or procedures resulting from Mr. Sherwin’s participation in the interview.

A known referral of fake electors from Dana Nessel.

39. Please provide all documents relating to the “referrals” referenced by Lisa Monaco during an interview on or about January 25, 2022.

A fishing expedition to get the kind of inflammatory texts that were selectively released during the Russian investigation, to obtain the texts everyone sent on their FBI cell phones).

55. Please provide all documents reflecting statements by any member of the prosecution team indicating an intent or effort to stop or hinder President Trump from becoming President of the United States.

Complaints that, broadly interpreted, could include those from Gary Shapley and Joseph Ziegler that instead show the high level involvement of Trump’s DOJ in the Hunter Biden investigation and the investigators own efforts to conduct the investigation in such a way that it might become public.

10. Please provide all documents relating to complaints or concerns by any prosecutor from DOJ, the Special Counsel’s Office, or any federal law enforcement agent relating to the conduct of the investigations of President Trump, the 2020 election, or President Biden.

A request for communications that, the NYT article he relies on, says don’t exist: “coordination” between Biden and DOJ or the Special Counsel’s office. But also a request for communications that might, broadly interpreted, cover the entirety of Hunter Biden’s defense counsel communications with DOJ. (It would also include any victim interviews with Ashley Biden regarding her diary and other personal belongings stolen by Trump supporters.)

43. Please provide all documents relating to communications or coordination by the Special Counsel’s Office and DOJ with any of the Biden Administration, the Biden Campaign, Hunter Biden, the Biden family, the Biden White House, or any person representing Joe Biden. [my emphasis]

DOJ’s criminal prosecutors are not communicating with Joe Biden. They are, however, communicating with Hunter Biden (via his counsel) because Trump’s own US Attorney, now bolstered with Special Counsel status, is prosecuting Hunter Biden. And after having attacked Weiss publicly, Trump is now claiming that he needs Hunter Biden’s communications to prove Donald Trump is being treated unfairly.

The primary thing on which Trump relies to make a claim he’s being treated unfairly instead supports the opposite claim: That Merrick Garland is treating him better than he and his DOJ treated Joe Biden’s son. But in his effort to claim he wasn’t simply inventing all this, Trump revealed that even in this prosecution, he’s attempting to interfere in Hunter Biden’s prosecution.

The Former President’s Spaghetti-Wall Assault on the Truth

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Donald Trump’s team has submitted its reply briefs on motions to dismiss:

I reiterate the analysis I have made here and here: these motions (plus the Motion to Strike that Judge Chutkan already rejected), taken together, don’t so much attempt to argue about Trump’s conduct. Instead, they try to separate out the conspiracies alleged and the mob that was central to it from a claim that Trump has a right to lie, a right to repeat false claims about the 2020 election no matter how many times those false claims have been debunked in court.

Trump made no effort to address certain key claims. As one example, Trump didn’t mention prosecutors’ observation that Trump couldn’t have a Double Jeopardy claim from Impeachment given that this indictment does not charge him with what Congress did, incitement.

Perhaps recognizing what I pointed out here — that Trump had simply ignored the way in which he used the mob to obstruct the vote certification, he includes a new section in it. But it was lifted from his reply brief on the Motion to Strike that already failed.

January 6.

The prosecution next repeats its false claim that President Trump “directed a large crowd of supporters, whom he knew to be ‘angry’ based on his election fraud lies, to go to the Capitol and obstruct the proceeding.” Doc. 139, at 19. But the indictment does not charge President Trump with any responsibility for the events of January 6, and rightly so. As set forth in detail in Doc. 156, President Trump encouraged the crowd marching to the Capitol to “peacefully and patriotically make your voices heard” and to “cheer on our brave senators and congressmen and women.”6 President Trump made clear that he expected to watch the electoral certification proceedings take place as planned that day. Id. And President Trump repeatedly denounced destruction of monuments and other symbols of American democracy, and he reminded the crowd that criminal penalties he signed into law for such actions. Id.

As the indictment itself alleges, the crowd gathered at the Capitol before President Trump finished speaking. Doc. 1, ¶ 107. The crowd already at the Capitol “broke through barriers cordoning off the Capitol grounds and advanced on the building” while President Trump was speaking. See id. The indictment does not mention that the 1,200 people who entered the Capitol was less than 1% the size of the crowd gathered to listen to President Trump, and that at least 99% of the crowd gathered to listen to President Trump did not enter the Capitol. William M. Arkin, Exclusive: Classified Documents Reveal the Number of January 6 Protestors, NEWSWEEK (Dec 23, 2021), https://www.newsweek.com/exclusive-classified-documents-reveal-number-january6-protestors-1661296. 7

And having belatedly attempted to address the mob, Trump nevertheless shamelessly claimed that the people he lied to were sophisticated enough to see through his lies.

President’s Trump’s listeners—including the sophisticated elected officials described in the indictment—were free to agree or disagree with President Trump’s views, and the prosecution does not allege otherwise.

Hundreds of January 6 defendants — conservatively — have explained that they pissed away their lives that day because they believed Trump’s lies. Trump’s reply briefs effectively amount to the argument that his First Amendment rights extend to being completely unmoored from any anchor to the truth, his First Amendment rights permit him to deliberately unmoor the truth to mobilize an attack on the country.

Perhaps unsurprisingly, I came away from a quick read of these filings exhausted, the exhaustion deliberately cultivated by the gaslighter. I could — I still might — go back and unpack every one of the gimmicks his attorneys have thrown at Judge Chutkan, like spaghetti at a wall. But ultimately it amounts to a demand that Trump be treated not just as above the law that the hundreds of his mobsters have already been held accountable to, but also above the truth.

Judge Chutkan Denies Trump’s Bid to Disavow His Mob

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In a short order, Judge Tanya Chutkan denied Trump’s motion to strike all the language about his mob in his indictment. Her order was so short for two reasons: first, Trump hadn’t really addressed the issue of prejudice he was invoking, and second, the only means by which the indictment itself would introduce prejudice — in the jury room — won’t happen because Judge Chutkan never provides the indictment to they jury.

Defendant’s sixteen-page Reply In Support of the Motion, despite making numerous inflammatory and unsupported accusations of its own, see, e.g., ECF No. 156 at 7 (“President Biden directed the Department of Justice to prosecute his leading opponent for the presidency through a calculated leak to the New York Times.”), devotes only a single paragraph to the prejudice requirement. His sole argument is that even if the jury does not receive a copy of the indictment, “[v]oluminous evidence exists here that the jury pool has been, and continues to be, exposed to the Indictment and its inflammatory and prejudicial allegations, through media coverage relating to the case.” Id. at 16. But Defendant fails to cite even one example of that evidence.

Her reference to Trump’s own inflammatory comments called out something that is apparent in reading his reply brief to overturn her gag before the DC Circuit (which largely rehashes the same tired arguments). There, he argues that he has a First Amendment right to say whatever he wants — about Joe Biden, about the trial, about anyone else, including Chutkan, the death threat against whom Trump disclaims any role.

The prosecution describes President Trump’s statement, “If you go after me, I’m coming after you,” as a “public threat,” Resp.Br.4 (citing J.A.79). However, this statement made no reference to this case, and his campaign explained that it was made “in response to … special interest groups and Super PACs.” App.Br.15 n.7. The prosecution ignores this explanation—the only evidence of what the statement was actually referring to—and relies instead on naked speculation.

The prosecution implies that this statement caused a random person to threaten the district judge on August 5, 2023. Resp.Br. 5-6. Again, this is pure speculation, and wrong to boot. As noted above, President Trump’s statements criticizing the district judge came after the August 5 incident. J.A.79-80. The prosecution also cites no evidence that this random individual was inspired to act by President Trump’s August 4th social-media post, which did not even reference this case.

For what it’s worth, while he didn’t mention Trump, the father of Abigail Jo Shry, the woman who called Judge Chutkan’s chambers and threatened her, described that Shry’s threats were always responses to watching the news.

Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats.

Even in his reply brief, though, Trump made new threats, attacking Jack Smith’s spouse because she exercised her political rights to donate to Joe Biden.

Judge Chutkan didn’t quite say it: But Donald Trump is simultaneously claiming he has the right to make any threats he wants, but no one else has the right to describe the way his threats lead to violence.

She didn’t quite say it.

But she did make it quite clear that Trump is trying to have a protected privilege to make inflammatory threats, while gagging others about the effect of them.

Trump Continues to Disavow the Mob that Sacrificed Their Lives for Him

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As I have shown, Trump’s collective motions to dismiss his January 6 indictment selectively treat the five means alleged in the indictment (pressuring states, the fake elector plot, using Jeffrey Clark, pressuring Pence, and exploiting the mob), never actually dealing with all five as charged.

Rather than addressing the fifth, Mob (“directing supporters to the Capitol to obstruct the proceeding, id. at ¶¶ 86-105; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021”), he instead filed a motion to strike all references to the mob.

Poof! It is a legalistic way to deny the very same mobsters (DOJ noted in their response) Trump has sung with and promised to pardon, and in so doing simply wish away the abundant evidence that Trump obstructed the vote certification.

It is the stuff of magic wands.

Trump’s reply uses a series of gimmicks to attempt to wish away parts of the indictment against him.

In one lengthy section that might invite a request to file a sur-reply by DOJ, Trump cites some of the greatest hits of articles by journalists who knew little about the investigation to claim that none of the investigation of the mob related to Trump.

12 Mark Hosenball and Sarah N. Lynch, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated – sources, REUTERS (Aug. 20, 2021), at https://www.reuters.com/world/us/exclusive-fbi-finds-scant-evidence-us-capitol-attack-wascoordinated-sources-2021-08-20/.

13 William M. Arkin, Donald Trump Didn’t Run the January 6 Riot. So Why Did It Happen?, NEWSWEEK (Jan. 6, 2022), at https://www.newsweek.com/donald-trump-didnt-run-january-6-riotso-why-did-it-happen-1661335.

14 Carol D. Leonnig and Aaron C. Davis, FBI resisted opening probe into Trump’s role in Jan. 6 for more than a year, THE WASHINGTON POST (June 19, 2023), at https://www.washingtonpost.com/investigations/2023/06/19/fbi-resisted-opening-probe-intotrumps-role-jan-6-more-than-year/.

Trump also uses outdated and invented crowd numbers to claim that just a fraction of his mob was part of the mob, focusing just on the mob that entered the Capitol and not the one that besieged it, another part of this motion that might invite sur-reply.

In another place, Trump promises a motion in limine to eliminate all reference to the violence committed in his name, because the sheer violence of it will distract the jury.

For instance, the prosecution claims protesters were “extraordinarily violent and destructive.” Doc. 140, at 11. Even if marginally relevant, which it is emphatically not, the danger of “unfair prejudice, confusing the issues, [or] misleading the jury,” would far outweigh any probative value. F.R.E. 403. The fact that the prosecution even suggests that such inflammatory claims could have an appropriate place in the trial of President Trump only underscores the unfair and malicious way the Special Counsel is pursuing this case on behalf of the Biden Administration against its leading political opponent, President Trump.

In another paragraph of gibberish, Trump says that DOJ can’t include the actions (including of Couy Griffith, who had met with Trump personally) of people who weren’t charged with the same crimes he was and also says that because Merrick Garland generally defined Jack Smith’s mandate to crimes committed by those who weren’t at the Capitol, it means any crimes committed by people at the Capitol must be excluded.

Indeed, the January 6 cases relied on by the prosecution do not support its contention that “actions at the Capitol are relevant and probative evidence” of the charged conduct. Doc. 140, at 2. Several of the cases did not involve any of the charges brought against President Trump, rendering any relevance analysis inapplicable to this case. See, e.g., United States v. Griffith, No. CR 21-244-2, 2023 WL 2043223, at *1 (D.D.C. Feb. 16, 2023) (charges under 18 U.S.C. §§ 1752(a)(1), 1752(a)(2); 40 U.S.C. §§ 5104(e)(2)(D), 5104(e)(2)(G)); United States v. MacAndrew, No. CR 21-730, 2022 WL 17961247, at *1 (D.D.C. Dec. 27, 2022) (same). Those cases that did include at least one charge brought against President Trump (as well as charges not brought against him) all involved defendants who were personally present at the Capitol. Those are the types of cases that the Attorney General specifically carved out of the Special Counsel’s authority in Order No. 5559-2022: “This authorization does not apply to . . . future investigations and prosecutions of individuals for offenses they committed while physically present on the Capitol grounds on January 6, 2021.” Actual presence has been emphasized as an important factor in the relevance analysis. See, e.g., United States v. Stedman, No. CR 21-383 (BAH), 2023 WL 3303818, at *2 (D.D.C. May 8, 2023) (“defendant’s knowing joinder of a broader crowd is probative of his participation in a venture that interfered with a congressional proceeding”).

In yet another tactic, Trump falsely claims that a passage about how Trump’s manipulation of the mob demonstrates his motive pertains exclusively to his tweet attacking Mike Pence.

Despite three pages of narrative, the prosecution only suggests that one of the paragraphs that is subject to the Motion to Strike is appropriate for this purpose: paragraph 111, which relates to a social media post by President Trump concerning Mike Pence. Paragraph 111 does not show motive or intent as it relates to the actions at the Capitol.

In doing so, Trump ignores references to four other paragraphs explicitly cited in DOJ’s response.

As set forth in the indictment, on the morning of January 6, the defendant knew that the crowd that he had gathered in Washington for the certification “was going to be ‘angry.’” ECF No. 1 at ¶ 98. Despite this knowledge—or perhaps because of it—in his remarks to supporters, the defendant told knowing lies about the Vice President’s role in the congressional certification, stoked the crowd’s anger, and directed them to march to the Capitol and “fight.”

[snip]

Although the defendant knew that the certification proceedings had been interrupted and suspended, he rejected multiple entreaties to calm the rioters and instead provoked them by publicly attacking the Vice President. ECF No. 1 at ¶111. And instead of decrying the rioters’ violence, he embraced them, issuing a video message telling them that they were “very special” and that “we love you.” Id. at ¶ 116. Finally, while the violent riot effectively suspended the proceedings over which the Vice President had been presiding, the defendant and his coconspirators sought to shore up efforts to overturn the election by securing further delay through knowing lies. Id. at ¶¶ 119, 120.

Trump here ignores the warning from his aides that the mob was angry, Trump’s video declaring “we love you” to his mob, and Trump’s renewed efforts to prevent the vote certification even after the mob left.

And in two different ways, Trump tries, again, to simply wish away the evidence that Trump corruptly tried to obstruct the vote certification, two of the charges against him. In one, Trump claims that the certification of the election at the Capitol provides no context to charges that he obstructed the certification of the election at the Capitol.

As a final, futile, attempt to establish relevance, the prosecution argues that the actions at the Capitol on January 6 provide “necessary context for all the charged conduct.” Doc. 140, at 12. Nevertheless, again, the prosecution did not charge President Trump with any crime relating to the actions at the Capitol, such as insurrection or incitement. Actions by others—whom the prosecution does not claim were part of any of the alleged conspiracies—do not provide any context for the actions based on which President Trump is charged.

And then, two paragraphs later, Trump points to the paragraph delimitation in just one charge — the conspiracy to defraud the vote certification — that doesn’t exist for the other three charges, to say that DOJ has excluded the actions described in the paragraphs about the mob.

The challenged allegations’ lack of relevance to the charges against President Trump is further demonstrated by the Indictment itself. The Indictment claims that President Trump “and his co-conspirators committed one or more of the acts to effect the object of the conspiracy alleged” in a list of paragraphs. Doc. 1, ¶ 124. The Indictment omits Paragraphs 10(d), 105, 106, 107, 108, 109, 110, 112, or 113 from this list. Thus, the prosecution does not claim that the actions at the Capitol on January 6 were “acts to effect the object of the conspiracy,” an admission that these paragraphs lack relevance to the charged conduct.

Compare the list of paragraphs cited in the 18 USC 371 charge with paragraphs in the other three charges that cite paragraphs 8 through 123.

The allegations contained in paragraphs 1 through 4 and 8 through 123 of this Indictment are re-alleged and fully incorporated here by reference.

Not just his motion to strike, the promised motion in limine, and all his other efforts to, like the Apostle Peter, deny the mob he has made his religion are gimmicks, just efforts to wish away abundant evidence against him.

It all comes off as rather desperate.

And as you consider the flop sweat coming off Trump’s motion to strike, consider this: DOJ must have provided, in discovery, the evidence they plan to use to show what Trump’s mob did and that they did it because of him and his lies. DOJ has repeatedly said they’ve provided the evidence they plan to use at trial. Among the things Trump must have in his possession are the videos that show Danny Rodriguez went directly from hearing Trump’s speech to almost murdering Michael Fanone, and others responded to Trump’s Pence tweet by serving a critical role in opening a second front of the attack on the Capitol and breaching the Senate.

Trump has — must have!! — seen the evidence about his mob DOJ intends to use at trial. And his response is this blubbering effort to wish his mob away.