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Chris Kise Asks Aileen Cannon to Sanction Jack Smith because Chris Kise Doctored a Filing

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After Jay Bratt asked Aileen Cannon to modify Donald Trump’s bail conditions to prevent him from making up claims that the FBI tried to assassinate him, Trump’s team has not responded. Instead, they filed a motion to strike the request and impose sanctions because — they claim — Bratt did not meet and confer before filing the motion.

The motion, like most other ones these guys have filed, is largely manufactured. They’re pissy that Bratt filed this on a Friday before Memorial Day, they’re pissy that Bratt refused to wait until Monday to submit the filing, they’re pissy that Bratt summarized their objection rather than quoting a long complaint verbatim.

There are rules. You guys violated them. I appreciate the attempted explanation, but it does not in any way pacify us. I am beyond amazed that the government would misrepresent facts to the Court about what happened. You did not even bother to inform the Court that you reached out to us for a “meet and confer” at 5:30 p.m. on Friday night of Memorial Day weekend before filing the motion at 8 p.m. I’m confused as to why you think we could not meaningfully meet and confer about a path forward short of a motion. You did not even bother to inform us of the posts/fundraising emails that gave you all concern until 20 minutes before you filed the motion. We would have been more than willing to discuss with you your concerns prior to filing the motion. You had an agenda and you stuck to that agenda. It is not surprising, but still disappointing. The Court may agree with you that the path you chose was the right one. I do not know.

But please do not try to justify a blatant violation of the rules (and beyond the Local Rules, Judge Cannon’s admonition to all of us last summer). You all made a decision tonight to file this motion without complying with the rules (Local Rules and Judge Cannon). That is your decision.

Nowhere do they address the underlying complaint: that Trump was ginning up false claims of assassination attempts based off Trump’s own lawyers doctoring of the Use of Force Form.

They even claim that Trump’s Truth Social claims are alleged, perhaps blaming Natalie Harp again for authoritarian games.

But that, of course, means it’s likely to work perfectly for Judge Cannon, who otherwise was stuck with a choice of preventing Trump from making false claims or being appealed.

Update: Cannon catered to Trump, once again.

PAPERLESS ORDER denying without prejudice for lack of meaningful conferral 581 the Special Counsel’s Motion to Modify Conditions of Release. Upon review of the Motion 581 [581-1], Defendant Trump’s procedural opposition 583, and the attached email correspondence between counsel [583-1], the Court finds the Special Counsel’s pro forma “conferral” to be wholly lacking in substance and professional courtesy. It should go without saying that meaningful conferral is not a perfunctory exercise. Sufficient time needs to be afforded to permit reasonable evaluation of the requested relief by opposing counsel and to allow for adequate follow-up discussion as necessary about the specific factual and legal basis underlying the motion. This is so even when a party “assume[s]” the opposing party will oppose the proposed motion [583-1], and it applies with additional force when the relief sought — at issue for the first time in this proceeding and raised in a procedurally distinct manner than in cited cases — implicates substantive and/or Constitutional questions. Because the filing of the Special Counsel’s Motion did not adhere to these basic requirements, it is due to be denied without prejudice. Any future, non-emergency motion brought in this case — whether on the topic of release conditions or anything else — shall not be filed absent meaningful, timely, and professional conferral. S.D. Fla. L.R. 88.9, 7.1(a)(3); see ECF No. 28 p. 2; ECF No. 82. Moreover, all certificates of conference going forward shall (1) appear in a separate section at the end of the motion, not embedded in editorialized footnotes; (2) specify, in objective terms, the exact timing, method, and substance of the conferral conducted; and (3) include, if requested by opposing counsel, no more than 200 words verbatim from the opposing side on the subject of conferral, again in objective terms. Failure to comply with these requirements may result in sanctions. In light of this Order, the Court determines to deny without prejudice Defendant Trump’s Motion to Strike and for Sanctions 583 . Signed by Judge Aileen M. Cannon on 5/28/2024. (jf01) (Entered: 05/28/2024)

Mr. Smith Goes to SCOTUS

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Yesterday, Jack Smith submitted his brief on Trump’s immunity claim to SCOTUS. I’m working on a post on it, but thought I should go ahead and post this stub so people can chat until that’s done.

Jack Smith Is Not Amused

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By Trump’s motions to dismiss the stolen document case.

Trump’s Other Immunity Claim: Stealing Boxes and Boxes of Classified Documents

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Whatever else the SCOTUS grant of Trump’s immunity claim did, it provided the basis for scheduling clarity.

It seems likely SCOTUS has committed to deciding the immunity question by the end of term, in June.

That would present Tanya Chutkan with the decision of whether to try the January 6 case during the election season (it is her choice, not DOJ’s to make). She had been entertaining starting the trial in August, which would have bled into election season as it is, so she may decide to do this. If she does, it is unlikely a jury would reach a verdict before election day, but the trial would give voters opportunity to see the evidence before voting.

The decision to grant cert is as interesting for Trump’s other immunity claim — Trump’s even more frivolous claim that he can’t be prosecuted for stealing boxes and boxes of classified documents because his claimed decision to convert those government documents to his personal possession in violation of the Presidential Records Act is immune from prosecution, as well. I’ve seen some commentary that SCOTUS may have been trying to come up with a different solution but then decided to hear the case. If that’s true, the decision to hear the case came less than a week after Trump made that other claim of immunity, that he can steal classified documents with impunity. Who knows? It’s not before the court, but it may have affected their decision to hear the case.

The matter will be fully briefed by the time Jack Smith submits his brief to SCOTUS on April 8. So he can have two absurd claims of immunity to address, Trump’s claim he can steal the election with impunity, and Trump’s claim he can convert boxes and boxes of classified documents to do with as he pleases on the way out the door even if it violates the Presidential Records Act, a law passed specifically to apply to Presidents. One of the matters that had been hypothetical before the DC Circuit — that Trump might sell nuclear documents to our adversaries — has become concrete.

Given the question as posed by SCOTUS — Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? — I think SCOTUS may have been uncomfortable with the DC Circuit’s thin treatment of Trump’s argument that, without immunity, former Presidents could be prosecuted for things like approving the drone strike on Anwar al-Awlaki (note, when Trump raises this, he never mentions that he himself killed Awlaki’s daughter).

Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting.” Vance, 140 S. Ct. at 2424.

Former President Trump first asserts that the prospect of potential post-Presidency criminal liability would inhibit a sitting President’s ability to act “fearlessly and impartially,” citing the “especially sensitive duties” of the President and the need for “bold and unhesitating action.”

There has to be something that distinguishes such actions from those charged against Trump. That something is likely the conversion of the Presidency to one’s own personal benefit. It’s not in the DC Circuit opinion and needs to be — all the more so given that, in Florida, Trump is claiming that he could legally simply convert boxes and boxes of classified documents to his personal property, even though the Presidential Records Act prohibits it.

It’s not in the DC Circuit opinion. But something like that has to be, some measure to distinguish the ordinary unlawful stuff Presidents are asked to authorize on behalf of the country and the venal stuff Trump did to benefit himself.

Tomorrow, Judge Cannon will hold a hearing to discuss how to schedule that trial. Her original schedule included six months of things after pretrial motions, which would put her schedule at September as well (though she’s obviously more likely to stall until after the election). But one thing she can expect is that, by June, Trump’s immunity claim will be resolved.

Update: Here’s the language from Trump’s brief that addresses this problem.

The panel opinion ignores the long history of real-world examples of Presidents engaging in actual behavior that political opponents viewed as egregious and “criminal.” Instead, keying on the Special Counsel’s arguments, the panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur, and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur—such as a hypothetical President corruptly ordering the assassination of political rivals through “SEAL Team Six.” D.C. Cir. Oral Arg Tr. 10:19-21. Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis. Confronted with real-world hypotheticals—such as President Obama’s killing of U.S. citizens by drone strike—the Special Counsel conceded below that Presidential immunity from criminal prosecution for official acts likely exists and would apply, directly contradicting the “categorical,” App’x 20A, holdings to the contrary of both the appellate panel and the trial court. D.C. Cir. Oral Arg Tr. 49:18-22 (Special Counsel admitting that a “drone strike” where “civilians were killed … might be the kind of place in which the Court would properly recognize some kind of immunity”). Further, the logical presupposition of such speculative hypotheticals—i.e., that the Founders supposedly must have intended that no alleged Presidential misdeed could ever escape prosecution—is plainly incorrect and contradicts the basic premises of a system of separated powers. “While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty.” Morrison, 487 U.S. at 710 (Scalia, J., dissenting).

Jack Smith’s response doesn’t really deal with this issue in depth.

7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al., at 7. The court of appeals’ analysis was “specific” to the allegations that applicant conspired to “overturn federal election results and unlawfully overstay his Presidential term,” Appl. App. 31A, and a stay can be denied on that basis alone, leaving for another day whether any immunity from criminal prosecution should be recognized in any circumstances. See Gov’t C.A. Br. 45-49 (explaining that foreign affairs are not implicated in this case); cf. Nixon, 418 U.S. at 707, 710, 712 n.19 (reserving whether an absolute presidential-communications privilege might exist for military, diplomatic, or national security secrets).

Trump’s Defense: He Intended to Steal Boxes and Boxes of Classified Documents

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As I have been noting for months, in all of Jack Smith’s rebuttals to Trump’s claims that Presidents have absolute immunity, he floated scenarios that are pretty similar to stuff that Trump is known or suspected of doing.

One of those is, “a president who sells nuclear secrets to a foreign adversary.”

As I noted in response to Trump’s claim that that would be treason, Trump has done a whole lot that’s improper with classified information.

The closest thing on that list to treason is selling nuclear secrets to America’s adversaries. Not treason.

But Trump’s lawyers, including two of the lawyers representing him in the stolen documents case, lawyers who had their first good look at the documents Trump is accused of stealing last week, seem to suggest it could be.

To be clear: Trump has never been accused of selling nuclear secrets to America’s adversaries.

He undoubtedly gave Israel’s counterterrorism secrets to Russia — why, and whether there was a quid pro quo involved, we still don’t know.

He is known to have Tweeted out highly sensitive satellite information to dick-wag Iran, with the result that Iran learned about the satellites targeting their country.

To spite Mark Milley, he showed a plan to attack Iran to Mark Meadows’ ghost writers.

Ongoing reporting, first from ABC and then from NYT, reveals that after Australian billionaire Anthony Pratt paid millions for access to Trump, Trump shared details of a conversation he had about a call he had with Iraq’s president after bombing Iraq, described his perfect phone call with Volodymyr Zelenskyy, and provided sensitive details of America’s nuclear subs.

And he is accused of leaving nuclear documents — documents that Trump’s lawyers may have reviewed for the first time last week — in unsecure ways at his beach resort, possibly even in his gaudy bathroom.

So, no. Trump has not (yet) been accused of selling nuclear secrets, to adversaries or anyone else. Though he did give away what he claimed to be nuclear secrets to a businessman from an allied nation after the guy paid a lot of money for access to Trump.

But as I noted, we don’t yet know what happened to some of the secret documents that Trump snuck away from Mar-a-Lago after hiding them from Evan Corcoran in June 2022, documents he took with him to host a golf tournament the Saudis paid an undisclosed sum to host at Bedminster.

Those documents have never been located.

Just so long as Trump didn’t sell any of these nuclear documents, but instead gave them away, I’m sure we’re all good.

That’s important background to Trump’s primary defense in his stolen documents case. Between his motion to dismiss because the Presidential Records Act doesn’t say what he claims it says and his motion to dismiss for absolute immunity, he is arguing that he intended to steal boxes and boxes of classified documents.

The latter argument is substantially the same garbage argument Trump has made to the DC Circuit and SCOTUS. The former is a real piece of work, even by Trump’s standards. Here his argument:

  • Before the Presidential Records Act was passed, Presidents treated presidential papers — which are different from government classified documents — as their personal property
  • Because NARA had no authority, after Bill Clinton left office, to reclassify tapes of personal conversations Clinton made so Tom Fitton could have them, it means NARA has no authority over what counts as a presidential or personal record
  • Bill Clinton’s personal tapes are exactly the same as the boxes and boxes of official documents Trump sent to Mar-a-Lago
  • Without providing any evidence Trump did classify all those official documents as personal documents, he will nevertheless claim he did so while still in office
  • Robert Hur’s report describing seizing all of Joe Biden’s diaries — which are specifically excluded from the PRA — is proof that Presidents control all official documents they stash away
  • Cmon, Judge Cannon, you made the ridiculous argument I own these documents once already, only to have the 11th Circuit rip you a new asshole, but why can’t you make precisely that argument again?
  • Charging Trump for actions he took after leaving the White House is the same as supervising his actions day-to-day
  • Because DOJ declined to second-guess Mark Meadows’ spectacular failure to declassify documents Trump wanted to give to John Solomon, it means DOJ must accept Trump’s vague assertion that he didn’t spectacularly fail to declassify boxes and boxes of documents either
  • These boxes and boxes of official documents, which are not excluded from the PRA, are just like Reagans diaries, which are specifically excluded
  • Clinton’s conversations about official stuff are just the same as the official documents documenting that kind of stuff
  • Because NARA had never made a criminal referral before February 2022, the fact that it has since made two means it couldn’t make any
  • Trump didn’t think he’d get busted, so it was improper for FBI to bust him
  • DOJ should have dealt with me like they did with Peter Navarro when he also blew off the PRA
  • Because DOJ refused to seize unclassified personal Clinton recordings so Tom Fitton could have them, it means DOJ could not seize classified official documents so NARA could have them

Ultimately, though, the two arguments together are very simple. First, from the PRA filing, Trump intended to take those boxes and boxes of classified documents.

The Special Counsel’s Office concedes that the “genesis” of this case dates back to at least “the tail end of the Trump Administration itself.” Compel Oppn. at 3.2 The Office alleges in the Superseding Indictment that President Trump “caused scores of boxes, many of which contained classified documents, to be transported” to Mar-a-Lago. ECF No. 85 ¶ 4 (emphasis added). The Superseding Indictment makes clear that this decision and the related transportation of records occurred while President Trump was still in office. Id. ¶ 25 (alleging that President Trump caused boxes of records to be packed and shipped “[i]n January 2021, as he was preparing to leave the White House” (emphasis added)). President Trump departed the White House prior to “12:00 p.m. on January 20, 2021,” and as such he is alleged to have made these decisions concerning the documents at issue while he was the Commander-in-Chief. Id. ¶ 4.

And, from the immunity filing, because Trump stole those boxes and boxes of classified documents while he was still Commander-in-Chief, he has immunity from prosecution for doing so.

Specifically, President Trump is immune from prosecution on Counts 1 through 32 because the charges turn on his alleged decision to designate records as personal under the Presidential Records Act (“PRA”) and to cause the records to be moved from the White House to Mar-a-Lago. As alleged in the Superseding Indictment, President Trump made this decision while he was still in office. The alleged decision was an official act, and as such is subject to presidential immunity.

[snip]

Even if the Special Counsel’s Office could establish that President Trump’s designation decision under the PRA was illegal or otherwise improper—and they cannot—“the President’s actions do not fall beyond the outer perimeter of official responsibility merely because they are unlawful or taken for a forbidden purpose.” Blassingame, 87 F.4th at 14. The Supreme Court has so held, repeatedly. After all, every claim of immunity is raised against charges of allegedly improper motive or purpose. See, e.g., Fitzgerald, 457 U.S. at 756 (rejecting a rule that would permit “an inquiry into the President’s motives” as “highly intrusive”); Pierson v. Ray, 386 U.S. 547, 554 (1967); Barr v. Matteo, 360 U.S. 564, 575 (1959) (“The claim of an unworthy purpose does not destroy the privilege.” (citation omitted)); Spalding v. Vilas, 161 U.S. 483, 498 (1896) (holding that immunity does not turn on “any personal motive that might be alleged to have prompted his action”); Bradley v. Fisher, 80 U.S. 335, 354 (1871) (holding that immunity “cannot be affected by any consideration of the motives with which the acts are done”); see also, e.g., Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.). In short, in assessing whether immunity applies, courts must look to the “nature of the act itself.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). The allegedly improper manner or purpose of the alleged acts is not relevant. Fitzgerald, 457 U.S. at 756. Therefore, President Trump is entitled to immunity for this official act and that must include immunity from criminal prosecution.

This is, quite literally, an argument that it was totally legal for Trump to choose to steal boxes and boxes of classified documents.

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.

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.