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Report and Recommendation of Ad Hoc Hearing Committee Re: Preliminary Order of Discipline Charging Rudolph W. Giuliani with violating Pennsylvania Rules of Professional Conduct based on his prosecution of a lawsuit in Pennsylvania following the 2020 presidential election.
by Robert C. Bernius, Esq., Chair
Board on Professional Responsibility, Ad Hoc Hearing Cmte.
July 7, 2023

THIS REPORT IS NOT A FINAL ORDER OF DISCIPLINE* [* Consult the ‘Disciplinary Decisions’ tab on the Board on Professional Responsibility’s website (http://www.dcattorneydiscipline.org) to view any subsequent decisions in this case.]

DISTRICT OF COLUMBIA COURT OF APPEALS
BOARD ON PROFESSIONAL RESPONSIBILITY
AD HOC HEARING COMMITTEE

In the Matter of:
RUDOLPH W. GIULIANI,
Respondent.
A Temporarily Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 237255)

Board Docket No. 22-BD-027
Disciplinary Docket No. 2020-D253

REPORT AND RECOMMENDATION OF AD HOC HEARING COMMITTEE

INTRODUCTION

Disciplinary Counsel charged Respondent Rudolph W. Giuliani with violating Pennsylvania Rules of Professional Conduct 3.1 and 8.4(d), based on his prosecution of a lawsuit in Pennsylvania following the 2020 presidential election.

The hearing in this disciplinary matter took place on December 5-8 and 15, 2022. Former President Donald Trump waived his attorney-client privilege, and Respondent testified at the hearing about all matters relevant to post-election litigation. Tr. 1207.1

Disciplinary Counsel proved by clear and convincing evidence that Mr. Giuliani violated Rules 3.1 and 8.4(d). See Board Rule 11.6; In re Cater, 887 A.2d 1, 24 (D.C. 2005). He violated Pennsylvania Rule 3.1 by filing a lawsuit seeking to change the result of the 2020 presidential election when he had no factual basis, and consequently no legitimate legal grounds, to do so. His prosecution of the lawsuit also seriously undermined the administration of justice and violated Pennsylvania Rule 8.4(d).

The right to vote is the “essence of a democratic society.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Respondent’s frivolous lawsuit attempted unjustifiably and without precedent to disenfranchise hundreds of thousands of Pennsylvania voters, and ultimately sought to undermine the results of the 2020 presidential election. He claimed massive election fraud but had no evidence of it. By prosecuting that destructive case Mr. Giuliani, a sworn officer of the Court, forfeited his right to practice law. He should be disbarred.

I. FINDINGS OF FACT

1. Respondent Rudolph W. Giuliani is a member of the Bar of the District of Columbia Court of Appeals, admitted on December 2, 1976 and assigned Bar Number 237255. DCX 01. He took inactive (non-practicing) status on December 12, 2002. DCX 02 at 0001; Respondent’s Answer to Specification of Charges at 1. On June 24, 2021, the Supreme Court of the State of New York, Appellate Division, First Judicial Department suspended him pending final disposition of disciplinary proceedings in that jurisdiction. In re Giuliani, 146 N.Y.S.3d 226, 283 (App. Div. 2021) (per curiam). On July 7, 2021, the D.C. Court of Appeals suspended him based on the New York action. Order, In re Giuliani, D.C. App. No. 21-BG-423 (July 7, 2021).

A. 2020 Election Law in Pennsylvania

2. In 2019, the Commonwealth of Pennsylvania enacted Act 77, which permitted any registered voter to vote by mail upon request. 2019 Pa. Legis. Serv. Act 2019-77 (S.B. 421), sec. 8, § 1301-D; Tr. 552 (Ortiz). The liberalized vote-bymail procedures, combined with the COVID-19 pandemic, led to an increase in Pennsylvania mail-in ballots from 266,208 in the 2016 election to 2,653,688 in 2020.2 RX 06 at 4, ¶ 19. In the 2020 general election, more than one third of Pennsylvanians voted by mail. DCX 16 at 0007.

3. To vote by mail, voters were required to apply for a ballot, but did not have to specify a reason for doing so. Once the application was approved the county election board sent the voter a package which contained a ballot and two envelopes: a smaller, “secrecy” envelope marked “Official Election Ballot” and a larger, outer envelope preprinted with a bar code and voter declaration. DCX 17 at 0021; DCX 18 at 0029; DCX 21 at 0009. Voters were instructed to mark their ballot, seal it in the smaller envelope and, in turn, seal that envelope in the larger envelope. Id. Voters then filled out, dated, and signed a declaration printed on the larger envelope, and mailed it or delivered it in person to the county board of election. Id. On election day, officials “canvassed” the mail-in ballots to verify that the appropriate information was on the outside of the larger envelope, and that nothing written on the secrecy envelope would reveal the voter’s identity, political affiliation, or candidate preference. DCX 17 at 0021. The secrecy ballot was then opened, and the ballot was counted. DCX 18 at 0028-29.

4. Following enactment of Act 77, several lawsuits were filed before the 2020 election to clarify or challenge the new procedures. Tr. 554 (Ortiz). In Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020), the Pennsylvania Supreme Court held that if a county election board determined from the outside envelope that a mail-in ballot was deficient – for example, if the voter failed to sign the declaration – the Act did not require the county board to notify the voter and provide an opportunity to correct the mistake (“Notice and Cure”). DCX 17 at 0019-21; Tr. 554-55 (Ortiz); Tr. 134-35 (Giuliani). The Court, on the other hand, did not preclude counties from doing so. Tr. 135 (Giuliani). In the wake of that decision, some counties chose to implement “Notice and Cure”; others did not. DCX 14 at 0009; Tr. 135-36 (Giuliani).3

5. In In re Nov. 3, 2020 Gen. Election, 240 A.3d 591 (Pa. 2020), the Pennsylvania Supreme Court held that: (a) Act 77 does not permit election boards to compare the signatures on mail-in ballot envelopes with those on voter registration forms; and (b) the Act does not permit partisan election observers to challenge mailin ballots during the canvassing process. DCX 19 at 0012-13; Tr. 556-57 (Ortiz); Tr. 136-38 (Giuliani).

6. In a case brought by the Trump campaign, Donald J. Trump for President, Inc. v. Boockvar, 493 F. Supp. 3d 331 (W.D. Pa. 2020), the U.S. District Court for the Western District of Pennsylvania held that the campaign lacked standing to challenge various Pennsylvania election procedures on a vote dilution theory, which included challenges based on the Electors and Election Clauses of the U.S. Constitution. DCX 18 at 0036-40. In the alternative, the court held that the absence of a signature-comparison process for mail-in ballots did not violate equal protection or substantive due process. DCX 18 at 0052, 0056-60; Tr. 557-561 (Ortiz). The campaign did not appeal that decision. DCX 08 at 0053.

7. On election day, to implement pandemic-compelled social distancing between election workers canvassing mail-in ballots and partisan observers, county election officials erected observational barriers tailored to the physical layouts of individual canvassing sites. DCX 20 at 0003. The Trump campaign objected to the barriers in Philadelphia, but a state trial court denied its request to allow its observers closer access. An intermediate appellate court reversed that decision, (RX 16 at 3 (In re Canvassing Observation, No. 1094, 2020 WL 6551316, at *4 (Pa. Commw. Ct. Nov. 5, 2020)); Tr. 562-63 (Ortiz)), but on further appeal the Pennsylvania Supreme Court approved the barrier placements, holding that “the Election Code does not specify minimum distance parameters for the location” of observers. DCX 20 at 0009 (In re Canvassing Observation, 241 A.3d 339, 351 (Pa. 2020)); Tr. 141-47 (Giuliani); Tr. 563-64 (Ortiz). In the interim, a federal judge worked out an informal settlement to allow observers in Philadelphia closer proximity to canvassing operations. Tr. 564-65 (Ortiz).

B. Post-Election Trump Litigation

8. President Biden won Pennsylvania by a margin of more than 80,000 votes. DCX 22 at 0001-02.

9. The day after the election, November 4, 2020, then-President Trump asked Mr. Giuliani to take charge of post-election litigation challenging the voting results. Tr. 42-43, 45, 481-82, 877-78 (Giuliani). Mr. Giuliani went to a war room in Arlington, Virginia where he immediately met with other attorneys to prepare to bring litigation in approximately ten states (including Pennsylvania). Tr. 483-84 (Giuliani). He intended all of those cases to raise similar claims so they could be consolidated in a single lawsuit that would eventually be heard in the U.S. Supreme Court. Tr. 42-46, 49, 53-54, 483-84, 879, 1188-1190 (Giuliani).

10. The litigation team working for Respondent included multiple attorneys as well as Bernard Kerik (formerly Police Commissioner of New York City (Tr. 812- 13 (Kerik))), whom Respondent engaged as chief investigator. Tr. 457 (Giuliani); Tr. 800 (Bobb); Tr. 821-22, 824-25 (Kerik). Mr. Kerik was asked to coordinate efforts to find evidence of voting improprieties or fraud. Tr. 824-29, 854 (Kerik). In addition, Respondent engaged John Droz (who described his career as “trying to defend science” (Tr. 752-55 (Droz)) to assemble statistical models testing the “legitimacy” of the election. Tr. 758-60, 764, 769-770 (Droz).

11. Mr. Giuliani started to work on litigation specific to Pennsylvania after receiving a telephone call complaining about observational boundaries in Philadelphia during the mail-in ballot canvassing there. Tr. 46-47, 49, 882-86 (Giuliani); Tr. 740-42 (Lewandowski).

12. Election challenges based on state law were required to be brought in state court. Tr. 52-54, 513-16 (Giuliani); DCX 40 at 0006 & n.2. The campaign had lost other cases in the state courts, and local counsel “felt it was a lost cause” to bring post-election challenges there. Tr. 515 (Giuliani). Respondent consequently worked with Pittsburgh attorney Ronald Hicks to prepare a case to be filed in Pennsylvania federal court. DCX 34 at 0141-42; see DCX 05 at 0084; Tr. 51-53, 486-88 (Giuliani).

13. Mr. Giuliani helped draft a complaint on behalf of Donald J. Trump for President, Inc. and on behalf of two individual voters who had mailed defective ballots but had not been given the opportunity to cure them. DCX 05; Tr. 55-56 (Giuliani). The complaint contained seven counts asserting violations of the plaintiffs’ civil rights under 42 U.S.C. § 1983 and the Electors and Elections Clauses of the U.S. Constitution. It named as defendants the Pennsylvania Secretary of State and the election boards of seven counties that had returned majorities for President Biden. DCX 05 at 0001, 0011; Tr. 56-57 (Giuliani); Tr. 566 (Ortiz).

14. The initial Complaint was filed on November 9, 2020, in the Middle District of Pennsylvania. DCX 05 at 0001; Tr. 59 (Giuliani); Tr. 566 (Ortiz). Even though he drafted a meaningful portion (up to 30%) of it, Mr. Giuliani was not admitted to practice in the Middle District and did not sign it. Tr. 57, 59, 489, 899 (Giuliani); see DCX 07.

15. Mr. Hicks withdrew his appearance immediately after filing the Complaint. DCX 09 at 0003; Tr. 61-62 (Giuliani). On November 15, 2020, plaintiffs filed a First Amended Complaint authored by another group of lawyers; it eliminated all but two of the seven original counts. DCX 06; Tr. 61, 490 (Giuliani). Mr. Giuliani did not work on that complaint and did not agree with its more circumscribed approach. Tr. 60-63 (Giuliani).

16. The court admitted Mr. Giuliani pro hac vice on November 17, 2020. DCX 07 at 0002. That same day, he personally argued in opposition to a motion to dismiss the First Amended Complaint. DCX 08. By that time, Mr. Giuliani had prepared a Second Amended Complaint. Tr. 71-72 (Giuliani). He believed that the First Amended Complaint wrongly deleted allegations about widespread election fraud that were important to his national litigation strategy. Tr. 64-68 (Giuliani). During the oral argument, he advised District Judge Matthew Brann that he intended to file another complaint. DCX 08 at 0013; Tr. 71-72 (Giuliani).

17. The day after the oral argument, Mr. Giuliani moved for leave to file the Second Amended Complaint, which reintroduced allegations from the original Complaint and added additional counts, all of which were based either on 42 U.S.C. § 1983 or on the Due Process or Electors and Elections Clauses. DCX 09 at 0001- 04; Tr. 491 (Giuliani). At the core of the additional counts were plaintiffs’ claims of systemic election fraud arising from the establishment of observational boundaries. DCX 09 at 0110-0122. The next day, November 19, 2020, plaintiffs sought a temporary restraining order barring defendants from certifying the result of the 2020 election. DCX 10; DCX 11; Tr. 569 (Ortiz).

18. On November 21, 2020, Judge Brann dismissed the First Amended Complaint and denied leave to file the Second Amended Complaint. He also denied plaintiffs’ request for injunctive relief. DCX 14 at 0017 (Donald J. Trump for President, Inc. v. Boockvar, 502 F. Supp. 3d 899, 923 (M.D. Pa. 2020)).

19. Plaintiffs filed a Notice of Appeal on November 22, 2020, signed by Mr. Giuliani. DCX 15. The only issue raised on appeal was whether Judge Brann properly denied leave to file the Second Amended Complaint. DCX 16 at 0005; Tr. 594 (Ortiz).

20. The Third Circuit affirmed dismissal of the case. DCX 16 at 0005 (Donald J. Trump for President, Inc. v. Sec’y of Pennsylvania, 830 Fed. Appx. 377, 382 (3d Cir. 2020)). The court held that the Second Amended Complaint did not contain a sufficient factual basis to state a facially plausible claim to relief. DCX 16 at 0008.

C. The Giuliani Complaints Were Factually Deficient

21. The Complaint and Second Amended Complaint (“Giuliani Complaints”) challenged the location of observational barriers and the existence of Notice and Cure procedures, but neither complaint factually linked either of those circumstances to widespread improper voting. See generally DCX 05; DCX 09. They contained only vague and speculative allegations about random and isolated electoral irregularities which did not and could not support Respondent’s inflated legal claims. See ODC Proposed Finding of Fact (“PFF”) 34 (listing the 26 factual allegations in the two complaints); ODC Reply Br. at 4-5.4

22. For that reason, the District Court found that plaintiffs had presented only “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” DCX 14 at 0008 (502 F. Supp. 3d at 906).

23. The Third Circuit agreed, holding that the Second Amended Complaint:

never alleges that any ballot was fraudulent or cast by an illegal voter. It never alleges that any defendant treated the Trump campaign or its votes worse than it treated the Biden campaign or its votes. Calling something discrimination does not make it so.

DCX 16 at 0012 (830 Fed. Appx. at 391).

D. Respondent’s Oral Argument to the District Court

24. When Mr. Giuliani opposed the motion to dismiss before Judge Brann, the First Amended Complaint was in effect. It had eliminated claims that were based on observational barriers and fraud. Tr. 60, 71, 490 (Giuliani). Compare DCX 05, with DCX 06. Mr. Giuliani, however, had already drafted the Second Amended Complaint reasserting that observational barriers and Notice and Cure practices had caused widespread fraud. Tr. 71-72, 944 (Giuliani). He justified the amendment “because as compared to last week, we have twice as much evidence this week.” DCX 08 at 0022; see DCX 09 at 0001 (seeking leave to add claims in a second amended complaint “based on newly learned facts”).

25. Mr. Giuliani’s oral argument for the most part elaborated on the observational boundary fraud claims of his Second Amended Complaint. DCX 08 at 0012-18; Tr. 71-73 (Giuliani); Tr. 582-86 (Ortiz).

26. The Pennsylvania Supreme Court, in In re Canvassing Observation, 241 A.3d at 346-47, noted that the Election Board in Philadelphia County had established its observational distancing requirements based “on its perceived need for protecting its workers’ safety from COVID-19 and physical assault from those individuals who have contact with its workers; ensuring security of the ballots; efficiently processing large numbers of ballots; protecting the privacy of voters; and ensuring campaign access to the canvassing proceedings . . . .” DCX 20 at 0006.

27. Mr. Giuliani, however, contended that observational boundaries were a per se fraud that he had “personally witnessed” (Tr. 49 (Giuliani)). He claimed they were “a deliberate scheme of intentional and purposeful discrimination” against the Trump campaign (DCX 09 at 0079-0080, ¶ 167), concluding that Democrats “stole an election . . . in this Commonwealth” (DCX 08 at 0027) and that he had “hundreds of affidavits” supporting his assertion (DCX 08 at 0027-28). These claims were simply not true.

28. Mr. Giuliani did not offer any evidence that fraudulent mail-in votes were actually cast or counted. Tr. 381-82 (Giuliani); Tr. 593 (Ortiz); DCX 40 at 0013-27; see DCX 08. In his view, the existence of observational boundaries was enough: the voter “might not have done anything wrong, but [because of the boundaries] the person counting did something wrong and therefore they’re not counted.” Tr. 334 (Giuliani). The only evidence he offered to the court were photographs showing that observers could not see the details of ballots at canvassing sites in Philadelphia and Allegheny Counties. DCX 08 at 0029-31. Because canvassing absentee and mail ballots subject to observational boundaries was a “planned fraudulent process,” he argued, virtually all of the 682,770 mail-in ballots in Philadelphia and Allegheny counties should not have been counted. Id. at 0023- 26, 0116-17; see also Tr. 383-85, 388-89 (Giuliani). Acknowledging that observational boundaries applied equally to both parties, he rationalized that “Democrats weren’t allowed to see it because they couldn’t count on the fact that all Democrats are crooked.” DCX 08 at 0026-27; see also Tr. 194-95 (Giuliani).

29. Mr. Giuliani’s observational boundaries theory was premised on a conclusive presumption of irregularity, i.e., the wholly unfounded supposition that observational boundaries necessarily led to fraudulent counting of mail-in ballots to favor President Biden. See DCX 05 at 0070 (“Consequently, Defendants created a system whereby it was physically impossible for the candidates and political parties to view the ballots and verify that illegally cast ballots were not opened and counted.”); DCX 09 at 0080 (“Defendant County Election Boards carried out this scheme knowing that the absentee and mail ballots which should have been disqualified would overwhelmingly favor Biden . . . .”); id. at 0088 (same). While the number of Democrats voting by mail was expected greatly to surpass the number of Republicans voting by mail, nothing in the record supports Respondent’s thesis that the observational barriers were put in place to avoid detection of a scheme illegally to count Biden votes.

30. The day that Mr. Giuliani made his oral argument, the Pennsylvania Supreme Court held that the observational boundaries did not violate the election code. DCX 20 at 0009 (In re Canvassing Observation, 241 A.3d at 351).

31. Distinct from the observational boundaries claim, Mr. Giuliani’s Notice and Cure claim was lodged on behalf of two individuals who had mailed in defective ballots that were properly rejected by election officials. DCX 08 at 0019-0020. Rather than seeking to have their votes counted, Mr. Giuliani sued seven other counties that had implemented a Notice and Cure process, seeking on an equal protection theory to take away votes in those defendant counties or even “declar[e] a new election.” Tr. 187 (Giuliani).

32. Claiming that time constraints precluded him from doing so, Mr. Giuliani’s pre-litigation investigation unearthed no evidence of systemic fraud. DCX 08 at 0022-23; Tr. 382 (Giuliani). He briefly visited Philadelphia, and while there focused his attention on the observational boundary restrictions. Tr. 468-475, 1163-1173 (Giuliani). Most of the inspectors with whom he spoke were “in a state of shock” over how the new boundaries differed from practices under prior law. Tr. 1170 (Giuliani); see also Tr. 1173, 1199 (Giuliani).5 None of his interactions, however, unearthed credible proof that observational boundaries or Notice and Cure procedures facilitated widespread fraud. Tr. 234-240, 956-971 (Giuliani).

33. Respondent thus commenced litigation without evidence that its core factual claim was true. He admits as much, maintaining that the “fastmoving” case “did not permit him to investigate fully his client’s position as he would normally do in any other case.” Respondent’s Br. at 2. Even without supporting evidence, he claims, it was reasonable for him to “draw an inference and make an argument that the vote count was illegal and contrary to law.” Id. at 3. We reject this argument.6

34. Despite the lack of proof, Respondent sought an order prohibiting the defendants from counting ballots that had been “cured” and any ballots that had been pre-canvassed or canvassed without “meaningful observation” from poll watchers. DCX 09 at 0113, 0123. Such a remedy would mean disqualifying all mail-in ballots in the defendant counties. Tr. 178-79 (Giuliani). His complaints sought injunctive relief ranging from a prohibition on certifying the results of the 2020 general election (DCX 05 at 0084; DCX 06 at 0062; DCX 09 at 0020, 0122-23; Tr. 577-79 (Ortiz as to DCX 09)) to ordering the Pennsylvania General Assembly to choose the electors (DCX 09 at 0123; Tr. 579-581 (Ortiz)). In his motion for leave to file the Second Amended Complaint, he stated that “[u]ltimately, Plaintiffs will seek the remedy of Trump being declared the winner of the legal votes cast in Pennsylvania . . . and, thus, the recipient of Pennsylvania’s electors.” DCX 09 at 0008-09; Tr. 576 (Ortiz).

35. Four days after the oral argument, the District Court dismissed the case and denied leave to replead. DCX 14.

36. The chief factual objective of the hearing in this disciplinary matter was to ascertain whether Disciplinary Counsel proved by clear and convincing evidence that Mr. Giuliani lacked material evidence to support his claims that observational boundaries and Notice and Cure procedures facilitated widespread, systemic voter fraud and justified the nullification of hundreds of thousands of votes in Pennsylvania. The hearing clearly and convincingly disclosed that there was no such evidence: Respondent based the Pennsylvania litigation only on speculation, mistrust, and suspicion.

E. Observational Boundaries Did Not Facilitate Systemic Election Fraud

37. The record of this disciplinary proceeding includes: (a) all documents in the possession of Mr. Hicks’s firm (DCX 23 & 24); (b) all documents in the possession of Linda Kerns, who signed the Complaint (DCX 05 at 0084-85) and the First Amended Complaint (DCX 06 at 0063) (DCX 25 & 26); (c) all documents in the possession of the law firm that authored the Second Amended Complaint (DCX 09 at 0124) (DCX 27 & 28); (d) all documents in the possession of Mr. Giuliani (DCX 32, 35, 36, 37; Tr. 506-510 (Giuliani)); and (e) the transcript of a Pennsylvania legislative hearing in which Mr. Giuliani participated on November 25, 2020 (DCX 29), which, he claimed, demonstrated “a pattern in Pennsylvania of so many gross irregularities that . . . presents a very solid evidentiary base, direct and circumstantial, supporting responsible allegations of voter fraud.” DCX 32 at 0002.

38. At the hearing in this case Mr. Giuliani belatedly produced another set of declarations and affidavits, RX 01, along with some emails and text messages, RX 02. Tr. 85-86 (Giuliani). His testimony raised the possibility that some relevant materials may have been lost or not turned over, but the only “missing” document he could think of was already included in his document production, albeit without an unknown number of affidavits he “thought” were attached to it. Tr. 90-94, 210- 14 (Giuliani); DCX 32 at 0072-75. He subsequently testified that there might be other missing documents but, if so, they concerned “an illegal voter, it’s one or two.” Tr. 298-99 (Giuliani). Between the time Disciplinary Counsel commenced its investigation of Respondent and the hearing in this matter, Mr. Giuliani reached out to those with whom he had worked and retrieved relevant documents from them which, in turn, he produced to Disciplinary Counsel. Tr. 509-510 (Giuliani).

39. We conclude therefore that the record of the disciplinary hearing contains all the material evidence gathered by Mr. Giuliani, and on his behalf, to support his claims in the Pennsylvania litigation. His nebulous allusions to the existence of additional material documentation are not credible.

40. The documentary evidence that Respondent did produce is fundamentally vague, speculative, or facially incredible. We have reviewed it and have examined with particularity the materials cited by Respondent in his posthearing filings. Respondent’s PFF 36-37. Although the materials identify a handful of isolated election irregularities, they completely fail to demonstrate that the observational boundaries or Notice and Cure procedures facilitated any meaningful fraud or misconduct that could have possibly affected the outcome of the presidential election.

41. At the disciplinary hearing Mr. Giuliani also offered the testimony of Bernard Kerik and John Droz, who produced additional materials purporting to show election fraud. Tr. 751-787 (Droz) (RX 11); Tr. 810-857 (Kerik) (RX 40-43).

42. Mr. Giuliani did not include Mr. Kerik’s documents in his responses to Disciplinary Counsel’s request for evidence (DCX 32, 35, 36, 37; Tr. 97-98 (Giuliani)) and the three subpoenaed law firms did not produce them. DCX 24, 26, 28. Mr. Giuliani did not mention them in the oral argument before Judge Brann (DCX 08), and Mr. Kerik did not testify at the November 25, 2020 legislative hearing (DCX 29). At the disciplinary hearing Mr. Giuliani at first said he did not recall if or when he may have seen the Kerik materials (Tr. 98 (Giuliani)), and later testified that he saw them before the oral argument in the District Court but could not attest to their veracity. Tr. 456-460 (Giuliani).

43. Even if Mr. Giuliani did have the Kerik documents at a relevant time (and it does not appear that he did), they do not show any connection between observational boundaries or Notice and Cure procedures and election fraud. Mr. Kerik (like Mr. Giuliani) could not and would not confirm that the information contained in the Kerik documents was true (Tr. 827-29 (Kerik)) and could not identify its sources. Tr. 839-842 (Kerik). The content of the Kerik documents is in many instances facially incredible. Indeed, Respondent did not offer the Kerik materials in evidence at the disciplinary hearing for their truth, and they were not admitted for that purpose. Tr. 920. For these reasons, we conclude that the Kerik exhibits (RX 40-43) have no probative value in this matter and do not support the allegations made by Mr. Giuliani in the Pennsylvania litigation.

44. Mr. Droz, who acknowledged no expertise in statistics, testified about an exhibit containing statistical “analyses” prepared by third parties, none of whom testified in this disciplinary matter. Tr. 759 (Droz); see RX 11. Mr. Droz could not and would not attest to the veracity of the exhibit, which Respondent again did not offer into evidence for the truth of its content. Tr. 772-73. Mr. Giuliani knew nothing about the credentials of the exhibit’s authors, or about the underlying data they used. Tr. 943-45 (Giuliani). Although he had the exhibit in his possession and claims to have been impressed with aspects of it (Tr. 906-911 (Giuliani)), he did not submit it to the District Court or rely upon it when making his oral argument. Tr. 944-45 (Giuliani). The Droz exhibit fails to establish any causal connection between observational boundaries or Notice and Cure procedures and election fraud. For these reasons we conclude that the Droz exhibit (RX 11) has no probative value in this matter and does not support the allegations in the Pennsylvania litigation.

F. The Notice and Cure Claim Had No Factual Merit

45. The individual plaintiffs lived in counties that did not adopt Notice and Cure procedures, so defective ballots mailed to those counties were not counted. DCX 05 at 0010 (¶¶ 19 & 20); DCX 06 at 0006-07 (¶¶ 15 & 16), 0058-59 (¶ 158); DCX 09 at 0023-25 (¶¶ 22 & 23), 0096-0103 (Count IV), 0105-109 (Count VI). But Mr. Giuliani did not sue the boards of elections in the counties that disqualified the plaintiffs’ ballots and did not seek to have them counted. Tr. 187 (Giuliani).

46. Instead, Respondent sued seven county boards that did offer Notice and Cure to their voters and sought to disqualify the ballots that had been cast in those counties after voters were notified of a defect in their mail-in ballot. DCX 05 at 0001; DCX 06 at 0001; DCX 09 at 0001; DCX 14 at 0011-12; Tr. 176, 187, 495- 502, 510-12 (Giuliani).

47. In Mr. Giuliani’s view, the divergent Notice and Cure practices among the counties constituted an intentional scheme by the seven counties and the Secretary of State to harm the Trump Campaign. Tr. 76 (Giuliani). However, he produced no evidence to support that claim.

48. In any event, the four most populous defendant counties had an aggregate total of approximately 6,500 Notice and Cure votes. DCX 16 at 0011. Respondent did not dispute that number, nor did he proffer a different one.7 The Third Circuit held that even if the Notice and Cure votes in the remaining counties brought the total to 10,000 voters (and even assuming they all voted for President Biden), the result of the election would not have changed. Id.

49. Mr. Giuliani had no evidence to support a claim that the Notice and Cure procedures affected votes in the defendant counties sufficient to approach President Biden’s 80,000-vote victory margin. Tr. 185 (Giuliani). Without such evidence Mr. Giuliani had no legitimate grounds based on Notice and Cure to seek an “injunction that prohibits Defendants from certifying the results of the 2020 presidential general election in Pennsylvania on a statewide basis . . . and/or [an] injunction that the results of the 2020 presidential general election are defective and providing for the Pennsylvania General Assembly to choose Pennsylvania’s electors.” DCX 09 at 0103-05, 0123.8

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Part 2 of 2

II. CONCLUSIONS OF LAW

Respondent’s conduct took place in connection with a matter pending in the United States District Court for the Middle District of Pennsylvania, which has adopted the Pennsylvania Rules of Professional Conduct. See M.D. Pa. L.R. 83.23.2. Disciplinary Counsel therefore charged Respondent with violating Pennsylvania’s Rules of Professional Conduct 3.1 and 8.4(d). See D.C. Rule of Professional Conduct 8.5(b)(1) (“For conduct in connection with a matter pending before a tribunal, the rules to be applied shall be the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise . . . .”).

Pennsylvania Rule 3.1 states in relevant part that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” See also D.C. Rule 3.1 (same).

Both the District Court and Third Circuit summarily dismissed Respondent’s case, finding that it lacked factual or legal merit. Although suggestive of the result in this disciplinary matter, those decisions do not compel a conclusion that Respondent violated Pennsylvania Rule 3.1. Even though the courts found that Respondent’s litigation had no merit, we must determine whether Respondent’s deficient claims were also “frivolous.”

In that regard, Pennsylvania Rule 3.1 sets forth an objective test. Adams v. Dept. of Pub. Welfare, 781 A.2d 217, 220 n.2 (Pa. Commw. Ct. 2001). Both parties have directed the Hearing Committee to In re Spikes, 881 A.2d 1118, 1125 (D.C. 2005) as a guide to our analysis. Spikes held that a claim is frivolous if, after undertaking “an ‘objective appraisal of merit’ . . . , a reasonable attorney would have concluded that there was not even a ‘faint hope of success on the legal merits’ of the action being considered.” 881 A.2d at 1125 (quoting Tupling v. Britton, 411 A.2d 349, 352 (D.C. 1980) and Slater v. Biehl, 793 A.2d 1268, 1278 (D.C. 2002)).

Spikes recognized that “the law is not always clear and never is static,” and that the prohibition of frivolous litigation should not chill zealous advocacy on behalf of a client to press for change and reform in the law. Id. (quoting D.C. Rule 3.1, cmt. [1]); see also Pa. Rule 3.1, cmt. [1]. However, Spikes warned that this “safe harbor” requires a position that is reasoned and supported. Id.; see also Pa. Rule 3.1, cmt. [1] (“The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.”); D.C. Rule 3.1, cmt. [1] (same).

Rule 3.1 applies to claims for relief as well as to theories of liability: where claims for relief are “utterly frivolous, implausible to the point of having ‘not even a faint hope of success,’” they too violate Rule 3.1. In re Pearson, 228 A.3d 417, 426 (D.C. 2020) (per curiam) (quoting Spikes, 881 A.2d at 1125).

A. Disciplinary Counsel Proved by Clear and Convincing Evidence that Respondent Violated Pennsylvania Rule 3.1

In the Second Amended Complaint, Respondent alleged that the Defendants implemented “observational barriers” that prevented Trump poll watchers from meaningfully observing the canvassing of mail-in ballots, and by doing so engaged in a “deliberate scheme of intentional and purposeful discrimination” to favor Joseph Biden over Donald Trump. DCX 09 at 0079-0080, 0088, 0096, 0106. Respondent also alleged that the Boards of Elections unlawfully allowed voters to cure facially deficient absentee ballots (Notice and Cure). DCX 09 at 0071, 0087, 0102-05, 0108- 09.

1. The Standing Argument Did Not Violate Pennsylvania Rule 3.1

Disciplinary Counsel argues that none of the Plaintiffs had standing to assert the claims in the Second Amended Complaint, citing Bognet v. Sec’y Commonwealth of Pennsylvania, 980 F.3d 336, 348-52 (3d Cir. 2020), decided a little more than a week before Respondent filed that document. See ODC Br. at 32- 33.

Before the District Court, however, Respondent noted his disagreement with Bognet and his intent to preserve the standing issue for appeal. DCX 13 at 0017; see Respondent’s Br. at 28-38 (relying in part on a series of Ninth Circuit cases). Respondent argues to the Hearing Committee that the District Court’s standing analysis erroneously relied on Mecinas v. Hobbs, 468 F. Supp. 3d 1186 (D. Ariz. 2020), a case that was later overturned by the Ninth Circuit when it endorsed a broad theory of “competitive standing” and cited other cases to the same effect. Respondent’s Br. at 32-33 (citing Mecinas v. Hobbs, 30 F.4th 890 (9th Cir. 2022)). Respondent also seeks to distinguish Bognet’s standing ruling based on its differing factual context. Id. at 38-40; DCX 08 at 0021-22.

Given the complexity of the standing issue, Respondent’s acknowledgement of the Bognet holding, and the line of Ninth Circuit cases supporting Respondent’s rational argument for distinguishing Mecinas, Respondent’s standing arguments had at least a faint hope of success and did not violate Pennsylvania Rule 3.1.

2. The Observational Barriers Claim Violated Pennsylvania Rule 3.1

The Pennsylvania election code set forth detailed mail-in ballot procedures to be followed by voters and election workers.

With respect to voters, the code mandated that ballot return envelopes “contain among other things a statement of the electors [sic] qualifications, together with a statement that such elector has not already voted in such primary or election.” 25 Pa. Stat. Ann. § 3146.4 (absentee ballots); see 25 Pa. Stat. Ann. § 3150.14(b) (mail-in ballots). It also provided that after placing the ballot inside the secrecy envelope, the voter must place the secrecy envelope in the ballot return envelope. “The elector shall then fill out, date and sign the declaration printed on such envelope.” 25 Pa. Stat. Ann. § 3146.6(a) (absentee ballots); 25 Pa. Stat. Ann. § 3150.16(a) (mail-in ballots).

Section 3146.8 of the law set forth the procedures to be followed by election workers during the canvassing process, which included examining the voter declarations and ensuring that the voter was eligible to vote.

The code also provided that poll watchers “shall be permitted to be present when the envelopes containing official absentee ballots and mail-in ballots are opened and when such ballots are counted and recorded” (25 Pa. Stat. Ann. § 3146.8(b)) and “be permitted to remain in the room in which the absentee ballots and mail-in ballots are pre-canvassed.” 25 Pa. Stat. Ann. § 3146.8(g)(1.1).

However, the code did not allow poll watchers to challenge ballots at canvassing. In re Nov. 3, 2020 Gen. Election, 240 A.3d 591, 610 (Pa. 2020). By the time that Respondent filed the Second Amended Complaint, the Pennsylvania Supreme Court had held that although observers had to be “in the room,” they did not have to be within any minimum distance of canvassing activities because they were not permitted to challenge individual ballots during the canvassing process. DCX 20 at 0008 (In re Canvassing Observation, 241 A.3d at 350). Even with observational barriers, poll watchers:

had the opportunity to observe the mechanics of the canvassing process. [They] witnessed Board employees inspecting the back of ballot envelopes containing the voter’s declaration, before sending them on for processing; witnessed ballots being removed from their secrecy envelopes, and naked ballots which had been delivered to the Board without a secrecy envelope being segregated from ballots which arrived within such envelopes; saw that the ballot processing methods utilized by the Board were not destroying the ballot envelopes containing the voter’s declaration; and perceived that the ballot secrecy envelopes were being preserved during their processing. . . . Although [they] could not view the actual declarations on the ballot envelopes, nor examine individual secrecy envelopes for improper markings, . . . this information would only be necessary if [they] were making challenges to individual ballots . . . . [S]uch challenges are not permissible under the Election Code.

Id. at 0009 (In re Canvassing Observation, 241 A.3d at 350-51).

Despite these rulings, Respondent alleged that the observational boundaries facilitated a sinister scheme by Democrats fraudulently to steal the election from Donald Trump (FF 28) and award it to Joseph Biden:

Democrats who controlled the Defendant County Election Boards engaged in a deliberate scheme of intentional and purposeful discrimination . . . by excluding Republican and Trump Campaign observers from the canvassing of the mail ballots in order to conceal their decision not to enforce [certain ballot] requirements . . . [and] to count absentee and mail ballots which should have been disqualified.9

DCX 09 at 0079-0080, ¶ 167 (Second Amended Complaint). Respondent claimed that the observational barriers “created a system whereby it was physically impossible for the candidates and political parties to view the ballots and verify that illegally cast ballots were not opened and counted.” Id. at 0086, ¶ 188.

The Second Amended Complaint sought an emergency order to stop the certification of the election or, in the alternative, prohibit the counting of absentee and mail-in ballots that “Trump Campaign’s watchers were prevented from observing.” Id. at 0020-21, ¶ 18. It “estimated that 680,770 ballots were processed by the Allegheny and Philadelphia County Boards of Elections when no observation was allowed.” Id. at 0075, ¶ 155. Thus, Respondent asked the court to throw out 680,770 ballots merely because Trump poll watchers had not observed those votes being canvassed. Id. at 0021, ¶ 18; DCX 08 at 0107-0112; FF 28. The Second Amended Complaint also alleged that “[u]pon information and belief, a substantial portion of the approximately 1.5 million absentee and mail-in votes in Defendant Counties should not have been counted,” and that the vast majority of those votes favored Biden, “thus resulting in returns indicating Biden won Pennsylvania.” DCX 09 at 0097, ¶ 223.

In short, Respondent claimed that if observers were not close enough to meticulously inspect ballots during canvassing, those ballots should not be counted. Yet, as the Third Circuit noted, the Second Amended Complaint failed to “allege[] facts showing improper vote counting.” DCX 16 at 0010. And we have found that Respondent possessed no evidence of widespread fraud or impropriety. FF 37-44. His claim instead rested on the unsupported conclusive presumption that ballots canvassed without close third-party oversight were fraudulent and must not be counted. FF 29.

Mr. Giuliani’s argument that he did not have time fully to investigate his case before filing it is singularly unimpressive. He sought to upend the presidential election but never had evidence to support that effort. Surely Rule 3.1 required more.

After an objective appraisal of the facts, a reasonable attorney would have concluded that there was not even a faint hope of success of the observational barriers claim. Comment [1] to Pennsylvania Rule 3.1 makes clear that, when representing his client, a lawyer may only pursue “lawful and ethical measures.” A lawyer with “excessive and misplaced zeal” breaches his ethical obligations when he litigates a case that has no factual basis. See Office of Disciplinary Counsel v. Malloy, No. 178 DB 2014, at 29 (Pa. D. Bd. Rpt. Apr. 26, 2016), recommendation adopted, Order, No. 178 DB 2014 (Pa. June 30, 2016). That is exactly what happened here. Respondent violated Pennsylvania Rule 3.1.

3. The Notice and Cure Claim Violated Pennsylvania Rule 3.1

The ballots of Respondent’s individual clients were defective and properly rejected, but their home counties did not permit them to cure the flaws. FF 31. Respondent did not sue the counties that rejected his clients’ votes. Instead, he sued seven other counties that did give notice and permitted their voters to cure. Id. He claimed that the Pennsylvania election code (1) did not permit Notice and Cure, and (2) that its inconsistent use resulted in disparate treatment of voters based on their county of residence and denied his clients equal protection under the law. See Respondent’s Br. at 42.

Disciplinary Counsel argues that the Notice and Cure claims were frivolous because the individual plaintiffs should have sought to force their home counties to count their votes, rather than seek to prohibit the seven defendant counties from counting cured ballots. ODC Br. at 13-14.

Respondent’s argument that Pennsylvania election law did not permit notice and cure was based on 25 Pa. Stat. Ann. § 3146.8(a) (election boards “shall safely keep the ballots in sealed or locked containers until they are to be canvassed by the county board of elections”) and 25 Pa. Stat. Ann. § 3146.8(g)(1.1) (prohibiting the disclosure of “any portion of any pre-canvass meeting prior to the close of the polls”). See DCX 11 at 0013, 0022-23. He contended before the Hearing Committee that it was reasonable for him to rely on Boockvar to argue that notice and cure “was not allowed to be implemented by the Executive Branch of government (Secretary of State), and only the Legislature could enact such a procedure,” Respondent’s Br. at 13, relying on the following language from Boockvar:

[T]he Election Code . . . does not provide for the “notice and opportunity to cure” . . . . To the extent that a voter is at risk for having his or her ballot rejected due to minor errors made in contravention of those requirements, we agree that the decision to provide a “notice and opportunity to cure” procedure to alleviate that risk is one best suited for the Legislature.

238 A.3d at 374 (emphasis added); see Respondent’s Br. at 13-14. We agree with Respondent that his theory challenging the use of Notice and Cure had at least a faint hope of success on the merits. Accord Republican Nat’l Comm. v. Chapman, No. 447 M.D. 2022, 2022 WL 16754061, at *17 (Pa. Commw. Ct. Sept. 29, 2022), aff’d by an equally divided court, without op., Order, 284 A.3d 207 (Pa. 2022) (per curiam).

We also agree with Respondent that his equal protection theory based on the divergent uses of Notice and Cure was not frivolous. In Pierce v. Allegheny County Bd. of Elections, 324 F. Supp. 2d 684 (W.D. Pa. 2003), the court considered an equal protection challenge arising out of disparate treatment of absentee ballots. The relevant Pennsylvania statute provided that “an elector voting by absentee ballot is to mail the absentee ballot or deliver it in person.” Id. at 691 (citing 25 Pa. Stat. § 3146.6(a)). The precise question in Pierce was whether the phrase “in person” permitted third-party hand-delivery of absentee ballots. Id.

Allegheny County initially permitted third parties to hand deliver absentee ballots without restriction. It then reversed course and prohibited third-party hand- delivery, before finally allowing third-party hand-delivery with a certification from the person who delivered the ballot. Id. at 690. Philadelphia County did not permit third-party hand-delivery. Id. at 698.

Pierce sua sponte considered the effect of these different policies, recognizing that the permissibility of third-party hand-delivery of absentee ballots was an unsettled question of Pennsylvania law. Id. at 699. Pierce concluded that if the in-person requirement was directory and not mandatory:

then different standards have been employed in different counties across the Commonwealth of Pennsylvania to determine whether an absentee ballot should be counted. That kind of disparate treatment implicates the equal protection clause because uniform standards will not be used statewide to discern the legality of a vote in a statewide election. . . . Because of these different statewide standards, plaintiffs state a justiciable claim that defendant’s policies violate the equal protection clause of the Fourteenth Amendment, and this federal claim cannot be dismissed.

Id. at 699 (first emphasis added). Bush v. Gore, 531 U.S. 98 (2000), also provides some arguable support to Respondent. In Bush, the Supreme Court halted a statewide recount following the 2000 election because the use of standardless manual recounts violated the Equal Protection clause. 531 U.S. at 103. Bush involved a statewide recount, not the manner in which individual counties treated absentee ballots, and Bush also observed that “[t]he question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” Id. at 109. Nonetheless, Bush asserted that:

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.

Id. at 104.

Considering the discussion in Pierce and the ambiguities in the Bush opinion, we conclude that there was at least a faint hope of success in Respondent’s legal argument that disparate Notice and Cure treatment of similarly situated voters by county officials violated the Equal Protection clause. See also Charfauros v. Bd. of Elections, 249 F.3d 941, 945, 953 (9th Cir. 2001) (finding an equal protection violation where the elections board “changed the rules of the game midstream” for challenges to voter eligibility).

That is not the end of the analysis, however. Disciplinary Counsel argues that Respondent’s proposed remedy – an injunction prohibiting certification of the presidential election or tendering the election to the Pennsylvania General Assembly – was itself frivolous. ODC Br. at 14.

Respondent does not directly respond to Disciplinary Counsel’s argument that he had no basis to halt certification of the election simply because a few thousand mail-in voters were allowed to cure defects. Rather he argues generally that it is inappropriate to sanction an advocate for a requested remedy, especially at the early stages in litigation, and asks us to focus on the preliminary relief requested in the motion for a temporary restraining order – to bar certification of the election pending further Court order – rather than on the ultimate relief requested in the Second Amended Complaint. Respondent’s Br. at 53-55.

Pennsylvania courts liberally construe election law in favor of the right to vote. In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1231 (Pa. 2004). However, they will not permit the counting of votes cast in violation of the election code. See id. at 1234. Thus, in In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election (Appeal of Pierce), the Pennsylvania Supreme Court determined that the requirement of in-person delivery was mandatory and voided fifty-six ballots “delivered in contravention of this mandatory provision.” Id.; accord Boockvar, 238 A.3d at 376, 378 (rejecting the argument that “no voter should be disenfranchised for failing to place his or her mail-in ballot in the secrecy envelope before returning it to the Boards”). But even though Respondent could properly seek to invalidate votes that were cured, his request for relief was frivolous because even if all “notice and cure” ballots were assumed to be Biden votes, and all were disqualified, President Biden would have won Pennsylvania by 70,000 votes instead of 80,000 votes. FF 48.

Had Respondent sought more circumscribed relief appropriate to the supposed Notice and Cure injury, the Rule 3.1 calculus may have been different. However, Respondent attempted to parlay the appropriate denial of his clients’ two invalid votes into the nullification of massive numbers of legally-cast ballots. Respondent’s claimed right to a draconian injunction (FF 49) was, as Judge Brann noted, “unhinged”:

Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race. This is simply not how the Constitution works.

DCX 14 at 0016.

The Notice and Cure claim for relief is clearly “shocking in itself” and “outlandish.” See Pearson, 228 A.3d at 425. Respondent’s assertion of it violated Pennsylvania Rule 3.1.

B. Disciplinary Counsel Proved By Clear and Convincing Evidence that Respondent Violated Pennsylvania Rule 8.4(d)

Pennsylvania Rule 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. Clogging the courts with unnecessary and frivolous cases is such a violation. See, e.g., Office of Disciplinary Counsel v. Altman, 228 A.3d 508, 513-14 (Pa. 2020) (violations of Rule 8.4(d) for filing meritless request for attorney’s fees and motion for protective order to preclude discovery). Frivolous cases impose an “unnecessary burden” on the judicial system, waste the time and resources of the court, delay the hearing of cases with merit, and cause unwarranted expense to other litigants. Spikes, 881 A.2d at 1126-27 (citing Slater, 793 A.2d at 1277) (violation of D.C. Rule 8.4(d) for filing meritless defamation action based on privileged communication to Disciplinary Counsel). Mr. Giuliani brought a case that had no factual support. It caused an astonishing waste of the resources of the District Court, the Third Circuit, and multiple defendants in a compressed time frame. Respondent violated Rule 8.4(d).

III. SANCTION

Disciplinary Counsel recommends that Respondent be disbarred. Respondent, on the other hand, contends that if he is found to have violated any Rules, he should receive only an informal admonition or reprimand or, at most, a 30-day suspension.

Although Respondent violated the Pennsylvania Rules, District of Columbia law fixes the sanction to be imposed on him. See In re Tun, 286 A.3d 538, 543 (D.C. 2022).

Discipline is not intended to punish a respondent, but it should serve to deter a respondent and others from engaging in similar misconduct. In re Hutchinson, 534 A.2d 919, 924 (D.C. 1987) (en banc); In re Reback, 513 A.2d 226, 231 (D.C. 1986) (en banc). In a sanction determination, the Court typically assesses (1) the seriousness of the conduct at issue; (2) the prejudice, if any, to the client resulting from the misconduct; (3) whether the misconduct involved dishonesty; (4) violations of other provisions of the disciplinary rules; (5) previous disciplinary history; (6) whether or not the attorney acknowledges his misconduct; and (7) circumstances in aggravation or mitigation. See, e.g., In re Martin, 67 A.3d 1032, 1053 (D.C. 2013). The Court also considers “‘the moral fitness of the attorney’ and ‘the need to protect the public, the courts, and the legal profession.’” In re Rodriguez-Quesada, 122 A.3d 913, 921 (D.C. 2015) (quoting In re Howes, 52 A.3d 1, 15 (D.C. 2012)). Finally, a sanction should be consistent with that imposed for comparable misconduct, D.C. Bar R. XI, § 9(h)(1), while recognizing that “each case must be decided on its particular facts.” Hutchinson, 534 A.2d at 924 (quoting In re Haupt, 422 A.2d 768, 771 (D.C. 1980) (per curiam)).

In this case, Mr. Giuliani committed two disciplinary rule violations, but since the Rule 8.4(d) violation is based on the same conduct as the Rule 3.1 violation, we do not view it as an aggravating factor. Moreover, even though Respondent has been suspended by the New York Courts, that action is not final and therefore we do not consider it as prior discipline. As well, prejudice to Mr. Giuliani’s clients is not a relevant consideration in this case.

The issue of dishonesty strikes closer to the mark. We cannot clearly and convincingly say that Mr. Giuliani intentionally lied to the District Court in connection with the Pennsylvania litigation, and he was not charged with doing so. But his hyperbolic claims of election fraud and the core thesis of the Pennsylvania litigation were utterly false, and recklessly so. Mr. Giuliani’s rash overstatement claiming that the election was stolen had no evidence to support it. FF 28. His utter disregard for facts denigrates the legal profession:

False statements intended to foment a loss of confidence in our elections . . . damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information . . . . It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice . . . .

Giuliani, 146 N.Y.S.3d at 283 (citations omitted).

Moreover, Mr. Giuliani has not acknowledged or accepted responsibility for his misconduct. Tr. 1254-56 (Giuliani). To the contrary, he has declared his indignation (he is “shocked and offended” (Tr. 343 (Giuliani))) over being subjected to the disciplinary process (“I really believe I’ve been persecuted for three or four years” (Tr. 68 (Giuliani))) and suggests merely an informal admonition or reprimand as an appropriate sanction. Respondent’s Br. at 62. In view of Respondent’s intransigence, we are convinced that a sanction must be enhanced to ensure that it adequately deters both Respondent and other attorneys from acting similarly in the future. See Cater, 887 A.2d at 17.

Finally, public confidence in our courts, the law, and the legal profession are very much at stake in this unprecedented case. We cannot blind ourselves to the broader context in which Mr. Giuliani’s misconduct took place. It was calculated to undermine the basic premise of our democratic form of government: that elections are determined by the voters. The Pennsylvania claims were carefully calibrated to blend into a nationwide cascade of litigation intended to overturn the presidential election. FF 9. Since John Adams established the precedent in 1800, no president – until 2020 – refused to accept defeat and step away from that office. And no lawyer – until 2020 – used frivolous claims of election fraud to impede the peaceful transition of presidential power and disenfranchise hundreds of thousands of voters.

Mr. Giuliani’s effort to undermine the integrity of the 2020 presidential election has helped destabilize our democracy. His malicious and meritless claims have done lasting damage and are antagonistic to the oath to “support the Constitution of the United States of America” that he swore when he was admitted to the Bar. This is not a partisan political view; prominent conservatives who spent “most of [their] adult lives working to support the Constitution and the conservative principles upon which it is based” have concluded that “[r]epetition of these false charges causes real harm to the basic foundations of the country, with 30 percent of the population lacking faith in the results of our elections” and “is not sustainable in a democracy.” Sen. John Danforth et al., Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election, at 1, 3, 6 (July 2022), https://lostnotstolen.org/wp-content/up ... tolen-The- Conservative-Case-that-Trump-Lost-and-Biden-Won-the-2020-Presidential- Election-July-2022.pdf.

We are well aware of the sanctions imposed in Spikes, 881 A.2d at 1128 (30- day suspension), in In re Yelverton, 105 A.3d 413, 431-32 (D.C. 2014) (30-day suspension with fitness), and in Pearson, 228 A.3d at 417 (90-day suspension). We appreciate too that our sanction recommendation is constrained by the sanctions imposed for comparable misconduct. Yet even though the respondents in Pearson, Yelverton, and Spikes were found to have violated the same rules as Respondent, the misconduct underlying his violations is immensely more acute. His frivolous claims impacted not only the court and parties involved but threatened irreparable harm to the entire nation.

We have considered in mitigation Mr. Giuliani’s conduct following the September 11 attacks as well as his prior service in the Justice Department and as Mayor of New York City. But all of that happened long ago. The misconduct here sadly transcends all his past accomplishments. It was unparalleled in its destructive purpose and effect. He sought to disrupt a presidential election and persists in his refusal to acknowledge the wrong he has done. For these reasons, we unanimously recommend that Mr. Giuliani be disbarred.

IV. CONCLUSION

For the foregoing reasons, the Hearing Committee finds that Respondent Rudolph W. Giuliani violated Pennsylvania Rules 3.1 and 8.4(d) and should be disbarred from the practice of law in the District of Columbia. See D.C. Bar Rule XI, § 1(a). We further recommend that Respondent’s attention be directed to the requirements of D.C. Bar R. XI, § 14, and their effect on eligibility for reinstatement. See D.C. Bar R. XI, § 16(c).

AD HOC HEARING COMMITTEE

Robert C. Bernius, Esq., Chair

Carolyn Haynesworth-Murrell, Public Member

Jay A. Brozost, Esq., Attorney Member

______________

Notes:

1 The hearing transcript is designated as “Tr.” Disciplinary Counsel’s and  Respondent’s exhibits are designated “DCX” and “RX,” respectively. “FF”  indicates our Findings of Fact.
 
2 See U.S. Election Assistance Comm’n, Election Administration and Voting  Survey 2020 Comprehensive Report i, 34 (Aug. 16, 2021); U.S. Election Assistance  Comm’n, The Election Administration and Voting Survey 2016 Comprehensive  Report 24 (June 29, 2017).
 
3 Respondent asserted that the counties that implemented Notice and Cure  engaged in an illegal scheme to dilute votes in those counties that chose not to  implement the process. See FF 47-49, infra.
 
4 “Disciplinary Counsel has never disputed whether Mr. Giuliani had some  basis . . . to allege the scattering of minor election improprieties . . . . The question  is not whether the allegations of the complaints had some factual basis, but whether  those facts, assuming them to be true, supported the legal claims alleged in the  complaints.” ODC Reply Br. at 5.
 
5 The observational boundaries permitted under the new law were also compelled  by COVID-19 social distancing considerations. FF 26; Tr. 138-39 (Giuliani). It is  not surprising, therefore, that the boundaries created distrust among some veteran (and  partisan) poll watchers.
 
6 Respondent testified that “a complaint is a prediction. It’s not a statement of  what you definitely are going to get, what you’re definitely going to prove.” Tr. 390  (Giuliani). He further stated that “[a]ll those questions have to be answered, which  you can’t answer at this stage of the litigation, so you put out all the allegations you  have, the ones that help you, the ones that don’t, and then you work your way through  it in the litigation.” Tr. 192-93 (Giuliani). Compare Respondent’s statement with  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), which held that “a complaint must  contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is  plausible on its face’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570  (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere  conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
 
7 The Second Amended Complaint predicted that there were 70,000 cured  ballots, DCX 09 at 0021, but in truth Mr. Giuliani “had no idea how many – how  broad the practice was of [notice and] cure.” Tr. 501 (Giuliani); see Tr. 168-69  (Giuliani).
 
8 The Third Circuit described this request for relief as “breathtaking,” a “drastic  remedy” for which Mr. Giuliani could cite no authority. DCX 16 at 0010.
 
9 The Third Circuit found this claim to be “conclusory” with “no specific facts”  to back it up. DCX 16 at 0009.

[admin]

Part 1 of 3

NEW Filing in Giuliani Defamation Case EXPOSE More TRUMP CRIMES
by Michael Popok
MeidasTouch
Jul 12, 2023 Legal AF Podcast - Full Episodes

Michael Popok of Legal AF reports on new documents just disclosed in the Federal civil defamation case against Giuliani that show the extent of the election stealing conspiracy, including how close Trump was to seizing voting machines, suspending the Constitution, and declaring Martial Law to stay in power.



Transcript


This is Michael Popok. Civil cases produce evidence that prosecutors can use in criminal cases. That's so important that I'm going to say it again: civil cases and their discovery mechanism produce documents and evidence that somebody like Jack Smith can use in criminal prosecutions. We're seeing it all over again in a civil case brought by two Fulton County election workers, Shaye Moss and Ruby Freeman against Rudy Giuliani, Rudy Giuliani, who's been a lawyer for well, he's now suspended in one state, and soon to be disbarred in another, but was a lawyer for 50 years, is screwing up the exchange of documents so badly that he's given the opponents, the plaintiffs' lawyers, the opportunity to file a motion for sanctions, which they did on 7-11-23 -- what an unlucky date for Rudy Giuliani -- against him telling the judge that Rudy Giuliani in the last 18 months has not meaningfully participated in discovery, in producing documents or evidence in this case, despite his requirement under the law and a court order to do so, and as a result he should get the equivalent of a civil case death penalty -- the case should be decided against him at this junction without even going to trial -- that a default judgment should be entered against him because of what he's doing. That is the first headline for the motion that was just filed by Shaye Moss and Ruby Freeman's lawyers. Rudy Giuliani could likely be hit with a default judgment as a result of game-playing and failure to cooperate in his good faith obligations and discovery headline.

Headline two is that Rudy produced privileged logs, which I'm going to explain on a little bit of a breakout session of legal AF right here, privilege logs listing in 25 pages all of the documents he is not at the moment going to produce, but that he has in his possession, claiming some sort of privilege, which means it has to ultimately be decided by the judge after seeing those documents in camera -- a Latin way of saying only the judge gets to see them first -- and then decide whether they go over to the other side.

Now you're supposed to -- let me give you the teaser first for the privilege log, and then I'll tell you how poorly done the privilege log was for Rudy Giuliani, further compounding his problems.

Firstly let's talk about the names that are in there, even if I don't know what's in it. If you ever had any doubt, in the relevant time-period of the end of the election in early November through Jan 6 and beyond, who Rudy Giuliani was working for, and who was in his group, his gang, a civil conspiracy, his criminal conspiracy gang, well just look at his text message lists, and you'll have no doubt.

So if you go through there you see the following names, and groups, and combinations of text messages: Bernie Kerik, distressed, disgraced, former police commander in New York, who went to jail and was pardoned, or had a sentence commuted, by Donald Trump. Jenna Ellis, who just barely didn't lose her law license, for all the work she did with Giuliani, as an incompetent election lawyer, spreading falsehoods about the election, where she had to admit to her Bar Association, her bar grievance committee, that she told untruths about the election. Christina Bobb, right, who's cooperating with the Department of Justice, and was the lawyer for Donald Trump for all things Mar-A-Lago and beyond, and signed the certificate falsely claiming that everything in this envelope was all of the top secret information that Donald Trump retained at Mar-A-Lago. And that was a lie. So you also have a Victoria Toensing. Victoria Toensing is a woman who practices law with her husband [Joseph diGenova],and is right-wing Maga. I mean she just posted -- we'll put it up here in my hot take -- she just posted on her own social media that the arrest, the indictment in abstention, because the guy fled the country to Cyprus, this spy for China of Israeli and U.S citizenship, that whole Chinese-illegal-lobbying-arms-brokering-selling-oil-for-the-Iranians-while-an-American-citizen -- that's all made up, because he was also going to be a whistleblower against Joe Biden. That Vic. So that was her tweet. We just saw that Victoria Toensing, of course, is inside this QAnon fake election huddle with Team Crazy, and it's Captain Rudy Giuliani, while they're trying to overthrow the election, at least in the court system. So Victoria Toensing.

Victoria Toensing
@VicToensing
No surprise. @SDNY indicted Biden corruption whistleblower, @GalLuft. SDNY pursues anyone who has info re Biden corruption. Foreign Agents Registration Act is a favorite weapon. SDNY made up FARA violation when illegally executing search warrants vs. @RudyGiuliani and me.
11:04 AM - Jul 11, 2023

Victoria Toensing
by Wikipedia
Accessed: 7/12/23


Toensing in 2002

Born: Victoria Ann Long, October 16, 1941 (age 81)[1], Colón, Panama
Education: Indiana University, Bloomington (BS); University of Detroit (JD)
Political party: Republican
Spouse(s): Trent Toensing, ​(m. 1962; div. 1976)​[2][3]; Joseph diGenova ​(m. 1981)​[4]
Children: 3, including Amy Toensing

Victoria Ann Toensing (née Long; born October 16, 1941) is an American attorney, Republican Party operative[5][6][7][8] and with her husband, Joseph diGenova, a partner in the Washington law firm diGenova & Toensing.[8][9] Toensing and diGenova frequently appeared on Fox News and Fox Business channels, until diGenova used a November 2019 appearance to spread conspiracy theories about George Soros, leading to widespread calls for him to be banned from the network.[10] In 2019, Toensing and diGenova began representing Ukrainian oligarch Dmitry Firtash in his efforts to block extradition to the United States under a federal indictment and became embroiled in the Trump–Ukraine scandal. The couple has worked with Rudy Giuliani in support of President Donald Trump beginning in 2018, and was named to join a legal team led by Giuliani to overturn the results of the 2020 United States presidential election in which Trump was defeated.[8][11][12][13]

Early life and education

Toensing graduated from Indiana University in 1962 with a degree in education. Toensing was active with the Republican Party in Michigan. She taught high-school English until she entered law school, earning a J.D. from the University of Detroit School of Law in 1975.[14][12]

She joined the U.S. attorney's office in Detroit, where she prosecuted narcotics cases.[12]

In 1981, Toensing became chief counsel to Arizona Senator Barry Goldwater on the Senate Select Committee on Intelligence,[15] where she helped draft the Intelligence Identities Protection Act of 1982.

News and politics

Reagan administration

Toensing was a deputy assistant attorney general in the Justice Department during the Reagan administration. She led a counterterrorist investigation into the 15 May Organization for the bombing and attempted bombing of two Pan Am jets in 1982.[14]

Clinton investigations

DiGenova and Toensing established their law firm, diGenova & Toensing, in January 1996.[12][9]

Emily Bazelon of Slate has called Toensing "a blanketer of the airwaves about the tawdriness of the Lewinsky affair."[15] Toensing and her husband made regular appearances on television claiming that they were the target of investigations by the Clinton administration.[16]

Commenting on their role in the 1998 House of Representatives Teamsters investigation, Rep. Bill Clay, a Missouri Democrat, said, "They've become a public spectacle, which means they can't be impartial... It's a payoff from Newt Gingrich and the Republican Party to both Victoria Toensing and Joe diGenova.... They have been on television over 200 times and not once have they been talking about an issue we're paying them $25,000 a month to handle for the Congress. It's a hell of a part-time job."[16]

The WISH List

Toensing was a founder and board member of The WISH List, a PAC seeking to elect pro-choice Republican women to public office.[17] The PAC was inspired by EMILY's List, a pro-choice Democratic PAC, and Toensing advocated for a "big tent" Republican Party that includes both pro-life and pro-choice members.[18]

Valerie Plame investigation

Toensing was a frequent Republican commentator in the media during the Plame affair, a political scandal that led to the conviction of Scooter Libby, assistant to Vice President Dick Cheney.[19][20] The scandal involved the public outing of Valerie Plame as a CIA agent, shortly after Plame's husband, former diplomat Joseph C. Wilson, wrote an op-ed in 2003 alleging that the Bush administration manipulated intelligence in the run-up to the invasion of Iraq.[21][22] In March 2005, Toensing submitted an amicus curiae brief in support of Matt Cooper and Judith Miller, two journalists who were subpoenaed in the Plame investigation for refusing to reveal information obtained from confidential sources. In the brief, she "argued that the law couldn't have been broken when Valerie Plame's cover as a CIA agent was blown because her status wasn't really covert."[15] She also contended that Plame did not have a cover to be blown, citing a July 23, 2004, article in The Washington Times that argued that her status as an undercover CIA agent may have been known to Russian and Cuban intelligence operations prior to the article (by Robert Novak) that revealed her status as a CIA employee.

In April 2018, Toensing represented Scooter Libby at the time when President Donald Trump pardoned him.[23] Libby, the assistant to Vice President Dick Cheney, had been convicted of obstruction of justice and perjury in 2007 regarding the leak of Plame's identity.[20]

2008 election

Toensing supported former Tennessee Senator Fred Thompson in the Republican primaries for the 2008 presidential election.[15]

Involvement with Trump, his associates and Ukraine

On March 19, 2018, Toensing and her husband, diGenova, were hired by President Donald Trump to serve on his legal team for the Special Counsel investigation.[24][25] DiGenova served as the United States Attorney for the District of Columbia from 1983 to 1988.[26][27] However, Trump cancelled the hires several days later due to potential conflicts of interest, though Trump personal attorney Jay Sekulow said they might assist in other legal matters.[28][29]

Toensing represents Mark Corallo, who had previously served as a spokesman for Trump's private legal team during the investigation into possible collusion between members of Trump's 2016 campaign and the Russian government.[30][31] Robert Mueller interviewed Corallo as part of the Special Counsel investigation.[32][33]

Toensing has also represented Sam Clovis, a former Trump campaign co-chair, and Erik Prince, the founder of the private military company Blackwater, who has informally advised Trump.[27]

In spring 2019, Toensing began representing former Ukrainian prosecutor general Viktor Shokin and then-prosecutor general Yuriy Lutsenko. Giuliani and his associates met with Lutsenko in early 2019 to discuss possible investigations of Democratic presidential candidate Joe Biden and his son Hunter. Then-United States ambassador to Ukraine Marie Yovanovitch had openly criticized Lutsenko for his poor anti-corruption record, and Lutsenko spread false allegations about Yovanovitch, which he later recanted. Giuliani considered Yovanovitch an obstacle to investigations of the Bidens and persuaded Trump to remove her from office in spring 2019. By April 2021, a continuing federal investigation was examining Yovanovitch's removal and evidence relating to Toensing.[34][35]

In July 2019, Toensing and her husband were hired by the Ukrainian oligarch Dmitry Firtash to defend him from extradition to the United States on a bribery indictment.[36][37][38] He has been living in Austria since being arrested there at the request of American authorities in 2014 and released on $155 million bail.[39] In 2017, the United States Justice Department described Firtash as an "upper-echelon [associate] of Russian organized crime."[40] As a middleman for the Russian natural gas giant Gazprom, Firtash was known for funneling money to campaigns of pro-Russia politicians in Ukraine[41] and is also a onetime business partner of Paul Manafort, a Trump 2016 campaign chairman.[42] Firtash obtained his middleman position with the agreement of Russian president Vladimir Putin and, according to Firtash, Russian organized crime boss Semion Mogilevich.[43][39] When he was vice president, Biden had urged the Ukrainian government to eliminate middlemen such as Firtash from the country's natural gas industry, and to reduce the country's reliance on imports of Russian natural gas.[44]

After Firtash hired diGenova and Toensing, Giuliani acquired a statement[45] from former Ukrainian prosecutor general Viktor Shokin that falsely alleged Biden had pressured Ukraine to fire him in an effort to cover up corruption committed by himself and his son. Shokin's statement noted that it was prepared "at the request of lawyers acting for Dmitry Firtash ('DF'), for use in legal proceedings in Austria."[46][47] Giuliani had presented the Shokin statement during television appearances, and Bloomberg News reported that its sources told them Giuliani's publicity of the Shokin statement had greatly reduced the chances of the Justice Department dropping the charges against Firtash, as it would appear to be a political quid pro quo.[48]

In August 2019, Toensing and diGenova met with Attorney General William Barr to argue against the charges on Firtash. Prior to that meeting, Barr had been briefed in detail on the initial Trump-Ukraine scandal whistleblower complaint within the CIA that had been forwarded to the Justice Department, as well as on Giuliani's activities in Ukraine. Barr declined to intercede in the case, according to sources who talked to The Washington Post.[49][44]

In October 2019, Lev Parnas, a businessman who was working for diGenova and Toensing's firm as an interpreter in the Firtash case, was one of two men arrested at Dulles International Airport and accused by federal prosecutors of funneling foreign money into U.S. elections.[50] The New York Times reported in November 2019 that Giuliani had directed Parnas to approach Firtash with the recommendation to hire diGenova and Toensing, with the proposition that Firtash could help to provide compromising information on Biden, an arrangement Parnas' attorney Joseph Bondy described was "part of any potential resolution to [Firtash's] extradition matter."[44] In November 2019, Bondy told The Washington Post that Parnas had been part of a group that met frequently in spring 2019 at the Trump International Hotel in Washington, D.C., to discuss the Biden matter, among other topics. The group, according to Bondy, was convened by Giuliani, Trump's personal attorney, and included Parnas, his business associate Igor Fruman, as well as journalist John Solomon and Toensing and diGenova.[51] Phone records unearthed during impeachment proceedings in 2019 revealed that there were regular contacts between Solomon, Giuliani, Toensing, Toensing's client and Giuliani associate Lev Parnas, and other Trump allies.[52]

Toensing and diGenova were frequent guests on Fox News and Fox Business throughout 2019.[10] In November 2019, diGenova used an appearance on Fox Business to spread conspiracy theories about George Soros and make unevidenced claims that Soros controlled the State Department. After that appearance, which resulted in widespread calls for Fox to ban diGenova, Toensing and diGenova stopped appearing on the network.[53]

In November 2020, Trump named Toensing, diGenova, Sidney Powell and Jenna Ellis to join a legal team led by Giuliani to challenge the results of the 2020 presidential election in which Trump was defeated.[13]

On April 28, 2021, federal agents executed a search warrant related to the Justice Department's ongoing criminal probe into Giuliani's pro-Trump political activities in Ukraine, at the home of Toensing, taking her cell phone.[54] Her law firm released a statement asserting she had been told she was not a target of an investigation.[55] In a May 2021 court filing, investigators disclosed that in late 2019 they acquired a search warrant for Toensing's iCloud account, and that of Giuliani, and for an email account belonging to her. Toensing and Giuiliani demanded to review the documents underlying the warrants, asserting their attorney-client privilege with clients may have been violated, which investigators disputed, arguing the attorneys had no special privilege to review the documents prior to any charges. Investigators said they employed a "filter team" to prevent them from seeing information potentially protected by attorney-client privilege.[56][57][58]

Toensing and her husband were among several Trump associates who were emailed by OANN anchor Christina Bobb on December 13, 2020 regarding efforts by Republicans in seven states to appoint false electors and create fraudulent certificates of ascertainment to be submitted to vice president Mike Pence for certification on January 6, 2021.[59]

Personal life

The former Victoria Long married Trent Toensing in 1962; the couple divorced in 1976.[3] In 1981, she married Joseph diGenova.[4] DiGenova and Toensing are partners in the eponymous Washington, D.C. law firm.[60]

Toensing has three children from her first marriage, including Todd Toensing of Jericho, Vermont; Amy Toensing, a photojournalist;[61] and Brady Toensing, who joined the Justice Department in June 2019 as senior counsel in its Office of Legal Policy.[62][63] Formerly, Brady Toensing was vice chair of the Vermont Republican Party, as well as a high-profile and controversial Vermont lawyer, and partner in his mother's and step-father's law firm.[60][64][65] The Justice Department has said that Brady Toensing is recused from matters involving the diGenova & Toensing law firm, including the Trump–Ukraine scandal.[66] It was asserted that he helped to choose judicial nominees for Trump.[66]

You have Katherine Friess. Where is Catherine Friess? We have to put her on the back of a milk carton, because Katherine Friess used to be a lawyer who was very proud to work with Rudy Giuliani and all the others, but she's nowhere to be found. She's so nowhere to be found, that the lawyers in this defamation case against Rudy Giuliani, have moved the judge to try to serve her, to find her, to serve her through alternate methods. She doesn't want anything to do with this case. She's a bar member somewhere, but they can't get her served. But at one time she was happily and notoriously tweeting, and texting, and emailing with Rudy Giuliani. So she's in the text, in the emails.

Jan. 6 committee subpoenas Antrim lawsuit witness Katherine Friess
by Mardi Link [email protected]
Record Eagle
Mar 3, 2022


Matthew DePerno and Katherine Friess are greeted by Antrim County Administrator Peter Garwood outside of the Antrim County Building in Bellaire on Dec. 6, 2020. Record-Eagle file photo/Mike Krebs

WASHINGTON, D.C. — A political operative who in November 2020 twice visited Antrim County via private jet as part of a team consulting on a local election-related lawsuit, has been subpoenaed by the U.S. House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol.

Katherine Friess, of Arlington, Virginia and Vail, Colorado — listed in court documents as an expert witness in a since-dismissed civil suit accusing Antrim County of voter fraud — must produce documents and appear for a deposition March 29, a letter from Committee Chair Bennie G. Thompson to Friess and dated March 1, states.

The letter references documents already on file with the committee, as well as previous reporting by Politico and the Record-Eagle.

“Between mid-November 2020 and January 6, 2021 (and thereafter), you actively promoted claims of election fraud on behalf of former President Trump and sought to convince state and federal officials to take steps to overturn the results,” the letter from Thompson to Friess states.

“You were also involved in efforts to subpoena voting machines from county election boards and, at one point, traveled to Michigan in an attempt to obtain voting machine data directly from local officials,” the letter states.

Members of the Select Committee last month subpoenaed Friess’ phone, text, private message and other communication records, sent or received between Nov. 1, 2020 and Jan. 31, 2021, a timeframe which includes dates Friess traveled to Antrim County.

Friess did not respond to a request for comment nor did her attorney, Raymond A. Mansolillo, of Boston.

Local officials previously said Friess was among out-of-state visitors who arrived in Antrim County on or about Nov. 27, 2020, and visited municipal offices in Star Township and the Village of Mancelona as well as Central Lake Township, where they were shown tape from a precinct tabulator.

A sign-in sheet, provided to the Record-Eagle in response to a Freedom of Information Act request, also lists Friess as among those at the Antrim County Building Dec. 6, 2020, to conduct a “forensic examination” of the county’s election equipment.

Antrim County Clerk Sheryl Guy predicted the phone records, if provided to the Select Committee, would show several calls in November 2020 from Friess to Guy’s office.

“She called me several times and wanted me to open everything up, open up the machines,” Guy said Monday, of calls she received from Friess, where Friess requested access to the county’s voting equipment.

“This was before the lawsuit was filed and Bill Bailey was the one who put her onto me,” Guy said. “He wanted me to talk with her. I told her I did not have the authority to do what she wanted. Then I stopped taking her calls.”

Bailey is a local realtor and former member of the county’s planning commission, who, on Nov. 23, 2020, filed suit in 13th Circuit Court, accusing the county of violating his constitutional rights and of using voting equipment which he claimed had been pre-programmed for fraud.

Bailey deferred comment to his attorney, Matthew DePerno.

DePerno did not return a request seeking comment.

Antrim County has been the subject of repeated and false claims about fraud in the 2020 presidential election, following acknowledged mistakes by Guy and staff in her office.

In November 2020 Guy acknowledged her office did not properly update Dominion Voting Systems software to accommodate ballot changes in some precincts prior to the election.

Days after Bailey sued the county in 2020, Judge Kevin Elsenheimer granted a request filed by Bailey’s attorney, DePerno, allowing the Dec. 6, 2020 exam of the county’s voting equipment.

Guy said Monday it was her understanding Friess was the organizer of this team; a resulting report, authored by Russell Ramsland, of Texas-based Allied Security Operations Group, accusing Dominion Voting Systems of deliberately altering election results, has been repeatedly debunked by state and national elections experts.

An aide to then-President Trump emailed a copy of the ASOG report to Jeffrey A. Rosen, then the incoming acting U.S. Attorney General, emails posted on a public government website show.

The same report was also referenced in other documents provided to the Select Committee, including a “Strategic Communications Plan” of the “Giuliani Presidential Legal Defense Team” seeking to put pressure on Republican senators in six states — including Michigan — between Dec. 27, 2020 and Jan. 6, 2021, the plan states.

Bernard Kerik, a former New York City Police commissioner hired by Trump’s legal team as an investigator tasked with looking into claims of election fraud, provided the plan document to the Select Committee in December.

Friess is listed in a related “privilege log,” also provided by Kerik to the Select Committee, describing additional documents in Kerik’s possession he planned to withhold, citing attorney work product privilege held by former President Trump.

Friess is fighting the phone records subpoena in court, last month arguing in a complaint filed in U.S. District Court in Colorado, it violates her First Amendment rights and attorney-client privilege.

“Since November 2019, Katherine Friess has counseled the President and his legal team full time in her position as a staff attorney to President Donald Trump,” the complaint seeking to quash the subpoena, filed Feb. 22 by Mansolillo on behalf of Friess, states. “She also derives meaning and satisfaction from her work outside politics as an attorney.”

Friess said in an affidavit filed with the complaint she volunteered as an election integrity attorney, observing ballot counting for the 2020 national elections while continuing to serve other clients.

Friess is not the first attorney to assist as a volunteer in Trump’s effort to discredit the results of the 2020 Presidential election, then argue attorney-client privilege in an apparent attempt to deflect a subpoena by the Jan. 6 Select Committee.

Attorney John Eastman, an ally of Trump who promoted a strategy that then-Vice President Mike Pence could decline to certify the 2020 Presidential election results, received notice from Verizon Communications Dec. 3, 2021, that his calls, texts and emails during the same three-month period had been subpoenaed by the Select Committee.

Eastman, too, filed suit against Thompson, the Select Committee and a cellphone carrier — in this case Verizon — and also states in court filings the subpoena violates attorney client privilege.

An attorney for the Select Committee, House Counsel Douglas Letter, has argued in court filings Eastman has provided no evidence of any legal relationship with the former president, however.

Eastman did, in court filings, provide a Dec. 5, 2020 engagement letter for legal services to Trump and the Trump campaign, but it was not signed by Eastman or Trump.

Bailey’s lawsuit was dismissed in May by Judge Elsenheimer, who also stayed other pending legal issues.

In June, DePerno appealed that decision, on behalf of Bailey, to the state Court of Appeals.

Appellate briefs have been filed and oral arguments requested; it is unclear when the Court of Appeals will hear the case and rule.

In the meantime, DePerno in July announced his candidacy in the Republican primary for Michigan Attorney General and in September was endorsed by Trump.

Lara Logan, right wing Maga journalist.

Lara Logan, Once a Star at CBS News, Is Now One for the Far Right: The former chief foreign affairs correspondent is now a popular guest on podcasts hosted by vaccine skeptics and deniers of the 2020 election.
by Jeremy W. Peters
New York Times
May 22, 2022


Lara Logan in 2016. Some of her former CBS News colleagues recalled that when they worked together, her politics were not always easy to categorize. Credit...Amanda Friedman/Trunk Archive

When Lara Logan reached the heights of American journalism more than a decade ago, as the chief foreign affairs correspondent for CBS News, her bosses didn’t think twice about sending her to cover the biggest stories in the world. Producers clamored to work with her as she landed interviews with a Taliban commander, chronicled the Arab Spring and tracked the Ebola outbreak. Former President Barack Obama called her to wish her well after the most traumatic event of what seemed like a limitless career: She was sexually assaulted while covering a demonstration in Cairo’s Tahrir Square in 2011.

But today Ms. Logan cuts a far different figure in American media. Instead of on national news broadcasts, she can be found as a guest on right-wing podcasts or speaking at a rally for fringe causes, promoting falsehoods about deaths from Covid vaccines and conspiracy theories about voter fraud.

Recently, she downplayed the seriousness of the Jan. 6 assault on the Capitol on one of those shows. “This is now the crime of the century?” she asked sarcastically. She has echoed pro-Kremlin attacks on the United States, accusing Americans of “arming the Nazis of Ukraine.” And she has compared Dr. Anthony S. Fauci and Hillary Clinton to some of Hitler’s most notorious henchmen.

Her latest project is a forthcoming documentary on voting machines called “Selection Code” that is being financed by Mike Lindell, the chief executive of My Pillow, who has helped spread some of the most outrageous myths about the 2020 presidential election.

From the outside, Ms. Logan’s path has been one of the most puzzling in the modern history of television news. Her reporting for “60 Minutes” and the “CBS Evening News” helped inform the nation’s understanding of the toll that a decade of military conflict was taking on American forces. CBS News executives envisioned her as a next-generation star in the mold of a Mike Wallace or Dan Rather.

But her transformation, into a star of far-right media, is one that former colleagues who worked closely with her said did not completely come out of nowhere.

More than half a dozen journalists and executives who worked with Ms. Logan at “60 Minutes,” most of whom spoke anonymously to discuss private interactions with her, said she sometimes revealed political leanings that made them question whether she could objectively cover the Obama administration’s military and foreign policy moves. She appeared increasingly conservative in her politics over the years, they said, and more outspoken about her suspicions of the White House’s motives and war strategy.

Some said her opinions started to dovetail with the views of Obama critics she relied on as sources then who have since become close allies of former President Donald J. Trump, including Lindsey Graham, the hawkish Republican senator from South Carolina, and Lt. Gen. Michael Flynn, who aided efforts to attempt to overturn the 2020 election and has embraced numerous other conspiracy theories.

Still, Ms. Logan’s turn has disappointed many who considered her bright and fearless and admired her for returning again and again to Iraq and Afghanistan despite nearly losing her life in 2003, when an American military vehicle she was in was hit by Taliban fire. She lay unconscious while her crew and military personnel scrambled to drag her to safety, thinking she was dead.

“She was extraordinarily courageous in her war reporting,” said Ira Rosen, a former “60 Minutes” producer who wrote a book about his years with the network, “Ticking Clock.”

“When I think of Lara,” Mr. Rosen added, “I want to remember the Lara who put her life on the line reporting for CBS News in Afghanistan and Egypt. The one now I almost don’t even want to know about.”

When reached for comment, Ms. Logan said she wouldn’t participate in “a hit piece,” and added, “I’m not interested,” before abruptly hanging up. But today she speaks often to conservative talk show hosts about her days at CBS, describing what she views as a culture of conformity in the mainstream media.

“The moment I wasn’t toeing the line, then I was, ‘Oh, she used to be great, what happened to her?’” Ms. Logan said on a recent episode of Mr. Lindell’s web show, “The Lindell Report.”

“‘Oh, she’s unhinged and disgraced,’” Ms. Logan added, referring to the criticism and ostracism she has faced in recent months after making disparaging comments about public health officials like Dr. Fauci, among others.


Ms. Logan on Fox News. Her employment at a production company that made a show on the Fox News streaming service ended after she made a series of inflammatory remarks. Credit...Fox News

In November, after she compared Dr. Fauci to Josef Mengele, the Nazi doctor who performed inhumane experiments on concentration camp prisoners, Ms. Logan was dumped by the production company that made a show she starred in on Fox Nation, the streaming service for Fox News. Her longtime talent agency also severed ties with her, according to one news executive.

Since then, she has been relegated even further into the periphery of conservative media, where vaccine skeptics and election deniers host her and hail her as a whistleblower who, in their telling, is exposing mainstream media cover-ups. In interviews in recent weeks, she has taken aim at a range of seemingly unrelated targets — railing against “open border ideologues” and the United Nations bureaucrats she accuses of supporting them, so-called smart meters that record energy consumption in homes, and activists working to reverse climate change, which she has called “another load of B.S.”

Though she expresses views that are hard right today, some former CBS News colleagues recalled that her politics were not always easy to pigeonhole as conservative when they worked together. One said that Ms. Logan, who was raised in South Africa, once expressed dismay at the prevalence of guns in the United States and said she did not understand the affinity that many Americans have for the Second Amendment. She spoke with pride about her family when she described them as dedicated opponents of apartheid, they said.


Ms. Logan in 2005, reviewing footage from Iraq with her producer at the time, Josh Yager, right, at CBS’s studio in Manhattan. Credit... Ruth Fremson/ The New York Times

Several who worked alongside her said her fearlessness in war zones was double-edged — it produced some good television but also sometimes made them question her judgment. On occasion, they said, she led her producers and crew into situations that they thought were not worth the risk. Some cameramen refused to work with her, one of the former colleagues added, and she could be dismissive of the security teams the network hired to keep its journalists safe.

One former CBS producer who worked with her, Peter Klein, said in an interview that the structure of a large newsroom was a moderating influence. “There’s a system in place in newsrooms that offer checks and balances,” said Mr. Klein, founder of the Global Reporting Centre in British Columbia, a nonprofit. “Most of us need that system — but she really needed that system. And we knew that from the beginning,” he said.

“Now she’s just unfiltered,” Mr. Klein added.

The former CBS journalists said that spending more than a decade reporting from war zones started to take its toll on her emotionally, as it would on almost anyone repeatedly subjected to the trauma of combat. And they said they noticed a considerable change in her demeanor — seemingly more paranoid at times, erratic and deferential to her military sources — after she was sexually assaulted in Cairo’s Tahrir Square in 2011. In that attack, a mob of men grabbed her, separated her from her crew and tore off her clothes in what she described as a “merciless” attack. She was hospitalized for several days.

The next year, Ms. Logan gave a speech that would presage her downfall at CBS. The American consulate in Benghazi, Libya, had just been attacked, killing four Americans and igniting a firestorm among Republicans who accused Mr. Obama and Mrs. Clinton, the secretary of state at the time, of underestimating the threat terrorists posed to Americans.

Sounding more like an advocate for the military than a reporter, Ms. Logan told her audience in Chicago that she hoped the government was getting ready to deploy its “best clandestine warriors” to “exact revenge.” The world should know, she added, that the United States would not be attacked and then “stand by and do nothing about it.” And she accused the Obama administration of playing down the threat from the Taliban, and of lying “about who they really are.”

Then, about a year later, she began telling people she was working on a story that “was going to blow the lid off Benghazi,” according to one person’s recollection.


Ms. Logan appeared on a “60 Minutes’” segment on Oct. 27, 2013, about the attack on the United States Special Mission in Benghazi, Libya. The report was later retracted. Credit...CBS

The story she came up with was the kind of work known inside “60 Minutes” somewhat dismissively as a “book report” because it was based in part on a forthcoming book. Ms. Logan interviewed the author, a security contractor stationed in Libya, who said in a segment that aired on Oct. 27, 2013, that he had helped defend the compound on the night of the attack. He described in harrowing detail how he came face to face with the enemy.

The New York Times reported several weeks later that the contractor had, in fact, told the F.B.I. that he was not inside the compound that night. After initially defending Ms. Logan and the report, CBS News retracted it and apologized. Ms. Logan and her producer were placed on a leave of absence, and she acknowledged having made a “disappointing” mistake.

The network’s chief and executive producer of “60 Minutes” at the time, Jeffrey Fager, later called the story “the worst mistake on my 10-year watch.”

Ms. Logan quietly left the network in 2018 after her contract expired. In a defamation lawsuit she filed in 2019 against New York magazine over a 2014 profile she claimed had harmed her ability to find other work, she said CBS cut her salary to $750,000 in 2015 from $2,150,000 in 2014. (A federal judge dismissed the case.) She moved from Washington to the Hill Country of Texas with her husband and children, a relocation she told People magazine in 2016 allowed her to focus more on being a mother, especially to her son with a learning disability.

Ms. Logan’s banishment from mainstream media has hardly restricted her access to the center of gravity in the Republican Party.

This month, she made a trip to Mar-a-Lago, Mr. Trump’s Florida estate, for a screening of a new film by the conservative author Dinesh D’Souza. Other guests included General Flynn, Rudolph W. Giuliani, Representative Marjorie Taylor Greene, Republican of Georgia, and Kyle Rittenhouse, the man acquitted of murdering two people during a political demonstration that turned violent in Kenosha, Wis., in 2020. As guests mingled on the grounds, Mr. Rittenhouse stopped to have his picture taken with Ms. Logan.

A correction was made on May 22, 2022: An earlier version of a caption in this article misstated Lara Logan’s affiliation with Fox News. She was employed and then let go from a production company that did work for Fox Nation, a streaming service for Fox News. She was not directly employed by Fox News. When we learn of a mistake, we acknowledge it with a correction. If you spot an error, please let us know at [email protected].

Jeremy W. Peters covers media and its intersection with politics, law and culture. He is the author of “Insurgency: How Republicans Lost Their Party and Got Everything They Ever Wanted.”

[admin]

Part 2 of 3

Mark Meadows is all over these texts with Rudy Giuliani during these relevant time periods -- November through January.

Sidney Powell -- she should be disbarred as well.

Cleta Mitchell, a subject of criminal investigation by Jack Smith and the Department of Justice.

[AZ State] Senator [Kelly] Townsend -- why not throw him [her?????] in there?

Election fraud sideshow continues as an Arizona legislator asks the AG to investigate
Opinion: Rudy Giuliani may have moved on, but the side show in Arizona continues as a state legislator presses for an investigation into claims the election was stolen.
by Laurie Roberts
Arizona Republic
Published 2:18 pm MTDec 2, 2020 Updated 2:39 pm MT Dec 2, 2020

President Donald Trump's attorney Rudy Giuliani listens to presenters at a public meeting where Trump supporters disputed his defeat in the 2020 election, citing election fraud and other concerns, at the Hyatt Regency Hotel in Phoenix, Arizona, on Nov. 30, 2020.

The Rudy Giuliani Traveling Side Show may have left town but the spectacle continues.

A member of the Arizona Legislature is now demanding that the state’s attorney general investigate “each claim made” by a parade of Trump supporters and imported experts who testified that the fix was in for Joe Biden during last month’s election.

“In light of the hours of testimony that we received yesterday in a public hearing regarding election fraud, I hereby request that you investigate each claim made,” state Sen.-elect Kelly Townsend, R-Mesa, wrote, in an Tuesday email to the Attorney General's Office. “Understanding that this was an unusual method of delivery (barring the ability to have a formal hearing) I request that you accept it as a sufficient method to give initial testimony in the first effort to find action/relief.”

The first effort, that is, after five lawsuits – four of which have thus far been summarily tossed into the trash. (The fifth, which doesn’t allege any fraud, will be heard on Thursday.)

A lot of claims, but no evidence

Townsend has asked that Attorney General Mark Brnovich respond within 24 to 48 hours.

Given that Brnovich will first have to watch Monday’s 10-hour hearing, that doesn’t give him much time should he choose to chase after the various claims that skullduggery was afoot.

Like the complaint from the poll worker who says she voted but she doesn't know if her vote actually went to the candidate she voted for and besides that, a homeless guy voted and besides that, the elections worker who was watching a box of ballots looked "frail". (It's worth noting that homeless guys can, in fact, vote.)

Like the complaint from Trump attorney/Chief Ringmaster Rudy Giuliani who said, without evidence, that “a few hundred thousand” of the state’s 5 million “illegal aliens” probably voted – a claim that, if true, means that nearly five out of every seven Arizona residents are here illegally. (Our total state population being just 7.29 million.)

How's he supposed to investigate that?

Or the one from Giuliani’s “information warfare officer,” Army Lt. Phil Waldron, who said the Dominion Voting Systems machines used in Arizona could have been hacked or even manipulated at polling places to change the outcome of the election.

But, of course, he had no evidence that Arizona's machines were hacked or manipulated. In fact, it would have been a neat trick given that elections officials say the machines aren’t even connected to the internet.

Meanwhile, a post-election test — comparing a legally mandated sample of hand counted paper ballots with the machine count and witnessed by members of both parties — came up as 100% accurate.

Or maybe Brnovich should investigate the anonymous email claiming that 35,000 votes were “embedded” for each Democratic candidate in Pima County. Again, no evidence and not even a person willing to step forward to say it is so.

So… what? Brnovich is supposed to march in and seize Pima County’s voting machines without first obtaining evidence or a search warrant (which requires evidence)?

Some absolutely believe there is fraud

Townsend didn’t return my call to talk about it, but I’m betting that in any other circumstance, she would be at the front of the parade, screaming about abuse of prosecutorial power.

And she'd be right to do it.

But hey, don’t let a little thing like the need for evidence stand in the way of the campaign to root out the supposed criminal scheme to deny Donald Trump a second election.

I’m sure Joseph McCarthy would approve.

Sadly, so do a fair number of Arizona voters who, thanks to our president, absolutely believe that no longer can you trust the backbone of democracy, our elections.

People like Tamela, who responded after reading my account of Monday’s hearing.

“Anybody with half a brain who have been watching these hearings and listening to the testimony from these witnesses can clearly see that there was definitely fraudulent acts being played out to change the vote from Trump over to the just as corrupt as you, Biden. For you to spout all these lies, saying there is no proof and that they are clowns makes you a deplorable, p.o.s. lying, corrupt journalist wannabe …”

People like Pamela:

“Are you deaf, blind and a moron? Did you listen to the 14 hours of testimony on Monday? Statistics don’t lie. Anyone with even half a brain can see that the entire election was fraudulent six ways to Sunday. The Democrats used every possible way to steal the votes of honest citizens. If you have FACTS to refute the testimony let’s see them.”

Innocent until proven guilty, right?

Or if you have facts that reasonably suggest a crime happened here, you could produce them.

That is the way it works in America, isn't it?

Or perhaps not, any more.

In her request for an AG's investigation, Sen.-elect Townsend was unable to provide any evidence or even a summary account of the widespread fraud she wants investigated.

All she had to offer was a link to the YouTube video of Monday's hearing and a statement -- "I am not confident that fraud did not exist in the 2020 general election" -- and a demand that Brnovich "investigate each claim made."

And the calliope plays on.

Laurie Robers is an opinion columnist. Reach her at [email protected].

FBI subpoenas records of Arizona Senate President Karen Fann, state Sen. Kelly Townsend
by Ray Stern and Mary Jo Pitzl
Arizona Republic
Published 11:18 pm MT June 30, 2022 Updated 6:53 pm MT July 1, 2022


Arizona state Sen. Kelly Townsend (top) and Arizona Senate President Karen Fann.

The FBI has issued subpoenas to Arizona Senate President Karen Fann and state Sen. Kelly Townsend, compelling them to release records believed related to former President Donald Trump's effort to stay in power after losing the 2020 election.

Fann, the longtime Republican lawmaker from Prescott who ordered the partisan review of the 2020 election in Maricopa County, told The Arizona Republic the FBI issued a Freedom of Information Act request "in the form of a subpoena for my emails and communications. I'm instructed not to discuss."

She wouldn't confirm another report stating that the probe sought records about contacts from Trump and his team following the November 2020 election. But she added, "pretty sure everything they've asked for has already been foiaed numerous times over the past 18 months," using an acronym for the information act.

The Yellow Sheet, a political newsletter, first reported the subpoenas.

In mid-November 2020, Fann told House Speaker Rusty Bowers that Trump's advocates had called her repeatedly, encouraging her to help him find a way to get ahead of Joe Biden in Arizona, where Trump lost by about 10,500 votes.

Public records also show that on Dec. 28, Fann told a constituent she was in “numerous conversations with Rudy Giuliani over the past weeks trying to get this done. I have the full support of him and a personal call from President Trump thanking us for pushing to prove any fraud."

Townsend, who lives in Apache Junction and has served in the Legislature since 2013, told The Republic that she had received a subpoena but did not comment further. She told 12 News that the FBI sought communications records with Trump's lawyers and that she and her staff were complying.

Last week, Kelli Ward, chairwoman of the state Republican Party and her husband Michael, were subpoenaed by the Department of Justice regarding their roles in creating and attempting to submit a slate of fake electors for the November 2020 election.

The Washington Post last week reported that two of the other 11 fake electors — Loraine Pellegrino and Nancy Cottle — also received subpoenas from a federal grand jury. The two women were subpoenaed earlier this year by the congressional committee investigating the Jan. 6 attack on the U.S. Capitol.

The congressional panel also subpoenaed the Wards for their phone records, which the couple is fighting in federal court. The case is pending.

The congressional panel in February subpoenaed Kelli Ward for her testimony and documents as well as state Rep. Mark Finchem, R-Oro Valley. Finchem had convened an informal panel to dispute the results of the 2020 presidential election, a meeting that was attended by Trump lawyer Rudy Giuliani as well as other members of Trump’s team.

Speaker of the Georgia house [David] Ralston. Well, we know what that one was about, because that was recorded, and Fani Willis, the prosecutor in Fulton County, is investigating this phone call between Rudy Giuliani, Donald Trump, and the Speaker of the House [David] Ralston in Georgia. The same kind of phone call that Rudy and Donald Trump made to Speaker of the House Rusty Bowers in Arizona trying to get him to throw out the election, and participate in the fake elector conspiracy.  

Grand jury heard phone call of Trump pressuring Georgia speaker to overturn Biden's victory: The special grand jury's foreperson told NBC News that Trump tried to pressure the then-speaker into calling a special legislative session to overturn the results in the battleground state.
by Blayne Alexander, Charlie Gile and Summer Concepcion
NBC News
March 16, 2023, 7:47 AM MDT

The Fulton County special grand jury heard a phone call between former President Donald Trump and Georgia House Speaker David Ralston as part of its investigation into efforts to overturn the 2020 election results in Georgia, the jury's foreperson, Emily Kohrs, told NBC News on Wednesday.

During the December call, Trump attempted to pressure the then-speaker into calling a special legislative session to overturn President Joe Biden’s victory in the battleground state, Kohrs said.

The call recording, which was first reported by The Atlanta Journal-Constitution, lasted about 10 minutes, Kohrs said. She recalled that Trump asked Ralston who would stop him from holding a special session. According to Kohrs, Ralston responded, “A federal judge, that’s who.”

Ralston, a Republican who spent more than a decade as Georgia's House speaker, died in November.

Georgia House Speaker Ralston has died at age 68
by Jeff Amy
AP News
Published 4:39 PM MDT, November 16, 2022

ATLANTA (AP) — Georgia House Speaker David Ralston died Wednesday at 68, spokesperson Kaleb McMichen said, less than two weeks after he announced he was stepping down because of health concerns.

A statement issued by McMichen said only that Ralston had died after “an extended illness.” The Blue Ridge Republican became Georgia state government’s second most powerful leader during his 13 years leading the 180-member House.

“A great pine tree has fallen in the Georgia House of Representatives,” said Democrat Calvin Smyre of Columbus, the longest-serving member of the House and a friend of Ralston.

Republican Gov. Brian Kemp ordered flags flown at half-staff until Ralston is buried and said his body will lie in repose at the Georgia Capitol.

“Our state lost one of its true giants,” Kemp said in a statement.

A lawyer from the north Georgia mountains, Ralston had said he hoped to continue as a member of the House even after stepping down as speaker after 13 years.

Until the current legislative term ends in January, House Speaker Pro Tem Jan Jones, a Milton Republican, will become speaker, as called for by the state constitution. She will be the first female speaker in Georgia history. Republicans on Monday nominated Jon Burns of Newington to replace Ralston when the newly elected General Assembly convenes Jan. 9, an effort at continuity supported by Ralston’s closest allies.

“David Ralston spent his career in public service trying to lift others up and move our state forward,” Jones said in a statement. “He knew the awesome power of bringing people together — reasoning together — and finding common ground. Regardless of political ideology, he treated everyone with respect and was a model of civility.”

Ralston is survived by his wife, Sheree, and two adult children. Funeral arrangements will be announced later.

As the paramount leader of the House, Ralston shaped taxes, spending and laws.

In one example, he muscled through changes this year to how mental health benefits are provided by private insurers and how the state provides mental health services. He could also put bills in the garbage can, stopping a state takeover of Hartsfield-Jackson Atlanta International Airport in 2019.

Ralston was first elected to the Georgia Senate in 1992 when Democrats were in the majority, serving six years. He lost a race for attorney general to Democrat Thurbert Baker in 1998 before being elected to the House in 2002.

The longest-serving state house speaker in the United States at the time of his death, Ralston was cut from the mold of Tom Murphy, the west Georgia Democrat who commanded the House from 1973 to 2003. Ralston took office after a chaotic period when the first Republican speaker in more than 130 years, Glenn Richardson, resigned following a suicide attempt and revelations of an extramarital affair with a lobbyist. Ralston had lost a speaker’s bid against Richardson in 2008.

“He brought a calm and steady hand to the House when it was in need of a calm and steady hand,” outgoing House Appropriations Committee Chairman Terry England, an Auburn Republican and Ralston confidant, said earlier this month.

Ralston survived a challenge to his power after The Atlanta Journal-Constitution revealed he had used his position as lawmaker to delay court proceedings for people he was representing in court. Most of the hard-core conservatives who rebelled left the House after failing to unseat Ralston, with the speaker engineering the defeat of some.

Ralston shepherded a wide range of Republican priorities and was always ready to cut taxes, boasting of a state income tax cut passed this year that could ultimately total $2 billion. He also championed rural development.

A guardian of the powers of the legislative branch, Ralston initially clashed with Kemp before settling into a close working relationship. He was an enthusiastic lover of legislative give-and-take, often besting the Senate in negotiations, frequently roasting critics with a quip from the speaker’s dais and relishing interplay with reporters.

But some Republicans saw Ralston as too friendly to Democrats. He helped rescue a hate crimes bill from legislative purgatory after the 2020 death of Ahmaud Arbery, and stifled efforts to pass religious liberty legislation that liberals said would have legalized discrimination.

“He saw the reality that the House needed to be a leader for some level of moderation in the face of a Republican Party that has turned dramatically to the right,” said Mary Margaret Oliver, a Decatur Democrat who co-sponsored this year’s mental health bill and was one of Ralston’s warmest friends in the General Assembly.

The close ties to her and Smyre meant Democrats could get a respectful hearing from Ralston, and sometimes get a little of what they wanted in legislation.

“We forged progress where we could, and did not hold grudges when we went in different directions,” tweeted Rep. Scott Holcomb, an Atlanta Democrat.

Ralston’s former spokesperson and the Fulton County District Attorney’s Office did not immediately respond to NBC News’ request for comment.

The grand jury, which conducted a criminal investigation into whether Trump and his allies made any “coordinated attempts to unlawfully alter the outcome of the 2020 elections” in the state, completed its work in January, submitting a report on its findings to District Attorney Fani Willis.

Fulton County Superior Court Judge Robert McBurney ruled last month that parts of the grand jury’s report can be made public. McBurney also said in the ruling that the report includes recommendations for “who should (or should not) be indicted, and for what,” but those parts would remain sealed for now.

A group of news organizations had petitioned him to make the report public, and he agreed with some of their reasoning.

“[W]hile publication may not be convenient for the pacing of the district attorney’s investigation, the compelling public interest in these proceedings and the unquestionable value and importance of transparency require their release,” McBurney wrote.

Willis’ office had asked that the entire report remain under wraps for the time being.

In unsealed parts of the report released last month, grand jurors said they believe some witnesses may have lied under oath.

“A majority of the grand jury believes that perjury may have been committed by one or more witnesses testifying before it,” said a section of the report released last month. “The grand jury recommends that the District Attorney seek appropriate indictments for such crimes where the evidence is compelling.”

In an interview with NBC News' “Nightly News” last month, Kohrs said the grand jury recommended indicting over a dozen people, which “might” include the former president.

“There are certainly names that you will recognize, yes. There are names also you might not recognize,” Kohrs said in the interview.

She said the list of recommended indictments is “not a short list,” and there were “definitely some names you expect," declining to name anyone specifically in accordance with the judge's instructions.

“I don’t think that there are any giant plot twists coming," Kohrs said. "I don’t think there’s any giant ‘that’s not the way I expected this to go at all’ moments. I would not expect you to be shocked.”

Blayne Alexander is an NBC News correspondent, based in Atlanta.

Ken Cheesebro -- come on down. You're on the text and email chain with Rudy Giuliani, as we suspected. He's one of the architects of using the Jan 6 Congress hearing, and fake electors, to stop the peaceful transfer of power.

Lawyers Group Asks Court to Punish an Author of Trump Electors Scheme: An ethics complaint in New York against Kenneth Chesebro is the latest example of legal troubles for lawyers who helped Donald J. Trump try to overturn the 2020 election.
by Charlie Savage
New York Times
Published Oct. 12, 2022
Updated Oct. 18, 2022

Kenneth Chesebro wrote the earliest known memo putting forward a proposal for having a slate of fake electors to help President Donald J. Trump overturn the election.

WASHINGTON — In the emerging history of how a small group of lawyers aided former President Donald J. Trump’s attempt to stay in power despite losing the 2020 election, Kenneth Chesebro has received far less attention than others like Rudolph W. Giuliani and John Eastman.

But documents show that Mr. Chesebro played a central part in developing the idea of having Trump supporters pretend to be electors from states won by Joseph R. Biden Jr., then claiming that Vice President Mike Pence had the power to cite the purported existence of rival slates to delay counting or to discard real Electoral College votes for Mr. Biden on Jan. 6, 2021.

On Wednesday, several dozen prominent legal figures submitted an ethics complaint to the Supreme Court of New York’s attorney grievance committee, calling Mr. Chesebro “the apparent mastermind behind key aspects of the fake elector ploy” and accusing him of conspiring “with Mr. Giuliani, Mr. Eastman and others to subvert our democracy.”

The complaint said Mr. Chesebro had acted with “dishonesty, fraud, deceit or reckless or intentional misrepresentation” in violation of rules of conduct for lawyers who, like him, are licensed to practice in New York.

The request was organized by Lawyers Defending American Democracy; a similar request by the group helped lead to the suspension of Mr. Giuliani’s law license in June 2021 and to a continuing investigation by the State Bar of California into Mr. Eastman. The complaint against Mr. Chesebro did not explicitly call for him to lose his license but asked for an investigation and “appropriate sanctions.”

Adam S. Kaufmann, a lawyer for Mr. Chesebro, condemned the complaint against his client, warning that it was dangerous to attack lawyers for providing legal theories to political candidates. Drawing on a 1960 precedent involving a close vote in Hawaii, he said Mr. Chesebro was offering the Trump campaign advice for “keeping its options open” through Jan. 6 as a “contingency” in case the courts found electoral fraud in any of the swing states where Mr. Trump’s team was disputing the outcome.

The idea that Mr. Pence could delay or block the electoral vote count on Jan. 6 was a key part of the events leading to the attack on the Capitol by Trump supporters. Some of those supporters chanted “Hang Mike Pence” because the vice president — whose lawyers told him there was no legal basis for him to delay or discard the official state-certified votes for Mr. Biden — rejected Mr. Trump’s pressure to do so anyway.

On Nov. 18, 2020, Mr. Chesebro wrote the earliest known memo putting forward a proposal for having a slate of Trump supporters purport to be electors, in that case for Wisconsin. He expanded the proposal for other states, including in a letter to Mr. Giuliani on Dec. 13, 2020.

An email by a Trump campaign lawyer in Arizona on Dec. 8, 2020, cited Mr. Chesebro as having had the idea for “sending in ‘fake’ electoral votes to Pence,” even though they would not be legal because the governor had not signed them.

The complaint filed on Wednesday characterized Mr. Chesebro as a participant and not only a supplier of theories, referring to his help with a fake electors effort in Georgia, one of the swing states Mr. Biden won. Mr. Chesebro has fought a subpoena to testify before a grand jury in Fulton County, Ga., where a prosecutor is investigating efforts to overturn the election results there.

A Georgia judge weighs release of a grand jury report into 2020 election interference
by Stephen Fowler
NPR, Georgia Public Broadcasting
January 24, 2023 5:00 AM ET


In this May 2022 file photo, Fulton County Superior Court Judge Robert McBurney speaks during proceedings to seat a special purpose grand jury in Fulton County, Ga., to look into the actions of former President Donald Trump and his supporters who tried to overturn the results of the 2020 election. Ben Gray/AP

A Georgia judge will soon decide what, if any, parts of a special grand jury report will be made public following an eight-month investigation into efforts by former President Donald Trump and his allies to overturn the state's 2020 election results.

The special purpose grand jury, which was dissolved earlier this month after completing its work, did not have indictment powers but could use gathered evidence and testimony to recommend that Fulton County District Attorney Fani Willis seek charges. Several people, ranging from Trump's onetime personal attorney to Republicans who falsely claimed to be presidential electors, were informed they were targets of the investigation.

Jurors voted to release their report to the public, but the extremely rare nature of the special grand jury and limited legal authority have led to hurdles that could delay disclosure of the findings.

Fulton County Superior Court Judge Robert McBurney will hold a hearing Tuesday to determine if releasing all or parts of the report would conflict with other laws and precedents that have historically prevented grand jury reports from making allegations of criminal wrongdoing without an accompanying indictment — which this panel could not recommend.

At the hearing, the DA's office, media outlets and potential targets of the investigation that might be named in the report are expected to argue their cases for releasing — or redacting — relevant sections of the findings.

What could be in the report?

Georgia was one of several key states that saw a coordinated, sustained effort to challenge the 2020 presidential results, in which Joe Biden defeated Trump.

In February 2021, Willis announced an investigation into efforts to undo Trump's defeat in Georgia, asking state officials to preserve records from the election, and in January 2022 she requested a special purpose grand jury be convened to investigate "the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia."

At the time, Willis listed several potential crimes, ranging from solicitation of election fraud to making false statements to governmental officials to racketeering.

Broadly, the work of the 26-person panel centered around two major themes:

1. The pressure campaign to reverse Trump's roughly 12,000-vote loss in Georgia's thrice-counted election;

2. And the coordinated effort to send so-called "alternate" slates of Republican presidential electors in states won by Biden.

The most infamous example of the former is Trump's phone call to Republican Secretary of State Brad Raffensperger, exhorting him to "find 11,780 votes" and undo Biden's victory ahead of the counting of Electoral College votes.

There were other calls, too, like South Carolina Sen. Lindsey Graham's conversation with Raffensperger regarding absentee ballots, and another leaked call Trump had with Georgia's top election investigator about a review of ballot envelopes.

Other areas of interest that have appeared in court filings include: a number of unofficial legislative hearings where Rudy Giuliani and others spread falsehoods about the state's election system and results, and attacked a pair of Fulton County poll workers with baseless claims that led to death threats; the resignation of U.S. Attorney BJay Pak amid turmoil with the Justice Department over pursuing false claims of voter fraud; and unauthorized access of voting equipment in a rural Georgia county.


Rudy Giuliani arrives at the Fulton County Courthouse in Atlanta on Aug. 17, 2022, to testify in front of a special grand jury investigating whether then-President Donald Trump and his allies illegally tried to overturn his defeat in the 2020 election. John Bazemore/AP

On the second front, Willis and the special purpose grand jury appear to have narrowed in on the efforts across multiple swing states, including Georgia, to send documents from Republicans falsely claiming to be official presidential electors.

At least 17 people so far have been informed they could be prosecuted for their actions, including the 16 fake electors and Giuliani. Willis has been disqualified from investigating one of the sham electors, newly elected Lt. Gov. Burt Jones, after Jones argued a fundraiser that Willis hosted for his eventual general election opponent created a conflict of interest.

The report could also name other incidents that prosecutors should look into further, other people who should be interviewed and other crimes that might have been committed.

Who has been interviewed?

The special grand jury used subpoena power to compel dozens of people to testify over the last several months, though faced difficulties from out-of-state witnesses.

Georgia Gov. Brian Kemp, Attorney General Chris Carr, Raffensperger and other state employees appeared before the panel, as did local election officials and elected officials who played both large and small roles in defending, running or attacking the election.

Some subpoenaed witnesses — like Trump-aligned attorneys John Eastman, Jenna Ellis and Kenneth Chesebro — tried unsuccessfully to fight their testimony in court but ultimately had to appear. Sen. Graham's efforts to halt his testimony were argued all the way to the U.S. Supreme Court, which refused to block a lower court's ruling that Graham was protected from questioning about activities related to being a lawmaker but could answer for other statements and actions.

Giuliani — who is also being sued for defamation by the two Fulton County election workers he accused of fraudulently counting ballots and "surreptitiously passing around USB ports as if they are vials of heroin or cocaine" — testified for hours behind closed doors after failed attempts to delay his appearance before the grand jury.

The report could also shed light on others who testified without needing a subpoena, as well as evidence used to draw conclusions about potential violations of state law.

What about Trump?

One potential witness who was never issued a subpoena to testify is Trump himself. Many of his actions and statements were in the public domain, uncovered via reporting or shared through testimony from others, but it is unclear why the panel did not seek out Trump's testimony firsthand, as he is a central figure in the investigation.

It is not clear what the report will say about Trump's role or likelihood he could face charges, though Trump has retained several Georgia-based lawyers including Drew Findling, a high-profile attorney best known for defending celebrity rap artists (and for past anti-Trump comments on social media). Campaign finance records show that over the second half of 2022, pro-Trump political action committees paid out nearly half a million dollars for "legal consulting" to Findling's law firm and another attorney, Jennifer Little.

In a statement to the Atlanta Journal-Constitution Monday, Trump's attorneys said they would not be involved in Tuesday's hearing and have never been a part of the special grand jury process. "He was never subpoenaed nor asked to come in voluntarily by this grand jury or anyone in the Fulton County District Attorney's office," the statement reads in part. "Therefore, we can assume that the grand jury did their job and looked at the facts and the law, as we have, and concluded there were no violations of the law by President Trump."

But it is possible the report could still implicate the former president in wrongdoing, and the district attorney could still seek an indictment.

What's next?

After the hearing, Judge McBurney could rule that the report should be made public in its entirety, with redactions regarding specific people and specific laws they might have broken, or opt to keep the entire thing under wraps pending further review.

Any of those rulings could be appealed.

The district attorney's office has received the full report and can issue indictments through a regular grand jury process with or without the report being publicized. Willis might also push to keep the report from the public until her office makes decisions about charges.

Fulton County's investigation into election interference is one of several inquiries Trump is facing, along with a federal probe into classified documents found at Mar-a-Lago and Trump's role in the leadup to the Jan. 6 attack on the U.S. Capitol, and New York-based investigations into Trump's business empire.

Judge releases part of Georgia grand jury report on alleged 2020 election tampering: “No widespread fraud took place in the Georgia 2020 presidential election,” grand jury says in final report.
by Kyle Cheney and Josh Gerstein
Politico
02/16/2023 11:46 AM EST
Updated: 02/16/2023 04:56 PM EST

Former President Donald Trump has denounced the investigation as a political vendetta.

A Georgia grand jury believes at least one witness may have lied under oath as it pursued an investigation into Donald Trump’s efforts to subvert the 2020 election, according to excerpts of the panel’s final report released Thursday.

The handful of pages that a state judge ordered released do not identify precisely whom the panel recommended for prosecution, but the excerpts do reveal that the entire special grand jury rejected Trump’s repeated claims that extensive fraud tainted Joe Biden’s win in the state.

“We find by unanimous vote that no widespread fraud took place in the Georgia 2020 presidential election that could result in overturning that election,” the grand jury’s report says, describing its conclusions that detailed testimony from experts disproved such allegations.

The bulk of the report, including recommendations about potential criminal charges for Trump and his allies, remains under seal.

Fulton County District Attorney Fani Willis, who opposed release of any portion of the report at this time, said during a court hearing about three weeks ago that her decisions about potential prosecutions were “imminent.” She has not provided a further update.

Trump, who has denounced the investigation as a political vendetta, claimed on Thursday that the release of the report excerpts exonerated him by omitting any mention of him — even though a judge ruled that all references to individuals in the report be withheld from the public for now.

“Thank you to the Special Grand Jury in the Great State of Georgia for your Patriotism & Courage. Total exoneration. The USA is very proud of you!!!” Trump wrote on his social media site, Truth Social.

The report underscores the extensive investigation that Willis undertook, noting that the panel heard from 75 witnesses, as well as investigators who helped them comb through voluminous documents related to the probe.

The partial release also makes clear that many grand jurors believe that some of the testimony they heard from witnesses subpoenaed to discuss election-related issues and incidents was false.

“A majority of the grand jury believes that perjury may have been committed by one or more witnesses testifying before it,” the report says. “ The Grand Jury recommends that the district attorney seek appropriate indictments for such crimes where the evidence is compelling.”

Willis has spent the last year investigating Trump and his allies’ bid to reverse the election results in Georgia, despite losing the state by 11,000 votes. Willis’ probe focused on Trump’s Jan. 2 phone call to Georgia Secretary of State Brad Raffensperger, asking him to “find” just enough votes to put Trump ahead of Joe Biden in the state.

Raffensperger declined the request and told Trump that investigators found his claims of fraud to be baseless.

Trump on Thursday defended that call as “perfect” and stressed that there were “many officials and attorneys on the line, including the Secretary of State of Georgia, and no one objected, even slightly protested, or hung up.”

The report underscores the wide-ranging investigation that Willis undertook, noting that the panel heard from 75 witnesses, as well as investigators who helped them comb through voluminous documents related to the probe.

Willis has also pursued evidence about Trump’s broader national effort to subvert the election, calling before the special grand jury top aides like his White House chief of staff Mark Meadows, former national security adviser Michael Flynn, attorney John Eastman and Sen. Lindsey Graham (R-S.C.).

Those issues are also the subject of an ongoing federal investigation based in Washington now being headed by special counsel Jack Smith. No charges have yet been brought in that probe.

Under Georgia law, the special grand jury which was sworn in last May could subpoena witnesses and documents, but could not return indictments. Willis would have to seek such charges another, regular grand jury, but can present the evidence and testimony gathered by the special panel.

Superior Court Judge Robert McBurney said in a ruling Monday that state law compelled him to publicly release the special grand jury’s findings, although he agreed to defer publishing portions of the report that discuss potential charges against individuals. The special grand jurors had urged the court to make their findings public.

The special grand jury also seemed in its report to seek to assert some independence from Willis’ prosecutors. “That Office had nothing to do with the recommendations contained herein,” the report says, signed by the foreperson and deputy foreperson. The signatures and names of the jury’s leaders were redacted from the excerpts released Thursday.

Mr. Kaufmann said the only communication Mr. Chesebro had with anyone in Georgia regarding alternate electors was sending ballot forms to a state Republican leader.

Mr. Eastman wrote two memos laying out steps that could result in Mr. Trump being declared the winner of the election that hinged on a disputed claim about Mr. Pence and alternate “electors.” Mr. Chesebro helped edit the first, emails obtained by the Jan. 6 committee show.

The complaint says that “while Mr. Eastman and Mr. Giuliani have received more attention, the public record amply demonstrates Mr. Chesebro’s central role. As the original author of the fake elector scheme, Mr. Chesebro bears special responsibility for it and its consequences.”

In an email exchange with Mr. Eastman on Dec. 24, 2020, Mr. Chesebro also wrote that the odds of a Supreme Court intervention would “become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”

Another organization, The 65 Project, filed a similar ethics complaint against Mr. Chesebro in July. The group has filed complaints against about 55 lawyers associated with aspects of Mr. Trump’s efforts to overturn the election. There has been no public sign of action in response to its complaint about Mr. Chesebro, but its director Michael Teter, said on Wednesday that an investigator has been assigned to it.

The new filing was distinguished by a list of high-profile legal figures who endorsed it, such as past presidents of the New York State Bar Association and of the American Bar Association, retired judges, current and former deans of major law schools, and other legal scholars and prominent lawyers.

Among them was Laurence H. Tribe, a liberal Harvard Law School professor. He said in an interview that as a law student in the mid-1980s, Mr. Chesebro had been one of his research assistants and continued to help him with volunteer litigation after graduating — including when Mr. Tribe represented Vice President Al Gore before the Supreme Court in the disputed 2000 election.

Mr. Tribe said he attended Mr. Chesebro’s wedding and once considered him a friend, but then gradually came to see him as an “ideological chameleon” who had adopted “the posture he thought would appeal to me” and “came to distrust Ken’s sense of boundaries and his moral compass.”

A correction was made on Oct. 18, 2022: An earlier version of this article misspelled the surname of the director of The 65 Project. He is Michael Teter, not Teeter.

[admin]

Part 3 of 3

And then you have interesting emails with re lines, regarding lines, that I'm sure Jack Smith is super excited about, like a 12/16/2020 text, or email, that says "POTUS findings." P-O-T-U-S. That is exactly the moment leading to the December 18th meeting in the White House that went on for six hours, involving Sidney Powell, Michael Flynn, Rudy Giuliani, and the overstock.com guy [Patrick Byrne]. They threw him in there to talk about suspending the Constitution, invoking martial law, and seizing the election equipment, in order for Trump to cling to power, and make presidential findings, to support that conduct.

Inside the 'unhinged' West Wing meeting on Dec. 18
by Barbara Sprunt
NPR
July 12, 20223:16 PM ET


Former White House counsel Pat Cipollone is seen on a video display during the seventh hearing held by the House Jan. 6 committee on Tuesday. Sarah Silbiger/Getty Images

In its seventh public hearing, the House select committee detailed an explosive meeting at the White House on Dec. 18, 2020, in which outside advisers to then-President Donald Trump and White House officials clashed over election fraud conspiracy theories and plots to keep Trump in power.

The committee meticulously reconstructed the meeting, playing clips of sworn testimony from various participants, including White House Counsel Pat Cipollone, who met with the committee behind closed doors on Friday.

The chaotic White House meeting took place four days after electors met across the country and made Joe Biden the president-elect, and lasted over six hours, beginning in the Oval Office and ending in Trump's private residence.

Rep. Jamie Raskin, D-Md., who co-led Tuesday's hearing, described how attorney Sidney Powell, former Overstock.com CEO Patrick Byrne and former national security adviser Michael Flynn accessed the White House with the help of a junior staffer and spoke with Trump alone for 10-15 minutes before White House officials learned of the meeting and made their way to join.

"I bet Pat Cipollone set a new land speed record," Powell said of the White House Counsel.

For his part, Cipollone expressed frustration at the group assembled before the president, telling the committee he "was not happy to see the people in the Oval Office."

"First of all, the Overstock person, I didn't know who this guy was. Actually, the first thing I did, I walked in, I looked at him and I said, 'Who are you?' And he told me," he recounted. "I don't think any of these people were providing the president with good advice and I didn't understand how they had gotten in."

Derek Lyons, former White House staff secretary, said the two camps were "shouting at each other, throwing insults at each other — it wasn't just sort of people sitting around a couch chit-chatting."

Former White House lawyer Eric Herschmann said the outside group suggested that Venezuela had meddled with the election and that Nest brand thermostats hooked up to the internet were changing votes.

Cipollone recalled "pushing back" on the group of Trump's outside advisors by asking them to provide any evidence that the election was fraudulent.

He said the group showed a "general disregard for the importance of actually backing up what you say."

The outside group of Trump's advisors repeatedly accused the White House team of being too weak to further contest the election results.

"I would categorically describe it as: 'You guys aren't tough enough,' " former Trump attorney Rudy Giuliani said in a video clip of testimony.

"What they were proposing, I thought, was nuts," said Herschman, and recalled an exchange with Powell about the integrity of judges who had ruled on the Trump team's legal challenges.

"She says, 'Well, the judges are corrupt,' " he recounted. "I'm like — 'Every one? Every single case in the country you guys lost? Every one of them is corrupt? Even the ones we appointed?' I'm being nice, I was much more harsh to her."

Raskin displayed texts from Cassidy Hutchinson — who has already delivered bombshell testimony before the committee — describing the meeting to Tony Ornato, then-White House deputy chief of staff for operations, saying, "the West Wing is unhinged."

The committee also shared a photograph Hutchinson took of then-Chief of Staff Mark Meadows escorting Giulinai off-campus "to make sure he didn't wander back into the mansion."

Cipollone also testified that he spoke out against a plan to appoint Powell as a special counsel in charge of investigating seized voting machines and prosecuting election-related crimes.

"I was vehemently opposed," he said. "I didn't think she should be appointed anything."

It was in the hours after this meeting that Trump tweeted that his supporters should come to D.C. on Jan. 6: "Be there, will be wild!"

So they were up to the point of Presidential findings to support martial law, and that's in this cache of documents currently being withheld, but soon to be sent over to the lawyers in the Shaye Moss/Ruby Freeman civil defamation case. You see how I said at the top of this hot-take -- civil cases as a byproduct pay dividends that can be used in a criminal case. And we're seeing it here. Boris Epstein -- there's somebody who's likely to be indicted very soon by Jack Smith -- is currently a lawyer for Donald Trump, and that never stopped. Everybody else who was a lawyer for Donald Trump is either getting indicted, arrested, or put in jail, and Boris Epstein is probably next on that list based on his conduct. He, Bernie Kerik, Jason Miller -- a very close advisor to Donald Trump -- and Christina Bobb, are having texts and emails all during the relevant time-period. The head of the Republican National Committee, Ronna McDaniel -- come on down. You're going to be caught up in this conspiracy.

Ronna McDaniel
by Wikipedia
Accessed: 7/12/23


Ronna Romney McDaniel

Chairwoman of the Republican National Committee
Incumbent
Assumed office: January 19, 2017
Preceded by: Reince Priebus
Chairwoman of the Michigan Republican Party
In office: February 21, 2015 – January 19, 2017
Preceded by: Bobby Schostak
Succeeded by: Ronald Weiser
Personal details
Born: Ronna Romney, March 20, 1973 (age 50), Austin, Texas, U.S.
Political party: Republican
Spouse: Patrick McDaniel
Children: 2
Parents: Scott Romney; Ronna Stern
Relatives: Romney family
Education: Brigham Young University (BA)

Ronna McDaniel (née Romney; born March 20, 1973) is an American politician and political strategist serving as chairwoman of the Republican National Committee (RNC) since 2017. A member of the Republican Party and the Romney family, she was chairwoman of the Michigan Republican Party from 2015 to 2017. Since McDaniel's 2017 election as chairwoman of the RNC, the Republican Party has had a net loss of seven governorships, three seats in the United States Senate, 19 seats in the House of Representatives, and the presidency. In December 2022, Axios wrote that McDaniel "has thus far failed to preside over a single positive election cycle."[1]

A granddaughter of Michigan Governor and businessman George W. Romney and a niece of Massachusetts Governor and U.S. Senator Mitt Romney of Utah, McDaniel has been known for her prolific fundraising and staunch support for President Donald Trump as RNC chair.[2][3] Under her leadership, the RNC ran ads for Trump's 2020 campaign as early as 2018, put numerous Trump campaign workers and affiliates on the RNC payroll, spent considerable funds at Trump-owned properties, covered his legal fees in the Russian interference investigation, hosted Trump's Fake News Awards, and criticized Trump critics within the Republican Party.[2]

After Joe Biden won the 2020 election and Trump refused to concede, McDaniel and the RNC made claims of voter fraud[4] and attempted to overturn Biden's victory. In 2022, she orchestrated a censure of Republicans who participated in a bipartisan committee to investigate the January 2021 attack on the U.S. Capitol.[5] The censure characterized the violent pro-Trump mob as having engaged in "legitimate political discourse".[5][6] During its fourth public hearing, the United States House Select Committee on the January 6 Attack presented a video excerpt of a deposition from McDaniel where she revealed that, at the request of Trump and John Eastman, she had the RNC help organize fake electors for the Trump fake electors plot.[7]

Early life and education

McDaniel was born Ronna Romney on March 20, 1973,[8] in Austin, Texas. The third of five children born to Ronna Stern Romney and Scott Romney, the older brother of Mitt Romney, McDaniel is a granddaughter of three-term Michigan Governor George W. Romney. Her mother ran for the U.S. Senate in 1996 against Carl Levin, served on the Republican National Committee, and was a delegate to the 1988 Republican National Convention. Romney's grandmother, Lenore Romney, ran for the U.S. Senate in 1970.[9] McDaniel has said her career in politics was inspired by her family.[10]

She attended Lahser High School in Bloomfield Township, Oakland County, Michigan,[9] and earned an undergraduate degree in English from Brigham Young University.[11][12]

Career

McDaniel worked for SRCP Media as a production manager. She also worked for the production company Mills James as a business manager and as a manager at the staffing firm Ajilon.[13]

McDaniel worked in Michigan for her uncle Mitt's 2012 campaign for President of the United States. She was elected Michigan's representative to the Republican National Committee (RNC) in 2014.[13] In 2015, McDaniel ran to be chairwoman of the Michigan Republican Party, receiving support from both the party establishment and Tea Party activists. At the party's convention in February 2015, she defeated Norm Hughes and Kim Shmina, receiving 55% of the vote in the first ballot. She succeeded Bobby Schostak as chairwoman and stepped down from her position at the RNC.[14][13]

During the 2016 U.S. presidential election, McDaniel served as a delegate to the 2016 Republican National Convention for Donald Trump.[14] Following the 2016 presidential election, McDaniel became a candidate to chairwoman the Republican National Committee.[15] McDaniel was an early supporter of Donald Trump. McDaniel had activist Wendy Day removed from her party position as grassroots vice-chairwoman due to her refusal to support Trump.[16]

RNC chairwoman

Election as chairwoman


Ronna McDaniel at the 2018 Young Women's Leadership Summit

On November 13, 2016, Reince Priebus, chairman of the RNC, was announced as the new White House Chief of Staff, thereby turning the RNC chairman election into an open seat election. Soon afterward, several candidates were reported as likely to seek the position, including McDaniel.[17] On December 14, 2016, McDaniel was chosen by then president-elect Trump as his recommendation to replace Priebus.[18][2] She served as deputy chairwoman before her formal election.[16] She was officially elected as RNC chairwoman on January 19, 2017 by unanimous vote, becoming the second woman (after Mary Louise Smith) in RNC history to hold the post.[19] According to The Washington Post, Trump requested that she stop using her maiden name, and McDaniel subsequently did not use it in official communications.[20] McDaniel denies that Trump pressured her to change the name.[12]

McDaniel was re-elected as RNC chairwoman in unanimous elections in both 2019 and 2021, with the endorsement of Trump in both elections.[21][22]

On January 27, 2023, McDaniel was re-elected to stand as the Chairwoman for the RNC going into the 2024 US presidential election, fending off challenges from Harmeet Dhillon and Mike Lindell and winning a fourth term. After her victory, McDaniel stated that she would not seek a fifth term as RNC Chairwoman.[23][24][25][26] She is the longest-served RNC chairwoman since the Civil War.[27]

Fundraising efforts

In 2018, McDaniel spent up to six hours daily calling donors. Under McDaniel's leadership, the RNC had what The Washington Post described as "a huge financial edge heading into the 2018 midterm elections".[28] As of January 2018, the RNC had almost $40 million banked while the Democratic National Committee had $6.3 million.[3] As of July 17, the Republican National Committee had raised about $213 million for the election cycle with $50.7 million in cash on hand and no debt. In comparison, the Democratic National Committee raised $101 million during the same period.[29] After many white suburban female voters switched to vote for Democrats in the 2018 midterm elections, McDaniel said that the party would engage in a "deep data dive" to learn why.[30]

LGBT Issues

In 2021, McDaniel issued a statement supporting and celebrating LGBT Pride Month, but she did not issue a similar statement in 2022 and 2023 following backlash from social conservatives.[31] McDaniel had also announced the creation of the RNC Pride Coalition in coordination with the Log Cabin Republicans, a group of LGBTQ Republicans.[32][33] Following the backlash, she apologized for not communicating the initiative prior to the announcement and clarified that the Pride Coalition does not change the GOP's platform on same-sex marriage.[34] McDaniel also said that the initiative was not advocating for any policy issue or change to the platform.[35] She faced calls to resign from some state-level Republican leadership.[36] The RNC dismissed the calls for her to resign.[37]

Support for Trump

The New York Times described McDaniel as "unfailingly loyal to Trump".[3] According to a 2018 study in The Journal of Politics, under her leadership the RNC has sought to consistently promote Trump and his policies.[2] This includes running ads for Trump's 2020 campaign as early as in 2018, putting a considerable number of Trump campaign workers and affiliates on the RNC payroll, spending considerable funds at Trump-owned properties, covering Trump's legal fees in the Russian interference investigation, hosting Trump's "Fake News Awards", and harshly criticizing Trump critics within the Republican Party.[2] The day after Republican congressman Mark Sanford, known for his criticism of Trump, lost his primary against a pro-Trump candidate, McDaniel tweeted that those who do not embrace Trump's agenda "will be making a mistake".[38][39] In April 2018, McDaniel praised Trump as a "moral leader".[40]

Politico reported that after Trump endorsed Republican Senate candidate Roy Moore just days before the special Alabama Senate election, the White House influenced McDaniel to resume RNC funding for Moore, who lost in a narrow election to Democrat Doug Jones in December 2017. According to two people close to McDaniel, she privately complained about spending time and money on Moore's behalf. McDaniel was reportedly shocked by Trump's decision to endorse Moore but felt that she had little choice but to follow the president's wishes.[41]

In January 2019, Mitt Romney penned an editorial for The Washington Post criticizing President Trump's moral character. McDaniel said the editorial by her uncle, "an incoming Republican freshman senator", "feeds into what the Democrats and mainstream media want" and was "disappointing and unproductive".[42] In March 2019, McDaniel stated she would not support "the nicest, most moral person in the world" to be president if they were not "aligned with [her] politics".[43]

In May 2019, when House Representative Justin Amash became the first Republican member of Congress to call for Trump's impeachment, citing the evidence of obstruction of justice in the Mueller Report, McDaniel criticized Amash, saying he was "parroting the Democrats' talking points on Russia".[44] While she did not explicitly express support for a primary challenge against Amash, she tweeted, "voters in Amash's district strongly support this president".[45]

In September 2020, following the release of audio recordings from February 2020 where President Trump said he was intentionally downplaying the coronavirus, McDaniel defended Trump's handling of the coronavirus. She said, "history will look back on him well as how he handled this pandemic."[46]

By November 2021, RNC was still covering the legal fees for former president Trump related to investigations into his financial practices in New York.[47]

False claims of fraud in the 2020 election

By May 2020, the RNC had allocated $20 million to oppose Democratic lawsuits to make voting easier during the coronavirus pandemic, in particular expanding vote-by-mail to states that had not adopted it previously.[48][49] McDaniel accused Democrats of trying to "destroy" and "assault" the integrity of elections.[50][49] McDaniel said, "a national vote by mail system would open the door to a new set of problems, such as potential election fraud."[48] According to Deseret News, "Election experts say while voting by mail can be abused, it's rare and inconsequential."[48] In general, research has found no evidence of widespread voter fraud in the United States.[51]

In June 2020, McDaniel shared a RNC video warning about extensive voter fraud in the upcoming 2020 election due to expansions of vote-by-mail related to the coronavirus pandemic.[52] The Washington Post fact-checker wrote that the video "tortures the facts to create a narrative of an election about to be stolen. The illegality being satirized here is a phantom. State election officials, in many cases Republicans, are expanding vote-by-mail as a public health precaution to prevent the risk of spreading the coronavirus — not to rig the outcome."[52]

After Joe Biden won the 2020 election, McDaniel claimed without evidence that there was large-scale electoral fraud and voter fraud, and had the RNC promote falsehoods and conspiracy theories about the election.[53][54][55][56] At the same time that she was making baseless claims of fraud, President Trump endorsed her to continue to lead the RNC in the January 2021 RNC chairman election.[4][57][56]

In 2022, McDaniel led efforts within the RNC to censure Republican members of Congress Liz Cheney and Adam Kinzinger who had voted to impeach Trump over his incitement of a pro-Trump mob in the U.S. Capitol attack and served on a bipartisan committee to investigate the attack.[58][5] Within the Republican Party, Cheney had a consistently conservative record, aside from her criticisms of Trump.[58] The censure that McDaniel orchestrated characterized the U.S. Capitol attack as "legitimate political discourse".[5]

Campaign donations controversies

In October 2017 after Harvey Weinstein, a major donor to the Democratic Party, was accused of sexual abuse, McDaniel said that "returning Weinstein's dirty money should be a no-brainer"; the Democratic Party did give away some of Weinstein's contributions. In January 2018, Steve Wynn resigned as RNC finance chairman after he was accused of sexual misconduct and McDaniel came under pressure to return his donations. McDaniel said that Wynn should be allowed "due process" and that his donations would only be returned after the allegations were investigated by the Wynn Resorts board of directors.[59][60][61] In May 2019, it was reported that Wynn had donated nearly $400,000 to the national Republican Party, most of it to the RNC, the previous month. In 2017, Wynn and his wife donated $375,000 to the RNC. As of May 2019, none of the money has been returned by the RNC. Steve Wynn has never been convicted of the allegations.[62][63]

In September 2019, McDaniel emailed Doug Manchester, whose nomination to become Ambassador to the Bahamas was stalled in the Senate, asking for $500,000 in donations to the Republican Party. Manchester responded, noting that his wife had given $100,000 and that his family would "respond" once he was confirmed by the Republican-led Senate to the ambassadorship. Manchester copied the email to aides of two U.S. senators whose support he needed to win confirmation. CBS News described McDaniel's action as a "possible pay-for-play scheme" for the ambassadorship.[64][65] The San Diego Union-Tribune reported in May 2021 that a federal grand jury had issued a subpoena in a criminal investigation into Manchester's nomination, apparently focused on the RNC, McDaniel and RNC co-chairman Tommy Hicks, and possibly members of Congress. The Union-Tribune reported the investigation began in 2020.[66]

Other controversies

Under McDaniel's leadership, the RNC set up a website in April 2018 which attacked and sought to undermine former FBI Director James Comey and called him "Lyin' Comey".[67] McDaniel said Comey was a liar and a leaker, and said that the RNC would "make sure the American people understand why he has no one but himself to blame for his complete lack of credibility".[67][68]

In late July 2018, McDaniel falsely[69][70] claimed that Twitter was shadow banning Republicans, including herself.[71] Twitter did not shadowban Republicans, but due to a glitch, several prominent conservative and left-leaning Twitter accounts were not automatically suggested in the site's drop-down search results.[72][73][71] Twitter responded, saying it would fix the bug.[74]

Politico reported in November 2018 that McDaniel called on the Republican candidate Martha McSally to be more aggressive during the ballot counting process in the Arizona Senate race. The Arizona Senate race remained undecided for several days after election night while all ballots were being accounted in a close contest.[75] McSally held a lead by the end of election night, but her lead narrowed over the next few days, as more ballots were counted.[75] Reportedly, the McSally campaign was being pressured from McDaniel for not being aggressive enough.[75][76][77]

On May 13, 2020 ProPublica reported that big RNC contracts were awarded by McDaniel to companies closely connected to her.[78] Contracts went to her husband's company and companies that supported her 2015 run for the chairmanship of the Republican Party in Michigan.[78]

On October 18, 2020, McDaniel refused to condemn QAnon on This Week with George Stephanopoulos.[79]

On October 27, 2022, McDaniel openly mocked prominent Democratic politicians such as then-Lieutenant Governor of Pennsylvania and U.S. Senate candidate John Fetterman and President Joe Biden for suffering speech impediments. Fetterman was recovering from a stroke at the time.[80]

Personal life

A member of the Church of Jesus Christ of Latter-day Saints,[81] she has two children with her husband, Patrick McDaniel.[9] They live in Northville, Michigan.[11]

And then there's somebody interesting -- and I'm going to put a tweet up on this one -- Mirna Tarraf, who people are saying at home, Popok, you've lost your mind. Who is Mirna Tarraf? Well, according to Jenna Ellis in a tweet that she put out, she, Jenna Ellis -- and I gotta get you the rest of this list, because it's just fascinating, were all part of a phony election integrity board that was formed by Donald Trump and Rudy Giuliani to run around as if they were trying to protect the election, and not steal it, from Joe Biden and the voters. And on this board, which are all part of this chain of conspiracy and in the emails and text messages of Rudy Giuliani, here's the list on the tweet: Jenna Ellis; Ken Paxton, the soon to be impeached Attorney General of Texas; RealPNavarro -- Peter Navarro, who's also a subject, if not a target of criminal investigation by Jack Smith because of his role in the fake electors scandal; Bernie Kerik -- we've talked about him already; Seb Gorka, right-wing extremist; and Mirna Tarraf. Good for you Mirna. Glad to see that Rudy Giuliani had to now throw you under the bus, and properly reveal these things

Jenna Ellis · May 5, 2021
@JennaEllisEsq
NEW: The Election Integrity Alliance
We are continuing the work to restore American election integrity through a central hub of allies.
National Board Members:
@JennaEllisEsq
@KenPaxtonTX
@RealPNavarro
@BarnardKerik
@SebGorka
@donnelly_mp
@mirnatarraf

Trump attorney, other allies launch voter fraud organization
The Election Integrity Alliance’s board includes former Trump campaign lawyer Jenna Ellis and other notable supporters.

Jenna Ellis
@JennaEllisEsq
Join us at http://AmericanGreatnessFund.com

Trump attorney, other allies launch voter fraud organization: The Election Integrity Alliance’s board includes former Trump campaign lawyer Jenna Ellis and other notable supporters.
by Alex Isenstadt
05/05/2021 04:30 AM EDT
Updated: 05/06/2021 12:01 PM EDT


Jenna Ellis, a former member of Donald Trump's legal team, speaks during a news conference at the Republican National Committee headquarters in Washington, D.C. | Jacquelyn Martin/AP Photo

Former President Donald Trump has been fixated on election fraud since leaving the White House, and now a group of prominent allies are launching a new initiative focused on it.

The American Greatness Fund, a nonprofit advocacy group aligned with the ex-president, is set to unveil the formation of the Election Integrity Alliance on Wednesday, which it says will be “focused on ending election fraud and strengthening election safeguards by providing information, resources, endorsements of allies’ efforts, and solutions to secure free and fair elections.”

Ballot fraud has become an animating issue for Trump supporters, since the former president has baselessly claimed the 2020 election was tainted by it. Several of the alliance’s board members, including former Trump attorney Jenna Ellis, Texas Attorney General Ken Paxton, and former New York Police Commissioner Bernard Kerik became prominent voices in the former president’s failed effort to fight the election outcome.


State Attorney General Ken Paxton waits on the flight line. | AP Photo/Tony Gutierrez

“The Election Integrity Alliance’s National Board is comprised of individuals who have fought for election integrity at great personal risk and who are champions for free and fair elections,” the organization said in a statement.

People familiar with the project say it is intended to be a centralized hub for providing information on issues related to ballot fraud and election security. It is also aimed at coordinating with other organizations that are focused on election integrity.

American Greatness Fund, which was founded by former Trump campaign manager Brad Parscale, is part of an ever-expanding web of Trump-aligned advocacy groups that have popped up since the 2020 election. Former Trump senior advisers Brooke Rollins and Larry Kudlow have started the America First Policy Institute; Ben Carson, who served as secretary of Housing and Urban Development in the Trump administration, has launched the American Cornerstone Institute; Russ Vought, who oversaw Trump’s Office of Management and Budget, has unveiled the Center for Renewing America.

Another recent entrant is former Trump speechwriter Stephen Miller, who has formed America First Legal, an outfit aimed at combating the Biden White House.

Conservatives say they view the groups as key in a broader effort to match a formidable liberal “dark money” machine. The Conservative Policy Institute, an organization overseen by Trump White House chief of staff Mark Meadows and ex-South Carolina Sen. Jim DeMint which provides support to non-profit groups, convened a group of major donors at Trump’s Mar-a-Lago estate last month to discuss a path forward.

CLARIFICATION: This report has been updated with the new name of Russ Vought’s group, which was founded as the Center for American Restoration and changed its name to the Center for Renewing America.

Now I said at the top of this hot-take that his privilege log was garbage. Privilege log garbage. Why? Because I've been doing this for 33 years, and in a privilege log you have to list enough data and information not to reveal the privilege you're allegedly protecting -- if you do have such a privilege -- and enough for the judge, and the other side, to be able to have a coherent conversation about what the document is. So you don't have to reveal the privilege, but if you have a document -- I'll give you an example -- if Rudy Giuliani emailed Donald Trump to talk about the fake elector scandal, then it should be listed on the privilege log as author: Giuliani; recipient: Donald Trump; CC's: if there are any list them; subject matter: then you'd have to come up with something that doesn't reveal the privilege, like elector certificates in battleground states -- that would be enough; and then the date of that. And then you have to give it what's called a Bates number, a serial number at the bottom that's assigned to the case by the lawyers so they can keep track of these things. And then you can have this debate, and the judge can take a look at it in camera, which is again, she gets to see it first, not the other side, and then make the decision. But his log -- I will put up one page of it -- his log is completely incoherent. Sometimes he doesn't even list the people's last names. He's like "Andrew." I assume one of the texts is with his son Andrew Giuliani, with all these other people, which would effectively waive the privilege, but who knows? He puts "Michael." What's interesting is there doesn't seem to be any text with POTUS, with Trump, which is totally ridiculous. The other thing that is hanging Rudy Giuliani on a short rope of his own making is that -- let me tell you that in cases, lawyers go out to get documents from third parties. It's called "Third-party discovery practice." You use a subpoena, and you go to somebody like Christina Bobb and say, "give me all the documents you have of communications with Rudy Giuliani." And she produced those, and so did other people. And the problem for Rudy is they produced things that he didn't produce, which means he's hiding them, or he's lost them. And that's what the lawyers have said in their motion for sanctions, "We don't know if he destroyed them, if he has them, or if he doesn't have them." But it doesn't matter, because he had an obligation to preserve them. And the Judge, in the March, April, and May hearings, warned him that he needed to preserve them. And his lawyers have come to court and said. "Well, we think he preserved them. We're not sure if he preserved them. Maybe he preserved them." Wrong. These are the wrong responses in federal court, to a federal judge.

And then let me just bring it full circle. The federal judge that's presiding over this case is Beryl Howell. For those that follow LegalAF, and hot-takes like mine regularly, that name will ring a bell. She was until recently the chief judge of the DC circuit court. And when she's not trying civil cases like this one, she had responsibility over all of the grand juries, including Jack Smith's grand juries. That's my stage voice, my stage whisper. And in that capacity she evaluated whether, for instance, the crime-fraud exception to the attorney-client privilege applied to strip Donald Trump from attorney-client privilege, and therefore have those documents go to the government, because they were no longer covered by privilege. And she forced lawyers like Pat Cipollone, White House General counselor; White House counsel Eric Herschmann; Deputy White House counsel; ultimately Rudy Giuliani; Evan Corcoran; Christina Bobb, and found that they had to testify. Donald Trump couldn't stop it because Donald Trump was more likely than not participating in a crime or fraud concerning the Mar-A-Lago documents, for example, and therefore did not have the attorney-client privilege. There's a good way to sum up in one sentence, and three uses of privilege. The same thing could happen here. This judge is educated. She has a learning curve when it comes to crime-fraud for Trump and others. So if the lawyers don't get the default judgment that they want, and they go for these documents, which they're going to tell the judge that "even if you found that there was an initial proper assertion of privilege over them, judge, there's the crime-fraud exception. They're all participating in a crime. You know that from the work that you did, your honor, related to Jack Smith's prosecutions." You see how this civil criminal ecosystem, this flow, these trade winds, all kind of run into each other. And that's what we're talking about here on this hot-take.

So to summarize, civil cases help criminal cases because discovery sometimes is even more extensive there. And you get golden nuggets that tumble out just the way that the Dominion case against Fox News -- right? -- created dividends for Jack Smith, and also got Tucker Carlson fired. Same thing here. The Ruby Freeman/Shaye Moss case -- which should have been settled a long time ago by Rudy Giuliani. In fact the lawyers even mentioned that he had the potential for a settlement in his hands, and he let it slip through because he's cheap, and he's stupid. And I don't care what he was in the 90s in New York, because that's what he is today. And he's soon to be a disgraced former lawyer, a disgrace to the profession. So they said, "Oh well, he had it. He could have had a settlement with us, but he blew it, just like he's blowing the case." We shouldn't even be talking about documents that they obtained. We wouldn't even know about them if he had settled the case. But Attention, Jack Smith! If you don't already have all the documents that they got in their discovery, go subpoena them, and I'm sure they'll turn them over that same day all the documents that Shaye Moss and Ruby Freeman's lawyers have in their disposal, of what they got from Rudy Giuliani. And since you've already taken a Proffer-- remember, Rudy Giuliani went in two weeks ago and testified under oath, not to the grand jury, but to the Department of Justice and Jack Smith's team. He was given a Queen-for-the-day immunity, meaning as long as he doesn't lie at that moment, they won't use anything that he tells them against him if they decide to indict him. If they have the information independently, then there's no deal. But they won't use his exact words against him as long as he's telling the truth.

Now the prosecutors have to be wondering whether, based on these texts and emails that are now currently covered by privilege -- but they'll be able to see soon whether he was telling the truth, when he testified under oath to them, or if he wasn't. And when Rudy Giuliani -- not if -- is indicted, which I've already predicted on LegalAF, they will include a new count for lying under oath to the federal government when he came in, bringing to a conclusion my hot-take about how civil cases can positively impact criminal cases.

I do hot-takes just like this one, connecting dots that you see, and some that you don't even see, and I didn't even see, until I started preparing the hot-take, only on the MeidasTouch Network. We pull it all together in a long format podcast on YouTube. You can subscribe for free on the MeidasTouch Network. We call it Legal AF. I do it on Wednesdays, and I do it on Saturdays, with my co-anchors Ben Meiselas and Karen Friedman Agnifolo. I'm Michael Popok. You can follow me on all things social media, including Threads. This is Michael Popok, LegalAF, reporting.

[admin]

Trump receives a target letter in Jan. 6 special counsel investigation
by Caroline Linton, Robert Costa, Robert Legare, Graham Kates, Melissa Quinn, Fin Gomez
CBS News
UPDATED ON: JULY 18, 2023 / 5:48 PM / CBS NEWS

Former President Donald Trump posted on social media on Tuesday that he has received a letter indicating he is the target of a criminal investigation by a grand jury investigating attempts to interfere with the peaceful transfer of power after the 2020 election.

Multiple sources confirmed to CBS News that the former president's post is accurate, and a senior Trump source said that Trump did receive a target letter on Sunday night to report to the grand jury, which was related to special counsel's Jan. 6 probe.

The former president said on Truth Social, his social media platform, that he had received a letter saying he's "a TARGET" of an investigation from special counsel Jack Smith Sunday night. Trump said he was given four days to report to the grand jury.

He repeated his claim that the special counsel is engaged in a "witch hunt" and criticized the investigation as a "complete and total political weaponization of law enforcement."

What is the special counsel investigating?

Smith, according to sources close to witnesses, is building a sprawling case focused on how Trump acted after he was informed by many of his allies — and especially his own lawyers — that claiming the election had been rigged could put him at legal risk.

Smith is also examining whether Trump criminally conspired to block congressional certification of the Electoral College votes by unlawfully applying what many of his attorneys told him was a baseless legal theory authored by constitutional scholar John Eastman as a means of asking then Vice President Mike Pence to not take steps to certify the election on Jan. 6, 2021, until further action was taken in several states.

At the same time, the special counsel is also probing how Trump pressured Republicans in states to consider sending alternate slates of electors declaring that he won Georgia and other states. Smith is also looking into any efforts by Trump to urge state officials and governors to make statements to make it seem like there was a basis for overturning Mr. Biden's victories in those states.

Former Trump attorney Rudy Giuliani's efforts to assist Trump with his election fraud claims have been extensively discussed in questioning of witnesses, and the special counsel is building and expanding a chronology of Trump's pressure campaign with more evidence, according to the sources.

Giuliani has not received a target letter, according to his attorney, Robert Costello. Attorneys for Eastman also said their client has not received a target letter.

Sources close to the investigation believe Trump occupies the center of Smith's investigation, as a driver and instigator, not as an accomplice, though possible charges against the former president are not yet clear. The focus on conspiracy and fraud, however, suggests where the special counsel could be leaning.

The special counsel's office has examined a meeting at the Oval Office on Dec. 18, 2020, where Trump talked about bringing in attorney Sidney Powell as special counsel at the White House and seizing voting machines by an executive order.

Earlier this month, CBS News' Robert Costa reported special counsel investigators are digging into whether Trump believed the fraudulent claims of election fraud raised at that meeting, weeks ahead of Jan. 6, even though White House lawyers told him in person that night — and after — the claims were not true.

Several members of Trump's inner circle have testified as part of the special counsel's probe, including former Vice President Mike Pence, White House counsel Pat Cipollone, national security adviser Robert O'Brien, top aide Stephen Miller and close ally Steve Bannon.

Georgia Secretary of State Brad Raffensperger, whom Trump asked in a phone call on Jan. 2, 2021, to "find" 11,780 votes — just enough to give Georgia's electoral votes to the former president — has also testified in the probe.

In addition to the attempts to "find" votes in Georgia, a group of phony electors from battleground states won by President Biden met in December 2020 and signed a certificate falsely declaring that Trump had won the presidential election in their states and that they themselves were the state's "duly elected and qualified" electors.

Ahead of the joint session of Congress on Jan. 6, 2021, Trump also publicly pressured Pence to "do the right thing" and refuse to accept the election results. At a rally near the White House ahead of the joint session, Trump encouraged followers to "walk down" to the Capitol to support him as Congress conducted the largely ceremonial affirmation of the Electoral College votes.

Thousands of Trump's supporters then stormed the Capitol, and lawmakers were sent fleeing amid the violence, delaying the certification of the election results for hours. Pence finally announced Mr. Biden as the winner of the election after 1 a.m. on Jan. 7.

Other investigations into Trump

Smith was appointed last November by Attorney General Merrick Garland to investigate not only the events surrounding the Jan. 6, 2021 attack on the U.S. Capitol but also Trump's handling of national defense-related documents since leaving office. In June, Trump and longtime aide Walt Nauta were charged with multiple federal felony counts related to the documents. Trump pleaded not guilty on June 13 to the 37 charges against him.

A special purpose grand jury in Fulton County, Georgia, earlier this year wrapped up its investigation into alleged attempts by Trump and his allies to overturn the 2020 presidential election results in Georgia. Fulton County District Attorney Fani Willis has said she will announce decisions on possible charges related to that investigation this summer.

Trump has also separately been charged in New York for allegedly falsifying business records in connection to a "hush money" payout to porn star Stormy Daniels. He pleaded not guilty in April to those state charges.

What is a target letter?

Target letters are sent by federal prosecutors to individuals to inform them of their status in a criminal investigation. The Justice Department defines a "target" as "a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant."

This differs from being the "subject" of an investigation — a person whose conduct is "within the scope of the grand jury's investigation."

Sending a target letter is often one of the final steps a prosecutor will take before charging a person with a federal crime.

A target letter can also be sent to an individual who is being required to testify before a grand jury.

[admin]

Part 1 of 2

Memorandum Opinion Denying Defendant's Rule 59 Motion
E. Jean Carroll vs. Donald Trump
Case No. 22-cv-10016 (LAK)
by Judge Lewis A. Kaplan
July 19, 2023

https://storage.courtlistener.com/recap ... 12.0_1.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

E. JEAN CARROLL,
Plaintiff,
-against-
DONALD J. TRUMP,
Defendant.

22-cv-10016 (LAK)

MEMORANDUM OPINION DENYING DEFENDANT’S RULE 59 MOTION

Appearances:

Roberta Kaplan
Joshua Matz
Shawn Crowley
Matthew Craig
Trevor Morrison
Michael Ferrara
KAPLAN HECKER & FINK LLP

Attorneys for Plaintiff

Joseph Tacopina
Matthew G. DeOreo
Chad Derek Seigel
TACOPINA SEIGEL & DEOREO, P.C.

Alina Habba
Michael T. Madaio
HABBA MADAIO & ASSOCIATES LLP

Attorneys for Defendant

LEWIS A. KAPLAN, District Judge.

In 2019, E. Jean Carroll first publicly claimed that businessman Donald J. Trump, as he then was, sexually assaulted (“raped”) her in the mid-1990s. Mr. Trump responded almost immediately by charging that Ms. Carroll’s claim was entirely false, that no such thing ever had happened, and that Ms. Carroll falsely accused Mr. Trump for ulterior and improper purposes. He repeated that contention in 2022 and yet again more recently. Ms. Carroll consequently sued Mr. Trump twice.

Ms. Carroll’s first lawsuit (“Carroll I”), commenced in 2019, alleges that Mr. Trump’s 2019 statements were defamatory. While that case was delayed for years for reasons that need not be recapitulated here, it now is scheduled for trial in January 2024.

This, the second case (“Carroll II”), also contains a defamation claim, albeit one based on Mr. Trump’s comparable 2022 statement. But Carroll II made an additional claim – one for damages for the sexual assault. That claim could not have been made in 2019 because the statute of limitations almost doubtless would have expired long before. But the claim was made possible in 2022 by the enactment that year of New York’s Adult Survivors Act (the “ASA”), which temporarily revived the ability of persons who were sexually assaulted as adults to sue their alleged assaulters despite the fact that an earlier statute of limitations had run out.

This case, Carroll II, was tried in April and May 2023. Ms. Carroll contended that Mr. Trump had assaulted her in a dressing room at a New York department store where, among other things, he forcibly penetrated her vagina with his fingers and his penis. She testified in person for most of three days and was cross-examined intensively. Her sexual assault claim was corroborated by two “outcry” witnesses in whom Ms. Carroll had confided shortly after the attack, and was supported by six other fact witnesses. Mr. Trump’s defense – based exclusively on an attempt to discredit Ms. Carroll and her other witnesses – in substance was that no assault ever had occurred, that he did not even know Ms. Carroll, and that her accusations were a “Hoax.” Mr. Trump, however, did not testify in person or even attend the trial despite ample opportunity to do so.

The jury’s unanimous verdict in Carroll II was almost entirely in favor of Ms. Carroll. The only point on which Ms. Carroll did not prevail was whether she had proved that Mr. Trump had “raped” her within the narrow, technical meaning of a particular section of the New York Penal Law – a section that provides that the label “rape” as used in criminal prosecutions in New York applies only to vaginal penetration by a penis. Forcible, unconsented-to penetration of the vagina or of other bodily orifices by fingers, other body parts, or other articles or materials is not called “rape” under the New York Penal Law. It instead is labeled “sexual abuse.”1

As is shown in the following notes, the definition of rape in the New York Penal Law is far narrower than the meaning of “rape” in common modern parlance, its definition in some dictionaries,2 in some federal and state criminal statutes,3 and elsewhere.4 The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.

So why does this matter? It matters because Mr. Trump now contends that the jury’s $2 million compensatory damages award for Ms. Carroll’s sexual assault claim was excessive because the jury concluded that he had not “raped” Ms. Carroll.5 Its verdict, he says, could have been based upon no more than “groping of [Ms. Carroll’s] breasts through clothing or similar conduct, which is a far cry from rape.”6 And while Mr. Trump is right that a $2 million award for such groping alone could well be regarded as excessive, that undermines rather than supports his argument. His argument is entirely unpersuasive.

This jury did not award Ms. Carroll more than $2 million for groping her breasts through her clothing, wrongful as that might have been. There was no evidence at all of such behavior. Instead, the proof convincingly established, and the jury implicitly found, that Mr. Trump deliberately and forcibly penetrated Ms. Carroll’s vagina with his fingers, causing immediate pain and long lasting emotional and psychological harm. Mr. Trump’s argument therefore ignores the bulk of the evidence at trial, misinterprets the jury’s verdict, and mistakenly focuses on the New York Penal Law definition of “rape” to the exclusion of the meaning of that word as it often is used in everyday life and of the evidence of what actually occurred between Ms. Carroll and Mr. Trump.

There is no basis for disturbing the jury’s sexual assault damages. And Mr. Trump’s arguments with respect to the defamation damages are no stronger.

Facts

The Evidence at Trial

Ms. Carroll’s case in chief constituted all of the evidence at trial. Mr. Trump neither testified nor called any witnesses. Apart from portions of his deposition that came in on Ms. Carroll’s case, there was no defense evidence at all. The defense consisted entirely of (1) an attempt to discredit Ms. Carroll’s proof on cross-examination, and (2) Mr. Trump’s testimony during his deposition that Ms. Carroll’s account of the alleged events at the department store was a hoax.

Sexual Battery

Liability

The principal evidence as to Mr. Trump’s liability for the sexual assault was the testimony of Ms. Carroll, of the two “outcry” witnesses and of two other women who claimed to have been sexually assaulted by Mr. Trump, the so-called Access Hollywood video, and Mr. Trump’s remarkable comments about that video during his deposition.

Ms. Carroll

In her first public accusation of sexual assault – “rape” – against Mr. Trump, which was published in June 2019 as an excerpt of her then-forthcoming book, Ms. Carroll described the assault in relevant part as follows:

“The moment the dressing-room door [(at Bergdorf Goodman, a department store in New York)] is closed, he lunges at me, pushes me against the wall, hitting my head quite badly, and puts his mouth against my lips. I am so shocked I shove him back and start laughing again. He seizes both my arms and pushes me up against the wall a second time, and, as I become aware of how large he is, he holds me against the wall with his shoulder and jams his hand under my coat dress and pulls down my tights. . . . The next moment, still wearing correct business attire, shirt, tie, suit jacket, overcoat, he opens the overcoat, unzips his pants, and, forcing his fingers around my private area, thrusts his penis halfway — or completely, I’m not certain — inside me. It turns into a colossal struggle.7

At trial, Ms. Carroll testified:

• “He [(Mr. Trump)] immediately shut the [(dressing room)] door and shoved me up against the wall and shoved me so hard my head banged.”

• “I pushed him back, and he thrust me back against the wall again, banging my head again.”

• “He put his shoulder against me and hold [sic] me against the wall.”

• “I remember him being -- he was very large, and his whole weight came against my chest and held me up there, and he leaned down and pulled down my tights.”

• “I was pushing him back. . . . I pushed him back. This arm was pinned down. This arm had my purse. Trying to get him back.”

• “His head was beside mine breathing. First, he put his mouth against me.”

• “[I was] [s]tamping and trying to wiggle out from under him. But he had pulled down my tights and his hand went -- his fingers went into my vagina, which was extremely painful, extremely painful. It was a horrible feeling because he curved, he put his hand inside of me and curved his finger. As I’m sitting here today, I can still feel it.”

• “Then he inserted his penis.”

• “He was against me, his whole shoulder -- I couldn’t see anything. I couldn’t see anything that was happening. But I could certainly feel it. I could certainly feel that pain in the finger jamming up.”8

After a day and a half of direct testimony, Ms. Carroll was subjected to a lengthy cross examination during which she testified:

“Q. It’s your story that at some point you felt his penis inside of you?

A. Yes.

Q. But before that, it’s your sworn testimony that you felt his fingers, what you said was rummaging around your vagina?

A. It’s an unforgettable feeling.

Q. Now, when you say rummaging around your vagina, that’s different than inserting a finger inside your vagina.

A. At first he rummaged around and then he put his finger inside me.

Q. In your book you wrote that he was forcing his fingers around my private area and then thrust his penis halfway completely, I’m not certain, inside me. Is that accurate?

A. Yes.”9

The Outcry Witnesses

Ms. Carroll confided in two of her friends, Lisa Birnbach and Carol Martin (the “outcry” witnesses), about the attack shortly after it occurred. Almost immediately after Ms. Carroll escaped from Mr. Trump and exited the store, she called Ms. Birnbach. Ms. Carroll testified that during that call:

“A. I said, you are not going to believe what just happened. I just needed to tell her. I said I met Donald Trump in Bergdorf’s. We went lingerie shopping and I was so dumb I walked in a dressing room and he pulled down my tights.”

. . .

Q. What else did you say?

A. Well, she asked me, she said, after she heard he had pulled down my tights, she asked me, did he insert his penis? I said yes. And then Lisa said the words: Probably why I called her. She said he raped you. He raped you, E. Jean. You should go to the police. I said: No way. Then she said: I will go with you.”10

The next day, or the day after that, Ms. Carroll told Ms. Martin about the attack. Ms. Carroll testified:

“I said [(to Ms. Martin)]: Carol, you are not going to believe it. I had a run-in with Donald Trump at Bergdorf’s. She said -- she saw my face. She said: We can’t talk here. We were back behind the studio. She said: Let’s talk tonight at my house.

. . .

I took her through step by step what happened. And Carol is a very unjudgmental, open-hearted friend. But she was -- she gave me the exact -- her concern was very different than Lisa’s. Carol’s concern was, do not go to the police.”11

Both Ms. Birnbach and Ms. Martin testified about their conversations with Ms. Carroll. Ms. Birnbach testified in relevant part:

“Q. What was the first thing that Ms. Carroll said when you picked up the phone?

A. She said, Lisa, you are not going to believe what happened to me.

. . .

Q. What did she say after she said, Lisa, you are not going to believe what just happened?

A. E. Jean said that she had, after work that day, she had gone to Bergdorf’s to look around, and she was on her way out -- and I believe it was a revolving door -- and she said on the other side of the glass from her going in, as she was going out, Donald Trump said to her, Hey, you’re the advice lady. And she said, You’re the real estate guy. And he said, You’re so good at advice, you are so smart, why don’t you help me pick out a present for a friend? So she thought she would, it sounded like a funny thing, this guy, who is famous. And she went back in the store and tried to, in my -- in my memory tried to show him things[.] . . . They went upstairs, eventually finding themselves in the lingerie department, and there was no one behind the counter but there was a little bodysuit --

. . .

Q. What did she say happened after they got to the lingerie department?

A. He said, Why don’t you try this on? And she, continuing sort of the jokey banter that they had, she said, Why don’t you try it on? And then the next thing that happened is they were both in the dressing room and he slammed her against the wall. And then, as she was trying to move, he -- he slammed his whole arm, pinned her against the wall with his arm and shoulders, and with his free hand pulled down her tights. And E. Jean said to me many times, He pulled down my tights. He pulled down my tights. Almost like she couldn’t believe it. She was still processing what had just happened to her. It had just happened to her. He pulled down my tights. And then he penetrated her.

Q. Did she say how he penetrated her?

A. Yes. She said with his penis.

Q. What did you say after Ms. Carroll described this to you?

A. As soon as she said that . . . and I said, I whispered, E. Jean, he raped you. . . . ”12

Two days later, Ms. Martin testified in pertinent part:

“Q. And what did she say -- again, taking this piece by piece, what did she say what happened?

A. She introduced it by saying, You won’t believe what happened to me the other night. As I recall. And I didn’t know what to expect and so, I just turned to her and she said, Trump attacked me.

. . .

Q. Now, Ms. Carroll says to you that Trump attacked me. Do you recall what you said next, if anything?

A. Yeah. I was completely floored. I didn’t quite know what was coming next. She is leaning in to me, and I’m saying, What are you talking about? But the next thing that came to my mind was if she was OK and that’s what I asked her. So I said, Are you OK? Because she seemed -- her affect was, I would say, anxious and excitable, but she could be that way sometimes but that part was different in her affect. But what she was saying didn’t make any sense at first.

Q. And when you asked her was she OK, did she respond?

A. She said -- she probably said I don’t know. She kept telling me what happened, that he attacked me. I think she said ‘pinned me’ is what she said and I still didn’t know what that meant.

Q. So, to the best of your recollection -- I understand it would be crazy if you could remember every word, but what did she tell you that day about what had happened to her at Bergdorf Goodman?

A. Basically, she backtracked. I kept asking her to backtrack. It wasn’t a linear conversation, as you would expect, because it was news, it was I didn’t know what I am hearing here, and she was clearly agitated, anxious. And she said she was at Bergdorf’s the night before -- probably two nights, if I recall -- and that she ran into Mr. Trump going in one of the revolving doors. And she said that they started up a conversation. My sense is that she engaged him, or vice versa, because that's not uncommon for E. Jean. He recognized her, she recognized him.

. . .

Q. And what else did she tell you about what happened once they were inside Bergdorf Goodman?

A. So, she related that they sort of started kibbitzing or talking back and forth, it was apparently friendly, and she said that he was looking for a gift. And so, she engaged him that way suggesting certain things. I don’t remember all of the things. But this must have gone on for a few minutes and then, somehow, they started up the stairs -- escalator, she said.

Q. And did she tell you what happened after they got off the escalator?

A. Yeah. And again, this was disjointed because I would stop and ask her, What do you mean? What do you mean? And she was explaining as she’s going that once they reached a level -- and I don’t know Bergdorf’s that well, but once they reached a level where there was -- there were dressing rooms, and she said at that point that he attacked her. Those were the words that I remember but I still said, What do you mean? You look OK. You look -- and she had been at work so I couldn’t put it together. And she didn't use the word ‘rape,’ that I recall. I have said that before. But she said it was a frenzy. She said, I was fighting. I was fighting. She kept saying that.”13

Other Alleged Survivors

The jury heard also from two other women who allegedly were sexually assaulted by Mr. Trump: Jessica Leeds and Natasha Stoynoff.14 Ms. Leeds claims she was seated beside Mr. Trump on a flight to New York in 1978 or 1979 when he allegedly assaulted her. She testified:

“A. Well, what happened was they served a meal, and it was a very nice meal, as Braniff was -- was -- reputation to do, and it was cleared and we were sitting there when all of a sudden Trump decided to kiss me and grope me.

Q. What led to that? Was there conversation?

A. There was no conversation. It was like out of the blue.

. . .

Q. What did you -- so describe, if you would, what he did exactly.

A. Well, it was like a tussle. He was -- his hands and -- he was trying to kiss me, he was trying to pull me towards him. He was grabbing my breasts, he was -- it’s like he had 40 zillion hands, and it was a tussling match between the two of us. And it was when he started putting his hand up my skirt that that kind of gave me a jolt of strength, and I managed to wiggle out of the seat and I went storming back to my seat in the coach.”15

On cross examination, she testified also:

“Q. And it is your story that after you were done eating, the flight attendant cleared your tray tables and this man suddenly attacked you?

A. Correct.

Q. It is your story this man grabbed you with his hands, tried to kiss you, grabbed your breasts, and pulled you towards him?

A. Correct.

Q. And pulled himself onto you?

A. It’s not -- no, not onto me but he was leaning-in to me, pushing me against the back of the seat.

Q. OK. And then according to you he, at one point, put his hand on your knee?

A. He started putting his hand up my skirt.

Q. OK, on your leg and up your skirt?

A. Correct.”16

Ms. Leeds confirmed that “if the man had just stuck with the upper part of [her] body, [she] might not have gotten that upset” and that “it is only when he eventually started putting his hands up [her] skirt that [she] said I don’t need this[.]”17 On re-direct she explained:

“Q. Why did you find it less upsetting when he had his hands above your skirt than when they went into your skirt, when his hand went into your skirt? A. That’s sort of the demarcations -- I mean, people -- men -- would frequently pat you on the shoulder and grab you or something like that and you just -- it is not serious and you don’t -- you don’t -- but when somebody starts to put their hand up your skirt, you know they’re serious and this is not good.”18

Ms. Stoynoff, then a reporter for a magazine, encountered Mr. Trump in 2005 at Mara- Lago, his residence in Florida, on an assignment to interview him and his wife, Melania. Ms. Stoynoff testified:

“Q. So where did you go with Mr. Trump after he said, I want to show you this room?

A. So we -- I followed him, and we went in through these back doors and down a hall, as I recall it, and turned right into a room.

Q. Who was with you at that point?

A. As I recall, just he and I.

Q. So what happened next?

A. So we -- we walked into a room, and I’m looking in this room, and I went in first and I’m looking around, I’m thinking, wow, really nice room, wonder what he wants to show me, and he -- I hear the door shut behind me. And by the time I turn around, he has his hands on my shoulders and he pushes me against the wall and starts kissing me, holding me against the wall.

Q. Was anyone else in the room at this time?

A. Nobody else.

Q. What did you -- how did you react?

A. I started -- I tried to push him away.

Q. Had you -- had anything been said up until that point when you walked into the room? Did he say anything or did you say anything?

A. No, not that I recall.

. . .

Q. So what -- I think you said you tried to shove him away. What happened?

A. He came toward me again, and I tried to shove him again.

Q. What was he doing sort of -- what was he doing with, let’s say, the rest of his face or body?

A. Well, he was kissing me and, you know, he was against me and just holding my shoulders back.

Q. Did you -- what, if anything, did you say while this was happening?

A. I didn’t say words. I couldn’t. I tried. I mean, I was just flustered and sort of shocked and I -- no words came out of me. I tried, though. I remember just sort of mumbling.

. . .

Q. How long -- do you recall how long that went on for?

A. A few minutes.

Q. How did it end?

A. A butler came into the room.

. . .

Q. How did Mr. Trump react when the butler came in?

A. He stopped doing what he was doing.

Q. Were you able to perceive whether the butler saw what had been happening?

A. I don’t know if he saw, but to my mind, I gave him a kind of a ‘get me out of here’ look, and I felt like he understood.

Q. So what happened, what happened next?

A. The butler led us back to the couch area, and Melania was on her way, and Trump said a few things to me.

Q. What did he say to you?

A. He said, Oh, you know we are going to have an affair, don’t you? You know, don’t forget what -- don’t forget what Marla said, best sex she ever had. We are going to go for steak, we are going to go to Peter Luger’s. We’re going to have an affair.

. . .

Q. . . . Before the butler came into the room, did Mr. Trump do anything to you that suggested he was going to stop on his own?

A. No.”19

The Access Hollywood Tape

The so-called Access Hollywood tape, a recorded exchange among Mr. Trump and others as they arrived for the shooting of a television episode that was broadcast nationwide repeatedly during the 2016 presidential campaign, was played twice for the jury.20 In that video, Mr. Trump stated that he previously had “moved on [a woman] like a bitch, but [he] couldn’t get there.” He said also in the following exchange:

Trump: “Maybe it’s a different one.”

Billy Bush: “It better not be the publicist. No, it’s, it’s her.”

Trump: “Yeah that’s her. With the gold. I better use some Tic Tacs just in case I start kissing her. You know I’m automatically attracted to beautiful -- I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it. You can do anything.”

Bush: “Whatever you want.”

Trump: “Grab them by the pussy. You can do anything.”

In the following excerpt of his deposition, which was played for the jury, Mr. Trump testified that:

“Q. And you say -- and again, this has become very famous -- in this video, ‘I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything, grab them by the pussy. You can do anything. That’s what you said; correct?”

A. Well, historically, that’s true with stars.

Q. True with stars that they can grab women by the pussy?

A. Well, that’s what -- if you look over the last million years, I guess that’s been largely true. Not always, but largely true. Unfortunately or fortunately.

Q. And you consider yourself to be a star?

A. I think you can say that, yeah.

Q. And -- now, you said before, a couple of minutes ago, that this was just locker room talk?

A. It’s locker room talk.

Q. And so does that mean that you didn’t really mean it?

A No. It’s locker room talk. I don’t know. It’s just the way people talk.”21

Damages for Sexual Assault (Battery) Claim

The damages evidence at trial consisted primarily of Ms. Carroll’s own testimony as well as the testimony of Dr. Leslie Lebowitz, a clinical psychologist with expertise in trauma and in sexual trauma who evaluated Ms. Carroll for this case. Dr. Lebowitz testified in detail on the psychological harm of the assault by Mr. Trump on Ms. Carroll. She explained that:

“There were three dominant ways that I felt that she [(Ms. Carroll)] had been harmed. She has suffered from painful, intrusive memories for many years; she endured a diminishment in how she thought and felt about herself; and, perhaps most prominently, she manifests very notable avoidance symptoms which have curtailed her romantic and intimate life and caused profound loss.”21

Dr. Lebowitz testified also that, although Ms. Carroll did not meet the full criteria to have been diagnosed with post-traumatic stress disorder (“PTSD”), Ms. Carroll exhibited symptoms in at least some of the four categories that are necessary for a diagnosis of PTSD, including “avoidance symptoms, . . . alterations in her thoughts and feelings about herself, and ... intrusions.”22 She explained that Ms. Carroll blamed herself for the assault and that the assault “made her feel like she was worth less than she had been before” and “[s]he felt degraded and diminished.”23 As an example of an intrusive memory, which Dr. Lebowitz defined as “when some part of the traumatic experience, either what it felt like or it felt like in your body or in your emotions, just pierces your consciousness and lands in the middle of your experience and essentially hijacks your attention,” Dr. Lebowitz testified that at one point during her interview with Ms. Carroll, she “began to squirm in her seat because she was actually reexperiencing Mr. Trump’s fingers inside of her, what she alleges to be Mr. Trump’s fingers inside of her.”24 She explained also Ms. Carroll’s comment that she felt she had died and somehow still was alive as a manifestation of “what it feels like psychologically” because “what rape does is it so violates that sense of humanity and independence and selfhood than people feel psychologically that they are being killed. They feel at risk. They feel like their personhood is being murdered . . . .”25 Dr. Lebowitz summarized the psychological impact of Mr. Trump’s assault on Ms. Carroll as follows:

“Because she was frightened and rendered helpless in a way that had never happened to her before and because she blamed herself and because the meaning of that event and the feelings associated with it were simply too big for her to cope with in her usual ways, it became a stuck point in her life, something that she had to walk around in her day-to-day basis; and, in doing that, in working so hard to stay away from those feelings of helplessness and vulnerability, she gave up one of the great sources of joy and connection in her life, which was the opportunity to be intimate with a man, and that was a huge loss for her.”26

Defamation

Liability

Most of the evidence of Mr. Trump’s liability for the defamation claim based on his 2022 statement was coextensive with the evidence of his liability for the sexual assault. The crux of Mr. Trump’s 2022 statement was that Ms. Carroll lied about him sexually assaulting her and that her entire accusation was a “Hoax” concocted to increase sales of her then-forthcoming book. To prove that Mr. Trump defamed her, Ms. Carroll needed to prove that his statement was false (i.e., not substantially true), that he knew the statement was false when he made it or acted in reckless disregard of whether or not it was true (actual malice), and that the statement tended to disparage Ms. Carroll in the way of her profession or expose her to hatred or contempt in the minds of a substantial number of people in the community.

The evidence that Mr. Trump sexually assaulted Ms. Carroll proved also the falsity of his statement, which contended that Ms. Carroll’s entire account – not any particular sexual act – was a fabrication. With respect to its defamatory import, in addition to showing the jury examples of Internet hate messages Ms. Carroll received from people she did not know, Ms. Carroll testified:

“Q. How, if at all, do you believe this statement affected your reputation?

A. I really thought I was gaining back a bit of ground. I thought, it’s starting to go and I felt, you know, happy that, you know, I was back on my feet, had garnered some readers, and feeling pretty good, and then, boom, he knocks me back down again.

. . .

Q. What, if any, I’ll call it sort of public response did you experience after Mr. Trump made his October 2022 statement?

A. It was not very nice.

Q. What do you recall?

A. Just a wave of slime. It was very seedy comments, very denigrating. Almost an endless stream of people repeating what Donald Trump says, I was a liar and I was in it for the money, can’t wait for the payoff, working for the democrats, over and over. But the main thing was way too ugly. It is very hard to get up in the morning and face the fact that you’re receiving these messages you are just too ugly to go on living, practically.”28

Ms. Carroll further testified that in comparison to the “tweets or messages [she] received after Mr. Trump made his first remarks in June of 2019,” the messages that came after October 2022 “were equally, equally disparaging and hurtful, but these particularly hurt because I thought I had made it through and here they are again.”29

In excerpts of Mr. Trump’s deposition that were played for the jury, Mr. Trump confirmed that he wrote the statement “all myself”30 and testified that:

“I still don’t know this woman. I think she’s a wack job. I have no idea. I don’t know anything about this woman other than what I read in stories and what I hear. I know nothing about her.”31

Damages for Defamation Claim

The damages evidence consisted primarily of Ms. Carroll’s testimony as to the harm she suffered, which is described above, plus the testimony of Professor Ashlee Humphreys with respect to a “reputation repair program” to correct the harm to Ms. Carroll’s reputation caused by Mr. Trump’s statement.

“ . . . [T]he nature of the work [(for Professor Humphreys)] was to look at a statement that was posted on social media and to understand the spread of that statement, how many people saw it, how broadly did it spread, then to look at the impact that statement might have had on Ms. Carroll’s reputation, if any, and finally to estimate, well, how much would it cost to repair that reputation.”32

Professor Humphreys testified about her process and various calculations. She used an “impression model” to determine approximately how many people saw Mr. Trump’s 2022 statement. She determined that across various forms of media, including on the Internet, social media, print media, and television, “the final estimate . . . was between 13.7 million and 18 million impressions,” which she explained likely “was an undercount.”33 She stated that “after June 2019 . . . of course there was a lot more volume of statements about her [(Ms. Carroll)] and they contained pretty negative associations including that she was a liar, the perpetrator of a scam, a hoax. Things like that.”34 With respect to Ms. Carroll’s reputation before and after the 2022 statement, she testified:

“So, what I noticed is that those meetings [sic] existed after June 2019, but the frequency of the posting with those associations had started to decline. However, after the statement on October 12th, the frequency of the negative associations, the volume of them again escalated.”35

Professor Humphreys accordingly “concluded that there was a relationship” between Mr. Trump’s 2022 statement and Ms. Carroll’s reputation “given the timing and the fact that they [(posts with negative associations)] were in kind of direct response to his [(Mr. Trump’s)] statement, as well as the particular language, words like ‘liar’ etc.”36 She looked at approximately how many people likely believed Mr. Trump’s statement, and determined that “between 3.7 million and 5.6 million people saw Mr. Trump’s statement and likely believed it.”37 Finally, she explained that to repair Ms. Carroll’s reputation, there would need to be “a campaign to put out positive message” about her (a “reputational repair campaign” or “reputation repair program”).38 In total, Professor Humphreys calculated that the cost of such a campaign to repair Ms. Carroll’s reputation on the low end would be $368,000 and on the high end would be $2.7 million.39

The Structure of the Verdict

Both parties submitted proposed “special verdict” forms to distribute to the jury. Pursuant to Federal Rule of Civil Procedure 49, which governs jury verdict forms and questions, “[t]he court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact.”40 A special verdict stands in contrast to a general verdict form, which typically asks jurors to answer only the ultimate questions of liability and the damages amounts, if any.

The Court here used a special verdict form that was substantially similar to the parties’ proposed forms, consisting of factual questions going to liability and damages, organized by the two claims. Neither party raised any objection to the Court’s verdict form nor demanded that any specific questions other than those on the special verdict form be submitted to the jury. In accordance with Rule 49, the Court “g[a]ve the instructions and explanations necessary to enable the jury to make its findings on each submitted issue” contained in the verdict form.41 Accordingly, the meaning of the jury’s answers to each question on the verdict form depends upon the instructions given as to what it had to conclude in order to answer the questions.

Sexual Battery Instructions

The liability questions for Ms. Carroll’s sexual battery claim were whether Ms. Carroll proved by a preponderance of the evidence that (1) “Mr. Trump raped Ms. Carroll?”, (2) “Mr. Trump sexually abused Ms. Carroll?”, (3) “Mr. Trump forcibly touched Ms. Carroll?”.42 These three theories of liability (rape, sexual abuse, and forcible touching) were the same three proposed by both parties. As the Court instructed the jury:

“Ms. Carroll claims that Mr. Trump is liable to her for battery on three different and alternative bases, each of which corresponds to a criminal law definition of a different sex crime. Mr. Trump denies that he is liable to her for battery on any of these three different and alternative bases. . . . Accordingly, the first set of questions in the verdict form has to do with whether or not Ms. Carroll has established that Mr. Trump’s conduct, if any, came within any of those criminal law definitions.”43

The Court then instructed the jury on the definitions of the three different sex crimes.

On the first question – whether Ms. Carroll proved that Mr. Trump “raped” her – the Court instructed the jury in accordance with the New York Penal Law’s definition of rape:44

“In order to establish that Mr. Trump raped her, Ms. Carroll must prove each of two elements by a preponderance of the evidence.

The first element is that Mr. Trump engaged in sexual intercourse with her.

The second element is that Mr. Trump did so without Ms. Carroll’s consent by the use of forcible compulsion. . . .

‘Sexual intercourse’ means any penetration, however slight, of the penis into the vaginal opening. In other words, any penetration of the penis into the vaginal opening, regardless of the distance of penetration, constitutes an act of sexual intercourse. Sexual intercourse does not necessarily require erection of the penis, emission, or an orgasm.

. . .

I also used the phrase ‘forcible compulsion,’ and what that means is intentionally to compel by the use of physical force.

. . .

If you find that Ms. Carroll has proved by a preponderance of the evidence both of those two elements, you will answer Question 1 ‘yes.’ If you answer Question 1 ‘yes,’ I instruct you that Mr. Trump thus committed battery against Ms. Carroll. There would be no need to consider whether he committed battery on either of the other two alternative bases. . . . If you find that Ms. Carroll has not proven either of the two elements of rape by a preponderance of the evidence, you must answer ‘no’ to Question 1 and go on to Question 2, which deals with the second of the three alternative bases for the battery claim.”45

Thus, the instructions required the jury to answer Question 1 “No” unless it found that Ms. Carroll had proved that Mr. Trump penetrated her vagina with his penis. Penetration by any other body part did not suffice.

With respect to the second question, whether Ms. Carroll proved that Mr. Trump “sexually abused” her within the meaning of the New York Penal Law, the Court instructed the jury:

“The second theory of battery corresponds to something called sexual abuse. Sexual abuse has two elements. In order to establish that Mr. Trump sexually abused her, Ms. Carroll must prove each of two elements by a preponderance of the evidence.

The first element is that Mr. Trump subjected Ms. Carroll to sexual contact.

The second element is that he did so without Ms. Carroll's consent by the use of forcible compulsion.

. . . Sexual contact for this purpose means any touching of the sexual or other intimate parts of a person for the purpose of gratifying the sexual desire of either person. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, and the touching may be either directly or through clothing.

. . . For this purpose, a ‘sexual part’ is an organ of human reproduction. So far as intimate part is concerned, the law does not specifically define which parts of the body are intimate. Intimacy, moreover, is a function of behavior and not just anatomy. Therefore, if any touching occurred, the manner and circumstances of the touching may inform your determination whether Mr. Trump touched any of Ms. Carroll's intimate parts. You should apply your common sense to determine whether, under general societal norms and considering all the circumstances, any area or areas that Mr. Trump touched, if he touched any, were sufficiently personal or private that it would not have been touched in the absence of a close relationship between the parties.

. . .

If you find that Ms. Carroll has proved by a preponderance of the evidence both of the two elements that I just referred to, the two elements of sexual abuse, then you will answer ‘yes’ to Question 2. If you answer yes to Question 2, I instruct you that Mr. Trump thus committed battery against Ms. Carroll. There would be no need to consider whether he committed battery on the third alternative test. . . . If you find that Ms. Kaplan [sic] has not proven either of the two elements of sexual abuse by a preponderance of the evidence, you must answer ‘no’ to Question 2 and proceed to Question 3, which deals with the third of the three alternative bases for the battery claim.”46

Questions 4 and 5 dealt with compensatory and punitive damages, respectively, for Ms. Carroll’s battery claim. Question 4 asked whether Ms. Carroll proved that she was injured as a result of Mr. Trump’s conduct, and if so, to insert a dollar amount that would fairly and adequately compensate her for that injury or those injuries. The Court instructed the jury:

“My instructions to you on the law of damages should not be taken by you as a hint that you should find for the plaintiff. That is for you to decide by answering the questions I have put to you based on the evidence presented. But if you answer ‘yes’ to any of Question 1, Question 2, or Question 3, you will have determined that Ms. Carroll has prevailed on her claim of battery. In that event, it will be your task to determine from the evidence a dollar amount, if any, that would justly and adequately compensate Ms. Carroll for any physical injury, pain and suffering, and mental anguish, as well as emotional distress, fear, personal humiliation, and indignation that she has suffered, or will suffer in the future, as a result of Mr. Trump's alleged rape, sexual abuse, or forcible touching as the case may be.

You may award damages only for those injuries that you find Ms. Carroll has proved by a preponderance of the evidence. Compensatory damages may not be based on speculation or sympathy. They must be based on the evidence presented at trial and only on that evidence.

Now, if you answer ‘yes’ to Question 4 . . . she [(Ms. Carroll)] would be entitled to a dollar amount to compensate her adequately and fairly for any physical injury, pain and suffering, mental anguish, emotional distress, and the other things I just mentioned a moment ago, that she suffered by virtue of Mr. Trump's alleged battery, in other words, his alleged rape, sexual abuse, or forcible touching, as the case may be. Damages may be awarded based on a plaintiff's subjective testimony of pain, but the plaintiff's proof must satisfactorily establish that the injury is more than minimal.”47

Thus, if the jury found that Mr. Trump penetrated Ms. Carroll’s vagina with his fingers, it was obliged to answer Question 2 “Yes” assuming the other element was satisfied.

Defamation Instructions

The factual questions for the defamation liability issue were (1) whether Ms. Carroll proved by a preponderance of the evidence that Mr. Trump’s statement was defamatory and (2) whether Ms. Carroll proved by clear and convincing evidence his statement was (a) false and (b) made with actual malice. As relevant to Mr. Trump’s arguments in this motion, the Court instructed the jury that:

“Question 7, as you see on the verdict form, asks whether Ms. Carroll has proved by something called clear and convincing evidence that Mr. Trump’s statement was false. . . . A statement is false if it is not substantially true. You will determine from the evidence presented what the truth was and then compare that with Mr. Trump’s October 12 statement, taking that statement according to its ordinary meaning, the ordinary meaning of its words.

As you probably already have guessed, whether Mr. Trump’s statement is false or true depends largely or entirely on whether you find that Mr. Trump raped or sexually abused or forcibly touched or otherwise sexually attacked Ms. Carroll. . . .

Question 8, in substance, asks you to determine whether Ms. Carroll has proved by clear and convincing evidence that Mr. Trump made the statement with what the law calls actual malice. Actual malice for this purpose . . . means that Mr. Trump made the statement knowing that it was false or acted in reckless disregard of whether or not it was true. Reckless disregard means that when he made the October 12 statement, he had serious doubts as to the truth of the statement or made the statement with a high degree of awareness that it was probably false. So Question 8 asks you to decide whether Ms. Carroll proved by clear and convincing evidence that Mr. Trump, when he made his October 12 statement, knew that it was false, had serious doubts as to its truth, or had a high degree of awareness that the statement probably was false.”48

The question on compensatory damages was broken down into several parts. First, it asked whether Ms. Carroll proved by a preponderance of the evidence that Ms. Carroll was injured as a result of Mr. Trump’s publication of the October 12, 2022 statement. If so, it asked that the jury (1) insert a dollar amount for any damages other than the reputation repair program, and (2) insert a dollar amount for any damages for the reputation repair program only. The Court instructed the jury that:

“In the event Mr. Trump is liable for defamation, you will award an amount that, in the exercise of your good judgment and common sense, you decide is fair and just compensation for the injury to the plaintiff’s reputation and the humiliation and mental anguish in her public and private life which you decide was caused by the defendant’s statement. In fixing that amount, if you fix one, you should consider the plaintiff’s standing in the community, the nature of Mr. Trump’s statement made about Ms. Carroll, the extent to which the statement was circulated, the tendency of the statement to injure a person such as Ms. Carroll, and all of the other facts and circumstances in the case. These damages can’t be proved with mathematical certainty. Fair compensation may vary, ranging from one dollar, if you decide that there was no injury, to a substantial sum if you decide that there was substantial injury.

Now, in this case, Question 9, I have divided the damages determination into two parts . . . . The first part of Question 9, right at the top, the yes/no question asks you to decide whether Ms. Carroll has proved by a preponderance of the evidence that she was injured in any of the respects I just described. . . . If the answer is ‘yes,’ you first will fill in the amount you award for all defamation damages, excluding the reputation repair program. You will leave that out if you put in a figure in the first blank. That was of course the testimony of Professor Humphreys. Second, you will fill in the amount, if any, that you award for the reputation repair program only.”49

The last question on the form, on punitive damages for the defamation claim, asked whether in making the 2022 statement, Mr. Trump acted maliciously, out of hatred, ill will, spite or wanton, reckless, or willful disregard of the rights of another. If so, it asked how much, if any, Mr. Trump should pay to Ms. Carroll in punitive damages. The Court instructed the jury:

“In addition to the claim for punitive damages for the defamation, Ms. Carroll asks also that you award punitive damages for the defamation. Similar to my earlier instructions to you regarding punitive damages on the battery claim, punitive damages in relation to a libel claim – the defamation claim – may be awarded to punish a defendant who has acted maliciously and to discourage others from doing the same. Now, this is where that difference between ‘actual malice,’ which I already talked about, and ‘malice’ or ‘maliciously’ comes into play. . . . A statement is made with malice or it’s made maliciously for the purpose of Question 10 if it’s made with deliberate intent to injure or made out of hatred or ill will or spite or made with willful or wanton or reckless disregard of another’s rights.

If you answer ‘yes’ to the first part of Question 10 – in other words, if you find that Mr. Trump acted with malice, as I have just defined that term for you, in making the October 12 statement about Ms. Carroll – you will write down an amount, if any, that you find Mr. Trump should pay to Ms. Carroll in punitive damages for the defamation. If you answer ‘no’ to that first part of Question 10 – that is, you find that Mr. Trump’s statement was not made maliciously – you may not award punitive damages. . . .

In arriving at your decision as to the amount of punitive damages, you should consider here with respect to the defamation punitive damage claim:

The nature and reprehensibility of what Mr. Trump did if he defamed her; that would include the character of the wrongdoing and Mr. Trump’s awareness of what harm the conduct caused or was likely to cause. In considering the amount of punitive damages to award, you should weigh that factor heavily;

You should consider the actual and potential harm created by Mr. Trump’s conduct; and

You should consider Mr. Trump’s financial condition and the impact of your award of punitive damages, if any, on Mr. Trump.”50

This concluded the Court’s substantive instructions on the law, as relevant to Mr. Trump’s motion.

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Part 2 of 2

The Jury’s Decision

In accordance with the Court’s instructions, which the jury is presumed to have followed,51 the jury made the following explicit findings based on its answers to the verdict form. On the sexual battery claim, the jury found that:

• Mr. Trump sexually abused Ms. Carroll.

• Mr. Trump injured her in doing so.

• “Mr. Trump’s conduct was willfully or wantonly negligent, reckless, or done with a conscious disregard of the rights of Ms. Carroll, or was so reckless as to amount to such disregard”.50

• Ms. Carroll was entitled to compensatory and punitive damages on the sexual battery claim of $2.02 million ($2 million in compensatory damages and $20,000 in punitive damages).

On the defamation claim, it found that:

• Mr. Trump’s October 12, 2022 statement was defamatory and false (i.e., “not substantially true”).

• Mr. Trump made that statement “with actual malice” – that is, that when he made the statement, Mr. Trump “knew that it was false”,“had serious doubts as to its truth”, or “had a high degree of awareness that the statement probably was false.”51

• “Ms. Carroll was injured as a result of Mr. Trump’s publication of the October 12, 2022 statement.”52

• “Mr. Trump acted maliciously, out of hatred, ill will, spite or wanton, reckless, or willful disregard of the rights of another.”53

• Ms. Carroll was entitled to $2.98 million in compensatory and punitive damages on the defamation claim relating to the October 12, 2022 statement ($1.7 million in compensatory damages for the “reputation repair program” only, $1 million in compensatory damages for damages other than the reputation repair program, and $280,000 in punitive damages).

Discussion

Mr. Trump’s motion is addressed only to the jury’s damages awards, specifically its compensatory damages award for Ms. Carroll’s sexual battery claim, and its compensatory and punitive damages awards for the defamation claim. He does not challenge the Court’s instructions or the jury’s liability verdict. All of his arguments are unpersuasive.

The Legal Standard

A “trial judge enjoys ‘discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence,’ and . . . ‘[t]his discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner’s refusal to agree to a reduction (remittitur).’”56 “In considering motions for a new trial and/or remittitur, ‘[t]he role of the district court is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered.’”57

“Ordinarily, a court should not grant a new trial ‘unless it is convinced that the jury has reached a seriously erroneous result or . . . the verdict is a miscarriage of justice.’ . . . Nevertheless, the standard for granting a new trial under Rule 59 is less stringent than the standard under Rule 50.”58 Specifically, unlike the standard on a Rule 50 motion, on a Rule 59 motion: “(1) a new trial . . . may be granted even if there is substantial evidence supporting the jury’s verdict, and (2) a trial judge is free to weigh the evidence himself, and need not view it in the light most favorable to the verdict winner.”59 “A court considering a Rule 59 motion for a new trial must bear in mind, however, that the court should only grant such a motion when the jury’s verdict is egregious. Accordingly, a court should rarely disturb a jury’s evaluation of a witness’s credibility.”60

With respect to determining whether the jury’s damages awards come within the confines of state law, “[ u]nder New York law, a court ‘shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.’”61 “To determine whether a jury award is excessive within the meaning of [New York Civil Practice Law and Rules] § 5501(c), New York courts compare it with awards in similar cases.”62 The relevant standard “is not whether an award deviates at all from past awards – it is whether an award deviates materially from reasonable compensation.”63

Compensatory Damages - Sexual Battery Claim

Mr. Trump Digitally and Forcibly Penetrated Ms. Carroll’s Vagina

Mr. Trump argues that the Court should grant a new trial or remittitur with respect to the jury’s award of compensatory damages for Ms. Carroll’s sexual battery claim chiefly on the ground that “the [j]ury found that [Ms. Carroll] was not raped but was sexually abused by [Mr. Trump] during the 1995/96 Bergdorf Goodman incident.”64 According to Mr. Trump, “[s]uch abuse could have included groping of Plaintiff’s breasts through clothing or similar conduct, which is a far cry from rape. Therefore, an award of $2 million for such conduct, which admittedly did not cause any diagnosed mental injury to Plaintiff, is grossly excessive under the applicable case law.”65 Mr. Trump’s argument is incorrect at every step.

First, the definition of “rape” in the New York Penal Law – which the jury was obliged to apply in responding to Question 1 on the verdict form – requires forcible penetration of the victim’s vagina by the accused’s penis.66 Accordingly, the jury’s negative answer to Question 1 means only that the jury was unpersuaded that Mr. Trump’s penis penetrated Ms. Carroll’s vagina. It does not mean that he did not forcibly insert his fingers into her – that he “raped” her in the broader sense of that word which, as discussed above, includes any penetration by any part of an accused’s body (including a finger or fingers) or any other object.67

Second, Mr. Trump’s argument ignores the fact that the verdict in this case was a special verdict governed by Rule 49 of the Federal Rules of Civil Procedure. The form of the verdict, including the fact that it did not ask the jury to decide exactly what conduct Mr. Trump committed in the event it found for Ms. Carroll as to sexual abuse – was approved by Mr. Trump as well as by Ms. Carroll.68 In these circumstances,

“A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict.”69

Neither party made any such demand here. So the jury (or the Court) is deemed to have made a finding in accord with the judgment on the special verdict unless the Court makes a contrary finding.70 In other words, the jury is deemed to have found that the specific conduct in which Mr. Trump actually engaged was such that the damages award was justified provided the evidence permitted such a finding.71 And for reasons discussed in greater detail below, the evidence of the attack generally coupled with forcible digital penetration of Ms. Carroll justified the damages awarded regardless of the jury’s finding adverse to Ms. Carroll on the New York Penal Law rape question.

Ms. Carroll testified that the sexual assault – the “rape” – of which she accused Mr. Trump involved especially painful, forced digital penetration, which as recounted above she described graphically and emphatically to the jury. The testimony of the outcry witnesses, Mss. Birnbach and Martin, corroborated the essence of Ms. Carroll’s account of a violent, traumatic sexual assault. Ms. Leeds’s testimony that Mr. Trump attacked her, culminating in putting his hand on her leg and up her skirt, suggests that Mr. Trump has a propensity for attempting forcibly to get his hands on and into women’s sexual organs. Mr. Trump’s own words from the Access Hollywood tape and from his deposition – that (a) stars “[ u]nfortunately or fortunately” “c[ould] do anything” they wished to do to women, including “grab[bing] them by the pussy” and (b) he considers himself to be a “star” – could have been regarded by the jury as a sort of personal confession as to his behavior. Thus, there was ample, arguably overwhelming evidence, that Mr. Trump forcibly digitally penetrated Ms. Carroll, thus fully supporting the jury’s sexual abuse finding.

Mr. Trump’s attempt to minimize the sexual abuse finding as perhaps resting on nothing more than groping of Ms. Carroll’s breasts through her clothing is frivolous. There was no evidence whatever that Mr. Trump groped Ms. Carroll’s breasts, through her clothing or otherwise. The only evidence of bodily contact between Mr. Trump and Ms. Carroll other than the digital and alleged penile penetration was Ms. Carroll’s testimony that Mr. Trump (a) “shoved” and “thrust” her against the wall, (b) “put his shoulder against [her] and h[eld] [her] against the wall,” (c) “his whole weight came against [her] chest and held [her] up there,” (d) he “pulled down [her] tights,” (e) her “arm was pinned down” while she pushed him back, and (f) “he put his mouth against [hers].” The jury was instructed that one of the essential elements of sexual abuse under the New York Penal Law is “sexual contact,” defined as “touching of the sexual or intimate parts.” None of these actions, other than putting his mouth against hers and perhaps pulling down her tights, was sexual contact.72 The jury’s finding of sexual abuse therefore necessarily implies that it found that Mr. Trump forcibly penetrated her vagina. And since the jury’s answer to Question 1 demonstrates that it was unconvinced that there was penile penetration, the only remaining conclusion is that it found that Mr. Trump forcibly penetrated her vagina with his fingers – in other words, that he “raped” her in the sense of that term broader than the New York Penal Law definition. And this conclusion is fully supported by Ms. Carroll’s repeated and clear testimony on the digital penetration (more than the penile penetration), Dr. Lebowitz specifically mentioning Ms. Carroll squirming in response to an intrusive memory of Mr. Trump’s fingers in her vagina, and the evidence at trial taken as a whole. It also is bolstered by the amount of the jury’s verdict.

The Jury’s $2 Million Damages Award Is Not Excessive

The trial evidence of the harm to Ms. Carroll as a result of being assaulted and digitally raped supports the jury’s $2 million award as reasonable compensation for her pain and suffering. Ms. Carroll testified in detail with respect to the physical, emotional, and psychological injury she suffered after the incident with Mr. Trump. She expressed that in “the seconds, the minutes following [the assault] . . . my overwhelming thought was I had died and was somehow still alive.”73 She testified that when she called Ms. Birnbach immediately after the assault, “I had not processed it. I had not processed what was going on. I felt the hand jammed, and I felt the back of my head hurting.”74 The night of the assault, she testified “[m]y head hurt, my vagina felt pain ... .”75 In relation to the specific act of being digitally raped, Ms. Carroll testified that it was “extremely painful,” “a horrible feeling,” “unforgettable,” and that the day after the assault she “felt [her] vagina still hurt from his fingers.”76 She testified also about not being able to maintain a romantic relationship or have sex for the past two decades since the “very violent” incident with Mr. Trump and about experiencing “visions” or “sudden intrusions” which she has “had . . . ever since the attack” and that “would absolutely take over [her] brain.”77 These visions included her “feel[ing] Donald Trump again on top of [her] . . . [she] thought for a minute [she] was going to die because [she] couldn’t breathe” and while going about her day “in would slide just a picture of him going like this into the dressing room or hitting [her] head or feeling his fingers jammed up inside of [her].”78 Ms. Carroll’s testimony and Dr. Lebowitz’s testimony, which is summarized above, of the long-lasting emotional and psychological trauma that Ms. Carroll experienced as a result of the incident with Mr. Trump demonstrate that the jury’s $2 million award was motivated not by sympathy, but by competent evidence of harm to Ms. Carroll.

In view of the jury’s implicit finding that Mr. Trump digitally raped Ms. Carroll, Mr. Trump’s argument and references to examples of damages awards “in the ‘low six-figure range’” where a plaintiff’s “intimate parts were groped by a defendant” plainly are irrelevant.79 Many of the cases Mr. Trump cites are distinguishable also for the reasons identified by Ms. Carroll.80 To be sure, there are New York cases in which plaintiffs who were sexually assaulted and/or raped were awarded lower damages than was Ms. Carroll.81 There also, however, are cases with facts and injuries comparable to those here in which plaintiffs were awarded similar or higher compensatory damages.82 “Although a review of comparable cases is appropriate,” the Court “need not average the high and low awards; [it may] focus instead on whether the verdict lies within the reasonable range.”83 It accordingly suffices for present purposes that the jury’s award of $2 million falls within a reasonable range of the amounts awarded to plaintiffs in comparable sexual assault and rape cases.

In these circumstances, and based on all of the evidence presented at trial, the jury’s compensatory damages award to Ms. Carroll for her sexual battery claim did not deviate materially from reasonable compensation so as to make it excessive under New York law.

Compensatory Damages - Defamation Claim

Mr. Trump argues that “the general compensatory damages for the defamation claim should be no more than $100,000, and no more than $368,000 (the low estimate provided by Professor Humphreys) for the reputation repair campaign.”84 He contends that the jury’s awards should be reduced to these amounts because “the jury awards in this case for these categories of damages were speculative and based upon alleged harms caused by the June 2019 statements.”85 He makes eleven specific arguments, at least seven of which are based on challenges to the testimony of Professor Humphreys, Ms. Carroll’s defamation damages expert. None ultimately is persuasive.

Professor Humphreys’s Testimony

Mr. Trump makes the following challenges to Professor Humphreys’s testimony:

1. “Professor Humphreys testified about the purported harm arising from the June 2019 Statements and even compared Plaintiff’s reputation before the June 2019 Statements and after the October 12, 2022 Statement, but did not do a comparison between her reputational harm before and after the October 12, 2022 Statement. . . . Therefore, Professor Humphreys must have included the alleged harm from the June 2019 Statements as part of her damages analysis.”

2. “Professor Humphreys testified that she could not narrow her estimate as to how many times the October 12, 2022 Statement was viewed on Truth Social [(Mr. Trump’s social media platform)] and Twitter to anything more specific than somewhere ‘between 1.5 million and 5.7 million times,’ which is an error rate of 74%. . . . Such an analysis is thus pure speculation.”

3. “Professor Humphreys testified that the people who read and believed the October 12, 2022 Statement were ‘republicans [who] typically believe Mr. Trump.’ . . . Consequently, Professor Humphreys did not take into consideration the fact that Trump’s supporters likely would never have supported or believed Plaintiff regardless of the October 12, 2022 Statement, and that Plaintiff’s reputation with such supporters would not have changed due to such statement.”

4. “Professor Humphreys testified that in order to repair Plaintiff’s reputation with such Trump supporters, Plaintiff would have to pay for the cost of a reputation repair campaign, which is ‘a campaign to put out positive messages about’ Plaintiff. . . . However, Professor Humphreys did not explain how existing Trump supporters would have changed their minds about Plaintiff from merely seeing positive messages about Plaintiff. Professor Humphreys also testified that she has never done a reputation repair campaign before, and thus, her opinion on this issue should be given little weight.”

5. “Professor Humphreys testified that (a) the June 2019 Statements already existed as of the October 12, 2022 Statement, and that readers of the June 2019 Statements likely would not have changed their minds about the rape allegation after reading the October 12, 2022 Statement . . . and (b) she does not know if the people who believed the October 12, 2022 Statement had already made up their minds about Plaintiffs rape allegation from reading the June 2019 Statements. . . . Therefore, Professor Humphreys’s testimony about changing the minds of Trump supporters (the target of the reputation repair campaign) is pure speculation. Additionally, her testimony only supports the argument that the October 2022 Statement did not cause Plaintiff any harm in addition to any harm that was caused by the June 2019 Statements, because people already had made up their minds as to the veracity of Plaintiffs accusations as of the June 2019 Statements.”

6. “Professor Humphreys’s cost estimate for such a campaign was equally based upon pure conjecture in that she estimated that it would cost anywhere from $368,000 to $2.7 million . . . , which is an error rate of 86 percent. This is especially troublesome since Professor Humphreys testified that she has never done a reputation repair campaign before.”

7. “Professor Humphreys also testified that she did not analyze any of Plaintiffs numerous media appearances where Plaintiff enhanced her reputation with regard to her allegations against Defendant. . . . In fact, Plaintiff conceded that she received a vast amount of positive support from the public after making her accusation against Defendant. . . . Even though Professor Humphreys admitted that Plaintiff received positive support from the public after the rape allegation, she did not factor such support into her analysis of the harm allegedly caused by the October 12, 2022 Statement. . . . Accordingly, her analysis of reputational harm is pure speculation.”86

Ms. Carroll points out that Mr. Trump’s arguments concerning Professor Humphreys “get at the core of Professor Humphreys’s reliability as an expert, something Trump could have challenged under Federal Rule of Evidence 702 [(which governs the admissibility of expert testimony)] or raised on cross-examination.”87 His failure to do so, she contends, waived his present complaints. Mr. Trump counters, however, that his challenges are timely because they go to the weight, not the admissibility, of Professor Humphreys’s testimony and because he preserved the issues by raising them on cross examination at trial.88 Thus, there is a threshold question with respect to whether Mr. Trump waived those arguments in relation to Professor Humphreys’s testimony by failing to raise them previously, as a Rule 59 motion generally is not a proper vehicle to raise new arguments or legal theories.89

On reflection, the Court concludes that Mr. Trump’s arguments listed above go primarily to the weight, rather than the admissibility, of Professor Humphreys’s testimony. “Generally, arguments that the assumptions relied on by an expert are unfounded go to the weight rather than the admissibility of the evidence.”90 Most of Mr. Trump’s arguments concern certain assumptions Professor Humphreys made or did not make in forming her expert opinion (e.g., whether she included the alleged harm from the 2019 statements in her analysis, whether and how she considered Mr. Trump’s supporters who viewed his 2022 statement, and whether she took into account Ms. Carroll’s media appearances). The Court therefore considers Mr. Trump’s challenges to Professor Humphreys’s testimony as having been timely raised.91 Nevertheless, Mr. Trump’s arguments are unavailing on the merits.

His contention that Professor Humphreys “did not do a comparison between [Ms. Carroll’s] reputational harm before and after the October 12, 2022 Statement” and she therefore “must have included the alleged harm from the June 2019 Statements as part of her damages analysis” is contradicted by the record. Professor Humphreys testified that in her analysis, although she “noticed . . . that those meetings [(public statements of negative associations with Ms. Carroll)] existed after June 2019, . . . the frequency of the posting with those associations had started to decline. However, after the statement on October 12th, the frequency of the negative associations, the volume of them again escalated.”92 She testified also that she “only looked at the reputational harm from the October 12[, 2022] statement” and that the cost she estimated to repair Ms. Carroll’s reputation following Mr. Trump’s 2019 statements – the subject of Carroll I – was “higher” than the cost she estimated to repair Ms. Carroll’s reputation following the 2022 statement.93 Moreover, to remove any doubt, the Court specifically instructed the jury that “the question of whether there was any adverse effect by virtue of the 2019 statements and, if there was, how much adverse effect is not at issue in this case. It is not for you to determine.”94 There accordingly is no basis to assume that the jury award for the 2022 statement improperly included damages for the 2019 statements.

Mr. Trump’s remaining challenges to Professor Humphreys’s testimony similarly fail to support his argument for a new trial on or a reduction in the damages. Professor Humphreys’s testimony was not “pure speculation” because she “did not analyze any of Plaintiffs numerous media appearances where Plaintiff enhanced her reputation with regard to her allegations against Defendant.” Professor Humphreys testified that “in terms of reputation,” the “positive responses or comments [do not] offset negative responses.”95 She explained: “if you imagine, like, at the place where you work, if 20 percent of your colleagues think that you stole money where you work, let’s say you have a hundred colleagues and 20 of them think that you stole money, that still has an impact on your work life and your day-to-day reputation, and so I think that 20 percent is still important.”96

Nor are his arguments that Professor Humphreys “did not take into consideration the fact that Trump’s supporters [who read and believed the 2022 statement] likely would never have supported or believed Plaintiff regardless of the [2022 statement]” and “did not explain how existing Trump supporters [or people who had made up their minds already based on the 2019 statements] would have changed their minds about Plaintiff” through her proposed reputation repair program grounds to minimize the weight of her testimony. Mr. Trump’s counsel cross examined Professor Humphreys on these points. Professor Humphreys explained that in her view, it is “very likely that [the 2022 statement] was seen by some new people.”97

The jury considered all of Professor Humphreys’s testimony, including the purported flaws Mr. Trump’s counsel attempted to draw out on cross examination and in summation, and determined that her testimony still was worthy of sufficient weight to reach the $1.7 million it awarded for the reputation repair program. None of Mr. Trump’s challenges to that testimony, considered separately or collectively, supports a determination that the jury’s compensatory damages award was seriously erroneous, egregious, or against the weight of the evidence.

Mr. Trump’s Other Arguments and Awards in Comparable Defamation Cases

Mr. Trump’s other objections to the jury’s compensatory damages award for Ms. Carroll’s defamation claim are without merit. He contends that the jury’s award was excessive because:

“[T]he overall essence of Plaintiff’s defamation claim was that Defendant allegedly defamed Plaintiff when he denied her rape allegation. . . . [T]he Jury found that Defendant did not rape Plaintiff, and thus, the portions of the defamation claim based upon an alleged rape failed. Accordingly, all that was left of Plaintiff’s defamation claim was that Defendant defamed Plaintiff by stating that ‘he has no idea who Carroll was[,]’ . . . which is far less damaging to Plaintiff’s reputation than accusing Plaintiff of lying about the alleged rape.”98

His argument is grounded entirely on false premises.

The crux of Ms. Carroll’s defamation claim was that Mr. Trump defamed her by stating that she lied about him sexually assaulting her in order to increase sales of her new book or for other inappropriate purposes. Her claim, as noted above, never was limited to the specific definition of “rape” in the New York Penal Law, which requires penile penetration. Nor was any specific “portion[] of the defamation claim based upon an alleged rape.” Mr. Trump did not deny specifically “raping” Ms. Carroll or specifically penetrating her with his penis as opposed to with another body part in his 2022 statement. He instead accused her of lying about the incident as a whole, of “completely ma[king] up a story” that was a “Hoax and a lie.”99 There is thus no factual or legal support for Mr. Trump’s made-up version of Ms. Carroll’s defamation claim.100

Mr. Trump argues also that the jury’s damages award deviates materially from the compensatory damages awards in other defamation cases in New York. Similar to the review of damages awards in sexual assault and rape cases, there certainly are cases – including those cited by Mr. Trump – in which plaintiffs in defamation cases in New York received compensatory damages awards considerably lower than the amount awarded to Ms. Carroll.101 The facts of those cases, however, were materially different from the facts and evidence in this case. In many of those cases, the defamatory statements were published in far less public forums (e.g., a “local newspaper”),102 and none involved the scale of attention and influence commanded when the defendant in this case chooses to speak publicly. The cases Mr. Trump cites “do not compare in the slightest to being defamed by one of the loudest voices in the world, in a statement read by millions and millions of people, which described you as a liar, labeled your account of a forcible sexual assault a ‘hoax,’ and accused you of making up a horrific accusation to sell a ‘really crummy book.’”103 And, as Ms. Carroll cites, there are cases in New York in which defamation plaintiffs have been awarded compensatory damages higher than the amount awarded to Ms. Carroll, demonstrating that the jury’s award here is not excessive and falls within the range of reasonable compensation.104

Mr. Trump accordingly has failed to meet his burden of demonstrating that a new trial or remittitur is warranted on the jury’s compensatory damages award for Ms. Carroll’s defamation claim.

Punitive Damages - Defamation Claim

Lastly, Mr. Trump argues that the jury’s $280,000 punitive damages award for Ms. Carroll’s defamation claim violated due process principles. He principally argues that the punitive damages award for Ms. Carroll’s defamation claim should be no more than $5,000 because his conduct with regard to the 2022 statement is “barely reprehensible, if at all, because he was defending himself against a false accusation of rape.”105 “The Supreme Court [has] outlined three ‘guideposts’ to facilitate its review of state court punitive damage awards: (1) the degree of reprehensibility of the defendant’s conduct, (2) the ratio of punitive damages to the actual harm inflicted, and (3) ‘the difference between this remedy and the civil penalties authorized or imposed in comparable cases.’”106 Mr. Trump’s argument plainly is foreclosed by the analysis set forth above and by the Court’s determination that the jury implicitly found Mr. Trump did in fact digitally rape Ms. Carroll.

Moreover, the evidence presented at trial and the jury’s findings that Mr. Trump made the 2022 statement knowing that it was false (or with reckless disregard of its truth or falsity) and with deliberate intent to injure or out of hatred, ill will, or spite or with willful, wanton or reckless disregard of another’s rights firmly establish the high reprehensibility of Mr. Trump’s defamatory statement. In these circumstances, the jury's $280,000 punitive damages award was not excessive and did not violate due process.

I have considered Mr. Trump's other arguments and found them all unpersuasive.

Conclusion

The jury in this case did not reach "a seriously erroneous result." Its verdict is not "a miscarriage of justice." Mr. Trump's motion for a new trial on damages or a remittitur (Dkt 204) is denied.

Dated:

SO ORDERED.

July 19, 2023

Lewis A. Kaplan
United States District Judge

_______________

Notes:

1  “Sexual abuse” involving sexual contact by forcible compulsion (sexual abuse in the first  degree) nevertheless is a felony punishable by a term of imprisonment and requiring sex  offender registration. N.Y. Penal Law §§ 70.02(1)(c) (sexual abuse in the first degree is a  Class D violent felony), 3(c) (“For a class D felony, the term must be at least two years and  must not exceed seven years . . ..”); N.Y. Correct. Law §§ 168-a(3)(a)(i) (defining  “[s]exually violent offense” to include a conviction of sexual abuse in the first degree), 7(b)  (defining “[s]exually violent offender” as “a sex offender who has been convicted of a  sexually violent offense defined in subdivision three of this section”).
 
2  One dictionary, for example, defines rape as “unlawful sexual intercourse or any other  sexual penetration of the vagina, anus, or mouth of another person, with or without force,  by a sex organ, other body part, or foreign object, without the consent of the person  subjected to such penetration.” “[R]ape,” Dictionary.com, https://www.dictionary.com/br  owse/rape (last accessed July 14, 2023) (emphasis added). The most recent edition of Black’s  Law Dictionary defines rape in part as “[u]nlawful sexual activity (esp. intercourse) with a  person (usu[ally] a female) without consent and usu[ally] by force or threat of injury” and it defines “intercourse” in the sexual sense as “[p]hysical sexual contact, esp. involving the  penetration of the vagina by the penis.” Black’s Law Dictionary 966, 1511 (11th ed. 2019).
 
3  E.g., 10 U.S.C. § 920(g)(1)(C) (Uniform Code of Military Justice) (defining “sexual act” for  purposes of rape and sexual assault as, inter alia, “the penetration, however slight, of the  vulva or penis or anus of another by any part of the body or any object, with an intent to  abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of  any person”) (emphasis added); WAYNE R. LAFAVE, SUBST. CRIM. L., § 17.2(a) & n. 43 (3d  ed.) (“In recent years, revision of rape laws have often brought about coverage of a broader  range of conduct than is encompassed within the common law term ‘carnal knowledge.’...  As for the acts covered, the new statutes ‘fall into three categories: those that continue the  narrow notion that rape should punish only genital copulation; those that agree with the  Model Code that rape laws should be expanded to include anal and oral copulation; and  those that go beyond the Model Code to include digital or mechanical penetration as well  as genital, anal, and oral sex.”) (emphasis added) (citing state statutes).
 
 In fact, “rape” as defined in the relevant part of the New York Penal Law – forcible,  unconsented-to penetration of the vagina by a penis – constitutes “sexual assault” under the  Code of Criminal Justice of the State of New Jersey. N.J. Stat. Ann. §§ 2C:14-2c.(1) (“[a]n  actor is guilty of sexual assault if the actor commits an act of sexual penetration with another  person” and does so “using coercion or without the victim’s affirmative and freely-given  permission”) and 2C:14-1c (“‘Sexual penetration’ means vaginal intercourse, cunnilingus,  fellatio or anal intercourse between persons or insertion of the hand, finger or object into the  anus or vagina either by the actor or upon the actor’s instruction.”). New Jersey, like some  other states, does not statutorily define any crime as “rape.” As indicated by the foregoing,  New Jersey’s penal code – unlike New York’s – treats digital and other modes of penetration  in the same manner as penile penetration.  
 
4 The American Psychological Association, for example, defines rape as “the nonconsensual  oral, anal, or vaginal penetration of an individual by another person with a part of the body  or an object, using force or threats of bodily harm or taking advantage of the individual’s  inability to give or deny consent. U.S. laws defining rape vary by state, but the crime of rape  is no longer limited to . . . vaginal penetration . . . .” APA Dictionary of Psychology, “Rape,”  AMERICAN PSYCHOLOGICAL ASSOCIATION, https://dictionary.apa.org/rape (last accessed July  14, 2023) (emphasis added).  
 
The United States Attorney General announced in January 2012 a new definition of rape  for the purpose of the Federal Bureau of Investigation’s Uniform Crime Report Summary  Reporting System by, among other changes, “recogniz[ing] that rape with an object can be  as traumatic as penile/vaginal rape.” U.S. Department of Justice, An Updated Definition of  Rape, Jan. 6, 2012, https://www.justice.gov/archives/opa/bl ... ition-rape  (new definition of “rape” as “[t]he penetration, no matter how slight, of the vagina or anus  with any body part or object, or oral penetration by a sex organ of another person, without  the consent of the victim”) (emphasis added).
 
5 The jury awarded Ms. Carroll $20,000 in punitive damages, in addition to the $2 million in  compensatory damages.
 
6  Dkt 205 (Def. Mem.) at 1.
 
7  E. Jean Carroll, Hideous Men: Donald Trump assaulted me in a Bergdorf Goodman dressing  room 23 years ago. But he’s not alone on the list of awful men in my life, THE CUT, NEW  YORK MAGAZINE, Jun. 21, 2019, https://www.thecut.com/2019/06/donald-trump  -assault-e-jean-carroll-other-hideous-men.html (emphasis added).
 
8 Dkt 187 (Trial Tr.) at 177:22-181:23 (emphasis added).
 
9 Dkt 189 (Trial Tr.) at 406:5-18 (emphasis added).
 
10 Dkt 187 (Trial Tr.) at 186:4-19.
 
11 Id. at 190:5-20.
 
12 Dkt 193 (Trial Tr.) at 688:5-690:9 (emphases in original).
 
13 Dkt 197 (Trial Tr.) at 1028:22-1032:6 (emphases in original).
 
14 The testimony of Mss. Leeds and Stoynoff was received pursuant to Federal Rule of  Evidence 415, which provides that “evidence that the [defendant] committed any other  sexual assault” may be admitted in “a civil case involving a claim for relief based on a  party’s alleged sexual assault.” Fed. R. Evid. 415(a). The Court’s analysis is contained in  a prior decision and need not be repeated here. Carroll v. Trump, No. 20-CV-7311 (LAK),  2023 WL 2441795 (S.D.N.Y. Mar. 10, 2023).
 
15 Dkt 193 (Trial Tr.) at 741:13-742:6 (emphasis added).
 
16 Id. at 771:19-772:8 (emphasis added).
 
17 Id. at 774:24-775:2, 775:13-16.
 
18 Id. at 787:6-14 (emphasis added).
 
19 Dkt 195 (Trial Tr.) at 989:24-996:7 (emphasis added).
 
20 Like the testimony of Mss. Leeds and Stoynoff, the Court initially determined that the Access  Hollywood tape was admissible on the ground that a jury reasonably could find it was  evidence that Mr. Trump “committed any other sexual assault” pursuant to Rule 415.  Carroll, 2023 WL 2441795 at *3-4. At trial, however, it became clear that reliance on Rule  415 was unnecessary because the video was offered for a purpose other than to show the defendant’s propensity to commit sexual assault. Instead, it was offered – as Ms. Carroll’s  counsel argued in rebuttal summation – as “a confession.” Dkt 199 (Trial Tr.) at 1403:24.  Given that Mr. Trump states in the video that he “just start[s] kissing” women without  “even wait[ing]” and that a “star” (such as himself) could “grab [women] by the pussy,” it  “has the tendency to make [the] fact [of whether he sexually assaulted Ms. Carroll]  more or less probable than it would be without the evidence” because one of the women  he referred to in the video could have been Ms. Carroll. Fed. R. Evid. 401. See also, e.g.,  United States v. Cordero, 205 F.3d 1325 (2d Cir. 2000) (unpublished opinion) (“Proof of  similar acts may be admitted so long as such evidence is offered ‘for any purpose  other than to show a defendant’s criminal propensity.’”) (citation omitted); Woolfolk  v. Baldofsky, No. 19-CV-3815(WFK) (ST), 2022 WL 2600132, at *2 (E.D.N.Y. July  8, 2022) (“Evidence of prior crimes, wrongs, or acts, however, may be admissible if  offered ‘for any purpose other than to show a defendant’s criminal propensity, as  long as the evidence is relevant and satisfies the probative-prejudice balancing test of  Rule 403.’”) (citation omitted). Accordingly, the Court did not include the Access  Hollywood tape in its instructions to the jury on the evidence of Mr. Trump’s alleged  sexual assaults of other women, and neither party objected to its exclusion from that  portion of the charge.
 
21  Dkt 138-1 (Def. Dep. Designations) at 174:5-175:4 (emphasis added).
 
21  Dkt 193 (Trial Tr.) at 829:22-830:2.
 
22  Dkt 195 (Trial Tr.) at 853:13-15.
 
23 Id. at 876:2-4.
 
24 Id. at 861:8-19.
 
25  Id. at 864:19-865:12.
 
26  Id. at 888:10-20 (emphasis added).
 
28  Dkt 189 (Trial Tr.) at 322:6-324:5.
 
29  Id. at 329:2-7.
 
30  Dkt 138-1 (Def. Dep. Designations) at 134:13.
 
31  Id. at 137:14-17.
 
32  Dkt 197 (Trial Tr.) at 1114:2-8.
 
33 Id. at 1127:24-25, 1128:16-19.
 
34 Id. at 1130:9-12.
 
35 Id. at 1130:18-22.
 
36 Id. at 1130:25-1131:3.
 
37 Id. at 1134:16-19.
 
38 Id. at 1136:10-13.
 
39 Id. at 1142:11-20.
 
40 Fed. R. Civ. P. 49(a)(1).
 
41  Fed. R. Civ. P. 49(a)(2).
 
42  Dkt 174 (Verdict) at 1.
 
43 Dkt 201 (Trial Tr.) at 1416:1-9.
 
44 It was necessary to obtain findings under the New York Penal Law definitions because the  timeliness of the battery claim under the Adult Survivors Act depended on such findings.  N.Y. CPLR § 214-j.
 
45 Dkt 201 (Trial Tr.) at 1416:18-1418:2 (emphasis added).
 
46  Id. at 1418:3-1420:8 (emphasis added).
 
47  Id. at 1422:17-1423:25.
 
Question 5 on punitive damages asked whether Ms. Carroll proved by a preponderance of  the evidence that Mr. Trump’s conduct was willfully or wantonly negligent, reckless, or done  with a conscious disregard of the rights of Ms. Carroll, or was so reckless as to amount to  such disregard. If so, it asked how much Mr. Trump should pay to Ms. Carroll in punitive  damages. Given that Mr. Trump does not dispute the jury’s $20,000 award in punitive  damages for Ms. Carroll’s battery claim, the Court’s instructions on this question need not  be reproduced here.
 
48  Id. at 1430:17-1432:3 (emphasis added).
 
49 Id. at 1432:25-1434:7.
 
50 Id. at 1434:17-1436:10.
 
51 E.g., United States v. Salameh, 152 F.3d 88, 116 (2d Cir. 1998).
 
50 Dkt 174 (Verdict) at 2 (emphasis added).
 
51 Dkt 201 (Trial Tr.) at 1432:1-3 (emphasis added).
 
52 Dkt 174 (Verdict) at 3 (emphasis added).
 
53 Id. (emphasis added).
 
56 Lore v. City of Syracuse, 670 F.3d 127, 176–77 (2d Cir. 2012) (alterations in original)  (quoting Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 433 (1996)).
 
57 Stampf v. Long Island R. Co., 761 F.3d 192, 204 (2d Cir. 2014) (quoting Gasperini, 518 U.S.  at 435).
 
58 Mono v. Peter Pan Bus Lines, Inc., 13 F. Supp. 2d 471, 475 (S.D.N.Y. 1998) (quoting Smith  v. Lightning Bolt Productions, Inc., 861 F.2d 363, 370 (2d Cir.1988)).
 
In Mono, the Court identified “an unresolved Erie issue – whether the state or federal  standard of review applies in a motion for a new trial in a diversity action. New York law  does not distinguish between a motion for a new trial and a motion for a judgment  notwithstanding the verdict. . . . Thus, if state law applies to defendants’ Rule 59 motion, the  standard of review would be whether the jury could have reached its verdict on ‘any fair  interpretation of the evidence.’” Id. at 475, n.2 (citations omitted). However, as in Mono,  “[b]ecause the evidence presented at trial [in Carroll II] satisfies both the federal and state  standards, I need not determine which jurisdiction’s law controls [Mr. Trump’s] motion for  a new trial.” Id.
 
59  Iverson v. Surber, No. 13-CV-633 (RA), 2018 WL 6523176, at *1 (S.D.N.Y. Nov. 13, 2018),  aff’d, 800 F. App’x 50 (2d Cir. 2020) (citation omitted).
 
60  Id. (quoting DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998)).
 
61  Stampf, 761 F.3d at 204 (quoting N.Y. CPLR § 5501(c)).
 
62 Id.
 
63 Okraynets v. Metro. Transp. Auth., 555 F. Supp. 2d 420, 439 (S.D.N.Y. 2008) (emphasis in  original).
 
64 Dkt 205 (Def. Mem.) at 1.
 
65 Id.
 
66 The New York Penal Law states that “[a] person is guilty of rape in the first degree when he  or she engages in sexual intercourse with another person . . . 1. By forcible compulsion . .  . .” N.Y. Penal Law § 130.35. It provides also that “‘[s]exual intercourse’ has its ordinary  meaning and occurs upon any penetration, however slight.” Id. § 130.00. New York courts  have interpreted “sexual intercourse” as involving penile penetration. E.g., People v.  Berardicurti, 167 A.D.2d 840, 841 (4th Dept. 1990) (“The trial court properly instructed the  jury that, to constitute sexual intercourse, penetration ‘need not be deep’ and that ‘[a]ny  penetration of the penis into the vaginal opening, regardless of the distance or amount of  penetration’ constitutes sexual intercourse.”) (citation omitted); People v. Peet, 101 A.D.2d  656, 656 (3d Dept. 1984), aff’d, 64 N.Y.2d 914 (1985) (“[T]he use of one’s finger has  already been sufficiently proscribed by section 130.65 of the Penal Law [(sexual abuse in  the first degree)] . . . .”); Williams v. McCoy, 7 F. Supp. 2d 214, 220-21 (E.D.N.Y. 1998)  (rejecting petitioner’s argument that “the trial judge erred in instructing the jury on the  elements of rape because he neglected to explain that rape requires penile – as opposed to  digital – penetration” because “[a] jury of competent adults surely understood the ‘ordinary  meaning’ of ‘sexual intercourse’ to require penile penetration”). This Court accordingly  instructed the jury that sexual intercourse required penile penetration of the vagina, and  neither party objected to that definition.
 
67 It is not entirely surprising that the jury did not find penile penetration but, as discussed  below, implicitly found digital penetration. Ms. Carroll testified about the specific physical  memory and excruciating pain of the digital penetration at great length and in greater detail  than the penile penetration. She acknowledged that she could not see exactly what Mr.  Trump inserted but testified on the basis of what she felt. Dkt 187 (Trial Tr.) at 181:20-23  (“I couldn’t see anything. I couldn’t see anything that was happening. But I could certainly  feel it. I could certainly feel that pain in the finger jamming up.”) (emphasis added).  Moreover, the jury might have been influenced by defense counsel’s ardent summation in  which he virtually begged the jury not to answer the “rape” question against Mr. Trump. Dkt  199 (Trial Tr.) at 1370:5-10 (“To condemn someone as a rapist is a decision you would have  to live with for the rest of your lives. Don’t let her throw that burden on you. Don’t let her  throw her burden on you to have to carry forever. You know this didn’t happen, that Donald  Trump raped E. Jean Carroll in a Bergdorf Goodman changing room. You know it didn’t  happen.”).
 
68 Dkt 199 (Trial Tr.) at 1208:12-21 (Both Ms. Carroll’s counsel and Mr. Trump’s counsel  stating that they have no objection to the verdict form).
 
69 Fed. R. Civ. P. 49(a)(3).
 
70 Roberts v. Karimi, 251 F.3d 404, 407 (2d Cir. 2001) (“When a jury is specially instructed,  and ‘an issue [is] omitted’ without objection, it ‘shall be deemed’ that a finding was made  ‘in accord with the judgment on the special verdict,’ unless the court makes a finding to the  contrary.”) (alterations and emphasis in original) (citation omitted); Marbellite Co. v.  Naitonal Sign & Signal Co., 2 Fed. App’x 118, 120 (2d Cir. 2001) (“If the court fails to  make a finding on the issue, it will be deemed to have made a finding that is harmonious  with the judgment entered on the special verdict.”); Getty Petroleum Corp. v. Island  Transpp. Corp., 878 F.2d 650, 655-56 (2d Cir. 1989) (in special verdict case, affirming on  basis of implicit jury finding or, in the alternative, on basis of implicit finding in statement  of the trial court).
 
As the jury’s response to Question 2 was an implicit finding that Mr. Trump forcibly  digitally penetrated Ms. Carroll’s vagina, no explicit independent finding by the Court is necessary. Nevertheless, the Court alternatively finds that he did so.
 
71 As the Second Circuit has put it:
 

“A district court has a duty to reconcile the jury’s answers on a special  verdict form with any reasonable theory consistent with the evidence, and to attempt  to harmonize the answers if possible under a fair reading of those answers. . . . The  court must search for a reasonable way to read the verdicts as expressing a coherent  view of the case, . . . and if there is any way to view a case that makes the jury’s  answers to the special verdict form consistent with one another, the court must  resolve the answers that way even if the interpretation is strained. . . . The district  court should refer to the entire case and not just the answers themselves.” McGuire  v. Russell Miller, Inc., 1 F.3d 1306, 1311 (2d Ci. 1993) (citations omitted).

 
Thus, the Court is obliged to construe the jury’s answer to Question 2 with reference to the  entire case and in a manner that renders it consistent with the $2 million award for sexual  assault.
 
72 Mr. Trump does not argue that the jury’s sexual abuse finding was based on Ms. Carroll’s  testimony that he put his mouth against hers (or any of the other actions listed above). Even  assuming this non-consensual kiss was “touching of [a] sexual or intimate part[],” there is  no basis to assume that the jury found Mr. Trump sexually abused her based on that contact  but not on digital penetration. Ms. Carroll testified that “it was a shocking thing for him to  suddenly put his mouth against [hers],” Dkt 187 (Trial Tr.) at 179:22-23, and that she thinks  she “laughed pretty consistently after the kiss to absolutely throw cold water on anything he  thought was about to happen,” Dkt 189 (Trial Tr.) at 405:22-24. She did not testify as to any  physical pain and lasting trauma of the non-consensual kiss, or of any other bodily contact  between her and Mr. Trump, as she did repeatedly of the digital penetration. A determination  that this jury found Mr. Trump sexually abused Ms. Carroll solely on the basis of a nonconsensual  kiss would require ignoring all this testimony and accepting a far less malign,  albeit still wrongful, version of events that is contradicted by the overwhelming weight of  the evidence.
 
73 Dkt 191 (Trial Tr.) at 635:23-636:1.
 
74 Dkt 187 (Trial Tr.) at 185:15-17.
 
75 Id. at 188:18.
 
76 Id. at 180:24-25; Dkt 189 (Trial Tr.) at 406:10, 432:7-8.
 
77 Dkt 187 (Trial Tr.) at 225:3, 225:19-226:7.
 
78 Id. at 226:14-21.
 
79 Dkt 205 (Def. Mem.) at 14-16.
 
Mr. Trump’s argument that Ms. Carroll’s “alleged damages are identical to plaintiffs in other  cases asserting . . . a [loss of consortium claim], namely that Plaintiff argued to the Jury that  she should be compensated for living a life since early 1996 without companionship,” also  is unavailing. Dkt 211 (Def. Reply Mem.) at 1; see also Dkt 205 (Def. Mem.) at 13. His  theory ignores all of the other types of harm to Ms. Carroll that were discussed in her and Dr. Lebowitz’s testimony, and in any case mistakenly conflates the loss of companionship  in the context of a loss of consortium claim with the inability to form a romantic connection  and have sex as a result of trauma arising from sexual assault.
 
80 Dkt 207 (Pl. Opp. Mem.) at 15-16 (“In some [of Mr. Trump’s ‘comparator’] cases, the  plaintiff was awarded the exact amount of compensatory damages that the plaintiff herself  had requested, often as part of a damages inquest conducted by a magistrate judge during  default judgment proceedings. . . . As a result, those cases obviously have little to nothing  to say about the damages that a jury might have awarded on a full evidentiary record  developed at trial, as occurred here. Other cases cited by Trump involved evidentiary issues  not present in this case. . . . And not one of the cases Trump cites involved evidence of injury  covering a 25-year-plus period. That distinguishes Carroll’s case from all of the cases on  which Trump relies, and it was entirely reasonable for the jury to account for the harm that  Carroll has experienced ever since the assault in 1996 in determining compensatory  damages.”) (citations omitted).
 
81 See Dkt 205 (Def. Mem.) at 15-16 (citing cases).
 
82 E.g., Ortiz v. New York City Hous. Auth., 22 F. Supp. 2d 15, 39 (E.D.N.Y. 1998), aff'd, 198  F.3d 234 (2d Cir. 1999) (jury’s $3 million compensatory damages award for plaintiff who  was raped at gunpoint, diagnosed with PTSD, and suffered “dramatic[] change[s]” to the  quality of her life did not deviate materially from reasonable compensation) (citing cases).
 
Ms. Carroll cites to three cases, one of which is Ortiz, in which the plaintiffs were awarded  more than Ms. Carroll was. Breest v. Haggis, No. 161137/2017, 2023 WL 374404 (N.Y.  Sup. Ct., N.Y. Cty. Jan. 24, 2023) ($7.5 million); Egan v. Gordon, No. 904231-20 (N.Y.  Sup. Ct., Albany Cty., Nov. 10, 2022) ($13.8 million). Mr. Trump correctly observes certain  differences between those cases and this one, including in the details of the rapes and in the  fact that the plaintiffs in those cases were diagnosed with PTSD whereas Ms. Carroll was  not. Those differences, however, do not render these cases of no value in determining the  appropriate range of reasonable compensation. Indeed, the greater severity of the harm in  those cases might explain why the awards were greater than the amount awarded to Ms.  Carroll, while still demonstrating that $2 million is not outside the bounds in circumstances  such as these.
 
83 Restivo v. Hessemann, 846 F.3d 547, 587 (2d Cir. 2017).
 
84 Dkt 205 (Def. Mem.) at 18.
 
85 Id.
 
86 Dkt 205 (Def. Reply Mem.) at 19-21.
 
87 Dkt 207 (Pl. Opp. Mem.) at 19.
 
88 Dkt 205 (Def. Reply Mem.) at 3. See Disability Advocs., Inc. v. Paterson, No. 03-CV-3209  (NGG) (MDG), 2009 WL 1312112, at *7 (E.D.N.Y. May 8, 2009) (“Thus, while Defendants  are free to conduct vigorous cross-examine of Plaintiff’s experts at trial and may argue in  their post-trial briefing that the court should accord the opinions of those experts little or no  weight, they may not renew their challenge to the admissibility of those opinions.”);  Celebrity Cruises Inc. v. Essef Corp., 478 F. Supp. 2d 440, 446 (S.D.N.Y. 2007) (“[E]ven  where a post-trial challenge to the admissibility of expert evidence is barred, a trial court remains free to grant a new trial if it weighs the prevailing party’s scientific proof and finds  it wanting.”).
 
89 MJAC Consulting, Inc. v. Barrett, No. 04-cv-6078 (WHP), 2006 WL 2051129, at *3  (S.D.N.Y. July 24, 2006) (citing cases).
 
90 Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241, 270 (S.D.N.Y. 2001). See also AU  New Haven, LLC v. YKK Corp., No. 15-CV-3411 (GHW) (SN), 2019 WL 1254763, at *3  (S.D.N.Y. Mar. 19, 2019), objections overruled, No. 1:15-CV-3411(GHW), 2019 WL  2992016 (S.D.N.Y. July 8, 2019) (“Any contentions that the expert’s ‘assumptions are  unfounded go to the weight, not the admissibility, of the testimony.’”) (citation omitted); In  re: Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543 (JMF), 2015 WL 9480448,  at *1 (S.D.N.Y. Dec. 29, 2015) (“‘Although expert testimony should be excluded if it is  speculative or conjectural, or if it is based on assumptions that are so unrealistic and  contradictory as to suggest bad faith, or to be in essence an apples and oranges comparison,  other contentions that the assumptions are unfounded go to the weight, not the admissibility,  of the testimony.’”) (citation omitted); Colombo v. CMI Corp., 26 F. Supp. 2d 574, 576  (W.D.N.Y. 1998) (“Although a district court ‘may ... inquire into the reliability and  foundation of any expert opinion to determine admissibility,’ Viterbo v. Dow Chem. Co., 826  F.2d 420, 422 (5th Cir.1987), ‘[a]s a general rule, questions relating to the bases and sources  of an expert’s opinion affect the weight to be assigned that opinion rather than its  admissibility and should be left for the jury’s consideration.’ Id.”) (ellipsis and alteration in  original).
 
91 Mr. Trump’s two “error” rate arguments arguably go more to the admissibility of Professor  Humphreys’s testimony and therefore would be waived. E.g., AU New Haven, LLC, 2019  WL 1254763, at *23 (stating that a high error rate “would be a valid basis to exclude an  expert with scientific knowledge under Daubert”). But there is a vast difference between an  error rate, on the one hand, and an expert opining that a quantity falls within a certain range,  on the other. For example, an appraiser who values a piece of real state as falling in the  range of $12 million to $14 million has not made an “error”; the expert is merely giving an  opinion that a willing buyer and a willing seller would conclude a sale within that range. In  any event, Mr. Trump’s arguments that there were high error rates in Professor Humphreys’s  calculations fail to demonstrate that the jury’s compensatory damages award was erroneous  or against the weight of the evidence. Indeed, it is plausible that the jury took the so-called  error rates, along with any other purported weaknesses in Professor Humphreys’s testimony,  into account in awarding damages well below the high end of Professor Humphreys’s  estimated range. Dkt 197 (Trial Tr.) at 1142:14-16 (“[O]n the low, low end it would be  [$368,000], and on the high end it would be 2.7 million.”).
 
92  Dkt 197 (Trial Tr.) at 1130:18-22.
 
93 Id. at 1158:12-23.
 
94  Id. at 1158:3-6.
 
95  Id. at 1135:9-11.
 
96  Id. at 1135:11-17.
 
97 Id. at 1135:10-11.
 
98 Dkt 205 (Def. Mem.) at 18-19.
 
99 Dkt 1 (Compl.) at 18, ¶ 92.
 
100 Mr. Trump’s remaining arguments similarly lack merit. His contention that the jury “clearly  must have [awarded compensatory damages for the June 2019 statements]” because Ms.  Carroll “did not even attempt the separate the harm caused by the June 2019 Statements and  the October 12, 2022 Statement” in her testimony fails for the same reasons discussed above  with respect to his “double recovery” argument based on Professor Humphreys’s testimony.  Dkt 205 (Def. Mem.) at 19. It also is inaccurate because, as noted above, Ms. Carroll in fact  did compare the post-2022 messages she received to the post-2019 messages and stated that  the post-2022 messages were “equally disparaging and hurtful, but these particularly hurt  because [she] thought [she] had made it through and there they are again.” Dkt 189 (Trial  Tr.) at 329:5-7. Moreover, even if Ms. Carroll had not clearly separated the harm from the  2019 statements from the 2022 statement, it would not demonstrate that the jury’s award was  against the weight of the evidence. The same is true for Mr. Trump’s argument that in  summation, Ms. Carroll’s counsel stated “public statements” as opposed to the singular 2022  “statement.” Dkt 205 (Def. Mem.) at 19. As noted above, the Court’s instruction to the jury to ignore any harm arising from the 2019 statements overrides Mr. Trump’s concern in this  respect. Finally, his argument that Ms. Carroll testified she made more money after leaving  Elle magazine and therefore suffered no financial harm from the 2022 statement is irrelevant.  Ms. Carroll did not argue that she was owed compensatory damages for financial harm  resulting from the 2022 statement.
 
101 Dkt 205 (Def. Mem.) at 16-17.
 
102 Strader v. Ashley, 61 A.D.3d 1244, 1247 (N.Y. App. Div. 3d Dep’t 2009).
 
103 Dkt 207 (Pl. Opp. Mem.) at 24.
 
104 Id. at 23-25.
 
105 Dkt 205 (Def. Mem.) at 23.
 
106 Stampf, 761 F.3d at 209 (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996)).
 
 

[admin]

Order and Opinion Granting Motion to Remand
The People of the State of New York vs. Donald Trump, Case No. 23 Civ. 3773 (AKH)
by Alvin K. Hellerstein, United States District Judge
July 19, 2023

https://storage.courtlistener.com/recap ... 43.0_1.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

THE PEOPLE OF THE STATE OF NEW YORK,
-against-
DONALD TRUMP,
Defendant.

23 Civ. 3773 (AKH)

ORDER AND OPINION GRANTING MOTION TO REMAND

ALVIN K. HELLERSTEIN, U.S.D.J.: Defendant, Donald Trump, previously President of the United States, removed this criminal case from the New York Supreme Court to the United States District Court for the Southern District of New York. The People of the State of New York (the "People") moved to remand. The question to be decided, and upon which I write, is whether the governing statute, 28 U.S.C. § 1442(a), authorizes such removal. Section 1442(a)(1) allows "officers ... of the United States" to remove a civil or criminal case brought against them in a state court, if the case is "for or relating to any act [performed by or for them] under color of [their] office." The cases interpreting this statute, discussed later, require also that the officer raise a defense based on federal law.

The issues have been fully briefed. I heard arguments and conducted an evidentiary hearing on June 27, 2023. I hold that there is no subject matter jurisdiction, that § 1442(a) was improperly invoked, and that the case is remanded to the New York Supreme Court for further proceedings in that court.

BACKGROUND

I. Summary of the Indictment

On April 4, 2023, a grand jury in the Supreme Court of New York, New York County, charged Trump with thirty-four counts of Falsifying Business Records in the First Degree in violation of N.Y. Penal Law ("NYPL") § 175.10. The Indictment alleges that the crimes were committed between February and December 2017, and can be categorized into three types of falsifications of business records kept and maintained by the Trump organizations: eleven counts of false invoices; twelve counts of false ledger entries; and eleven counts of false checks and check stubs, of which nine were signed by Trump personally-all with intent both to defraud and to commit another crime, or aid or conceal the commission thereof.

II. Statement of Facts Filed by the People

The Indictment was made more specific in a Statement of Facts filed by the People. (Notice of Removal ("Notice"), Ex. E ("SOF").) The People allege that Trump, the beneficial owner of a number of businesses headquartered in New York County, became a candidate for election to become President of the United States in June 2015. In August 2015, Trump, Michael Cohen-a Trump Organization lawyer and Trump's Special Counsel-and the Chief Executive Officer of American Media, Inc. ("AMI"), met to devise a scheme to suppress negative stories about Trump. (Id. ⁋⁋ 5-7.)

In October 2016, at the direction of his Chief Executive Officer, the Editor-in-Chief of AMI alerted Cohen that Stephanie Clifford, an adult film actress known as Stormy Daniels, was seeking to publish an account of her sexual liaison with Trump during Trump's marriage. Cohen met with Clifford's lawyer and the two reached an agreement, with Trump's knowledge, to exchange Clifford's right to publish her account for $130,000. Trump did not want to make the payment himself. In discussions with Trump and the Trump Organization's Chief Financial Officer ("CFO"), Cohen agreed to advance the money and Trump agreed to reimburse him. Cohen opened a bank account in the name of Essential Consultants, LLC, a shell company that he controlled. On October 27, 2017, Cohen deposited $131,000 from a personal line of credit into the account and wired $130,000 to Clifford's lawyer. (Id. ⁋⁋ 17-21.)

In January 2017, Cohen and the Trump Organization CFO met to discuss how to reimburse Cohen. They agreed that Trump would pay Cohen $420,000: $180,000 to reflect reimbursement for Cohen's $130,000 payment to Clifford's attorney and an additional $50,000 expense, doubled to $360,000 to enable Cohen to treat the reimbursement as income rather than reimbursement of a hush money payment, and an additional $60,000 bonus. Trump, Cohen, and the CFO then agreed that payment was to be made in monthly installments of $35,000 beginning January 2017. Cohen was to send an invoice monthly to the Trump Organization for payment pursuant to a "retainer agreement." The retainer agreement did not exist. Trump and Cohen confirmed the payment agreement at a meeting in the White House in February 2017. (Id. ⁋⁋ 24-27.)

On February 14, 2017, Cohen emailed his first invoice to the Controller of the Trump Organization, requesting $35,000 for January and $35,000 for February 2017, "[p]ursuant to the retainer agreement." (Id. ⁋ 28.) The CFO approved payment, and the Controller instructed the Accounts Payable Supervisor to "[p]ost to legal expenses. Put 'retainer for the months of January and February 2017' in the description." (Id.) The invoice was coded in the general ledger, and maintained in the Trump Organization's electronic accounting system, to reflect a payment for legal expenses. (Id. ⁋⁋ 30-31.)

Cohen, the CFO, and the Controller followed the same procedure for the ten following months, March to December 2017. For each payment, the Trump Organization's Accounts Payable Supervisor prepared a check and check stub notated as payment for legal services. The first two checks, for January and February 2017, were paid by the Donald J. Trump Revocable Trust and signed by two trustees.1 (Id. ⁋ 32.) Trump signed the next nine checks, drawn on his personal bank account. Trump then had the signed checks sent back to the Trump Organization in New York City. There, the checks, stubs, and invoices were scanned into the Trump Organization's books and records, and the checks then were mailed to Cohen. (Id. ⁋ 33.)

In August 2018, Cohen pleaded guilty to campaign finance violations in connection with his $130,000 payment to Clifford. Cohen testified, in connection with his plea:

[O]n or about October of 2016, in coordination with, and at the direction of, the ... candidate [for federal office], I arranged to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information. To accomplish this, I used a company that was under my control to make a payment in the sum of $130,000. The monies I advanced through my company were later repaid to me by the candidate. I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election.

(Id. ⁋ 44.)

III. Defendant's Notice of Removal

On May 4, 2023, Trump removed the case to the United States District Court on the basis of federal officer removal, 28 U.S.C. § 1442(a)(1). Trump alleges that the district court has subject matter jurisdiction because the Indictment "charges President Trump for conduct committed while he was President of the United States that was within the 'color of his office,' and the charges involve alleged federal and state election law violations that have a federal preemption defense." (Notice ⁋ 2.) He claims that Cohen was hired as his personal attorney "as a direct result of [his] role as President of the United States and his obligations under the Constitution, and in order to separate his business affairs from his public duties." (Id. ,r 28.) Trump claims also that the conduct for which he was charged "relat[es] to" acts performed under color of office because they relate to his position as President. (Id. ⁋ 29.)

Trump alleges further that he has two federal defenses to the charged conduct. He states that "shortly before assuming the Office of the Presidency, and in order to assure the American public that he had separated his personal business from his public duties ... as well as to fulfill various constitutional obligations, e.g., the Foreign Emoluments Clause, Art. I, sec. 9, cl. 8, and the Take Care Clause, Art. II, sec. 3,"2 Trump placed his businesses in a trust and "hired a personal lawyer -- Michael Cohen -- to handle his personal affairs," and that "[t]hese steps were taken solely because he was President of the United States." (Id. ⁋19.) Trump argues that since his "decision to retain Michael Cohen to act as his personal lawyer arose out of his duties as President," it "gives rise to a federal [immunity] defense .... " (Id. ⁋ 20.) Furthermore, Trump argues that because the Indictment's felony charges are predicated on alleged violations of state and federal election laws, they are preempted by the Federal Election Campaign Act ("FECA"), 52 U.S.C. § 30143(a). (Notice ⁋⁋ 22-24.)

Finally, Trump asserts that the district court has "protective jurisdiction" because the indictment "is politically motivated and was brought because a local politician ... disfavored President's Trump's acts and policies as President of the United States .... " (Id. ⁋ 31.)

On May 30, 2023, the People filed a motion to remand to the New York Supreme Court. (ECF No. 17.)

IV. The Evidentiary Hearing

On June 27, 2023, I heard oral arguments and conducted an evidentiary hearing as required by 28 U.S.C. § 1455(b)(5). At the hearing, the People introduced an October 2016 agreement between Michael Cohen and Stephanie Clifford's attorney pursuant to which Cohen's shell company, Essential Consultants, LLC, would pay $130,000 for the rights to Clifford's account of her encounter with Trump (Colangelo Deel., May 30, 2023 ("Colangelo Deel."), Ex. 3), as well as an October 2016 bank statement showing Cohen's payment of $130,000 (Colangelo Deel., Ex. 8.) Handwritten notes on the bank statement show that amount was combined with other amounts to reach a total of $420,000, the full amount that was paid to Cohen in association with the business records at issue. (Id.) The People also introduced a May 3, 2018, tweet from Trump stating that Cohen received a "reimbursement" in connection with his "private contract." (Colangelo Deel., Ex. 4.) Also admitted into evidence were eleven invoices corresponding to the eleven counts of the Indictment relating to invoices, twelve ledger entries corresponding to the twelve counts relating to false ledger entries, and eleven checks and check stubs corresponding to the eleven counts relating to checks and check stubs. (Colangelo Deel., Exs. 9-11.) Nine of the checks were signed by Donald Trump personally.

The defense introduced two emails from Michael Cohen, dated in January 2017 and January 2018, stating that he had accepted a position as personal counsel to Trump. (Blanche Aff., Jun. 15, 2023, Ex. B.) The defense also introduced excerpts from Michael Cohen's published memoir containing Cohen's account of a January 2017 conversation with Trump regarding hiring Cohen as Trump's personal attorney. Cohen states in his book that he told Trump that "[t]here are still open matters that need to be handled," and that Trump stated that they would consider the $420,000 payment to Cohen "as a retainer for the work [Cohen] will be doing for [Trump] privately." Michael Cohen, Disloyal: A Memoir: The True Story of the Former Personal Attorney to President Donald J Trump 308-310 (2020).3

The defense also called Alan Garten, Chief Legal Officer ("CLO") of the Trump Organization, as a witness. Garten testified that the Trump Organization was advised that Trump had to be separated from his businesses once he took office and that he (Garten) implemented corporate policies to create that separation. Garten stated that Cohen separated himself from the Trump Organization in January 2017 to serve as a personal attorney to Trump. Garten stated that Cohen received twelve payments of $35,000 in 2017 "to reimburse him for the payment that he had made as part of the Clifford settlement agreement and also to compensate him for the work that -- this role that he was playing as counsel [to Trump]." (Hr'g Tr., ECF No. 41, at 54:17-20.) He also testified that "when matters came in [to the Trump Organization] that were not company related, but related to the President or the First Lady, ... those matters would be referred to Mr. Cohen. I don't know how many there were." (Id. at 57:12-15.)

On cross-examination, Garten testified that the Trump Organization would typically execute written retainer agreements when attorneys were retained to work either for Trump personally or for the Trump Organization, that those attorneys would generally submit invoices with details of their work, and that the vast majority ofledger entries for payments to those attorneys included descriptions of their work. (Id. at 59-64.) He testified that he was not aware of any retainer agreement with Cohen, that Cohen's invoices did not contain descriptions of the work he did, and that the ledger entries for Cohen similarly did not describe his work. (Id. at 61:13-62:1, 65:1-4.) Garten testified that he did not know if Cohen actually worked on any matters referred to him by the Trump Organization. (Id. at 62:15-17.) He also testified that although Cohen continued to serve as Trump's personal attorney in 2018, Garten was not aware of any payments to Cohen after 2017. (Id. at 65:16-66:15.)

LEGAL STANDARD

The removal provision at issue, 28 U.S.C. § 1442(a)(1), provides in relevant part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

Federal officer removal can be traced back over two centuries. See Willingham v. Morgan, 395 U.S. 402,405 (1969) (detailing the history of federal officer removal statutes). Prior to the passage of § 1442, officers could remove to federal court only if their cases fell within specialized grants of removal jurisdiction. See Richard H. Fallon, Jr. et al., Hart & Wechsler 's The Federal Courts and the Federal System 853 (7th ed. 2015). Section 1442, enacted in 1948 as part of a broader revision of the judicial code, was the first general officer removal statute allowing federal officers to remove any civil or criminal case against them for "any act under color of [their] office." In a 2011 amendment, Congress replaced "for any act under color of office" with "for or relating to any act under color of office." Removal Clarification Act of 2011, Pub. L. No. 112-51, § 2(b), 125 Stat. 545, 545 (Nov. 9, 2011).

The purpose of federal officer removal "is not hard to discern." Willingham, 395 U.S. at 406. If a state can force federal officers to stand trial in state court "for an alleged offense against the law of the State, yet warranted by the Federal authority they possess," there is a risk that "the operations of the general government may at any time be arrested at the will of one of its members." Tennessee v. Davis, 100 U.S. 257, 263 (1880). Federal officer removal thus aims to prevent individual states from using their laws to hinder the federal government from exercising its lawful authority. In pursuit of this aim, the removal statue should be "liberally construed." Colorado v. Symes, 286 U.S. 510, 517 (1932). In criminal cases, however, the Court's liberal construction of the statute should be balanced against a "strong judicial policy against federal interference with state criminal proceedings" because "preventing and dealing with crime is much more the business of the States than it is of the Federal Government." Mesa v. California, 489 U.S. 121, 138 (1989) (quoting Arizona v. Manypenny, 451 U.S. 232,243 (1981)). Therefore, "a more detailed showing" is necessary for the removal of a criminal case. Willingham, 395 U.S. at 409 n.4; see also Application of Donovan, 601 F. Supp. 574, 578 (S.D.N.Y. 1985).

To exercise federal officer removal jurisdiction, the district court must determine: (1) that the removing party is an "officer ... of the United States," 28 U.S.C. § 1442(a)(l); (2) that the suit against the officer is "for or relating to any act under color of such office," id.; and (3) that the officer has raised a colorable federal defense, Mesa, 489 U.S. at 136. The removing party bears the burden of demonstrating that removal was proper. See United Food & Comm. Workers Union v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298,301 (2d Cir. 1994); Ehrenspeckv. Spear, Leeds & Kellogg, 389 F. Supp. 2d 485,488 (S.D.N.Y. 2005). If the non-removing party appropriately challenges the facts as set forth in the notice of removal, the removing party "must support [its factual averments] by competent proof." United Food & Comm. Workers Union, 30 F.3d at 301 (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)); see also Curry v. Am. Standard, Inc., 2009 WL 308029, at *1 (S.D.N.Y. Feb. 6, 2009) (applying the "competent proof' standard in the context of federal officer removal); Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (same).

DISCUSSION

I. Federal Officer

The parties assume, and I hold, that Trump, although not presently a federal officer, can remove a case otherwise qualified for removal. It would make little sense if this were not the rule, for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority.

The more difficult question is whether a President is an "officer ... of the United States" within the meaning of § 1442(a)(l). The People argue that the Supreme Court has interpreted federal statutes referring to an "officer of the United States" to include appointed, but not elected, officers. See Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) ("The people do not vote for the 'Officers of the United States."' (quoting U.S. Const. art. II, § 2, cl. 2)); United States v. Mouat, 124 U.S. 303, 307 (1888) ("[A] person in the service of the government" who does not "hold[] his place by virtue of an appointment ... is not, strictly speaking, an officer of the United States."). Trump notes that the D.C. Circuit previously allowed him to remove a civil action to federal court under § 1442 while in office, K&D LLC v. Trump Old Post Off LLC, 951 F.3d 503, 505 (D.C. Cir. 2020), and cites to several cases permitting federal officer removal for elected members of Congress, see Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 412-415 (D.C. Cir. 1995); Williams v. Brooks, 945 F.2d 1322, 1324 n.2 (5th Cir. 1991); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988).

I believe that the President should qualify as a "federal officer" under the removal statute but, as is evident from the discussion below, the proposition is dictum, unnecessary for the decision that I reach.

II. Acts Under Color of Office

To exercise officer removal jurisdiction, a suit against an officer must be "for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(l). The acts must be either "vested with, or appear to be vested with, the authority entrusted to that office." Color of Office, Black's Law Dictionary (11th ed. 2019). The Supreme Court has articulated the following test for the "under color of office" requirement:

There must be a causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him, for whatever offense, has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty.

Mesa, 489 U.S. at 131-32 (quoting Maryland v. Soper, 270 U.S. 9, 32 (1926)). The "hurdle" of the requirement of causation is "quite low." Isaacson v. Dow Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008).

Trump contends that Congress' 2011 amendment to§ 1442, which replaced "for any act under color of office" with "for or relating to any act under color of office," eliminated the requirement of a causal connection. All that is required, Trump argues, is that the action against the federal officer is "connected" to or "associated" with acts taken under color of federal office. (Def.'s Br. 12-14.)

Clearly, Congress broadened the Act to cover actions "not just causally connected, but alternatively connected or associated, with acts under color of federal office." See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286,292 (5th Cir. 2020). The Third, Fourth, Fifth, Seventh, and Eleventh circuits have adopted this view. 4 Other Circuits, including the Second Circuit, continue to apply the requirement of a "causal connection" without addressing the question whether the 2011 amendment to§ 1442 practically changes anything in light of a defendant's "low hurdle" when removing a case from state court. See Veneruso v. Mount Vernon Neighborhood Health Ctr., 586 F. App'x 604, 608 (2d Cir. 2014).

Whatever the standard, and whether it is high or low, Trump fails to satisfy it. Trump claims he had a retainer agreement with Cohen that was not in writing, unlike the majority of others made by the Trump Organization. (Hr'g Tr. at 46--47, 59-60.) There was no memorandum evidencing it, and there is no evidence of anything Cohen did, or was asked to do, under the retainer; certainly none that related to an act under color of the Presidential office. The invoices and general ledger entries associated with the payments to Cohen contain no description of Cohen's services. According to Alan Garten-CLO of the Trump Organization and the only witness presented by Trump-Cohen was paid to be reimbursed for paying Clifford and for services as private counsel to Trump, services which Garten could not describe. (Id. at 54:17- 20, 62:6-20.) Garten testified also that although Cohen continued as a private attorney to Trump in 2018, the payments to him stopped in December 2017 when Trump's reimbursement obligation to Cohen was completed. (Id. at 65-66.)

The People have put forth evidence strongly supporting their allegations that the money paid to Cohen was reimbursement for a hush money payment. Exhibit 8, introduced without objection, shows a handwritten notation by someone in the Trump Organization, likely the CFO, calculating how much Cohen was to be repaid for advancing the $130,000 payment to Stephanie Clifford, and how the payment to him was to be disguised as income rather than reimbursement. Trump himself, in a May 2018 tweet, described Cohen's "monthly retainer" as a "reimbursement" in connection with a "private contract[.]" (Colangelo Decl., Ex. 4.)

Given the People's evidence challenging Trump's account, Trump bears the burden of supporting his factual averments with competent proof. See United Food & Comm. Workers Union, 30 F.3d at 301; Curry, 2009 WL 308029, at *l. Trump has failed to carry this burden. Trump contends that Cohen was hired "as a direct result of President Trump's role as President of the United States and his obligations under the Constitution, and in order to separate his business affairs from his public duties," but offers no evidence to support that contention. Trump chose not to testify and chose not to call Cohen or any other witness having knowledge of Trump's purpose in hiring Cohen. Cohen's invoices are the only indication of a retainer, but no one testified to the existence of any retainer agreement or what legal services, if any, Cohen did other than to advance hush money to Clifford. The evidence overwhelmingly suggests that the matter was a purely a personal item of the President-a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a President's official acts. It does not reflect in any way the color of the President's official duties.

Even if I accept Trump's allegations in the Notice that the payments to Cohen were compensation for his services as Trump's personal attorney, the requirement that the removing party demonstrate a relationship to an official act is not satisfied. Not every act of or on behalf of a federal officer is an act under color of office. For example, in New York v. De Vecchio, 468 F. Supp. 2d 448,462 (E.D.N.Y. 2007), an FBI agent was indicted in state court on four counts of second-degree murder for disclosing information to a mafioso that led to four killings. In support of removal, De Vecchio argued that his conversations with the mafioso were "in furtherance of [his] duties and responsibilities as a special agent of the FBI." Id at 454. The district court remanded the case to the state court from which it had been removed, holding that De Vecchio's "general claim that everything he did was in the context of the discharge of his federal duties" did not justify removal. Id at 462.

Clinton v. Jones, 520 U.S. 681 (1997) presents another example. There, the President sought immunity from having to give testimony while President about a private, embarrassing act done before he became President. While distinguishable from the present case, which concerns Trump's conduct while in office, the concept that a President is not entitled to immunity for "unofficial acts grounded purely in the identity of his office" applies to this case as well. Id at 693. There is an "outer perimeter" to a President's authority and responsibilities beyond which he engages in private conduct. Id. The Supreme Court has affirmed this principle as applied to Trump himself, finding that Trump's personal papers were distinct from his official documents and were thus not entitled to a heightened standard for subpoena. See Trump v. Vance, 140 S. Ct. 2412, 2429 (2020).

Trump conceded in his Notice that he hired Cohen to attend to his private matters. (Notice i 19.) Cohen's invoices and their associated records were maintained by the Trump Organization, a private enterprise, in New York City, not in Washington, D.C. as official records of the President. Trump paid Cohen from private funds, and the payments did not depend on any Presidential power for their authorization. Trump offered no evidence regarding what Cohen did as Trump's personal attorney. Neither the Constitutional prohibition barring the President from taking compensation beyond that fixed by Congress, nor the Constitutional obligation to take care to execute the laws, converts the President's private acts into acts under the color of his office.

I hold that Trump has failed to meet his burden of showing that the prosecution filed by the People in the New York Supreme Court is "for or re lat[ es]" to acts taken under color of federal office. Because Trump was not acting "within the scope of [his] authority," nor has he been charged "for an alleged offence ... warranted by [his] Federal authority[,]" there is little or no risk that a state might arrest the operations of the federal government. See Davis, 100 U.S. at 263.

III. Colorable Federal Defense

To remove a case under § 1442, the defendant also must raise a "colorable federal defense." Mesa, 489 U.S. at 136; see also Isaacson, 517 F.3d at 135. The defense "need not be 'clearly sustainable."' Isaacson, 517 F.3d at 139 (quoting Willingham, 359 U.S. at 406-07). Rather, the defense need only be "colorable" in law and fact; the defendant must show, at least, "the underpinnings of a valid federal defense." Albrecht v. A. 0. Smith Water Prods., 2011 WL 5109532, at *4 (S.D.N.Y. Oct. 21, 2011). The defendant bears the burden of showing that this standard has been met. See United Food & Comm. Workers Union, 30 F.3d at 301. Trump raises two federal defenses-immunity and preemption-neither of which is colorable.

A. Immunity

Trump first raises an immunity defense. Trump has expressly waived any argument premised on a theory of absolute presidential immunity. (Def.'s Br. 21.) Instead, he argues that he is immune from prosecution under the Supremacy Clause5 because his conduct "w[as] taken solely because he was President of the United States" and, "[a]s such, [his] decision to retain Michael Cohen to act as his personal lawyer arose out of his duties as President." (Notice ⁋⁋ 19-20; see also Def.'s Br. 21.) Trump has not raised a colorable immunity defense.

"[I]mmunity does not attach merely because state criminal prosecutions are based upon acts that happen during the scope of a federal officer's employment," and not everything a President does is "in the context of the discharge of his federal duties." De Vecchio, 468 F. Supp. 2d at 460,462; see also North Carolina v. Ivory, 906 F.2d 999, 1003 (4th Cir. 1990) (holding that immunity does not provide federal officers "carte blanche ... to proceed as they please" in carrying out every act within the scope of their employment). Rather, Supremacy Clause immunity requires the defendant to show both that he was performing "an act which he was authorized to do by the law of the United States" and that, in performing that authorized act, "he did no more than what was necessary and proper for him to do." In re Neagle, 135 U.S. 1, 75 (1890); see also New York v. Tanella, 374 F.3d 141, 147 (2d Cir. 2004). The standard is more stringent than the color of office test: "the acts themselves must of necessity be required in the discharge of the officer's duties." De Vecchio, 468 F. Supp. 2d at 460.

Trump argues that his "decision to separate his personal business from his public duties derived from his position as President" and was "rooted in constitutional concerns." (Def.'s Br. 24.) Trump's argument is conclusory. No evidence was presented to support it, and Trump has not explained how hiring and making payments to a personal attorney to handle personal affairs carries out a constitutional duty. Reimbursing Cohen for advancing hush money to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty. Trump is not immune from the People's prosecution in New York Supreme Court. His argument of immunity is not a colorable defense.

B. Preemption

Trump argues that the Indictment is preempted by the Federal Election Campaign Act, 52 U.S.C. § 30143(a). Trump argues that the Act preempts two of the crimes that he is charged with intending to commit or conceal by falsifying business records---crimes under New York Election Law ("NYEL") § 17-152, and crimes under FECA, 52 U.S.C. § 30101 et seq. (Notice ⁋⁋ 22-24; Def.'s Br. 18-20.) Trump further asserts that the Indictment is preempted because it alleges, essentially, that he intended to defraud "the voting public" during a federal election. (Def.'s Br. 20-21.) Trump's arguments are without merit; there is no colorable basis to them.

FECA' s general language, purporting to preempt "any provision of State law with respect to election to Federal office," 52 U.S.C. § 30143(a), is defined by FECA's implementing regulation, and the caselaw. Three specific categories of state law are preempted:

(1) State laws "concerning the ... [o]rganization and registration of political committees supporting federal candidates;"

(2) State laws "concerning the ... [d]isclosure of receipts and expenditures by Federal candidates and political committees; and"

(3) State laws "concerning the ... [l]imitation on contributions and expenditures regarding Federal candidates and political committees."

11 C.F.R. § 108.7(b); see also WinRed, Inc. v. Ellison, 59 F.4th 934, 942 (8th Cir. 2023) ("[The] FEC regulation defines the statute's scope."). The regulations provide that FECA does not preempt state laws concerning the "[m]anner of qualifying as a candidate or political party organization"; "[ d]ates and places of elections"; "[ v ]oter registration"; "[p ]rohibition of false registration, voting fraud, theft of ballots, and similar offenses"; "[c]andidate's personal financial disclosure"; and "[ a ]pplication of State law to the funds used for the purchase or construction of a State or local party office building to the extent described in 11 CFR 300.35." 11 C.F.R. § 108.7(c).

There is a "strong presumption against pre-emption" that applies with equal force to FECA. Weber v. Heaney, 995 F.2d 872, 875 (8th Cir. 1993). Thus, "even with respect to election-related activities, courts have given [FECA] a narrow preemptive effect .... " Stern v. Gen. Elec. Co., 924 F.2d 472,475 n.3 (2d Cir. 1991) (citing Reeder v. Kansas City Bd. of Police Comm 'rs, 733 F.2d 543, 546 (8th Cir. 1984)); see also WinRed, Inc., 59 F.4th at 943--44; Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185, 200-01 (5th Cir. 2013); Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1280 & n.18 (5th Cir. 1994) (collecting cases).

In Stern, for example the Second Circuit held that FECA did not preempt a derivative action against corporate directors for using corporate funds to contribute to political action committees in connection with a federal election. 924 F.2d at 474-76. The court of appeals ruled that FECA' s preemption provision is read "narrow[ly]," even when a state law is applied to "election-related activities," and that FECA "d[id] not preclude New York from pursuing its independent interest in ensuring that corporate directors exercise sound judgment in the expenditure of corporate funds." Id. at 475 & n.3.

In WinRed, a political action committee focused on electing federal legislators sought to enjoin state Attorneys General from investigating potential violations of state consumer protection laws in its fundraising activities. The investigations were centered on WinRed's use of pre-checked boxes, in fine print, to "steer[] supporters into unwitting [recurring] donations." 59 F.4th at 936-37. WinRed argued that because it was engaged only in federal elections, FECA preempted the application of state consumer-protection law to WinRed's federal fundraising conduct. Id. at 938-39. The Eight Circuit denied WinRed's motion for injunction. The court of appeals held that FECA is to be narrowly construed, and that the states' investigation in furtherance of consumer protection is not preempted even if solicitations for a federal election are involved. Id. at 943-44. Furthermore, the court of appeals ruled that Minnesota's consumer-protection law, which became the focus of the case, was covered by FECA's regulations providing that state "prohibition[s] on fraudulent voting, registration, and 'similar offenses'" are not preempted. Id. at 942-43. The court of appeals added that WinRed's argument, if upheld, would result in an improper "immuniz[ation] ... from many generally applicable state laws." Id. at 944.

The Fifth Circuit also has held that state laws of general applicability are not preempted, even when applied to cases involving contributions to a federal election campaign. In Janvey, the perpetrators of a Ponzi scheme could be prosecuted under Texas law, even though they contributed a portion of their fraudulently-obtained funds to political campaigns. 712 F.3d at 188, 200-02. Citing authority from several circuits-including the Second Circuit's decision in Stern-the court of appeals ruled that FECA was "construed ... narrowly" in the context of "general state law[ s] that happen[] to apply to federal [elections] in [ a given] case." Id. at 200- 01. The court of appeals then concluded that the Texas statute was such a general law, not one that "specifically regulate[s] federal campaign finance," and that it therefore was not preempted by FECA. Id.; see also Dewald v. Wriggelsworth, 748 F.3d 295, 301-03 (6th Cir. 2014) (holding that state-law fraud claims concerning election-related activity were not preempted under clearly established law); Thornburgh, 39 F.3d at 1280 (holding that FECA did not preempt state law as to a candidate's liability for campaign debts); Teper, 82 F.3d at 995 (collecting cases in which courts concluded that FECA did not preempt "state laws that are more tangential to the regulation of federal elections").

Cases holding that FECA preempts state law typically involve statutes that regulate conduct specifically covered by FECA. In Teper v. Miller, for example, a state statute barred state legislators from accepting campaign contributions during the legislative session, including when done in connection with a federal election. 82 F .3d 989 (11th Cir. 1996). The court of appeals held that FECA does not permit such limitations, which "intru[ded]" on the domain covered by FECA's substantive provisions. Id. at 993-99. The state statute at issue in Republican Party of New Mexico v. King similarly imposed limitations on campaign contributions and was therefore held preempted as applied to federal elections. 850 F.Supp. 2d 1206, 1215 (D.N.M. 2012), aff'd on other grounds, 741 F.3d 1089 (10th Cir. 2013); see also NH Att'y Gen. v. Bass Victory Comm., 166 N.H. 181 (2014) (holding that FECA preempted state law requiring the disclosure of funding when conducting certain polls for a federal election); Janvey, 712 F.3d at 201.

NYPL § 175.10 is a law of general applicability, prohibiting the falsification of business records for a fraudulent purpose. Cf. People v. Bloomfield, 844 N.E.2d 296,300 (N.Y. 2006). A violation is a misdemeanor. NYPL § 175.05. A violation with intent to commit, aid, or conceal another crime is a felony. Id. § 175.10. Any fraudulent falsification, along with an intention to commit, conceal, or aid the commission of any other crime, proves the felony. The law does not target, or make an exception for, election-related activities. There is no mention of disclosures of campaign contributions or spending, elections, or election laws, state or federal.

Trump concedes that PECA does not preempt§ 175.10 on its face. He argues that the provision of NYPL § 175.10 that raises falsification of business records to a felony if there is an intent to commit, aid, or conceal another crime is preempted if the crime involves federal elections. But violations of PECA and NYEL § 17-152 are not elements of the crime charged. The only elements are the falsification of business records, an intent to defraud, and an intent to commit or conceal another crime. The People need not establish that Trump or any other person actually violated NYEL § 17-152 or PECA. People v. Taveras, 12 N.Y.3d 21, 27 (2009) (holding that the only "relevant actus reus [under § 175.10] is the creation of a false entry in a business record," which is "elevated to a first-degree offense on the basis of an enhanced intent requirement .... "). Trump can be convicted of a felony even if he did not commit any crime beyond the falsification, so long as he intended to do so or to conceal such a crime. People v. Houghtaling, 79 A.D.3d 1155, 1157-58 (3d Dep't 2010) (upholding conviction under § 175.10 even where the defendant was acquitted of the secondary crime); People v. Holley, 198 A.D.3d 1351 (4th Dep't 2021) (same); People v. Dove, 2007 WL 1376283, at *6 n.6 (N.Y. Sup. Ct. Apr. 27, 2007) (holding that a defendant can be convicted under § 17 5 .10 when a jury concludes that he falsified business records "with the intent to cover up a crime committed by somebody else.").

The Indictment does not intrude on PECA' s domain. NYPL § 175.10 is a general law, not one that "specifically regulate[s]" federal elections. Janvey, 712 P.3d at 201. And the People's theory of intent under that law does not have the effect of limiting or otherwise interfering with federal regulation of elections. FECA preemption does not apply. See, e.g., Stern, 924 F.2d at 475 & n.3; WinRed, 59 F.4th at 942-44; Janvey, 712 F.3d at 200-01.

Next, Trump asserts a preemption defense stemming from the People's reliance on NYEL § 17-152 as one of the crimes that Trump intended to commit, aid, or conceal by his falsifications of business records. Trump argues that this allegation amounts to a charge of "conspiracy to promote or prevent a presidential election," and that the charge "is simply not a crime" because NYEL § 17-152 is preempted when applied to federal elections. (Def.'s Br. 19- 20.) Trump adds, "there can be no ... intent to commit a non-existent crime." (Def.'s Br. 20.) Again, Trump's argument is without merit.

NYEL § 17-152 makes it a misdemeanor to conspire to "promote or prevent the election of any person to a public office by unlawful means" if at least one conspirator acts upon the conspiracy. The statute makes no distinction between state and federal elections and does not define the range of "unlawful means" that can be the object of the conspiracy. NYEL § 17-152 does not fit into any of the three categories of state law that FECA preempts: "law[ s] concerning the ... [o]rganization and registration of political committees supporting federal candidates;" "law[s] concerning the ... [ d]isclosure of receipts and expenditures by Federal candidates and political committees;" and "law[s] concerning the ... [!]imitation on contributions and expenditures regarding Federal candidates and political committees." 11 C.F.R. § 108.7(b); see also WinRed, Inc., 59 F.4th at 942 ("[The] FEC regulation defines the statute's scope."). Nor is the conduct prohibited by NYEL § 17-152 covered by any other provision of FECA. See 52 U.S.C. §§ 30104 (reporting requirements); id. § 30114 (uses of campaign contributions); id. §§ 30116, 30118-19, 30121-23, 30126 (caps and other restrictions on campaign contributions and expenditures); id. §§ 30120, 30124 (election communications); id. § 30125 (soft money solicitations and expenditures).

NYEL § 17-152 is distinct from other provisions of New York's election law that directly target campaign contributions and expenditures, and which, therefore, are preempted. In Seltzer v. New York State Democratic Comm., for example, the New York Appellate Division held that FECA preempted the provision of NYEL that limited the expenditure of party funds as applied to federal elections, since FECA already "regulates the conduct and financing of campaigns for Federal elective office." 743 N.Y.S.2d 565, 568 (2d Dep't 2002) (internal quotation marks omitted); see also Kermani v. New York State Bd. of Elections, 487 F. Supp. 2d 101, 104 n.4 (N.D.N.Y. 2006) (collecting cases and FEC advisory opinions regarding other preempted provisions ofNYEL). FECA "occupies the field" with respect to regulations of federal campaign contributions and expenditures. F.E.C. Advis. Op. 1995-41 (Dec. 7, 1995). But FECA has not preempted state law entirely regarding elections, and "does not affect the States' rights" to pass laws generally concerning "other areas" of federal elections, "such as voter fraud and ballot theft." F.E.C. Advis. Op. 1995--41 (Dec. 7, 1995) (quoting H.R. Rep. No. 93-1438, 93d Cong., 2d Sess. 69 (1974)); see also WinRed, Inc., 59 F.4th at 942--43; Reeder, 733 F.2d at 546; Dewald, 748 F.3d at 301-03. NYEL § 17-152 is thus not preempted by FECA.

Finally, Trump argues that FECA preempts any "misdemeanor or felony [falsification] charges" brought against him because the Indictment requires the People to prove that Trump had an intent to defraud "the voting public" during a federal election. (Def.' s Br. 20 (internal quotation marks omitted); see also Hr'g Tr. 81:4-87:21.) Trump's argument is not part of his Notice, see ⁋⁋ 21-24; it arose only in his brief and at oral argument. Although all grounds of removal must be stated in the notice of removal, and Trump's argument is therefore susceptible to statutory waiver, 28 U.S.C. § 1455(b)(2), it is preferable to address Trump's argument substantively, rather than to parse his Notice. And, substantively, Trump's additional argument for preemption fails for the same reasons discussed previously: FECA does not preempt the application of a general state law to conduct related to a federal election except if the law, or its application, constitutes a specific regulation of conduct covered by FECA. Janvey, 712 F.3d at 200-01; WinRed, 59 F.4th at 942-43. The mere fact that Trump is alleged to have engaged in fraudulent conduct with respect to a federal election is not a basis for preemption.

There is no colorable basis to support a federal preemption defense.

IV. Protective Jurisdiction

Trump argues that the indictment "is politically motivated" and is the product of "state hostility," and is removable under "protective jurisdiction." Notice ,r 31. No case supports Trump's argument; none has been cited and none has been found. Indeed, a unanimous Supreme Court in Mesa-addressing the government's argument that a federal officer could remove a case from state court under 28 U.S.C. § 1442 irrespective of whether he raised a colorable federal defense-indicated that the theory poses "grave constitutional problems." Mesa, 489 U.S. at 137.

Trump argues, citing Justice Brennan's concurrence in Mesa, that a federal officer could remove a case from state court if he could show "local hostility to federal authority." Id. at 140. However, Trump has not shown such local hostility. Trump argues that a "politically motivated" district attorney who "disfavored [Trump's] acts and policies as President" caused the grand jury to indict. Notice ⁋ 31. Trump fails to show, however, that the grand jury lacked a rational basis for the indictment, or that there was "widespread resistance by state and local governmental authorities to Acts of Congress and to decisions of [the Supreme] Court." Justice Brennan's concurrence hypothesized that if such factors were to exists, protective jurisdiction might be appropriate. Mesa, 489 U.S. at 140. But there is no reason to believe that the New York judicial system would not be fair and give Trump equal justice under the law. Trump fails to make a case of protective jurisdiction.

CONCLUSION

Trump has failed to show that the conduct charged by the Indictment is for or relating to any act performed by or for the President under color of the official acts of a President. Trump also has failed to show that he has a colorable federal defense to the Indictment. For either or both of these reasons, the People's motion to remand the case is granted. The Clerk shall remand the casefile to the New York Supreme Court, New York County.

SO ORDERED.

Dated: July 19, 2023

New York, New York

ALVIN K. HELLERSTEIN

United States District Judge

______________

Notes:

1 The Donald J. Trump Revocable Trust, created under the laws of New York, held the Trump Organization entity assets after Trump was elected President. (SOF, ⁋ 4.)

2 The Foreign Emoluments Clause provides that "no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." The Take Care Clause provides that the President "shall take Care that the Laws be faithfully executed .... "

3 The excerpts were admitted solely as evidence that Cohen made the statements written in the book, not for their truth. See United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (citing Fed. R. Evid. 80l(c) advisory committee's note). Trump's arguments omitted important context contradicting his contention that Cohen regarded the payments as legal retainer for his services as Trump's personal attorney, rather than a reimbursement of an advance of hush money. Cohen states in his memoir:

Trump's maneuver was classic, gangster, the kind of deception that I had to say I appreciated in all its dimensions. Trump was going to pay me for my services with my own money. He'd get the tax deduction for legal fees, almost certainly a criminal offense if any mortal lied on their tax returns about a business expense of nearly half a million dollars .... The payments would be spread out over twelve months and look like a perfectly ordinary arrangement for a sitting president devolving the management of his business interests to his two sons, but still in need of an experienced lawyer who knows his affairs-pardon the pun -- and who could advise him confidentially.

Disloyal, at 311.

4 See Baker v. At!. Richfield Co., 962 F.3d 937,944 (7th Cir. 2020); Latiolais, 951 F.3d at 292; Caver v. Cent. Alabama Elec. Coop., 845 F.3d 1135, 1144 (11th Cir. 2017); Sawyer v. Foster Wheeler, L.L.C., 860 F.3d 249,258 (4th Cir. 2017); In re Commonwealth's Motion to Appoint Counsel Against or Directed to Defender Ass'n of Phila., 790 F.3d 457 (3d Cir. 2015).

5 The Supremacy Clause reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2.
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Before Jan. 6, Mark Meadows joked about Trump’s election claims: In a text, Meadows wrote that his own son was unable to find more than a handful of votes potentially cast in the name of dead voters, people familiar with message say
by Josh Dawsey, Carol D. Leonnig and Jacqueline Alemany
Washington Post
July 22, 2023 at 6:00 a.m. EDT

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Mark Meadows joked about the baseless claim that large numbers of votes were fraudulently cast in the names of dead people in the days before the then-White House chief of staff participated in a phone call in which then-President Trump alleged there were close to 5,000 dead voters in Georgia and urged Secretary of State Brad Raffensperger to overturn the 2020 election there.

In a text message that has been scrutinized by federal prosecutors, Meadows wrote to a White House lawyer that his son, Atlanta-area attorney Blake Meadows, had been probing possible fraud and had found only a handful of possible votes cast in dead voters’ names, far short of what Trump was alleging. The lawyer teasingly responded that perhaps Meadows’s son could locate the thousands of votes Trump would need to win the election. The text was described by multiple people familiar with the exchange.

The jocular text message, which has not been previously reported, is one of many exchanges from the time in which Trump aides and other Republican officials expressed deep skepticism or even openly mocked the election claims being made publicly by Trump, according to people familiar with the investigation, who spoke on the condition of anonymity due to the sensitivity of the criminal investigation.

Special counsel Jack Smith, who is leading a Justice Department investigation of Trump’s activities in the weeks leading up to the Jan. 6, 2021, attack on the U.S. Capitol, has focused on exploring whether Trump and his closest advisers understood that claims of fraud in the election were baseless, even as they pressed state officials and others to overturn Biden’s victory and convinced Trump’s millions of supporters that the election had been stolen, people familiar with the probe have said.

The text message is a small part of a broader portrait of Meadows that Smith appears to be assembling as he weighs the actions of not just Trump but a number of his closest advisers, including Meadows.

People close to Meadows have said that he was privately sympathetic to those Trump advisers who were skeptical of the fraud claims. Yet Meadows also played both sides, often appearing to indulge Trump’s desire to use those false allegations to try to remain in office, people who witnessed his behavior have said.

A spokesman for Meadows declined to comment. Blake Meadows did not respond to a request for comment.

Since Trump said he was named a target of Smith’s investigation earlier this week, his allies have been feverishly speculating about the degree of Meadows’s cooperation with the Smith probe and whether he has provided testimony that Smith will use to build a case against Trump or others.

The Meadows text, which a person familiar with the investigation said prosecutors have presented to a grand jury, is a reminder that Smith has gathered documents and witness testimony that has not been seen by the public despite more than two years of congressional and media scrutiny about Trump’s activities following the election. He will probably offer the public the fullest picture yet available of the events that led to the Jan. 6 attack.

A spokesman for Smith declined to comment.

Days after Meadows sent the text, he organized the Raffensperger call on Jan. 3, in which Trump pressed to “find” the votes in the state necessary to overturn Biden’s win.

A recording of the call shows that Meadows did not interject or challenge Trump’s claims about votes cast in the name of dead people. Instead, when Raffensperger countered that state investigators had found just two such votes, he responded: “That may be what your investigation shows, but I can promise you there are more than that.”

Meadows expended particular energy after the 2020 vote on Georgia, a traditionally Republican-leaning state that Biden won by nearly 12,000 votes, former White House officials and campaign aides said. Meadows lobbied other officials in the state about the election results and even visited a ballot counting center in Georgia, The Washington Post has reported.

In the weeks after the election, Trump advisers said they received claims that came from Meadows that the election was fraudulent, but when they checked the claims with outside experts paid by the Trump campaign, they could not substantiate them, according to people familiar with the requests.

Meadows, a former member of Congress who became Trump’s chief of staff in early 2020, was viewed inside the White House and the campaign as one of the biggest propagators of such claims — though at times he also entertained concerns from other Trump advisers who wanted the president to accept his election loss.

It is not clear how extensively Blake Meadows looked for instances of fraud in Georgia or what his father concluded about his findings.

Blake Meadows interned for a North Carolina Supreme Court justice and worked for his father’s campaign for Congress and a Republican political group called the Alliance Defending Freedom, according to his LinkedIn profile. He is now managing partner of his own firm in Tyrone, Ga.

Witnesses have been asked detailed questions about why Meadows appeared so deeply interested the Georgia election results and about his various phone calls with Georgia officials and other activities in the state, three people familiar with testimony said.

The Justice Department obtained hundreds of Meadows texts in the summer of 2022, which were then shared with Smith’s team after the special counsel was appointed in November, according to two other people familiar with the probe. Meadows subsequently turned over additional documents to Smith’s office in response to a subpoena, according to people familiar with his activities.

Witnesses who have appeared in front of a Washington grand jury investigating Jan. 6 say prosecutors appear to have an extensive collection of Meadows text messages and emails, with one witness describing being shown a “grid” displaying the communications.

This spring, Meadows testified to the grand jury about his interactions with Trump and others involved with Trump’s election effort, two people with knowledge of the appearance said.

After leaving the White House, Meadows joined the Conservative Partnership Institute, where he has helped the group raise money and amass real estate for a larger office complex on Capitol Hill. He has kept in touch with some of his aides from the White House.

People in Trump’s orbit have grown increasingly concerned about what they see as Meadows’s retreat from the public scene as a prominent defender of the former president. He has reduced his public appearances, particularly on television — where he was once a frequent guest. He has not posted on Twitter in five months.

Trump has repeatedly complained to others about Meadows and questioned his loyalty, according to three Trump advisers. A spokesman for Trump declined to comment about Meadows.

Trump’s relationship with his former chief of staff soured after Meadows published a book about his time in the White House last year that generally praised Trump but also included details about how sick Trump became when he contracted covid-19 in October 2020, a description of personal vulnerability that has angered Trump. That included insider information about Trump’s three-day stay at Walter Reed National Military Medical Center recovering from the virus, where Meadows joined him.

Research for the book, “The Chief’s Chief,” also appeared to help a separate Smith investigation into Trump’s handling of classified documents after leaving office. Investigators obtained audio of Trump talking about what he said was a classified document with ghostwriters for Meadows, as papers rustle.

A person close to Meadows said he knows his relationship with Trump is permanently ruptured and has told others he does not seek to antagonize Trump and his supporters but concluded he had to cooperate with Smith’s office as required by law.

— Perry Stein contributed to this report.

***********************

Trump is SCREWED by SECRET TEXT MESSAGES by Former Top Aides MOCKING HIM
by Ben Meiselas
MeidasTouch
Jul 24, 2023

MeidasTouch host Ben Meiselas reports on text messages sent by Donald Trump’s former Chief of Staff Mark Meadows to Trump’s former White House lawyer after the 2020 election mocking Trump’s claims of fraud.



Transcript

I'm Ben Meiselas from the Meidas touch
Network a pretty big story over the
weekend from The Washington Post about
how Mark Meadows Donald Trump's former
Chief of Staff was sending private text
messages basically mocking Donald
Trump's claims of election fraud and if
you've been a viewer of the Midas touch
Network this story which was billed as
major breaking news by The Washington
Post would not be big breaking news to
you because remember we told you back
when the January 6th committee was
gathering evidence how big these text
messages are let's just go right to The
Source before going to Washington Post
to remind you of these text messages
that Mark Meadows was sending and
receiving with a White House lawyer at
the time this was right before the
January 6 phone call that Donald Trump
had with Brad raffensberger the
Secretary of State of Georgia where
Donald Trump threatened raffensberger
find me the 11
780 votes or else but even though Mark
Meadows coordinated that call between
Donald Trump and Brad raffensberger
um Mark Meadows was privately mocking
Donald Trump in these text messages and
so the one thing to note here as well is
that Mark Meadow's son Blake Meadows is
an attorney and Blake Meadows at the
time of the aftermath of the 2020
election When Donald Trump was making
all of these false statements about
election fraud Blake Meadows was
actually working with the Trump campaign
to investigate these allegations and so
Blake medal Blake Meadows knew that
Donald Trump's accusations of voter
fraud was just completely and totally
false and he had been trying to
determine if there were dead voters in
Georgia that was absolutely not the case
I think they found 12 people who had
passed away since the general election
but let's just go to The Source before
reading and going over this Washington
Post article so here it is right here
these are the messages between Mark
Meadows and a top White House lawyer
right around January 6th of 2021 it says
just an FYI Alex Cannon and his team
verified that the 10 000 supposed dead
people voting in Georgia is not accurate
so the fact that Mark Meadows and the
top White House lawyer are recognizing
that this claim that was being advanced
by Donald Trump and frankly by Meadows
that there was ten thousand dead people
voting was not verified
goes on to say I didn't hear that claim
it is not accurate I think I found 22 if
I remember correctly two of them died
just days before the general and then
the response was it was alleged in
Rudy's hearing today your number is much
closer to what we can prove I think it's
12 again these messages are coming from
Mark Meadows and so as Mark Meadows is
advancing the big lie on behalf of
Donald Trump privately this is what Mark
Meadows is saying and then Mark Meadows
responds my son referring to Blake
Meadows my son found 12 obituaries
obituaries and six other possibles
depending on the voter roll accuracy and
then the White House lawyer says that
sounds more like it maybe he can help
Rudy find the other ten thousand and
then Mark Meadows responds LOL the fact
that there are mocking Trump like this
but they also find it a joke right like
maybe your son Mark can help find the
other 10 000 votes and by the way
language that Donald Trump used right
when he spoke to Brad raffensberger
Georgia Secretary of State what did
Trump say find me 11 780 votes and here
privately they're mocking Donald Trump
but they're making a mockery out of our
entire democracy right here joking that
Rudy Giuliani who's working on behalf of
the Trump campaign is just making false
allegations that there are ten thousand
dead people that voted and they know
it's a lie so this is critical because
it goes to intent and by the way it goes
to Donald Trump's and by the way these
messages were produced in connection
with the January 6th committee right so
we've talked about these Mark Meadows
text messages before so I found it
somewhat curious although
um I think it demonstrates that special
counsel Jack Smith's team is focused on
it that adds to it that the Washington
Post build this as like they got a scoop
or they got an exclusive by the way
Washington Post has done some great
reporting but this right here I don't
think is a scoop and I don't think they
really acknowledge that these messages
were out before and that we've talked
about them here this is the Washington
Post article it says before January 6th
Mark Meadows joked about Trump's
election claims in a text Meadows wrote
that his own son was unable to find more
than a handful of votes potentially cast
in the name of dead voters people
familiar with the messages say the
article goes on to say Mark Meadows
joked about the baseless claim that
large numbers of Voters were
fraudulently cast in the names of dead
people in the days before the then white
house chief of staff participated in a
phone call in which Donald Trump alleged
there were close to 5 000 dead voters in
Georgia earned and urged Brad
raffensberger Georgia Secretary of State
to overturn the 2020 election in a text
message that has been scrutinized by
federal prosecutors Mark Meadows wrote
to a White House lawyer that his son
Atlanta area attorney Blake Meadows had
been probing a possible fraud and had
found only a handful of possible votes
cast in dead voters names far short of
what Trump was alleging the lawyer
teasingly responded that perhaps
Meadow's son could locate the thousands
of votes Trump would need to win the
election the text was described by
multiple people familiar with the
exchange the jocular text message which
has not been previously reported is one
of many exchanges from the time in which
Trump AIDS and other Republican
officials expressed deep skepticism or
even openly mocked the election claims
being made publicly by Trump according
to people familiar with the
investigation who spoke on a condition
of anonymity I mean look it's great that
they're speaking on a condition of
anonymity but we have the text messages
you you've now seen the text messages
that Mark Meadow sent to the White House
lawyer in late 2020 right before the
January 2nd 2021 call with Mark Meadows
just to remind you though of the mark
Meadows situation remember at first Mark
Meadows was cooperating with the January
6 committee turned over about 2 000 text
messages in October of 2021. he was then
supposed to turn over the next tranche
of records and text messages and be
deposed by the January 6 committee on or
around December of 2021 he said he was
going to participate he said he was
going to turn over more records but
right before
Meadows was set to actually sit for his
deposition Meadows filed a lawsuit
against the January 6 committee and
Nancy Pelosi and sought injunctive
relief to try to block his testimony
ultimately that case was dismissed by a
federal judge in Washington D.C however
Mark Meadows effectively ran out the
clock on the January 6 committee didn't
turn over more text messages didn't have
to have his deposition taken
many people were speculating why did the
Department of Justice not prosecute Mark
Meadows even though the January 6
committee recommended uh charges that be
pursued by the Department of Justice for
contempt of congress and remember what I
had said at that time I think the
January I think the Department of
Justice was going to try to focus on
making Meadows a cooperating witness in
connection with the broader criminal
case that they were going to be
prosecuting with respect to Donald Trump
and unlike the January 6 committee that
struggled when it came to executive
privilege claims because there is a
small line of cases that basically say
in an inter-branch dispute that a former
president could assert executive
privilege vis-a-vis the Congress but not
vis-a-vis a current president so the
Department of Justice is an executive
branch Department
um and the only person who could waive
executive privilege is the current
president the current executive so
President Biden waived executive
privilege he's not asserting executive
privilege even if President Biden were
to assert executive privilege
um if there was a compelling need that
was showed by the Department of Justice
that would override
um any claims of executive privilege
even if it was asserted in the first
place so Biden has not asserted
executive privilege Mark Meadows has had
to turn over the records that he didn't
have to turn over uh to the January 6th
committee so Jack Smith's got those
additional text messages right now and
we all believe that special counsel Jack
Smith has turned Mark Meadows into a
cooperating witness right now that Mark
Meadows has agreed to a proffer session
providing all of this information to
special counsel Jack Smith in exchange
for either not Prosecuting Meadows or
for a lesser charge against Meadows and
all of the kind of Maga world has not
heard from Meadows they're worried that
Meadows has flipped and by all accounts
Meadows is cooperating with special
counsel Jack Smith right now but as it
relates to these specific text messages
we have reported on that here before on
the Meidas touch network but this does go
to show you that special counsel Jack
Smith is very very focused on this
because and messages like this because
it shows that everybody in Trump's orbit
knew this was BS they knew there was no
election fraud they were mocking it
Trump knew and when Trump knew that goes
to intent that's what's called The mens rea
in a criminal case and that's the
type of Smoking Gun text messages that
are going to be used in a prosecution of
Donald Trump keep you posted as we learn
more but that's why we follow this step
by step by step I'm Ben Meiselas from
the Meidas touch Network hit subscribe
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