Trump lashes out at Gov. Doug Ducey following certification

Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Jul 20, 2023 11:40 pm

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22-cv-10016 (LAK)



Roberta Kaplan
Joshua Matz
Shawn Crowley
Matthew Craig
Trevor Morrison
Michael Ferrara

Attorneys for Plaintiff

Joseph Tacopina
Matthew G. DeOreo
Chad Derek Seigel

Alina Habba
Michael T. Madaio

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.


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


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



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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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Jul 20, 2023 11:41 pm

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).


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.


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.



July 19, 2023

Lewis A. Kaplan
United States District Judge



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,”,  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, (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, ... 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,  -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)).
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Re: Trump lashes out at Gov. Doug Ducey following certificat

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23 Civ. 3773 (AKH)

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.


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.)


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).


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.


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.


Dated: July 19, 2023

New York, New York


United States District Judge



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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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Mon Jul 24, 2023 10:46 pm

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



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.


by Ben Meiselas
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.


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
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
we're on our way to 1.5 million
subscribers thanks to your awesome
support check us out at
Meidas Touch wherever you get audio
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podcast have an excellent day
Site Admin
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Jul 25, 2023 1:05 am

Former Trump Associate Lev Parnas EXPOSES Dangerous Links to FOREIGN AGENTS
by Lev Parnas
Jul 24, 2023

Former Donald Trump / Rudy Giuliani Associate Lev Parnas discusses Rudy Giuliani’s false claims about Hunter Biden’s business in Ukraine and the fake narrative that Joe Biden coordinated the ousting of Ukrainian Prosecutor General Viktor Shokin in order to protect his son. Parnas also exposes some of Giuliani’s personal relationships with individuals later revealed to be active Russian Intelligence Agents.



Hey everybody. My name is Lev Parnas.


For those of you that don't know me, I was part of Donald Trump's inner circle and Trump's Maga cult. Donald Trump and Rudy Giuliani sent me to Ukraine to dig up dirt on Joe and Hunter Biden. Now that I'm out of the cult, and finishing up my sentence of home confinement, I'd like to share some some stories that I have written up in my diary while I was here on home confinement.


Now this week it was reported that Rudy Giuliani did invent information that he pushed to overturn the 2020 election. Now as crazy as it might sound to you, to me it was Rudy just being Rudy. It wasn't about finding out the real information, or the truth about what was really going on. It was all about getting Trump back in office. And today I'm going to tell you a little bit how it coincided with all the stuff that's transpired in Ukraine, because it was similar to the same thing that happened in the 2020 election.

It was getting information and pushing it through any means possible, through his cohorts in Congress.


Back then it was Devin Nunez. Today it's Senator Johnson,


James Comer,


Marjorie Greene,


Lauren Boebert, and the rest of the crazy Congress people that we have that are pushing all these misinformation just to confuse the public.

So where do we begin? in November of 2018, I was approached by Rudy Giuliani, and asked if I could vet some information that he got regarding Joe and Hunter Biden, and if I could use my contacts in Ukraine to find out if they were true. Obviously, being in the Maga cult, I was drinking the Kool-Aid, and I decided, and I was happy, to accept that invitation. I thought I was going to be a hero, and I was going to help save the our democracy from the deep State. Boy was I wrong!

So anyway, going forward, in December, I met up with Trump and Giuliani at the White House, where Giuliani told Trump about everything about a video that he saw where Joe Biden basically came out and said to the prosecutor Viktor Shokin that if he doesn't get fired, they're not gonna, Ukraine won't get a billion dollars in aid.


Fact check: Biden leveraged $1B in aid to Ukraine to oust corrupt prosecutor, not to help his son
by Camille Caldera
USA Today
Published 5:25 p.m. ET Oct. 21, 2020

He [Giuliani] thought that he had the Smoking Gun at the time, and he wanted to find Viktor Shokin. He wanted to get to the bottom of it. He wanted to find Victor Shokin, and I was the guy that was going to go and do that for him.


We went to the White House where he updated Trump. Trump came out, patted me on the back, gave me a thumbs up, and told me, "Rudy says good things about you, Lev. Continue doing the good work that you're doing."  

I was impressed. I was mystified. I mean, here the president of the United States is telling me that I'm doing good work, and I'm, you know, for a kid out of Brooklyn that never expected to be in the White House, here I am speaking to the President of the United States, and being sent on a mission from him and his attorney Rudy Giuliani to help save our democracy, which I thought at that time. Boy was I wrong about that!

My connection to Trump came through Giuliani, with whom I had done business, and through the large campaign donations I had made to Trump's campaign. Giuliani, who desperately wanted to be Secretary of State, recruited me to help him further Trump's interests overseas. I had no official position, but my primary task was to be their go-between with Ukrainian and Russian oligarchs and government officials. In retrospect, I concluded that my real job was to help undermine and destabilize the Ukrainian government.

-- Lev Parnas Diary


So I traveled to Ukraine in 2018 in December to find Viktor Shokin. After meeting various characters, I eventually located Shokin, and had to go through a two-hour drive in the middle of nowhere to meet with Viktor. When we sat down, at first, Viktor Shokin was an interesting character. He didn't care too much about what was going on in the United States, and didn't care too much about Rudy Giuliani, or Trump. All he cared about was getting back into power, and getting reinstated to become Attorney General of Ukraine -- Prosecutor General, excuse me.

Trump acted on his hatred of Ukraine as he tried to improve his re-election chances in 2020. The plan that Giuliani and Trump put into operation was simple. Giuliani sent me to collect compromising information that the Eastern European oligarchs had on Hunter Biden's activities in Ukraine to use against Joe Biden. It was also my job to convince the new Ukrainian government to announce an official investigation into Hunter Biden. If they didn't, the U.S. would not send Trump or Vice President Mike Pence to Zelensky's inauguration, threatening Zelensky's domestic stature and his ability to stand up to Putin. Trump also paused much needed military aid for Ukraine while he tried to get Zelensky to open the Biden investigation.  

-- Lev Parnas Diary

I relayed a message to him telling him that Giuliani says that we could help. We could help if you help us. And we need information on Joe and Hunter Biden.


At first, Shokin was a little bit skeptical about getting involved, but eventually he said he would love to come to the United States and meet with Giuliani, and talk about it. Giuliani prepared a visit for him, which got derailed by Maria Yovanovitch, the U.S ambassador to Ukraine. He [Giuliani] told Shokin to get a Visa. "Tell them at the Visa office that you're going to Los Angeles to visit your daughter. Don't tell them that you're going to Washington DC to meet up with Lindsey Graham and myself."

Well, that didn't go well. When he went to the Visa office, he got declined.

After several conversations, and Giuliani pressuring the State Department, even going to Trump himself, sending me text messages to reply back to Shokin that everything would be well, he never was able to get him the Visa.

The fired prosecutor at the center of the Ukraine controversy said during a private interview with President Trump's personal attorney Rudy Giuliani earlier this year that he was told to back off an investigation involving a natural gas firm that was linked to Joe Biden's son, according to details of that interview that were handed over to Congress by the State Department's Inspector general Wednesday.

Fox News obtained a copy of Giuliani's notes from his January 2019 interview with fired Ukrainian prosecutor Viktor Shokin in which he claimed that his "investigations stopped out of fear of the United States."

"Mr. Shokin attempted to continue the investigations but on or around June or July of 2015, the U.S. Ambassador Geofrrey R. Pyatt told him that the investigation has to be handled with white gloves, which according to Mr. Shokin, that implied do nothing," the [hidden words] stated. The notes also claimed Shokin was told Biden had held ...

We were able to do a 45 minute video with him at some point in January of 2019, where Shokin basically pushed the narrative that Joe Biden got him fired because of withholding the billion dollar aid. But one interesting part in that video, in the interview, was when Rudy asked Shokin directly, "What laws, or what criminality, did Joe or Hunter Biden do?" Shokin couldn't respond. Because there was no rules that were broken. There were no laws being broken. And that was a narrative that started then, and continued to this day today.


After that, we went with the Yuriy Lutsenko, who was another prosecutor, the current prosecutor of Ukraine. Lutsenko -- all he wanted to do was meet attorney general Barr. But to me, Rudy Giuliani wanted information, information that Lutsenko didn't have. Because there was no concrete evidence of any wrongdoing by Joe and Hunter Biden.

But Rudy Giuliani pushed. He didn't care if there was facts involved. He didn't care if there was evidence. He cared that the narrative, that the information that the prosecutors gave him, fit his narrative.

At some point there was lots of arguments going back and forth with Shokin. Lutsenko would make statements, retract statements, give information, but that didn't bother Rudy. With no facts involved, he used people like John Solomon, Fox news reporter Sean Hannity, Laura Ingraham, Senator Ron Johnson, Devin Nunez, and pushed that information into the halls of Congress, and into the media for the public to hear, with no facts behind it whatsoever.

Rudy knew there was no facts, but it was all about getting Trump back in office. De didn't care if there was truth behind it. All he cared about was that he could bring up enough "what if" and bring enough confusion so the American public would get confused enough to be able to get Trump back in office.

Today Rudy Giuliani, because of all of that, is facing some problems. I mean, he's currently looking to probably get disbarred. He's probably going to get indicted in the election fraud case. And he's being sued by lots of people, you know, one of them being Noelle Dunphy for sexual assault. And I was part of a lot of those meetings, and heard a lot of things that went on.

I spent a lot of time with Rudy Giuliani. He's not the Rudy Giuliani that we're used to knowing, or reading about, or hearing in the past. He's not the Rudy Giuliani that was named America's mayor. He's a different Rudy Giuliani that sold his soul to Trump. Basically, sold his soul to the Trump cult, and basically is now doing whatever it takes: lying, sending misinformation, without proof, just to be able to get his cult leader Trump back in office.

So let's talk about some facts. You know, I mentioned some of the facts as far as what happened with the 2020 election. Now let's go into some of the people Rudy Giuliani dealt with, just so you understand as far as getting information from Ukraine.

The European Union has welcomed the dismissal of Ukraine's scandal ridden prosecutor general and called for a crackdown on corruption, even as the country's political crisis deepened over efforts to form a new ruling coalition and appoint a new prime minister. Ukraine's parliament voted overwhelmingly to fire Viktor Shokin, ridding the beleaguered prosecutor's office of a figure who is accused of blocking major cases against allies and influential figures and stymying moves to root out graft. "This decision creates an opportunity to make a fresh start in the prosecutor general's office. I hope that the new prosecutor general will ensure that [his] office ... becomes independent from political influence and pressure and enjoys public trust," said Jan Tombinski, the EU's envoy to Ukraine. There is still a lack of tangible results of investigations into serious cases ... as well as investigations of [hidden] prosecutor general's office," he added.

Viktor Shokin was a corrupt prosecutor, and not only Biden wanted him out, the whole West wanted him out. IMF wanted him out. Western leaders wanted him out. Not because he was making investigations, but because he wasn't investigating. And that's a clear fact. He was not investigating Burisma when Rudy Giuliani saw the video of Joe Biden saying, "get rid of Viktor shokin, or we're not going to give you a billion dollars." The reason why Biden made that statement was because the United States, the IMF, and the Western leaders, were pushing for reform in Ukraine. They were trying to do away with corruption, and Shokin, was one of the corrupt prosecutors at the time.


EU hails sacking of Ukraine's prosecutor Viktor Shokin
Political crisis continues as deals on a new coalition and premier prove elusive
by Daniel McLaughlin in Kiev
The Irish Times
Tue Mar 29 2016 - 18:41

Then comes Yuri Lutsenko. Yuri Lutsenko, who all he wanted to do was meet attorney general Barr, and to be able to discuss with him criminal activities that were going on between Ukrainian and American citizens. Rudy didn't care about that. All Rudy wanted to hear was, "Get me some dirt on Joe and Hunter Biden."

Lutsenko, because of his own political ambitions, and because he was worried about getting ousted if Petro Poroshenko was to lose the election, which he eventually did to Volodymyr Zelenskiy, tried to play ball. But it was never good enough for Giuliani, because he would never come out and announce an investigation into Joe and Hunter Biden.

But that didn't stop Rudy from pushing the agenda. It didn't stop Rudy from pushing the misinformation campaign. It didn't stop John Solomon, and Fox, and Ron Johnson, and Devin Nunez, to go up in front of the American public and talk about bits and pieces of information without facts backing it up.

But then later, when Rudy Giuliani needed really seriously corrupt individuals that would be able to go to any extreme to help him, that's when enters Andriy Telizhenko, and Andriy Derkach.


So let's talk about who these people are. Andriy Telizhenko, he was sanctioned by the U.S treasury for being part of a Russian linked foreign influence network.


That's right folks. He was sanctioned by the Trump Administration for being part of a Russian linked foreign influence network.


So just understand who the information was coming from.


Now let's take a look at Andriy Derkach. Andriy Derkach was a member of parliament who the Trump Administration accused of an active Russian agent over a decade.


His father was an ex KGB agent. Let's repeat myself: he was an active Russian agent for over a decade.

The U.S. Office of Foreign Assets Control sanctioned seven current and former Ukrainian officials who tried to tip the U.S. presidential election for the outgoing President Donald Trump.

All seven are part of a Russianlinked foreign influence network associated with lawmaker Andrii Derkach. The group used dubious allegations to try to start an investigation against Biden and his son Hunter to hut Biden's chances of winning the election.

"Russian disinformation campaigns targeting American citizens are a threat to our democracy," said U.S. Treasury Secretary Steven T. Mnuchin.

On May 19, Derkach leaked recordings of what he claimed were conversations between Biden and former Ukrainian President Petro Poroshenko. Derkach claimed this proves that in 2016, Biden forced Ukraine to fire then-Prosecutor General Viktor Shokin to help Ukrainian oil company Burisma Holdings escape corruption prosecution.

[HIDDEN] which has been debunked multiple times. In December 2019, Trump ...

The Trump Administration sanctioned Derkach on the grounds that he was an active Russian agent for over a decade, who had waged a covert influence campaign centered on cultivating false and unsubstantiated narratives to influence the 2020 elections.


Active Russian Agent Andrii Derkach Indicted for Scheme to Violate Sanctions in the United States
Wednesday, December 7, 2022
For Immediate Release
Office of Public Affairs

Derkach was Added to OFAC’s List of Specially Designated Nationals in 2020 After Waging a Covert Influence Campaign to Undermine the 2020 U.S. Presidential Election

A seven-count indictment was unsealed today in federal court in Brooklyn charging Andrii Derkach, 55, of Ukraine, with conspiracy to violate the International Emergency Economic Powers Acts (IEEPA), bank fraud conspiracy, money laundering conspiracy, and four counts of money laundering in connection with the purchase and maintenance of two condominiums in Beverly Hills, California. Derkach allegedly concealed his interest in the transactions and violated sanctions imposed in 2020. Derkach remains at large. The charges and forfeiture action announced today include the first use of criminal and forfeiture powers targeting the concealment of ownership by senior foreign political officials, passed as part of the National Defense Authorization Act of 2021.

“The conduct of this Kremlin asset, who was sanctioned for trying to poison our democracy, has shown he is ready, willing and capable of exploiting our banking system in order to advance his illicit goals,” said U.S. Attorney Breon Peace for the Eastern District of New York. “The U.S. will not be a safe haven where criminals, oligarchs or sanctioned entities can hide their ill-gotten gains or influence our elections. This office, together with our law enforcement partners, will use every tool available to prosecute those who evade sanctions and abuse the U.S. financial system, and we will identify, freeze and seize criminal proceeds whenever and wherever possible.”

“Kremlin-backed Ukrainian politician and oligarch, Andrii Derkach, was sanctioned for his efforts to influence the 2020 U.S. Presidential election on behalf of the Russian Intelligence Services,” said Assistant Director in Charge Michael J. Driscoll of the FBI New York Field Office. “While participating in a scripted Russian disinformation campaign seeking to undermine U.S. institutions, Derkach simultaneously conspired to fraudulently benefit from a Western lifestyle for himself and his family in the United States. The FBI will continue to use all the tools at its disposal to identify Russian intelligence operations, disrupt Russian information laundering networks and bring to justice those who seek to engage in criminal conspiracies to undermine the integrity of U.S elections and evade U.S. sanctions.”

“Attempting to enjoy the safety, security and freedoms of an open society, while secretly working to undermine that very society, is a hypocrisy that runs through every sanctions charge announced by the Task Force,” said Task Force KleptoCapture Director Andrew C. Adams. “It is a particularly egregious hypocrisy in the case of Andrii Derkach – sanctioned for attempts to undermine American democracy, while corruptly seeking to benefit from its protections.”

According to the indictment filed in the Eastern District of New York, on or about Sept. 10, 2020, the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Derkach for his efforts to influence the 2020 U.S. Presidential election. According to information publicly released by OFAC, Derkach was “an active Russian agent for over a decade, maintaining close connections with the Russian Intelligence Services,” who “waged a covert influence campaign” to undermine the 2020 Presidential election. As alleged, beginning in at least 2013 and continuing after Derkach’s OFAC designation, Derkach and a co-consiprator (CC-1) devised a scheme to purchase two luxury condominiums in Beverly Hills, California, (the Subject Condominiums) while concealing Derkach’s interest in the transactions from U.S. financial institutions. The scheme utilized a U.S.-based financial services professional (the Nominee). The Nominee assisted Derkach and CC-l in setting up and managing several corporate entities designed to hide Derkach’s ownership interest in the Subject Condominiums and related financial holdings. The Nominee understood that Derkach and CC-1 would occupy one of the Subject Condominiums, and the other would be used by Derkach’s children.

At the direction of Derkach and CC-1, the Nominee established two corporate entities in California. As part of the scheme, Derkach and CC-l misrepresented details about Derkach’s identity to the Nominee. Derkach and CC-l caused the Nominee to falsely represent ownership of funds and bank accounts to U.S. financial institutions, thereby deceiving those institutions into processing transactions related to, involving and on behalf of Derkach and his blocked property.

At all times relevant to this indictment, and since the date of his OFAC designation, Derkach has been aware of and actively working to evade the OFAC sanctions placed upon him. As alleged, on or about Sept. 10, 2020, the day that OFAC designated Derkach, Derkach posted a response on Facebook, stating the “decision was drawn up on a piece of paper by several congressman of [a U.S. political party] and inspired by representatives of the State Department.”

Moreover, in the years and months preceding his designation, the defendant spent significant time in the United States, including at the Subject Condominiums. In conducting that travel to, and spending time in, the United States, Derkach was actively involved in deceiving U.S. law enforcement and border authorities even prior to his SDN designation. For example, in December 2019 and February 2020, Derkach was in the United States to meet with U.S. persons and conduct media appearances. To obtain a U.S. visa, and to ostensibly attend meetings and conferences related to human rights issues in Ukraine, Derkach retained the services of a U.S.-based consulting firm (Firm-1). The written contract purported to be between Firm-l and a Ukrainian shipping company and did not refer to Derkach, notwithstanding Derkach’s direct involvement in the provision of services that the contract purported to reflect. In or about and between July 2018 and December 2018, Derkach paid Firm-l approximately $100,000. In a July 2018 email communication with Firm-l, Derkach’s representative expressed concern that, “given the fact that my client [Derkach] is a politically exposed person, as well as the statements he made concerning Ukraine’s interference into U.S. elections and the insider information we have in our possession,” the visa application process could be potentially complicated for Derkach.

Derkach, through the Nominee, continued to conduct U.S. financial transactions in support of his real estate holdings even after Sept. 10, 2020, the day that OFAC designated the defendant Derkach and added him to the SDN List. Because Derkach and CC-l had obscured details about Derkach’s identity and involvement from relevant financial institutions, Derkach and CC-1 succeeded for a time in conducting financial transactions valued at several hundred thousands of dollars in violation of OFAC’s sanctions.

If convicted, the defendant faces a maximum of 30 years in prison. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

Concurrent with today’s announcement, the U.S. Attorney’s Office for the Eastern District of New York has filed and announced a civil forfeiture suit naming the Subject Condominiums and two financial accounts as defendants in rem, seeking forfeiture of those properties on the basis of their involvement in, and status as proceeds of, criminal violations of the federal money laundering laws, the IEEPA, and federal law criminalizing the concealment of assets of senior foreign political figures.

U.S. Attorney Breon Peace for the Eastern District of New York, Task Force KleptoCapture Director Andrew C. Adams and Special Agent in Charge Michael J. Driscoll of the FBI New York Field Office made the announcement.

Assistant U.S. Attorneys Artie McConnell and Jonathan E. Algor for the Eastern District of New York are prosecuting the case, with assistance from Trial Attorney Adam Small of the National Security Division’s Counterintelligence and Export Control Section. Assistant U.S. Attorney Madeline O’Connor for the Eastern District of New York is handling the forfeiture matters. The Justice Department’s Office of International Affairs provided valuable assistance.

The investigation was coordinated through the Justice Department’s Task Force KleptoCapture, an interagency law enforcement task force dedicated to enforcing the sweeping sanctions, export controls, and economic countermeasures that the United States, along with its foreign allies and partners, has imposed in response to Russia’s unprovoked military invasion of Ukraine. Announced by the Attorney General on March 2 under the leadership of the Office of the Deputy Attorney General, the task force will continue to leverage all of the Department’s tools and authorities to combat efforts to evade or undermine the collective actions taken by the U.S. government in response to Russian military aggression.

An indictment is merely an allegation, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt in a court of law.

Updated December 7, 2022

Federal prosecutors in the U.S. charged Derkach with seven counts of money laundering, bank fraud, and sanctioned evasion charges. Ukraine intelligence ordered Derkach detained on charges that he was paid half a million dollars from Russian intelligence to use a private security company to assist the Russian invasion of Ukraine. he currently remains a fugitive both in the Ukraine and the U.S.

So U.S attorney Michael J. Driscoll said in the press release: “While participating in a scripted Russian disinformation campaign seeking to undermine U.S. institutions, Derkach simultaneously conspired to fraudulently benefit from a Western lifestyle for himself and his family in the United States."

So these are the people that dealt with Rudy Giuliani. He knew who they were. He understood that the information was coming as part of a Russian campaign, but he didn't care. All he cared about was confusing the American public, sending disinformation out because, like I said before, it was all about getting Trump back in office.  


How Rudy Giuliani, once a national hero, ruined his own reputation
by Devlin Barrett
Washington Post
September 16, 2022

Rudy Giuliani, pictured at the White House in 2018, was an ally of Donald Trump long before Trump won the presidency. His peddling of false claims on Trump’s behalf helped erode his image as “America’s Mayor.” (Jabin Botsford/The Washington Post)

What in the world happened to Rudy Giuliani? How did the man whose bravery and resilience reassured a nation during the 2001 terrorist attacks become a bellowing, cheek-stained geyser of nonsense?

Andrew Kirtzman sets out to answer that question in “Giuliani: The Rise and Tragic Fall of America’s Mayor.” Kirtzman is well-suited to the task; as a New York-based reporter he covered Giuliani for years and was alongside the mayor on 9/11 as he sought to rally a devastated country.

Giuliani’s image as a national hero was set in stone that day, but the former mayor, prosecutor and presidential candidate has spent the years since chipping away at the pedestal on which he stands, largely through truth-twisting diatribes in defense of Donald Trump. Kirtzman’s biography attempts to explain how a man who nobly defended the country in one of its darkest moments then devoted his twilight years to sabotaging it.

It’s a measure of how much Giuliani’s place in history has changed that this is Kirtzman’s second biography of him. The author argues that it’s not so much that Giuliani changed as age, alcohol and a thirst for attention gradually led his worst impulses to dominate his life. Giuliani’s self-confidence, Kirtzman writes, “drove his greatest crusades, from his mission to eradicate the mob, to his determination to clean up New York City. . . . But the almost fanatical sense of righteousness that propelled his rise also presaged his catastrophic fall.”

It can be difficult in 2022 to recall Giuliani’s remarkable early career, when he became mayor of a city that many considered in 1994 not just dangerous and dirty, but out of control and fundamentally unmanageable.

Giuliani hurled his obsessive, combative and vindictive spirit into taming New York. Crime plummeted, corporate profits soared, and three-card monte dealers in Times Square gave way to Disney characters.

As mayor, he found an ally in Trump the real estate developer, but their relationship went far beyond any zoning regulation or fundraiser; the two men were in some ways kindred spirits, people whose careers were boosted and shaped by New York’s unique tabloid news culture. Rudy and the Donald thrived in a public discourse dominated by personal feuds and peccadillos.

After 9/11, the respect and admiration for Giuliani swelled so high, people often burst into spontaneous applause when they saw him in public. That public love translated into tremendous wealth and political influence, and Kirtzman details the years in which Giuliani cashed in with a global business brand.

In 2007, “America’s Mayor” sought to trade the imaginary title for a real one by running for president. Starting with the best name recognition and donor pool in the GOP, Giuliani burned through both in record time, exiting the race in an Orlando hotel ballroom, having amassed a grand total of one convention delegate.

Giuliani spent the post-election period in a deep funk and, to hear his ex-wife Judith Nathan tell it, drinking too much. Giuliani and Nathan holed up at Trump’s Mar-a-Lago Club in Florida, using the complex’s tunnels to stay out of public view.

At times the book seems more interested in Giuliani’s troubled marriage than his estranged relationship with reality, but “the ex-wife made him do it” defense offered by some of Giuliani’s former advisers feels like a too-convenient excuse, since after the divorce he became even more closely tied to Trump.

“What’s clear is that the two men’s friendship survived when a hundred other Trump relationships died away like so many marriages of convenience,” Kirtzman writes. “Giuliani would never turn his back on Trump, much to his detriment.”

After the failed presidential bid, Giuliani’s legal and consulting career withered, as his increasingly strident political commentary turned off law partners. During the 2016 campaign, Giuliani rediscovered his public voice as a pro-Trump attack dog, going on Fox News to accuse Hillary Clinton of all manner of crimes and illness.

It was a testament to the collective memory of Giuliani as a hero in a crisis that the nonsensical accusations he made that year did little to dent his reputation. Even Kirtzman, in his deconstruction of the former mayor, seems to credit Giuliani’s claims to have sources inside the FBI in 2016 telling him about the Clinton investigations. When federal agents questioned Giuliani in 2018 about that — an interview in which lying could lead to criminal charges — he admitted he didn’t have any inside information.

In that interview, Giuliani conceded what should have long been obvious to the outside world: that he had made wild claims based on little to no evidence, on the belief that false accusations are an acceptable part of politics.

“You could throw a fake,” he told the agents.

Trump’s 2016 victory gave Giuliani sway with the most important person on the planet: the president of the United States. The same spaghetti-on-the-wall strategy Giuliani had deployed against Clinton he now aimed in the general direction of the Biden family, trying to build a case of corruption out of Ukraine, where Joe Biden’s son Hunter had business interests. Rather than get his client Trump reelected, Giuliani helped get him impeached.

And still, people believed.

In Tampa, 38-year-old crane operator Paul Hodgkins watched a televised news conference in late 2020 in which Giuliani claimed the election had been stolen from Trump. As Giuliani spoke, what appeared to be dark hair dye oozed down the side of his face. Hodgkins thought Giuliani was not someone who would make something up or “chase fairy tales.”

By then, Giuliani had been publicly chasing fairies and goblins for the better part of four years. But Hodgkins still believed in America’s Mayor, so he went to Washington on Jan. 6, 2021, took part in the pro-Trump riot and was sent to jail.

Kirtzman’s Giuliani is a tragic figure, one whose lack of fear spelled doom as he aged. Giuliani is now 78. The president is 79, the House speaker is 82, and Trump is 76. As our country’s leadership ages in place, the house of government may need more handrails.

What happened to Rudy Giuliani? The more pressing question posed by Kirtzman’s book is what happened to us, that it took so long to see it.

Devlin Barrett writes about the FBI and the Justice Department for The Washington Post and is the author of “October Surprise: How the FBI Tried to Save Itself and Crashed an Election.” He was part of a team that won a Pulitzer Prize in 2018 for national reporting, for coverage of Russian interference in the U.S. election.

Devlin Barrett writes about the FBI and the Justice Department, and is the author of "October Surprise: How the FBI Tried to Save Itself and Crashed an Election." He was part of reporting teams that won Pulitzer Prizes in 2018 and 2022. In 2017 he was a co-finalist for the Pulitzer for Feature Writing and the Pulitzer for International Reporting.

I want everybody to understand where we stand. Rudy Giuliani is not America's mayor. Rudy Giuliani is not somebody that is to be trusted. Rudy Giuliani is somebody that's about to get disbarred, someone that's about to get indicted, because of his lies and his misinformation that he pushed onto the American public without any proof to back up his claims. And all of that was done for Donald J Trump, to get him back in office, to keep him in office, to be able to keep his leader in office.

Disciplinary panel calls for Rudy Giuliani's disbarment
His ultimate disbarment or other penalty would be decided by the D.C. Court of Appeals.
by Kyle Cheney and Josh Gerstein
07/07/2023 02:16 PM EDT
Updated: 07/07/2023 02:39 PM EDT

A Washington-D.C.-based bar discipline committee concluded Friday that Rudy Giuliani should be disbarred for "frivolous" and "destructive" efforts to derail the 2020 presidential election in support of former President Donald Trump.

"He claimed massive election fraud but had no evidence of it," the three-member panel declared in a 38-page decision. "By prosecuting that destructive case Mr. Giuliani, a sworn officer of the Court, forfeited his right to practice law."

The D.C. disciplinary panel contended that Giuliani's efforts to aid Trump's bid to subvert the 2020 election overshadowed the renowned prosecutor and mayor's prior record.

"The misconduct here sadly transcends all his past accomplishments," they concluded. "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."

So there you have it. That's what happened.

Thank you everyone for watching. Please make sure to subscribe to MeidasTouch Network. I'll be sharing more stories in the near future from my diaries, from my home confinement. And I'll see you soon.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Jul 25, 2023 8:39 am

Part 1 of 2

Michael Cohen and Miles Taylor SHARE SECRETS from WITHIN Trump’s INNER-CIRCLE
Mea Culpa
Premiered Jul 22, 2023 Mea Culpa with Michael Cohen

On this episode of the Mea Culpa Podcast, Michael Cohen welcomes back Miles Taylor who famously served as the Deputy Chief of Staff in Homeland Security only to blow the whistle on the Trump Administration with an anonymous op/ed that pulled the lid off the dysfunction and madness lurking inside the West Wing. After resigning from the Trump Administration, Taylor joined fellow never-Trump Republicans in campaigning against his former boss. He is a frequent guest on CNN and MSNBC and offers the stark truth about Trump in a new book called “Blowback: A Warning to Save Democracy From the Next Trump.” With the 2024 election approaching, Taylor is back with bombshell revelations and a sobering national forecast. Through interviews with dozens of ex-Trump aides and government leaders, Taylor predicts what could happen inside “Trump 2.0,” the White House of a more competent and formidable copycat. You won’t believe what Taylor says, but trust me, it’s all 100% true.


okay so miles in a recent LA Times op-ed you describe the problem at the moment
as having less to do with Trump than with the Maga base and you wrote that
and I quote these highly motivated voters are hungry famaga candidates who
share their views and such views will not change overnight the next Trump will
have to feed this Beast to win which means keeping the base radicalized on a
steady diet of conspiracy theories about existential threats to their way of life
if you do me the favor describe for my listeners how this will manifest in 2024
and how do we get past this moment or in all fairness are we just stuck with it
for the foreseeable future uh Michael thanks for having me as always and look I will say this I would
be the first to have hoped that it was just about Donald Trump that the man himself was an aberration and that the
Republican Party had not been rotted to the Corps in fact as you know you know right after the Trump Administration I
gathered a group of Republican Senators and congressmen and former cabinet members to go try to reform the GOP take
it back to where it was before Trump and we failed miserably and and I'll be the
first to admit that we failed and it became really evident to me in the past two years as I was working on this book
that it wasn't about just Donald Trump yes he's a threat to our democracy yes he's an imminent threat to our democracy
but at the same time the threat has spiraled much Beyond his control and really the GOP base has radicalized so
what I was saying in that LA Times piece and what I say in blowback is that if you do a breakdown of the data you will
find that the average GOP voter looks very much like the Maga politicians want
them to look like they have favorable views towards political intimidation and violence they believe in mainstreamed
conspiracy theories why does that matter because even if Donald Trump is not the nominee whoever the GOP nominee is will
have to cater to that Maga base in order to win the presidency and it's the
reason why we Face a generational struggle with the Maga movement is because the base has been so
demonstrably radicalized if you look at the data that the politicians at the top of the party will continue to cater to
it and and that's why I call this book a warning to save democracy from the next Trump because it might be Donald Trump
in a second White House term or it might be a savvier successor a copycat that
tries to carry forward the movement isn't that what they all are I've been calling Ron de sanctimonious or Rhonda
snat knows Iran to Satan I've been calling him Donald Trump 2.0 forever and
you take people even like a Ted Cruz you take people like Matt Gates or Josh Hawley Lauren bobert
um you know uh uh you know name them just name them uh Lindsey Graham they
all are Donald Trump wannabes it's so amazing it's the kind of thing that if
you had a kid who acted this way in school he'd get a timeout or a smack
across the side of the head right I know today you can't hit the kid right but you would certainly give him a [ __ ]
time out and say hey this is unacceptable you know what else is unacceptable racism
sexism misogyny xenophobia homophobia
islamophobia anti-Semitism yeah they're all bad [ __ ] and why would you want to
copy Donald Trump and be a trump 2.0 when you're talking about these you know
these attributes it makes absolutely no sense to me but you know I I gotta say
this mouse I really want to sort of dig in because I see that beautiful book you know that you have over your left
shoulder there your new book called blowback I got to tell you while I was in Otisville I got I think five copies
sent to me by just supporters um who sent me Anonymous and I remember
I was handing them out you know first of all I put one into the library I'll tell you noticeville we had an amazing
Library I must have received over 200 250 of the newest books and I would put
them in there everybody would read them you know we'd have uh you know then we'd have little discussion groups about it I
can't tell you the number of people that used to say to me who do you think who do you think wrote Anonymous I said I
gotta tell you at some points I think it's this person
but then as it moves further down I just I never would have picked you to
be very honest with you but you know I am truly I'm truly ecstatic to know to
know you uh and I gotta tell you I enjoyed that book I am about three
quarters of the way now through blowback um it's fantastic it's definitely
um a a fantastic read and I want to start I want to start today by talking
about this new book blowback a warning to save America from the next Trump
in one chapter you describe the Doomsday Book which contains and I quote the
president's break glass options for keeping the country running in situations ranging from Global nuclear
war to an armed foreign invasion of the United States I mean you then go on to
describe the powers given to the president at that time as extraordinary all right now I'll list a few here from
the book draft authorizations to enable the White House to unilaterally detain dangerous
persons censor the news media flip an internet kill switch take over social media and
suspend Americans from traveling now if you do me the favor describe for my
listeners the nightmare scenario how Trump might have used the documents for
non-emergency situations and how close did he actually come in trying to
manufacture a crisis so that he could invoke these presidential emergency actions
well Michael in writing this book I wanted to paint a very clear-eyed picture of what a second Trump
Administration would look like if he retook the White House and again what it would look like if a copycat took the
White House so rather than people just listening to me and what my opinion would be for my two years you know in
the executive branch during the Trump Administration and dealing with the man I wanted to go interview other senior
officials that worked with Trump in the White House and at every Department uh an agency you know every major
department agency and Senior Republicans on Capitol Hill and ask them and their words to describe what Trump would have
won what he would have done if he won re-election and what he would do a second go around the Doomsday Book was
one of the more alarming things that I was told and this had never been reported previously here's the short
version of the story is in 2020 as Donald Trump was getting closer to the
re-election B could have potentially accessed a tool
that would have allowed him to cement a a coup now what is this tool well there's a little known book this book
called the Doomsday Book by National Security officials that's kept at the White House for the most extraordinary
moments if the nation's under threat a nuclear war an armed foreign Invasion and it's the responsibility of one top
staffer on the National Security Council to protect this book now when I was doing interviews for blowback I was told
that they actually went out of their way to try to keep the president from being
aware of the contents of the book from being aware of the most extraordinary powers that the president has in those
circumstances because there was worry in the White House that Trump or one of his Maga allies would try to misuse those
National Security powers and then there was this extraordinary moment in the lead-up to the election where the White
House almost installed a Maga loyalist named Christina Bob into that job on the
National Security Council now some of your listeners may know Christina Bob as one of Donald Trump's current lawyers someone who was uh on the one American
News Network as a hardcore Maga uh you know talking head and she was almost
placed in that position now what the White House did not know is that if they placed her in that position she would have had access to one of the most
sensitive emergency manuals in the entire government this Doomsday Book and as we later found out Christina Bob was
involved directly in the efforts to overturn the election thankfully this was thwarted people stopped Christina
Bob from getting named to this position but we were basically that close from one of Trump's closest allies from
knowing he had these extraordinary powers which he could have easily deployed to prevent the transfer of
power in 2020 that was something really worrying to me and it made me think back Michael to when I was still in the
administration and Trump thought his most extreme power was the Insurrection act he'd been told about it he called it
his magical authorities and at one point in 2019 he wanted to write in the State
of the Union that he was invoking the Insurrection act to go deploy the military to the border to stop migrants
from coming in but if he had done that which we stopped him from doing it but if he had done that there's no telling
where he might have used his Insurrection act powers and of course as we know uh Donald Trump clearly had an
interest in doing that potentially on January 6th right so describe it though in terms of non-emergency situations and
I bring that up because you know you don't need
with Donald to have an emergency situation meaning you don't need to have
an attack upon America on American soil Donald will deem anything to be an
emergency situation if it affects him so just if you can give me like a
non-emergency situation that blowback um describes in terms of how he would
use this um you know this doomsday um scenario
this doomsday look one of the worries uh from the people that I talk to and again
keep in mind these are people who've been appointed by the Trump Administration on his National Security Council the folks that I spoke to are
worried that in a second term Donald Trump would use these powers to influence elections so for instance he
might Target social media companies that are opposed to him and a few uh you know
the information that's in my book about what allegedly is contained in the in the Doomsday Book would allow someone
like a trump to potentially do that so hypothetically he could cut off access to an internet provider or a social
media company that wasn't friendly towards Donald Trump he could as one interviewee told me deploy the military
uh to the polls to intimidate voters not to vote for the political opposition and
instead support the Maga side he could potentially go and hunt down innocent
people and political opponents and actually jail them under some of these authorities I mean this is the type of
stuff Michael that you would imagine in some B-movie plot about a dictator overtaking the United States but the
authorities that are again allegedly contained inside the Doomsday Book would
potentially allow a trump to act like an actual autocrat and to exercise the
powers that he wanted to and and that deploying of troops onto U.S soil is something I heard again and again when I
talked uh to people in fact there was this story that I was told uh and I'd had some connection to it early in the
administration about Trump wanting to build his own mercenary Army in the United States so everyone's familiar
with the Wagner group in Russia that Putin has well Trump was jealous of the Wagner group he wanted his own private
Army and in the course of the administration he tried to get AIDS to green light a proposal to work with
military contractors to create his own private Army and this is something that defense officials told me Trump will
pursue in a second term he will want to stand up his own mercenary group that's accountable to him so he doesn't have to
worry about the U.S military exercising a conscience or the oversight committees on Capitol Hill he wants the authority
to tell these troops uh where to go and what to do including deploying them on U.S streets in fact a former top
counter-terrorism official from the Trump Administration called it a junior gestapo that was his worry is that if
the president had been allowed to do this it would have been a junior gestapo and next go around they won't be
prevented from trying to stand up these structures so explain to me then
how it is I mean I can't believe you're right it sounds like a b-rated movie or a c-rated
movie except for the fact that it happened to me I mean what's the difference between the
way you describe a unilaterally detain what he deems dangerous persons how is
it any different than an unconstitutional remand of a United States citizen a Critic as I talk about
in my book Revenge right as a Critic because I refuse to waive my first
amendment constitutional right I mean it's funny because you see all these
[ __ ] Mega morons running around with their AR-15s and their flapjackets and
their Kevlar and their [ __ ] helmets waving the 2024 Trump Banner all
screaming you can't take our guns it's our Second Amendment right okay
grant you that but what about my first amendment what about My First Amendment right to publish a [ __ ] book and
instead because Donald didn't want that to happen he unilaterally has me
detained and thrown back into solitary confinement you could bet your bottom
dollar that's exactly what he will do in another term it's actually why I'm
looking I'm looking outside of the country to potentially move I mean if you think that this country is
going to be anything recognizable to what you've grown up in or what you were
hoping to leave future Generations it will not well Michael you know people like you
and I have joked Darkly in recent years about the prospect of if Trump wins
reelection we will be sent to the terrorist prison at Guantanamo Bay and then in the course of interviewing
people for this book a number of stories surfaced including and resurfaced including the fact that Trump actually
did want to go put innocent civilians in the terrorist prison in Guantanamo Bay
Cuba better known as gitmo and in fact at one point he demanded that officials send migrants from the border into the
terrorist prison at gitmo and the only reason he was persuaded not to do it wasn't because it would have been illegal but because the prison wasn't
large enough to house large numbers of people these types of things will become reality in a second term now there was a
phrase that someone used and again in in this book these officials are mostly cited by name someone warned that in a
second term the motto of the Trump justice department would be to the blue in other words use all aspects of
prosecutorial authority to go Sue political opponents harass them with special prosecutors and arrest them
wherever possible and an FBI official gave me a very alarming scenario he said look we've built an entire
counterterrorism apparatus in the United States to make it easy for us to find
the bad guys and find out derogatory information about them he said it wouldn't be hard for a wayward president
to turn that counter-terrorism apparatus against his political Rivals what was the example he cited for me was pocket
litter at airports so you know when you go through TSA and you get sent to secondary screening and if you really
get sent to secondary they make you open your backpack empty your pockets and they're allowed to go through some of
that information including at the border they can go through in detail your electronic devices this FBI official and
the book said I would worry in a second term about the White House directing that political opponents be sent into
secondary to search their pocket litter so what does Eric swalwell have on his phone what does Nancy Pelosi have on her
computer what dirt can they find out from politicians to use against them again Michael I would be the first to
think that this sounded [ __ ] crazy if you told me a few years ago that very credible people lifetime public servants
would warn that these things could actually happen but that's the worry about a second term is that Donald Trump
and his allies would fully abuse these Powers I mean for instance when talking about the intelligence Community I spoke
to Fiona Hill Fiona had been Donald Trump's top Russia advisor on the National Security Council and her
biggest worry was that the Spy Community the intelligence agencies would be weaponized in a second term another
person who served with Fiona said yes we worried about Donald Trump potentially using fisa the intelligence surveillance
act to use the spy agencies to spy on political opponents and that's something
that I witnessed in the Trump administration at one point the president had asked John Kelly if we
could tap the phones of White House staff because he wanted to monitor them because he was worried about them saying
bad things about them this man will not be held back in a second term from violating civil liberties in an
extensive way you know I'm not a hundred percent certain that all of my listeners
actually know who Miles Taylor truly is right and I want you to take a minute
because I think it's extremely important you and I are having a very very scary conversation right now and I
don't want people for a split second to think oh these are just two guys with an ax to grind
you were one of his former aides do me a favor explain your position right
describe your relationship with Donald I mean how it started you know and where
you know do you still have you know relationships with those who remain in his orbit
because this book is like a horror movie I I mean I it's
it's like another scream or another Freddy [ __ ] Krueger if you think about it it really is it's terrifying if
you read between the lines of what's going on here so if you would again describe the relationship what you did
at DHS and what your role was and so on because I really want people to take not
just this conversation serious but I want them to read the book and I want them to understand the way I see
blowback I see it as almost the um uh we'll call it
the second chapter of my book Revenge which should have scared the [ __ ] out of
people in the first place that in and of itself like a bookend you know to revenge is really what I see it as if
you're not scared shitless from the weaponization of the justice department well we blowback and see what else this
Maniac could do well you know Michael and I'll get to you know I'll go back in
time here in a second but you were one of the first to predict it I mean the title of your book Revenge you said was
going to be Donald Trump's watchword if he won the White House again and some
people may have heard that and thought it was an overreactive well guess who has said it will be the highest priority
in a second Trump Administration Donald Trump he has said retribution will be
his goals so people like you who sounded that alarm weren't you know Fanning the
Flames of outlandish rhetoric you were pointing to a very specific very real incredible threat and Trump has made
clear what that retribution will look like and the purpose of blowback is to spell that out across every department
and agency how will Trump's allies intend to weaponize the federal government against opponents and again
they don't have to hear it from me I I cite people who had been close to the president and some who are still his
confidants in this book but going back in time as you asked Michael you know I had no interest in getting involved in
politics in fact I absolutely hate talking about politics I love talking to you I hate being out there about
politics because like you I started my career in a totally different space and that was in National Security and I
wanted to remain in National Security and I went into government during the Bush Administration after 9 11 worked in
the Pentagon in the White House and vice president Cheney's office on Capitol Hill working on counterterrorism issues
and then at the Department of Homeland Security all throughout that time my focus was cyber security
counterintelligence combating nation-state threats from Russia and China it just wasn't American politics
but when Trump was running for office uh I got very involved in Paul Ryan's
efforts when he was speaker of the house to try to stop Trump because I was really worried about the damage he would
do to the Republican party I thought there was no chance he could win the presidency but I thought in the process he would ruin the GOP so I got involved
in what Paul Ryan called his Trump inoculation plan and clearly we failed miserably we failed to prevent Trump
from winning the nomination and ultimately from winning the presidency now I had no desire to go work with a
man like that but then a mentor of mine someone I looked up to John Kelly got picked to go be Homeland Security
secretary and I was very persuaded Michael by this notion of an axis of
adults that was going to keep Trump stable educate him and the job and try
to keep the executive branch on the rails when this very demonstrably unhinged guy took the job uh we were
wrong though I went in I took a job as John Kelly's National Security National security advisor eventually became Chief
of Staff of the Department of Homeland Security and we spent a lot of time with Trump in the Oval Office on Air Force One and the
White House Situation Room but most importantly DHS we were with Trump in
moments of Consequence the most important decisions he would have to make in addition to those having to do
with the military to protect lives and livelihoods in the American way of life against hurricanes and tornadoes and
terrorists and Chinese spies those are the moments we would go be with the president and I've got to tell you the
thing that shocked me and got me to quit that Administration and campaign against him was just absolutely how
undisciplined and irresponsible he was in moments when American lives were on
the line and you saw Michael firsthand all the time he was very flippant he was disinterested in the facts and he was
incredibly Reckless uh when it when it really counted and moments that really counted and and that worried me that's
why I ultimately quit the administration tried to sound the alarm first with an anonymous opinion piece but then
unmasking myself and and that that's one thing that I write about in this book is it's ironic coming from me but I really
do think anonymity is a danger to our democracy and I wish I had come forward even sooner because pulling the mask off
made it easier for other people to come forward too
and I think the worry the second time around is we still have very
senior Republicans like the Speaker of the House Kevin McCarthy who still support Donald Trump in public but in
private will still say the man is a danger we need those people to unmask themselves and tell the truth and
ironically Michael some of the people I spoke to in this book some of those senior Republicans looked me in the eye and said I need you not to use my name
in the book and ask me to keep them Anonymous that's a problem these people need to come forward and and throughout
this period I'll be urging the people who spoke to me in the book who didn't want to use their names to come out and attach their names to those comments
yeah and they should by the way do you have any um your remaining in relations with anybody
still in Trump's orbit are you hearing anything um look the funny thing is you don't even
really need to hear it from secondhand people Donald says it himself I will be
your Vengeance right I will be your judge your jury your executioner the
problem though is that the guy's an idiot right and his entire term while he
remains alive because he will never ever leave that office it may I'm telling you
not because of age he will never leave that office he will avoid a one-term
addition he will avoid he will try to become as you said an autocrat as I say all the
time a monarch the supreme leader the fuhrer you know the king that's what he
wants to be he tells us exactly what he's going to do and yet you're right there are still
people like the Kevin McCarthy's that they just don't care and you know when
they start to care you know when they start to care um they start to care when it hap when
something happens to them right so let me just take you back in time for a
second where Trump attacked you via social media as well as at a rally in
Tampa all right you talk about this in the book as someone
who's experienced this you know attacks by Trump on multiple occasions describe
for my listeners how you felt when this [ __ ] was happening to you how it changed
your life not only then but also today now

[Miles Taylor] well no one has to have sympathy for me Michael but like you I think it's a really important to paint a clear
picture of what it looks like when the president of the United States a vindictive twice impeached disgraced
president of the United States comes don't forget sexual assaulter and you got to add that to the list this
guy's got a long rap sheet now um but it's it's pretty extraordinary and we're witnessing this explosion in
political intimidation and violence in our country and when I came out against Trump uh it far exceeded my worst visions of
what could happen now let's say for instance I had quit the Bush Administration in protests and
campaigned against my former boss President W bush which I wouldn't have done and very much enjoyed my time in
the Bush Administration but let's say I had all that would have happened to me is they would have said well you're not in the tribe anymore and we don't
affiliate with you that's about it but quitting the Trump Administration and campaigning against the former president
as I often say ended up costing me my home it cost me my job it cost me close
relationships it cost my family their security and my own security such that I ended up
on Election night 2020 in a safe house in Northern Virginia under armed guard
and facing death threats because of how serious the situation had become now at
the time I thought maybe that was unique in in how extreme it was and how extreme
the vitriol was from Trump supporters after he named me in those rallies and continued to urge people to look me up
but then I heard story after Story of federal state local official officials
especially in the post-election period that experienced the same thing these crowd-sourced death threats the doxing
the attempts to find them I mean I had my I had people posting pictures of my sister and my nieces in their home and
their addresses and saying our blood would be in the streets I mean this is really terrifying stuff and there's no
playbook for it for when your family is hit with this and this was happening across the country now you know for the
book in blowback I talked to a number of people like Adam kinzinger former Republican member of Congress Denver
riggleman and others and they made clear to me that their colleagues in the house those that the very few that spoke out
against Donald Trump they had to go get pistols Concealed Carry Permits for their children and family members I mean
the threats got really extreme and a lot of those people ended up leaving Congress because of it and and saying so
so publicly Fred Upton who was a congressman Republican congressman from Michigan stalwart conservative said he
just couldn't put up with the threats anymore I think his comment to me was you know I'm fast but I'm not that fast and you know these people are crazy
um I I never thought I would see that in my life that we would have public officials running for their lives and
and to put a data point on it Michael the chatter we are seeing about threats to American public servants especially
from the far right is greater in volume than the chatter we saw after 9 11 in
terms of threats to public service so just put that in perspective the largest terrorist attack in the history of the
world we are seeing in some senses a higher statistical Threat Level now than
we did in that window and it's coming from inside the house because in your book
you talk about that Tampa rally you talk about multiple rallies and Donald's line
that he used and I quote bad things are going to happen to him naming you
what let me just be very clear knowing Donald as well as I do and I do know him I haven't been wrong
yet what he was doing is he was sending a coded message
to that veswath of the 28 of the GOP
that is seriously indoctrinated into the cult
where maybe he was hoping that something bad was going to happen
to you and by saying it this way he still leaves himself with enough wiggle
room to say I didn't even know this kid I didn't want to see anything happen to anybody but I predicted when you do [ __ ]
like this bad things happen to people right what he's doing is the same sort
of nonsense that he does it's part of the Trump Playbook he was calling to
action these magomaniacs that are willing to go to prison for him right
for periods of time whether it's 90 days or 18 years
simply based upon what they determine and and Michael as you know we actually
have seen people respond to the call not just January 6th of course which is which is the biggest example but you
know when authorities raided Trump's home a year ago looking for the classified documents that he stole you
know he called the FBI the fascist Bureau of Investigation days later we had a guy with an AR-15 and a nail gun
storm and FBI field office on behalf of trump they do respond to this call and
when he came out in my case and he said bad things are going to happen to Miles Taylor it was a dog whistle as you know
it was a command for people to do bad things uh and again no one has to have sympathy for me I went into this fight
clear-eyed but if you just want to get a sample of those message I mean go to my Twitter page at Miles Taylor USA I've
got a clip at the top there of just a sample of the voicemails people like me people like you Michael and others get
from these lunatics who find our information they're not just doing that because they stumbled on us on the web
it's because people like Trump have made it clear that their supporters should harass us and our families and and our
friends and innocent people around us uh and and that's something that I think is really alarming because it's spread
Beyond Donald Trump again his ethos has infected the Republican party don't
believe me again look at the examples people give in blowback
and I'll give you two examples now about how trumpism
has spiraled even beyond what Donald Trump was willing to do there was two things in the first term he wanted us to
do that he walked back from one was busing and dumping migrants and Sanctuary cities and another was
cleaning house at the FBI let me drill into both of those on the busing and dumping of migrants president said to us
in 2019 I want you to take the murderers the criminals and the rapists that you catch at the border DHS and I want you
to ship them into Democratic cities to cause chaos and disorder and instability
this was a real request from the White House I had to go to our lawyers and get them to tell me in writing yes this
would be illegal which I passed along to the White House the chief of staff Stephen Miller and said we cannot do
this Trump grudgingly held back second the president wanted to gut the FBI and
we know he fired Jim Comey but then he stopped short because he was worried about getting impeached well guess what those two thwarted Trump policies are
now mainstream positions of the Republican Party Ron DeSantis and Florida and Greg Abbott in Texas have
both picked up the busing and dumping of migrants concept with alacrity and now they're using migrants as political
pawns around the country look at the FBI we all thought that was a fringe Donald Trump policy position that he wanted to
cleanse the nation's Premier investigative agency but now if he returns to power Trump we know wants to
install political loyalists over there and it's become a top talking point of the Republican party was is to take a
wrecking ball to that institution and install political operatives effectively these are two examples of trumpism
infecting The Wider GOP and I think it's what we could expect if Trump or a copycat wins the White House is those
things that he was prevented from doing being implemented on stair droids in a second term
yeah look I I get it um I I really get it uh I
I had a problem with Trump's desire to completely eradicate the FBI
complete I mean literally he wanted to get rid of the entire agency now to get rid of one person I get it you know he
has the right to do that James Comey only serves at the pleasure of Donald
Trump as the president and I'm not a massive fan of Comey uh to be very
honest with you I think Comey has a lot of um personal desires on his own you know
if I ask the average person name two FBI directors well everybody knows right J
Edgar Hoover I mean everybody just knows that name because he's been such a
interesting character over the course of the last you know 50 years uh books
written about him movies made about him about his Antics and so on
and then you ask him well name another name another now I always would say
Louis freed why he was Jewish right and
so you know that for me yeah I was always impressed that there was you know a Jew who could make it you know to the
head of the FBI most people couldn't name another FBI director until James
Comey he wanted to be that number two that number three that everybody would
know his name well my brother this ain't [ __ ] cheers all right and you know
everybody didn't need to know your name one of the reasons most people don't
know FBI directors is because they kind of stay silent they stay to the side but
not Comey he was very much front and center and at like six foot seven you
know not it's not an easy task if you know what I mean well it and I think that we're gonna see
uh unfortunately if in a second Trump Administration and a trump 2.0 other
departments and agencies that you would normally think should be in obscurity being front and center and one of those
Michael that I was again very surprised by in these conversations was the
Department of Veterans Affairs we don't talk about the VA very much people think of it as a sleepy institution that does
the right thing and it takes care of America's veterans in the course of writing blowback I spoke to Trump's top
appointees who were running the Department of Veterans Affairs who revealed to me that there were plans in
a second term to quote detonate the VA and gut veterans health care benefits
why because Donald Trump found out that the VA had the second biggest budget in
the federal government 250 billion dollars and he wanted to use it as a piggy bank he was frustrated spending
money on Veterans as we know he has a long history of animosity towards military veterans because presumably
it's because he's self-conscious about the fact that he himself didn't serve and his top officials told me they're
named in the book that Trump wanted to detonate the VA kick veterans out on the
street and he didn't care because in the in the words of one former deputy secretary of the Department of Veterans Affairs he thought veterans were quote
lazy malingerers and he wanted to spend that money elsewhere this is really
disturbing for a lot of reasons one because Americans want to take care of their military veterans but no no no no
I'm so sorry miles Americans are obligated to take care of the veterans
they fought for us their saved our democracy they put their lives on the
line we [ __ ] owe it to them all right and I'm going to tell you a couple stories also uh as it relates to the VA
don't forget I was the one who brought David shulkin the secretary of the VA to
the table because I knew David from well before um you know way way before Donald ever
did well yeah and and Michael I would love to hear your your perspective on this
because this was something I didn't expect uh folks to say is that there would be this priority to essentially
break the veterans Health Care apparatus in a second term and what was more alarming is that department leaders said
they had the authority to do it you know the president had the authority if he wanted to execute that order to destroy
the veterans safety net which not only throw the throws those millions of veterans potentially out on the street
but actually the American Health Care System people don't realize is heavily dependent on the VA a lot of doctors
their very first job is they go into the veterans Health Care system so this would be a major national security
crisis to break that veterans Health Care system I was told the only reason Trump was persuaded not to do that in a
first term his political advisors convinced him that it would hurt him very badly and re-elect him with of
course the veterans community if he broke the veterans Healthcare Network so they shelved it to wait to a second term
to destroy that institution people need to wake up I mean we all remember in 2020 the stories coming out about Trump
being in France talking about veterans being suckers and losers because they died uh you know in combat this
perception is not just a gross Viewpoint it's one that could affect the lives of millions of American veterans if we give
the Maga movement another shot at the White House but Michael I'm curious to hear you know what you thought you know
I'm going to get oh yeah I'm going to get into that in about a half second I did just want to ask you one quick
question because as a result of you know Trump's comments and again I know this
all too well and it's it's [ __ ] painful they you stated in the book that um
there was a billionaire who was actually willing to fund your security detail but
you ended up not accepting it I'm just curious because you don't name who the billionaire is me personally I can't
find anybody you know to help me despite you know all of my cooperation I'm just
curious um who was the billionaire that has enough um Moxie and enough
um uh well what's the right word for it um it's just has enough empathy for
somebody like yourself who put his ass on the line for this country right by
exposing the dangers of trump that they'd be willing to fund your security
well uh you know ironically that person wishes to remain anonymous and and I'll respect those wishes but I but I gotta
tell you Michael you know what it's like in that moment when you turn against the tribe there are very few people there to
support you and this is someone who I didn't know someone who I knew of and admired because they're a public person
who reached out in the wake of trump saying bad things are going to happen to Miles Taylor and someone who was very
perceptive in knowing that that would result in an avalanche of death threats against our family and the person
reached out and said look I know you can't afford it let me help you get protection and I was really grateful for
that Outreach but but you make a really good point Michael most folks especially
these public servants on the front lines who continue to get threatened for defending democracy they don't have a
Silicon Valley billionaire who's going to call them on speed dial and say I'd like to help out I mean we're talking
about something that's become an epidemic the political intimidation and
threats and violence and you know Trump and his allies in the market movement continue uh to promote that such that
we're seen in polls I mean there was an NPR poll that showed one in four Americans have a favorable attitude of
violence towards the government there was a famous University of Chicago survey last year that showed one in 10
Americans some some 35 million American adults believed that force would be justified to restore Donald Trump to the
White House run in 10 Americans believing we should forcibly put him back in the White House we've never seen
numbers like that from a public safety and National Security perspective you know I've made this point on television
which I thought um was going to get more attention but it really didn't
so here I am now the recipient of a lawsuit by Trump a 500 million dollar
lawsuit southern district of Miami it's a complete [ __ ] case it's retaliation Against Me Again by Donald
because of the DA's case and the AGS case and um my case going to trial
against him on July 24th it's all retaliation by Donald and Adam Park
menko God bless this guy went ahead created this website uh GoFundMe right I
had nothing to do with he did it and so then turned it over to my lawyer I think we've raised about 225
000. um the initial is going to be 250 000 that's needed just to get to the
Discovery stages which we're at right now and so it's probably going to cost close to a million dollars this
litigation to defend myself I'm at 225 000. now don't get me wrong I
thank every supporter from the one guy who gave 50 Grand to the person who donated a dollar I thank every supporter
I truly do but then there's this guy on the subway here in New York who choked a
homeless guy out and killed him and he's already raised over three and a half million dollars for his defense fund
right I mean he choked the guy out the guy the guy who he choked out probably
weighed 120 130 pounds wet chokes him out and yet the right the right wing
they're so okay with the violence that in drones they just give money whether
it's ten dollars twenty or a hundred makes no difference this guy has three plus million dollars in the bank for his
use for defense Etc I don't get it I don't get it my lawsuit
is to hold Donald Trump accountable right this is the kind of action that's
going to put Donald on the stand and we're gonna learn a whole lot more about about the guy but for some unknown
reason I can't explain it the conservative
they just I I I don't they just they just give I can't explain it you
know what I mean um they just I mean I think Michael you're the perfect example of how there is an
active strategy right now in Maga circles to sue opponents of the former
president into silence and we've seen that with a number of folks what do you think my 500 million dollar lawsuit is
you think that's not to keep me silent Stephanie Grisham Olivia Troy I mean they're going after people who they see
as a threat and trying to sue them into silence and it's really important for folks to stand up and back those
individuals like you so that they can continue to tell the truth about Trump
and hold them accountable because they actually perceive this to be an effective strategy because they know how
expensive it is to tie people up in litigation that Trump used to talk about it I mean you and I've talked about this before I'm sure he said it far more
often in your presence but I remember him coming into the Oval Office and saying this is how you get people to do
things you want you soothing I used to do that for him but not not to
take away people's constitutional rights I'm talking against you know other developers I'm talking against you know
contractors I'm talking you know [ __ ] like that things that nobody has any
business other than between the Trump organization Donald and the president CEO of whoever the contractor was I mean
we're not talking about Apples to Apples though that's what he learned he learned
that he could take advantage of these contractors of these smaller people by
scaring the [ __ ] out of them into a 500 million dollar lawsuit but at this point
in time I'm so beaten and damaged it ain't gonna happen all right I'm just I
walk with my head up high like you right I'm not thinking about these threats
from these lunatics right I I like you I also don't have a security detail that's
okay right I'm gonna continue to do my thing I'm going to continue to speak truth to power and I'm going to continue
to ensure that Donald Trump is held accountable not the things that he didn't do but for things that he did do
the things that if it was you and certainly as it was for me you end up seeing prison in time right now let me
just jump in for a second and talk to you about the whole thing with the um Secretary of the VA so I knew David
shulkin through mutual friends for years for years and Donald first was looking at a
handful of different people and none of them wanted the job remember he didn't have his book prepared that if
in fact he won the election that we would already be calling up
John Kelly we'd be calling up you know um David shulkin we'd be calling up
whoever these cabinet members might be he thought it was bad luck he didn't
want to do it I took from scaramucci his book on uh Romney that he had to show
Trump what it looks like and he said it was bad luck give it to Steve Bannon you
know or give it to kellyanne Conway I don't want to see it I'm not doing it and it wasn't that he didn't do it
because it was bad luck he didn't do it because he never thought he was going to win and he thought it would be a waste
of time calling all of these people and maybe he would feel that he would owe
them something if they said yes so all of a sudden everybody's now scrambling to find Qualified people that
they knew for various positions including ambassadorships and so on well in this specific case he could not find
anybody to take on the role of the secretary of the VA and I turned around I said to him hey boss there's a guy
named Dave shulkin who I happen to know for a long time in fact David currently
is the under Secretary of the VA under Obama
to which Donald looks to me he goes Michael are you out of your [ __ ] mind I said why so he goes why in the world
what kind of an [ __ ] would I look like if I bring in someone like this guy
who's a Democrat who had previously worked under the Obama Administration as the
assistant under as the undersecretary to the VA I said boss he's a Republican
I said he's really qualified he's an administrator in fact just to give you
an idea when Melania burned herself at Bedminster
he's the one that we got in order to help her through the entire process because she you know she Burns herself
without water uh at Bedminster he goes yeah I'm like yeah and in fact Melania
liked him a lot you liked him you were even sent him a thank you card so he goes oh okay bring him in
and then there were others that were going to work in some sort of a think
tank with the VA but the whole goal at that time was to dismantle the VA and it
was an interesting thought process sell off everything that's the VA and
you'll have a ton of money that's there because the VA there is a substantial in his mind
there's a substantial amount of waste there's facilities that have all brand
new equipment that's not even being used and the service in Trump's opinion
because this is it means to an end that the service is not even secondary
not even tertiary it's sub service by these doctors that are building the
system and this again is all part where we'll sell off the equipment to third world countries and have a couple of
billion dollars sitting in the back but what they wanted to do is to offer to every veteran a special
United States government military insurance card
that every doctor has to accept it be like a Medicare Medicaid but it's
any doctor that you want to go to and they must give you an appointment within 24 hours
that part I kind of liked where that these veterans that are going through
whether it's emotional issues ptsds they need
medication uh they have uh injuries that are causing them pain they must be seen
within 24 hours all right I thought the idea was great
but to dismantle the entire VA simply so that you know they can Bank
all of this money to the side so he could use it for other things like military or just to park to the
side for infrastructure that's just wrong you don't do that to people if you're going to try to make
something right uh out of the VA to improve it try to figure out how to
improve it for the people that need it the most and that's the people that put the most on the line for our country
Michael you said it so well and and I think you make a very important point which is you know the VA system as as a
lot of veterans know is broken it has to be reformed but Trump's own people went
to him at the White House from the VA and said what you want to do with the
Wrecking Ball approach will kill veterans you've got to phase this in if
you want to take this Wrecking Ball and gut the VA to use it as a piggy bank you are going to put lives in danger
that's not what persuaded Donald Trump not to do it what persuaded him is that
it would hurt his re-election to do it and I think that's the big concern is policies like this these zombie policies
uh will come back to life if he's restored to the White House that's that's the big concern
yeah I totally agree so let me ask you so let me just go to one more juicy bit in the book If you would talk to me
about Trump and Ivanka and what he said to John Kelly Chris I've heard him speak
like this before but I want I want it from your mouth I want to know your experience as it relates to uh what was
said and in what context Etc yeah you know the misogyny inside
Trump's world is really well known and you know you've seen it Michael with him
and I saw it with senior female figures in the administration who he made
inappropriate comments about their makeup and their weight and you know things of a sexual nature I mean that
was almost second hand for comments like that to happen in his orbit now the one
that John Kelly had shared with me I wasn't there for this but you know Kelly's unimpeachable in his Integrity
in my view was it comment that the president had made about thinking that ivanka's breasts and her backside were
so attractive that he would want to have sex with her which prompted Kelly to say
to the president you know she's your daughter Mr President the fact that his own chief of staff had to remind him
that the person's body they were talking about was his own daughter it was really disgusting to me and as Kelly relayed
the story his comment was Miles Trump is a very very evil man and I actually
debated Michael about whether to include that story in this book because it's so
disgusting it's so outlandish but I've got to think that even Maga supporters
of Donald Trump will draw the line at incest right there's at least got to be
a line there and that's who this man is it's important for them to know the character of this person that a lot of
them still worship who is the head of the Republican Party who's leading the GOP field right now is a man who's made
incestuous comments and I actually didn't even realize Michael until this story came out how extensive that
history is of his perverse comments about his daughter until people started to send me Super Cuts of these radio
interviews and TV interviews and print interviews where he's made these sexualized references
uh to his daughter so look I'm a national security guy not a political guy but dear God if I have any political
Instinct whatsoever it's hopefully that people will hear about a politician expressing incestuous feelings towards
his own daughter and think that person's not fit for public office yeah I mean
maybe that person is not fit to to walk around our streets in in our you know in
our great country I mean well they have a place for people like that Michael they have a place for
people like that and it's pretty yeah it's it's called hell right so if if you would Jay talk to talk to me about
schedule right they I've always heard there was that thing right there's a special place in hell for people like
that incest come on man you know I mean he used to talk about Ivanka as being you know every girl wants to be like
Ivanka and every guy wants to sleep with her that's why he would send her on certain tasks and I've said that you
know publicly before so obviously everything that you're saying here is um
you know as far as I'm concerned brings truth so if you would talk to me
about what is schedule f um I mean what it what what exactly is it and how will it affect the government
should Trump get reelected yeah well you know schedule F is one of
those things Michael that sounds like a boring bureaucratic term and could also be a bulldozer in a second Trump
Administration so this is an authority that the president had developed When
Donald Trump was still in office that would have given him the ability to fire America's civil servants at Key
departments and agencies so the public servants who aren't political they're appointed you know experts across the
government and you know at the time people thought again this was outlandish because we have Civil Service
protections of this in this country so that if you get hired to work for NASA or you get hired to work for the
National Oceanic and Atmospheric Administration as an expert that you keep your job regardless of who's
President democrat or republican that those experts stay and we don't replace them with political campaign AIDS and
lackeys and Loyalists because we want a federal government that functions right the person who disperses the social
security check could not be a trump minion it's just someone who you know needs to know how to disperse Social
Security checks but Trump wanted to fire these people because he believed there was a so-called deep State out to get
him and so they developed this Authority called schedule F to be able to fire tens of thousands of federal civil
servants since that time and this is another example of trumpism extending
beyond the former president a lot of his acolytes have praised the idea of
schedule F and have said they will bring it back if they are elected to office and you can count on the fact that in a
second Trump Administration that they would fire tens of thousands if not hundreds of thousands of civil servants
to cleanse the government to install political loyalists again don't believe
me believe Trump's own aides who in this book talk to me about the different places that could happen and especially
there were concerns among the people I talked to about the emergency response functions of the government and Trump's
desire to install in those agencies people who would weaponize federal aid
to support red States and to punish blue States and I also saw this firsthand when there was a tornado or a hurricane
Trump was always looking for leverage in the form of Federal Aid ah is the government going to send billions to
help people whose houses have burned down well is it a blue state if it's a blue State I want you to hold back the
money until I get something from them that's not how the federal government's supposed to operate when you dial 9-1-1
they don't say are you a democrat or a republican before they come respond they come respond in a second Trump
Administration there will be a litmus test a political litmus test for whether Americans get the federal aid they need
in emergencies and he'll do that by being able to gut the bureaucracy of those experts with scheduling absolutely
100 so look Mom the hour goes by really quickly I could sit and probably have
you on for two hours I want to ask you one last question because some of this
actually resulted from your first book Anonymous which my understanding in speaking to people that were still in
his orbit at the time was driving him [ __ ] crazy they couldn't figure out who was uh who was it that wrote this
book and how many other as he would call them leakers are there out there there
came a point in time that Trump actually talked about having White House AIDS
phones tapped I mean this is unfucking precedented right I mean the closest of course would
be Nixon but that doesn't it pales in comparison what do you know about this
you know Stephanie Grisham who I spoke to for both this book and a podcast with
I heart media called the whistleblowers actually told me more about this than I
had even realized at the time which was you know she said that the op-ed when it
dropped the anonymous op-ed and then and then my book a warning drove the president so crazy that they would be in
completely unrelated meeting and he would quiz everyone in the room about who it was he tweeted at the time reason
question mark formed a task force to try to hunt down the author and became so
paranoid that he said the white house chief of staff John Kelly that he wanted to wiretap the phones of White House
staff and I remember that being shared with me at the time and and being just
so astonished that the president of the United States could be that ignorant of the law to think that he had the ability
to just wiretap innocent civilians even if they worked for him to monitor their
phones and get away with it these are the types of things that we should fully expect him to do if he comes back into
office there won't be John Kelly's to tell him as Kelly did at the time no Mr President you cannot do that that's
illegal there will be people who say yes and you know there were folks who in
writing blowback told me exactly that that they believed that Trump will try to weaponize the U.S intelligence
Community to monitor political Rivals and also his own team potentially in a second term and it's not speculation
because he tried to do it we know he tried to do it we were there and you
know just there's an avalanche just a mountain if you will of evidence of how
absolutely unfit this man is for public office I even though was astonished by
the things that people shared might happen in the second term if Trump or a copycat goes back to the White House
well as always miles great to see you my friend great to speak to you stay safe
thank you for joining me thank you for
providing this information which is so desperate as we you know come close to the 2024 election which is why I
constantly say not just here but on my other podcast political Beatdown vote
blue thanks Mike to see you my brother I'll see you soon
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Tue Jul 25, 2023 8:56 am

Part 2 of 2

Former Trump Insider [Miles Taylor] EXPOSES Trump MISHANDLING Classified Info and MORE
by Ben Meiselas
Jul 24, 2023 MeidasTouch Podcast - Full Episodes

Ben Meiselas interviews former Donald Trump official Miles Taylor, who became an outspoken whistleblower against Donald Trump. Miles is out with a new book warning about the dangers of another Trump term and how our democracy will be destroyed if that happens. Meiselas gets Miles to deliver some breaking news exclusively with the MeidasTouch Network that Miles Taylor saw Donald Trump mishandle classified information. Special Counsel Jack Smith, are you listening?


I'm Ben Meiselas from the Meidas touch Network and we are joined by Miles
Taylor miles previously served as the chief of staff at the U.S Department of
Homeland Security in the Trump Administration where he published an anonymous essay in the New York Times
blowing the whistle on Donald Trump miles has been an outspoken critic of
Donald Trump giving us an inside perspective of the dangers posed by this
malignant narcissistic unqualified sociopathic criminal traitor and Miles a
New York Times Best Sellers out with a new book blow back a warning to save
democracy from the next Trump was released on July 18th I've had the
opportunity to read it and now I have the opportunity to speak with you Miles Taylor and share it with all of the
Midas Mighty watching out there how you doing Ben I'm just glad you didn't introduce me as a narcissistic
sociopathic criminal traitor so you know if I ever enter that territory I need
you to send me a text message and call me out but uh but it's always great to be with you and uh and I've got to say uh just the other day she's gonna get a
kick out of this but my stepmom said I hope you're talking to the Midas touch guys because I love them and I said you
will be delighted to see on the schedule that I am that is so good to hear that she's a part of the Midas Mighty and
knowing that she's gonna be watching this interview so let's get right into
it you know and I've seen a lot of your interviews out there we've covered your book in some of these segments we do
here on the Meidas touch Network so our viewers are familiar but there's one nagging question that I haven't heard
you've been asked by anybody yet and it relates to Donald Trump's handling of
classified information and if you've observed anything about that yesterday there was a big ring in the Federal
Criminal Case brought by special counsel Jack Smith against Donald Trump for his
willful retention of National Defense information so I think the million
dollar question out there that I've never heard you've been asked is did you Miles Taylor observe Donald Trump
mishandling classified information and has special counsel Jack Smith reached
out to you?

[Miles Taylor] well you know Ben uh I did and I haven't heard from the special counsel but you
know I'm I'm willing to say I'm I'm more than happy to talk to the special counsel and his team if it's additive to
this case and I think there's actually probably a lot of other people from the administration who could add color to
this Narrative of Trump's really really reckless handling of National Security
Secrets which we saw all throughout the administration in my case there were several episodes I mean one was getting
a phone call early in the administration from Trump's Homeland Security advisor who uh called to say that the president
had just disclosed highly classified information in the Oval Office uh not
just to some civilians and tourists but to a foreign adversary it's when the Russians were visiting the white house
uh and and that was publicly reported the Sensitivity I think people still don't understand the extreme sensitivity
of what Trump had shared but it didn't stop there because after that we became really concerned about what to share
with Donald Trump and when because we had no confidence that he would protect
highly classified information that we put in front of him because he had a proclivity to talk about those things he
liked having leverage which was you know secrets that other people didn't know that he did know and I saw him brag
about it uh you know in a number of occasions and and one that stood out in particular was a day that I was sitting
in John Bolton's office having a conversation with him when he was Trump's National Security adviser and
and Sarah Sanders then press secretary enters sort of breathlessly to say that Trump had just had a meeting with a
group of reporters and sort of carelessly picked up a fistful of classified documents and waved it in
front of the reporters to brag about the sensitive intelligence he got as
commander-in-chief it was a it was an unbelievable lapse in protocol but I think is in indicative of a wider
Behavior we saw from Donald Trump which was again a failure to protect those secrets that American lives depend on
and we've seen it since the administration so I do hope the special counsel is building out a longer
historical Narrative of Trump's mishandling of documents so that they can show that what happened with the
documents at Mar-A-Lago was by no means some accident or just a brief lapse

[Ben Meiselas] And you'd be willing to testify and speak with special counsel Jack Smith about your observations about how Donald Trump
continuously mishandled classified information while you were in the administration correct well look I'd be
happy to talk to any of the investigators in any of these cases that have to do with the former president
because I think there is really important historical context to a lot of these cases so I mean let's take January
6th and the Insurrection for example the special counsel is investig creating Trump's failure to respond to that
incident or more directly his fomenting of an attempted Insurrection against the capital but I think one of the things
that will be really important in that case is telling the story of how Trump had an affinity for this idea of
invoking the Insurrection act years before he uh ended up fomenting January
6. then it's something that I talk about in blowback is you know as far back as I
remember an episode in 2019 when we had to rush to the White House to stop
Donald Trump from including the Insurrection act in his State of the Union Address he had seen on Fox News
these images of migrants coming to the border and Trump was well aware that he
had in his words this magical Authority called the Insurrection act where he could deploy the U.S military on
domestic soil and he wanted to exert that power and he was this close to
including that in his State of the Union and saying that he was invoking the Insurrection act that it was a national
emergency and he was going to deploy U.S troops uh on soil uh to you know turn
migrants away migrants who had a lawful right to come to the United States by the way people seeking Asylum and we
ultimately talked him out of it we got his lawyers to stand down but what this shows is that this was in Donald Trump's
mind years earlier he knew that if there was an incident like an Insurrection at
the Capitol it would give him pretext to potentially invoke those extraordinary presidential powers and that's why I
think he sat there in the west wing of the White House for hours and watched the event unfold is that he was waiting
for the moment when he felt like he could justify invoking those Powers now that is speculation on my part but I
think it's completely backed up by the history of him wanting to use those authorities for unlawful purposes well
what's not specular Nation though on your part and you've talked about this before and I want you to share with the
Meidas Mighty what you observed Donald Trump wanted to build out his own
mercenary force similar to what he observed with Vladimir Putin and he talked about in a serious way building
out his own personal Army to guard him and protect him and carry out his will
did he not?

[Miles Taylor] yeah I mean this this sounds like the type of thing that is in a is in a bad
Hollywood flop you know just a really bad screenplay but it was the president
of the United States that wanted his own mercenary force and I witnessed some of
the chaos around this internally in the administration in the first year is we
were in the process of briefing Trump on Afghanistan and trying to give him options for what to do next because we
were worried that Trump was going to recklessly handle the exit from Afghanistan and that people would die
U.S troops and civilians uh because of the way that he wanted to just pull out in an instant he needed a much more
sequenced uh reasonable plan so that troops wouldn't be put in danger civilians wouldn't be put in danger in
the course of us developing those options we got word that the president was having private conversations with
people about potentially creating his own mercenary force that could be deployed into Afghanistan allegedly one
of those people he was talking to was Eric Prince the controversial founder of Blackwater the Blackhawks Ops group that
got a lot of attention during the Iraq War um and thankfully we talked him down
from this and in the process of that you can read about it in the book was was absurd I mean you know John Kelly called
me and said you know this 50-page memo that we would normally give to any other president about what his options are is
something Trump literally can't read the man doesn't read we've got to boil this down into a one-pager in his voice and
so I had to write this incandescently stupid memo called something like Afghanistan how to put America First and
win and then Bullet by Bullet I summed up this highly classified memo into Trump's sort of bombastic language
because it was the only way he was going to understand I mean I literally said in there you know if we leave Afghanistan
too fast the terrorists will call us losers but if we want to be seen as winners we need to make sure the Afghan
forces have the strength to push push back against these criminals I mean it was it was that dumb and that's how you
had to talk to him so you know I had to write this this absurdly stupid memo in Trump's voice to persuade him to really
take the serious options seriously and not go create a private mercenary force
that he could send into Afghanistan instead of the military
but then in the course of writing this book I didn't
want people just to hear from me I wanted them to hear from dozens and dozens of dozens of people almost all of
them Republicans who were appointed by Trump or were Republican members of Congress about what would happen in a
second term and in the course of those interviews someone brought up this idea of a mercenary Force again a top
official on Trump's National Security Council said that after I left the idea came back again and that Trump
desperately wanted to create his own armed mercenary group so much so that
the NSC had to scramble to write these memos and brief Trump and explain to him why it was a bad idea and they they
ultimately shut it down but what was clear to them is that he had this deep Envy of Vladimir Putin and Vladimir
Putin's own Wagner group right his sort of unaccountable you know band of uh you
know ex-military Fighters that he directly controlled now we've all seen how that worked out for Vladimir Putin
but Trump wanted his own group like that and a number of other officials former top counter terrorism officials and
folks from different departments and agencies said that they also had seen plans on the Shelf to deploy the U.S
military domestically to deploy DHS Security Forces domestically with political aims and that's what they
worry about in a second term and it's what I worry about in a second term I mean one of the people I spoke to for this book who was on Trump's National
Security Council appointed by the president said look in a second term they will try to take DHS forces and
they will send them to polling places in the name of election security but the goal will be to have armed individuals
at the polls to intimidate the political opposition and Ben we saw this in Arizona in the last election these
so-called ballot Watchers these militia men who showed up with guns and their goal wasn't to protect the polls from
violence their goal was to scare Democrats away from voting and to have one of Trump's own senior National Security Council officials say in the
second term he'll do that and he'll do that with official state Security Forces is I think deeply deeply just disturbing

it's the kind of thing you would hear about in a story about a third world Republic about a North Korea or an Iran
uh not the United States but that's the moment that we're in and that's the possibility we're facing yeah and both
unlawful and stupid when you when you look at some of his ideas and you talk
about in the book how Donald Trump's former Chief of Staff someone you mentioned earlier in the interview John
Kelly made the comment that you heard that look one-third of the things that Donald Trump does is illegal one-third
of them is just completely stupid and one-third of that is not possible did I
butcher the quote or do I get it about right well that's that's about right I mean you know Kelly's point was that
um you know we rarely have credible ideas uh from the president and you know
that was a point in the administration shortly before Kelly left and and he was growing immensely frustrated at his
inability to sort of hem Donald Trump in uh you know year one I think we were
able to keep a lot of the bad ideas in the Box you know his plans to pull out of NATO or shoot migrants at the border
uh or you know weaponize America's spy Powers against his political opponents
you know those things were put back in the box but by year two you know Trump was resisting these people who had a
conscience around him and if you can give him credit for anything it's that he had this finely tuned radar for
people with a conscience and he found them and he systematically eliminated them from the administration and that's
one of my warnings about a second Trump term or a copycat is there will not be these John Kelly's and Jim mattises that
come into the administration with the goal of trying to help the president govern and keeping him in check there
won't be it will be filled with political loyalty Loyalists and John Bolton said that to me and Mark esper
his former Defense secretary and on down the list it was actually the biggest thing I heard is people fearing the low
quality and character of the folks that will be running the federal government if we see a return of trumpism in the
white house when you talk with some of these Republican colleagues and or I
don't even know if they still identify with this modern day Republican party but you know one of the things that
shocks me is when I guess nothing could shock me anymore though when you see someone like the governor of Georgia
Brian Kemp and he says things like he recognizes that Donald Trump poses an
existential threat to our country that what he did on January 6 was traitorous it makes statements he tried to
overthrow the election in Georgia but then in the next breath he's asked a question well would you vote for him and
the response as well if he's the Republican nominee yeah I would I would vote for him i i i i i it's really inexplicable to me
and look Brian Kemp you can say a lot of things about him and I could be very critical of some of his policies but
in theory an intelligent person how does that how do you square that away when you see
that and do you see that when you speak with kind of former Republicans who are very critical of trump who who say well
I guess if he's not me I still got to vote for him I I think it's incredibly depressing and
and I hear that from a lot of folks and I I think that's why it's very plausible that Donald Trump becomes the next
president of the United States I think it's a very real possibility you know been a lot of our friends are sort of in
denial about that and folks don't want to think it can happen and and we keep fantasizing that the Justice
Department's going to take him down or this case or that case uh you know we've got it twice impeached twice indicted
you know potentially soon three-time indicted maybe more ex-president who's still not suffering in the polls because
of it we have to prepare ourselves for the prospect of a second term and that's
why I wrote this I mean no one wants to read another Trump retrospective or another Memoir and but what I was
frustrated by was that no one was out there detailing in a very clear-eyed way
what would happen if we make this Civic mistake again and we had great reporting
from The New York Times a few days ago uh that talked about how Trump has these
plans to use the powers of the presidency for revenge and that's just
the tip of the iceberg I mean blowback goes into detailed department by Department of exactly what they mean by
revenge and what they're going to try to do with those agencies I mean you know one of the ones that was really
disgusting to me is what I heard about America's veterans is there's plans on the Shelf in a second term to basically
destroy the social safety net for America's veterans the people who served
this country in uniform many of them wounded their families who sacrificed to pull that social safety net out from
under them why I mean why would anyone even consider that well it's because Donald Trump found out that the VA was
the second biggest department in the federal government with a 250 billion dollar budget and he wanted that money
spent somewhere else he wanted to spend it on political priorities again this isn't Miles Taylor saying this I mean
this is Trump's senior leaders at the Department of Veterans Affairs that he appoint painted they said that Trump
thought of Veterans as quote lazy malingerers and he didn't care if they were kicked out onto the street he was
just so frustrated that so much money was being spent on them and we know about Trump's long history of animosity
towards veterans how he went to France uh to Mark the anniversary of the Normandy invasion and said the guys in
the ground were suckers and losers because they didn't survive in the battle and look I'm not a psychologist
but I'm sure this has something to do with the fact that he was a draft Dodger that you know he used a false excuse
allegedly of bone spurs to avoid going into the draft and since then he's had this deeply vile view towards people who
serve this country and that's why he was so excited as president to bring the generals to serve under them he wanted
the generals under his thumb and I'll never forget standing in the Oval Office when John Kelly was sworn in as white
house chief of staff it was like a good man jumping on a grenade being thrown by
a bad one and the only person smiling in that room was Donald Trump is because he thought he was bringing Kelly in to keep
him in check and Kelly thought he was there to keep Trump in check and ultimately as much as I admire General
Kelly and I do Donald Trump ended up being the right one because it was clear that we were wrong that unelected
bureaucrats were never going to be able to protect this country from a wayward commander-in-chief and they certainly
won't be there if there's a second term
you also describe Donald Trump's treatment of female
staffers how he talked about his own daughter Ivanka can you speak to that
yeah you know this is something that I have told a couple of other people that I was unsure whether I even wanted to
put in the book because it's so disgusting um it doesn't have to do with public
policy on the surface but I included it anyway because when John
Kelly recounted that episode to me about Trump talking about ivanka's body and what it might like be like to have sex
with her his comment after that is Miles Trump is a very very evil man and
there's not a lot of things that can persuade his voters Maga voters really
hardcore ones to break from the former president but I've got to think they draw a line somewhere and I've got to
think they would draw the line at incest and it's not just John Kelly saying this
there's this rap sheet that goes on and on of Trump's sexualizing his own
children I mean you've got Trump going out there talking about how Democrats are are pedophiles and perverts this guy
acts in a way that's you know makes pedophiles look like you know innocent
people he is a consummate pervert and that deficient moral character can't
somehow be compartmentalized from the full-time job he brings that same lack
of character uh and disgusting attitude towards his work to towards relations
with other countries towards democracies guard rails he's a man without a moral
compass whatsoever and what worries me Ben is for the longest time I made the
mistake of thinking that Trump was an aberration and just a uniquely disturbing human being and that we only
needed to get past him but his views and his ethos have infused the Republican
party and now we are seeing them fall all over themselves to try to become the
next Trump and that's what I try to warn about here is that even if Trump doesn't win a lot of the candidates in this
field are trying to outdo him and take the policies that even he walked back
from and take them further and Implement them if the Maga movement retakes the White House and and it pains me to say
it but I genuinely think uh if we put another manga president in the white house it is the end of our democracy and
there's other people in this book uh quoted one of them Sue Gordon who was deputy director of National Intelligence
under Trump I asked her and her comment was I have low confidence that America
reaches its 300th birthday in any recognizable form if we put another
person like that in the White House and that's pretty damning coming from it's someone that Trump hand-picked to run
his intelligence community so in 2020 a lot of people who may have been on
opposite sides of the political Spectrum United in a common goal for democracy
there was a lot of passion a lot of energy out there from the ads that were
being made to whistleblowers coming forward to there was a lot a lot of
energy at that time as we approached the 2024 election what do you think is the
solution we know the warning but what has to be done now you know we're less
than 500 days away from election what has to be done well a couple things need to be done and
you point to one of the really important ones which is what I call Coalition campaigning it's really really vital
that this time around we make sure that concerned conservatives and independents
Coalition with Democrats to make sure that this doesn't happen again My worry
is I'm not entirely sure that that's the case I mean when I look at the polling
and I look every week at these new polls that drop about the attitudes of the GOP base you see a lot of these Republicans
who defected in 2020 and voted for Joe Biden you see him going back home you
see them going back to the GOP tribe and that worries me because we need those
voters as a firewall to prevent someone like Trump from coming back but they
aren't and part of the reason they aren't is because Republican leaders have continued to stand by Trump at
every opportunity they've had to break with him whether it was the Insurrection whether it was the unlawful retention of
classified documents indictment after indictment largely Republican leaders have stood by them which basically
signals to voters hey he's a good guy this is all politicized and it
perpetuates this conspiracy theory of a justice department that's out to get him for political retribution most of these
people in Jack Smith's team and otherwise they're all public servants a political public servants and they have
no reporting line to the president of the United States that's actively used to run these cases but that narrative
has taken hold so I worry about that Coalition staying together and the only way we can make it work is to get more
of these prominent Republicans to speak out luckily in the primaries we've seen people like Chris Christie and ASA
Hutchinson and will Hurd go out there and speak the truth but these guys are a minority I mean they've got single
digits in the polls what we need are people who know better like Kevin McCarthy the speaker of the house to
come out and say the things he used to say privately about Donald Trump I mean I witnessed him complain about Donald Trump all the time not just when I was
working in the house when I was at the Department of Homeland Security as Chief of Staff I mean you know Kevin McCarthy would call us when we would enlist his
help in trying to fix Trump problems and say you know he one time this quoted in the book he said you know why the [ __ ]
am I having to do this you know essentially like why is this guy so out of control like why do I have to keep intervening from Capitol Hill to keep
him from making stupid decisions Kevin needs to say those things publicly Kevin needs to stop keeping those opinions
private and the same with his lieutenants and the same with his caucus I mean I've got a lot of friends who are still in Congress I've got Republican
members of Congress that are friends of mine that are peers of mine that we came up together we'll go out for beers and
they'll say the same thing Trump's a danger to democracy but their mistake is in thinking he will just go away no he
will not go away unless they have the courage from within the tribe to start attacking him and diminishing his
political support and if they don't do that we are going to Zombie Walk Off The Democratic Cliff you know one of the
reasons I took a detour in the career trajectory I was on to build this
pro-democracy media network is I just felt when I was clicking through the
channels or searching online that a lot of I'm not saying all I don't want to
cast it with such a broad brush but a lot of Legacy Media is also normalizing
the behavior and every single day Donald Trump's on his social media platform
posting Q Anon memes threatening prosecutors yet the story that's
presented to the public outside of this network and a number of other uh and
some small few other networks is yeah just Democrats Republicans we are in a
situation where there's lots of polarization Americans are very divide did and they just fail to meet the
moment and do we just have to Recon my my answer
was I just got to rebuild the thing and create a new one and and do it but but
what do you see there I mean they over intellectualize it what's going on there
I think it's going to be really hard because people are exhausted and and you
know this well Ben it's one of the ironies of being in this space is you know the the other side the Maga side
tries to say well any of these never trumpers or former Republicans or rhinos or you know these these you know
Democrats you know they're all coming at us because they're grifters and I find that allegation remarkably funny because
like doing this you know being on this podcast talking to you writing this book has been literally the opposite of
financially lucrative like when I was working in the private sector and working in the tech sector I was finally
making very good money you know what's not a really good thing for business you know what's [ __ ] the stupidest thing
for business it's the dumbest thing I mean if people want to know if they want to see my
salary for the past two years my salary for the past two years has been less than it was when I was in government and
we don't pay government servants well so no you know I'm not getting rich off of talking about Trump if anything it is
deeply suppressed my financial situation and and again no one has to have sympathy for me I'm doing this because
it has to be done but you know when I came out against Trump yeah I say this all the time I did lose my home I did
lose my job I did lose relationships I did lose my life savings I was on unemployment for months so you know I
want those people who accuse folks like us being grifters come say that to my things because we are in this because
our country is literally on the cusp of potential what I call Civic suicidal
ideation it's essentially as a country where uh we're looking down the barrel of a gun and about to make a horrible
mistake that we cannot walk back from and we have to wake up to that and I'm so frustrated with a lot of the the
mentors I had coming up in Washington who I thought would have the courage to go sound that alarm and they didn't and
I'm just a kid from a middle class town in Indiana a small farm town and I grew
up thinking if someone's bad and if there's a bully you call it out and a lot of these people apparently weren't
raised that way and rather than acting like adults they've act like children
hiding under the bed from the Boogeyman and if they continue to do that we will
lose this we will lose this thing that we call our democracy and you know
Reagan said we were you know Freedom was always a generation away from Extinction and the founders thought that right the
famous quote from Ben Franklin when they asked him after he walked out of the Constitutional Convention well what have
we and he said a republic if you can keep it and there was a worry even then that we were always a few steps away
from throwing this away and I think that right now we're at Graver risk of that
than we were in 2016 than we were in 2020 I hate to sound like the broken record but I do think the 2024
presidential election will be the decisive referendum on the survival of American democracy really who are we as
a country I mean and I think it goes in two extremes right it either becomes
this fascist dystopia that looks like Russia or I think a pro-democracy
coalition can unite and you know there could be actual progress made and you
know yeah you and I probably disagree on a bunch of issues we probably agree on a
bunch of issues but ultimately we could have a very civil conversation and ultimately we want to make sure that
Americans can find a great job we want to make sure that they've got great working conditions right we want to make
sure that people can get health care now you and I in the past may have had disagreements or agreements I I don't
know about what's the best delivery method but we all agree that people should get health care and people should
not be spending huge amounts of money because big Pharma is jacking up rates
and like like we should protect our veterans like we we should and and you and I talk about those issues issues if
you were to watch what the podcast is going on on the other side of of the war
of the country they're talking about how the Barbie movie is a communist plot and
Mr Potato had this and you know I I just think that's what's that's what's on the
line ultimately I give you the final and and those things used to be Fringe conspiracy theories and what alarms me
is my former party has mainstreamed those conspiracy theories and a vast
majority of the the base now believes them that is changing their voting behavior and it's leading to some very
dangerous things and and I'll Echo your sentiment Ben which is you and I probably have tons of policy disagreements you know and and for
listeners I'm no liberal I'm a Libertarian conservative I'm that evil guy that you think wants to make
government so small and Destroy social services and blah blah blah blah I mean it's My Views are much more Humane than
that but I'm a hardcore libertarian that doesn't matter if the American experiment itself is on the line I am
more than happy to go team up with a Bernie Sanders you know Democrat that's the antithesis of my world view if it
means protecting our country and we all need to be doing that because I would love next time I come on the podcast Ben
that that the world's better our politics are better and you and I are just getting in a scrappy debate about welfare reform or you know taxes or
something like that that's what we need to go back to but we're not in that moment because democracy is on the line so if there's one exhortation I would
make to people again I'm not making a bunch of money off this book but what I want you to do is share this with
someone who needs to read it because almost all the voices in blowback are
from Republicans and Republicans that were appointed by Trump or served under Trump painting a picture of what he or a
copycat would do back in office people need to be clear-eyed about this before they enter the voting booth uh so I hope
they spread the message well we appreciate you you're spreading the message on the Meidas touch Network
everybody gets your copy of blowback a warning to save democracy from the next
Trump I've read it hopefully all of you will read it and share in the comments your thoughts about the book share in
the comments if you are purchasing this and make sure to recommend it to a family member friend co-worker colleague
or neighbor as well Miles Taylor thanks for joining us as always Ben you're a patriot I appreciate you
thank you for everything you guys do this has been the Ben micellis from the Midas touch Network interview with Miles
Taylor have a great day everybody
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Wed Jul 26, 2023 9:56 pm

Jack Smith CORNERS Trump with New KEY PIECE of evidence
by Michael Popok
Jul 26, 2023

Michael Popok of Legal AF reports on new revelations in Special Counsel Jack Smith’s criminal investigation of Trump as he tries to crack the code and pin “criminal intent” on him w new emphasis on a February 2020 Oval Office meeting 9 months before the election where Trump bragged about how secure the vote and elections were, before claiming “voter fraud” just 6 weeks later.


Michael popok legal AF Jack Smith and
his team continue to try to crack the
nut and split the atom and prove that
Donald Trump had Criminal Intent and
they're trying to do that by getting in
doing a craniectomy get inside the brain
of Donald Trump to figure out what he
knew when he knew it about voter
integrity and when that switch flipped
and he started to talk about fraud false
ballots ballot stuffing software that
flipped uh Trump votes to Biden and the
like and they're trying to set up that
timeline to show basically that Donald
Trump is telling a lie when he tells
people that he truly believes there was
voter fraud he still does it to this day
but the timeline the the uh knew or
should have known timeline the willful
blindness timeline because you're not
allowed under the law to stick your head
in the sand it's the ostrich Theory put
your fingers in your ears and cover your
eyes and exclude out and and force out
all facts that you that are being
presented to you that don't fit your
theory because you want to claim that
there's voter fraud when there isn't and
the more data points that Jack Smith can
put together to show that Donald Trump
is full of crap and newer should have
known that the vote was Secure and that
this big lie about steal the vote
um was nothing more than that in order
to undermine the Integrity of the voting
system and cling to power and there's a
renewed Focus or a new Focus that's
being reported by CNN of a February of
2020 Oval Office meeting involving
Donald Trump and Senior White House
officials and other agency officials
talking about voting Integrity voter
Integrity this is February right this is
several months before the November
election and according to witnesses that
have testified to Jack Smith and I'm
going to give you a list of people I
think have given that testimony they
would have been in a meeting like this
Donald Trump was so impressed and so
happy with the secured Integrity
information he was getting about the
election the use of paper ballots the
use of audit Trails the use of security
audits he was so happy about that that
he wanted the Department of Homeland
Security and the FBI to take to the
airwaves and give a press conference to
assure the American people
that the election was going to be fair
and that its integrity was going to be
preserved right
so what happened that's February by
April Donald Trump is taken to the
airwaves spouting off about
Venezuelan hardware and software that's
flipping hundreds of thousands of votes
for Trump to Biden and deleting hundreds
of thousands of votes for Donald Trump
so what happened did he just go crazy or
is it all a lie and he's burying his
head in the sand because he knows from
his cyber security head right Chris
Krebs to his Department of Homeland
Security had at the time Ken cuccinelli
right to his head of the FBI Chris Ray
to his then chief of staff that would
have been in the room Mark Meadows
cooperating with Jack Smith Pat
cipollone White House counsel
cooperating with Jack Smith Eric
Hershman Deputy White House counsel
cooperating with Jack Smith Cassidy
Hutchinson right-hand aide to Mark
Meadows cooperating with Jack Smith I'm
sure that a combination of those people
are cooperating with Jack Smith as he
gets to the bottom is how did the train
drum jump the tracks sorry about that I
was at Trump the tracks how did the
train jump the tracks in Donald Trump's
and getting inside that men's Raya right
that Criminal Mind that Criminal Intent
how did he go in February from wanting
to blow a horn from the top of the White
House and tell everybody how his secure
how secure his elections were going to
be right the most secure and he went
from that to April
to getting on his social media talking
about hundreds of thousands you know 941
000 so precise yet so nuts deleted votes
for Trump 435
000 votes that got flipped that were for
Trump got flipped to Biden by Venezuelan
and Italian software now I know who who
promoted these crazy crackpot conspiracy
theories Sydney Powell right pillow guy guy or as I like to call
him guy these were his
advisors these were the people that were
pouring poison into his ear but he's the
criminal right you know you don't get to
say well I I followed you know Mike
Lindell pillow guy Cindy Powell she had
a law degree you know
you don't go from it's the most you know
secure protected election and you want
the FBI the DHS to go to the airwaves
and tell people that
to telling people the only reason you
lost is millions of votes for you were
taken away illegally and by and by false
so the Department of Justice obviously
believes they have to explain this to a
and these are data points these are
pieces of the puzzle they're going to
put in front of the jury to show that
he's Faking It right he's continuing to
talk about it because he knows he can't
slip anymore he already had one slip
when he said to his director of
communications who's now a host on The
View and he said to her Alyssa Farah can
you believe I lost to this effing guy
talking about Joe Biden we haven't heard
that since because he knows that was
terrible it's true but it's terrible for
his case and his argument that you know
he's too he's too crazy and nuts and a
believer of the fraud to have committed
a crime
and this is the nut that Jack Smith
literally has to crack right
Donald Trump's the nut
and this is the way that prosecutors are
going to do it one by one focusing on
February of 2020 meetings let me just
remind everybody
that the stop the steel slogeneering
and the approach that the Republicans
would challenge the Integrity of the
election and the vote process no matter
predated covet in 2019-2020
if you go back in Google you will find
um Roger Stone right who learned all of
his dirty tricks working for tricky dick
talking about stop the seats stop the
steal in 2017 and 2018 before the
what what election is being stolen when
you're not even in election season yet
right two years or more before the
election the drum beat of stop the
steals started
Donald Trump got in we may not like it
but he got in in 2018.
so if anybody stole the election I guess
it was Donald Trump
now come 2020 February Donald Trump's on
board with this this is going to be a
fair election we don't have a voter
Integrity problem we've never had a
voter Integrity problem let me repeat
that in the history of elections in
America our elections especially
compared to the rest of the world are so
I'm not saying they're fraud free
there's no election system that's fraud
but so de minimis into the 0.001
of voter fraud voter fraud running
everything from double voting purposely
voting outside your Precinct voting your
dead mother-in-law's ballot in a mail-in
whatever but if you add all that up it's
literally 0.001 It's never enough to
affect the outcome of an election not
one where Joe Biden won by over 7
million popular vote
you know two thousand three thousand
votes out of a couple hundred million
cast it's not going to make a difference
it's like spitting into the rain
and so Donald Trump knows better he was
told better by experts in his own
administration at a group meeting in
February he went into he should have
gone into the election believing that
but that that doesn't help him that
storyline that narrative doesn't help
Donald Trump cling to power and stop the
peaceful transfer he's got to attack the
election system
so we run the timeline back and The Time
Machine back and that is what we're
watching Jack Smith do and he's getting
all the people that were in rooms like
the February 2020 White House meeting
Mark Meadows Ken cuccinelli Pat sip
alone Pat Philbin I'm sure
Mark Meadows assistant Cassidy
Chris Ray the FBI and he's saying to
them let's talk about that meeting in
which Donald Trump was crowing about how
secure the elections were well what
happened eight weeks later when he
started tweeting about a million deleted
or flipped votes or went on National
Television to say this the mail ballots
they cheat okay people cheat mail
ballots are very dangerous thing for
this country because they're cheaters
they go and collect them they're
fraudulent in many cases
right just because states trying to cope
with covid came up with more
approachable uh mail-in and drop-off
ballot requirements so we could have an
election during a pandemic and people
wouldn't stay home and give up their
constitutional right to vote there is no
important constitutional right in
America if you could only have one
right if you could only have one of
what's guaranteed you by the
you would take voting
so the voting right is first among
equals in the Bill of Rights and in the
right and so
we have to make sure that people are
able to exercise it even in a pandemic
even in a Bubonic plague that's sweeping
America people have to vote because
that's our system of government we don't
delay things
right it's one thing to cancel a
baseball game with Saturday Night Live
because of 9 11. it's another thing to
push off the vote and the national
election and the exercise of the
preeminent voting right and right under
our constitution
this is what Jack Smith is doing this is
why we've been so patient over the last
nine months as he develops his case and
continues to try to crack that nut and
split that atom and prove Criminal
Intent by Donald Trump I'm going to
follow all of these developments as I
find out about them and I report them to
you right here in hot takes just like
this one in only one place and you knew
that it's legal AF and the Midas touch
Network on the YouTube channel
you can find me slide over to playlists
you can find the popok playlist it'll
give you all my hot takes every
Wednesday and Saturday I co-anchor legal
AF the leading podcast at the
intersection of U.S law and politics you
get it on the Meidas Touch YouTube
channel if you want to watch us do it
you want to listen to us it's everywhere
podcasts are found every platform you
can find you can follow me on all things
social media I'll keep you up to speed
and up to date at m s poke including on
threads I'm Michael popok legal AF
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Jul 27, 2023 12:52 am

Part 1 of 2



Case No. 1:21-cr-3 (RCL)


Defendant Jacob Anthony Chansley, who was the face of the riot at the United States Capitol on January 6, 2021, is now the face challenging the prosecutions of the criminal conduct that occurred that day. Citing what he calls "newly discovered" evidence, Mr. Chansley moves to vacate, set aside, or correct his guilty plea and corresponding sentence under 28 U.S.C. § 2255. The government opposes and urges the Court to summarily deny Mr. Chansley's motion.

Upon consideration of Mr. Chansley's motion, the government's opposition, the record therein, and the applicable law, the Court will DENY Mr. Chansley's § 2255 motion.


A. Mr. Chansley's Involvement in the Events of January 6, 2021 and Indictment

On January 6, 2021, at approximately 1:00 pm, the Senate and House of Representatives assembled in a joint session at the U.S. Capitol building to count electoral votes cast in the 2020 presidential election. Statement of Offense, ECF No. 70, ¶ 3. Then-Vice President Michael R. Pence was present and presiding over the joint session. Id. At approximately 1 :30 pm, the Senate and House adjourned to their respective chambers to resolve an objection to the certification. Id. Vice President Pence adjourned with the Senate and presided over that proceeding. Id. Meanwhile, a large crowd of rioters gathered outside of the building, assembled behind barricades in front of the police line at the West front of the Capitol. Id. ¶¶ 4, 5.

At approximately 1:50 pm, Mr. Chansley scaled a media tower constructed in preparation for the presidential inauguration. Id. ¶ 5. That day, Mr. Chansley was shirtless, wearing a homed and fur-lined hat, and red, white, and blue face paint. Id. He carried a six-foot-long pole with an American flag zip-tied to it and a spearhead affixed to the top, as well as a bullhorn. Id.; United States v. Chansley, 525 F. Supp. 3d 151, 155 (D.D.C. 2021). Approximately ten minutes later, Mr. Chansley and the other rioters breached the barricades and advanced to the Capitol's West front. Statement of Offense ¶¶ 6, 7. At approximately 2:13 pm, rioters forced open the Senate Wing Door, which set off a loud alarm. Id. ¶ 9. One minute later, Mr. Chansley entered the Capitol through the broken door, becoming one of the first thirty rioters to do so. Id. ¶ 10.

At approximately 2:16 pm, two minutes after entering the Capitol, Mr. Chansley and other rioters charged upstairs to the second floor of the Senate side of the Capitol building. Id. ¶ 11. On the second floor, Mr. Chansley encountered several U.S. Capitol police officers, including Officer Keith Robishaw. Chansley, 525 F. Supp. 3d at 155. Officer Robishaw instructed Mr. Chansley and his fellow rioters to leave the building. Statement of Offense ¶ 11. Most of the other rioters complied, but Mr. Chansley refused. Id. Instead, he used his bullhorn to demand that the lawmakers be brought out to face the crowd. Id. At 2:20 pm, the members of the Senate and House, including the Vice President, evacuated their chambers and all certification proceedings were suspended. Id. ¶ 10. During this time, Mr. Chansley ascended another staircase, arriving on the third floor of the Senate side of the Capitol building. Id. ¶ 12.

At approximately 2:52 pm, Mr. Chansley entered the Senate gallery alone. Id. While standing in the gallery, Mr. Chansley shouted obscenities. Id. After that, Mr. Chansley exited the gallery and descended a staircase, where he again met Officer Robishaw. Id. ¶ 13. Officer Robishaw again instructed Mr. Chansley to leave the building, but Mr. Chansley again refused. Id. Instead, Mr. Chansley said that he planned to join rioters who were on the Senate floor. Id.

Mr. Chansley then entered the Senate chamber, followed by Officer Robishaw. Id. Once inside the Senate chamber, he climbed onto the Senate dais and sat in the Vice President's chair, taking pictures of himself as he did so. Id. ¶ 14. Officer Robishaw asked Mr. Chansley to vacate the seat, but Mr. Chansley refused. Id. Instead, he stated, "Mike Pence is a fucking traitor." Id. Mr. Chansley then grabbed paper left on the dais and wrote the following note to the Vice President: "It's Only A Matter of Time. Justice Is Coming!" Id.; Chansley, 525 F. Supp. 3d at 155. Mr. Chansley repeated the same message verbally to a reporter from The New Yorker who was filming the events in the Senate chamber at the time. Chansley, 525 F. Supp. 3d at 155. Officer Robishaw asked that Mr. Chansley vacate the seat and assist him by using his bullhorn to convince his fellow rioters to leave the Senate chamber, but Mr. Chansley refused. Statement of Offense ¶ 15. Instead, Mr. Chansley used his bullhorn to lead his fellow rioters in the following "prayer": "Thank you for allowing the United States of America to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government." Id.; Chansley, 525 F. Supp. 3d at 155. At that time, there were approximately 20 rioters in the Senate Chamber. Sent'g Hr'g Tr., ECF No. 111, at 7:7-12. Officer Robishaw was the only law enforcement officer present. Statement of Offense ¶ 14. At approximately 3 :09 pm, additional law enforcement officers arrived in the Senate chamber. Id. ¶ 16. The officers then cleared Mr. Chansley and the other rioters from the chamber. Id.

Several media outlets interviewed Mr. Chansley in the hours and days after he left the Capitol. Id. ¶ 18. In an interview on January 7, 2021, Mr. Chansley stated: "The fact that we had a bunch of our traitors in office hunker down, put on their gas masks and retreat into their underground bunker, I consider that a win." Id.; Chansley, 525 F. Supp. 3d at 156.

On January 8, 2021-just two days after the riot-the government filed a sealed criminal complaint against Mr. Chansley, alleging that his actions on January 6 violated various federal laws. See ECF No. 1. Three days later, on January 11, 2021, a grand jury returned an indictment against Mr. Chansley, making him the first Capitol rioter to be indicted in connection with the events of January 6. Indictment, ECF No. 3; Sent'g Hr'g Tr. at 3:22-24. The indictment charged him with six counts: civil disorder in violation of 18 U.S.C. § 23 l(a)(3) (Count One); obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2) (Count Two); entering and remaining in a restricted building in violation of 18 U.S.C. § 1752(a)(l) (Count Three); disorderly and disruptive conduct in a restricted building in violation of18 U.S.C. § 1752(a)(2) (Count Four); violent entry and disorderly conduct in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(A) (Count Five); and parading, demonstrating, or picketing in a Capitol building in violation of 40 U.S.C. § 5104(e)(2)(G) (Count Six). See Indictment.

On the same day as his indictment, Mr. Chansley was arrested and appeared before U.S. Magistrate Judge Deborah M. Fine in the District of Arizona. Chansley, 525 F. Supp. 3d at 156. The government moved for, and Magistrate Judge Fine ordered, Mr. Chansley' s pre-trial detention. Id. at 156-57; United States v. Chansley, 2:21-mj-5000 (DMF), ECF Nos. 5, 10 (D. Ariz. Jan. 19, 2021). Magistrate Judge Fine then ordered Mr. Chansley to be committed to this District. Chansley, 2:21-mj-5000 (DMF), ECF No. 11 (D. Ariz. Jan. 19, 2021). Mr. Chansley was arraigned by the undersigned in late January 2021. Minute Entry (01/29/2021). He was then represented by Mr. Albert Watkins ("plea counsel"). Id.

B. Video Evidence and Discovery Process

Mr. Chansley, through plea counsel, moved in this Court for pre-trial release and the Court held a hearing on the motion on March 5, 2021. Minute Entry (03/05/2021); ECF No. 12. At the hearing, plea counsel made several representations regarding the video evidence in this case: that "there's miles and miles and miles of footage of my client from January 6th[,]" ECF No. 28, at 7:5--6; that he "provided the Court with the video footage that we were able to gamer through an independent investigative undertaking" in conjunction with a "former FBI special agent[,]" id. at 7:13-15; and "[t]here's a lot of footage of my client interacting peacefully, chatting with and supporting law enforcement who were similarly positioned in [the Senate] part of the Capitol[,]" id. at 10:2-4. Considering this evidence, in conjunction with the other evidence of Mr. Chansley's actions that day, the Court denied Mr. Chansley's motion. Chansley, 525 F. Supp. 3d at 172.

The case then proceeded. As part of the discovery process, the government filed in March and April 2021 motions for a protective order and for an order to disclose certain sealed and protected materials with defense counsel. Gov't Opp'n, ECF No. 123, at 2; ECF Nos. 21 & 36. The Court granted both motions within days of their filing. ECF Nos. 24 & 37.

On May 20, 2021, the government provided its first notice of discovery with the Court.1 ECF No. 38. That notice contained a letter to plea counsel, dated the same date, recounting the various discovery productions made to counsel between January and mid-May 2021. ECF No. 38- 1. Of relevance here, the letter listed the following productions:

(1) video footage from the Senate floor (produced April 24, 2021); (2) video footage from a subpoena to The New Yorker (produced April 24, 2021); (3) nine videos from relevant Metropolitan Police Department ("MPD") body worn cameras ([produced] May 17, 2021); (4) five videos of Capitol Closed Circuit Video ("CCV") footage ([produced] May 18, 2021); and (5) two grand jury transcripts with ten accompanying grand jury exhibits ([produced] May 19, 2021).

Gov't Opp'n at 2 (referencing ECF No. 38-1 at 2). On September 17, 2021, the government provided two updates on the status of discovery. ECF Nos. 75 & 76. In the first update, describing the status of discovery as of August 23, 2021, the government expressly acknowledged the following: "Defense counsel in Capitol Breach cases have made requests including any and all information that captures an individual defendant's conduct or statements; shows people "peacefully walking around the Capitol"; or suggests that a member (or members) of law enforcement allowed people to enter or remain in the Capitol or on restricted grounds, acted friendly or sympathetic to the rioters, or otherwise failed to do their jobs." ECF No. 75 at 2 (emphasis added). In response, the government noted "there may be additional types of information a defendant may consider material or exculpatory" but that "since the government does not know the defense theory in any particular case, it is impossible to [sic] for the government to determine what other types of information a defendant may believe to be material." Id. The government added: "To the extent the type of information described above may exist, it may be interspersed among the voluminous sets of data." Id.

The government informed plea counsel of its proposed solution to this discovery conundrum. The government described how it was working with the Federal Public Defender ("FPD") for the District of Columbia to upload discovery materials to electronic databases. Id. at 3. Specifically, the government noted that it had already begun populating one database, named Relativity, with documentary discovery. Id. at 5. Further, due to processing and usability limitations associated with Relativity, the government explained that it was in the final stages of contracting to facilitate, in close consultation with FPD, production of video discovery via a different database, named Id. at 7.

In the second discovery update of September 17, 2021, describing the status of discovery as of September 14, 2021, the government confirmed that the contracting process was complete and that the database was operational. ECF No. 76 at 2-3. The government further reported that it was in the process of populating with approximately 2,300 hours of footage captured by law enforcement body-worn cameras. Id. at 3. Specifically, the government stated that it "expect[ed] to produce [such footage] no later than the end of next week (Friday, September 24, 2021)." Id. (emphasis added).

On October 25, 2021, the government provided its fourth update regarding the status of discovery, current as of October 21, 2021. ECF No. 78. The update reported, in relevant part, that the following evidence had been made available on (1) 16,925 closed circuit television ("CCTV") video files, containing approximately 4,800 hours of footage, recorded by 515 cameras located throughout the Capitol; (2) 15 maps indicating the location of cameras in the Capitol Visitor Center and interior of the Capitol; and (3) 1,676 files from body-worn cameras belonging to Metropolitan Police Department ("MPD") officers, containing approximately 1,600 hours of footage. Id. at 2. The government later represented that these materials were made available to defense counsel through on October 22, 2021. Def.'s Mot., ECF No. 117, at 12; Gov't Opp'n at 16. Separately, the government provided defense counsel with information about the location of the files within the database, their naming conventions, and the videos' timestamps. Gov't Opp'n at 17. Additionally, the government noted in the October 25, 2021 update that the FPD, who was coordinating access to on behalf of defendants charged with crimes related to January 6, 2021, had sent emails to all defense counsel with information on how to request a license to access the database. ECF No. 78 at 2. The FPD had also developed and shared a guide for defense attorneys on how to use and share discovery with their clients. Id. Mr. Chansley's plea counsel received the FPD's notification on October 15, 2021. Def.'s Reply at 6-7.

On November 5, 2021, the government provided its fifth update regarding the status of discovery, current as of that date. ECF No. 79. The government noted that, since the last status update, the government had populated with additional video footage. Id. at 2. In relevant part, the government stated that it shared an additional 4,204 CCTV video files recorded by 123 cameras, some of which were located in the Capitol's interior. Id.

C. Mr. Chansley's Guilty Plea and Sentencing

On September 3, 2021, Mr. Chansley pleaded guilty to Count Two, obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2), in exchange for the government's dismissal of the five other charges then-pending against him. See Minute Entry (09/03/2021). Mr. Chansley, in consultation with plea counsel, executed and signed a written plea agreement with the government. Plea Agreement, ECF No. 69. In the plea agreement, Mr. Chansley agreed that he was pleading guilty to Count Two because he was "in fact guilty." Id. at 10. In so doing, Mr. Chansley averred that the Statement of the Offense "fairly and accurately describe[d] [his] actions and involvement" in the offense. Id. ,i II. Mr. Chansley also agreed that he had "read every page of [the] Agreement," "discussed it with [his] attorney," and "fully underst[ood the] Agreement and agree[ d] to it without reservation." Id. at 10. In the plea agreement, Mr. Chansley attested that he was "satisfied with the legal services provided by [his] attorney in connection with [the] Agreement and the matters related to it." Id. at 10. Mr. Chansley reiterated his satisfaction with plea counsel to this Court during the plea hearing. See Plea Hr'g Tr., ECF No. 110, at 7:9-15; 9:22-25.

The plea agreement contained-and Mr. Chansley assented to-several express waivers. Specifically, Mr. Chansley agreed to waive his right to directly appeal his sentence, except for his rights to appeal a sentence imposed beyond the statutory maximum or U.S. Sentencing Guidelines range, and to appeal based on ineffective assistance of counsel. Plea Agreement ¶ IX(D). Furthermore, Mr. Chansley agreed to waive "any right to challenge the conviction entered or sentence imposed" through a motion brought under 28 U.S.C. § 2255, unless "such a motion is based on newly discovered evidence or on a claim that [Mr. Chansley] received ineffective assistance of counsel." Id. ¶ IX(E).

Finally, Mr. Chansley agreed to several provisions regarding sentencing. As relevant here, Mr. Chansley agreed that his sentence would be "determined by the Court, pursuant to the factors sector forth in 18 U.S.C. § 3553(a), including a consideration of the Sentencing Guidelines[,]" id. ¶ IV, and that he understood "that the sentence to be imposed is a matter solely within the discretion of the Court." Id. ¶ VII. He further agreed to the government's estimated offense level calculations under the Guidelines. Id. ¶ IV(C). Specifically, he agreed that the estimated offense level for Count Two was 25, representing the base offense level (14) plus enhancements for property damage (8) and substantial interference (3). Id. ¶ IV(A). The estimated Count Two offense level of 25, minus reductions for acceptance of responsibility (2) and assistance to authorities (1 ), rendered an estimated total offense level of 22. Id. Accordingly, Mr. Chansley agreed that, considering an estimated total offense level of 22 and criminal history category of I, id. ¶ IV(B), the estimated Sentencing Guidelines range in his case was 41 to 51 months' incarceration. Id. ¶ IV(C). He further concurred with the government's estimated monetary penalties, including a fine range of $15,000 to $150,000, id., a special assessment of $100 for his felony conviction, id. ¶¶ I, IV(C), and restitution in the amount of $2,000, id. ¶ XI. Finally, he agreed that his conviction carried a maximum supervised-release term of three years. Id. ¶ I.

On November 17, 2021, after the government's five updates regarding the status of discovery, this Court sentenced Mr. Chansley. See Minute Entry (11/17/2021). In calculating the applicable sentence, the Court agreed with the Guidelines calculations as outlined by the parties in the plea agreement and calculated a total offense level of 22. Sent'g Hr'g Tr. at 2:25-3:7. When it came time for plea counsel's presentation, he appreciated the seriousness of the events of January 6, 2021, id. at 14 :9-11, and acknowledged the overwhelming evidence in this case: "I've provided you with videos. I've provided the government with videos. The government's given me videos. The government's given you videos that I've given her. This isn't a drive-in movie theater. You don't need to see more video." Id. at 16:18-21. Plea counsel went on to focus on Mr. Chansley's acceptance of responsibility, which he previewed by saying, "Jake presents with having apologized without equivocation. No buts, no blames, I did it, I want to be accountable, I want to be held accountable." Id. at 27:15-17.

Mr. Chansley then spoke to the Court, accepting responsibility for his actions and expressing remorse. See, e.g., id. at 32:23-33:4 ("So I had to come to terms with the fact that I was in solitary confinement because of me, because of my decision. I broke the law, and if I believe in freedom, if I believe in law and order, if I believe in responsibility and accountability, then that means that I should do what Gandhi would do and take responsibility even and especially when it incriminates me. No ifs, ands, or buts about it. That's what men of honor do."); id. at 34:25-35:5 ("I am truly, truly repentant for my actions, because repentance is not just saying you're sorry. Repentance is apologizing and then moving in the exact opposite direction of the sin that you committed. And that's what I've been trying to do ever since I realized the magnitude of my error and the magnitude of my mistake."). Mr. Chansley unequivocally stated: "[I]n retrospect, I would do everything differently on January 6. In all honesty, I would do everything differently." Id. at 35:16-18. The Court heavily credited Mr. Chansley's apparent remorse and acceptance of responsibility. See id. at 48:21-22 ("[Y]ou have evolved in your thinking clearly and reversed your thinking in many ways"); id. at 49:3-5 ("You've certainly done everything you could today to convince the Court that you're anew person, and I think you're on the right track"); id. at 55:23- 56:2 ("[Y]ou were smart. It may not feel it today, but let me guarantee you, you were smart. You did the right thing. And you owned up to it today in a fashion that is unusual for me to see, the candor with which you approached me today. I appreciate it.").

The Court then sentenced Mr. Chansley to 41 months' incarceration as to Count Two, the bottom of the Guidelines range, with credit for time served. See J., ECF No. 92, at 2. In explaining the sentence, the Court stated: "[W]hat you did here was horrific, as you now concede, and obstructing the functioning of the government as you did is the type of conduct that is so serious that I cannot justify a downward departure [ from the Sentencing Guidelines range of 41 to 51 months]." Sent'g Hr'g Tr. at 48:22-25. Even considering the seriousness of the offense, the Court credited Mr. Chansley's remorse and acceptance of responsibility to sentence Mr. Chansley consistent with the bottom of the applicable Guidelines range. See id. 49:1-3 ("I do think that the minimum under the guidelines is something you've earned because you've done everything right from the time that you started in the other direction."). The Court also sentenced Mr. Chansley to three years of supervised release, a special assessment of$ 100, and $2,000 in restitution. 2 See J. at 3, 6. Approximately two weeks after sentencing, Mr. Chansley's current counsel, Mr. William Shipley ("post-conviction counsel") appeared to represent Mr. Chansley, ECF No. 101, and the Court granted plea counsel's motion to withdraw. Minute Entry (11/29/2021).

In late March 2023, Mr. Chansley was released from custody after having completed his term of incarceration, accounting for his time previously served and good-time credit. 3

D. Post-Sentencing Events Related to Mr. Chansley's Case

On March 6, 2023, then-television host Tucker Carlson aired footage from January 6, 2021 on his eponymous show.4 The host claimed that certain videos recorded on January 6 had been withheld from the public and that such videos demonstrated that the Capitol rioters were merely "sightseers." That segment prominently featured Mr. Chansley. All of the footage of Mr. Chansley aired on the program was recorded on CCTV cameras positioned inside the Capitol building between the times of 2:49 pm and 2:59 pm, except for one CCTV clip recorded at 2: 13 pm. Gov't Opp'n at 9-10. Mr. Chansley arrived at the Capitol more than one hour prior to this period and stayed for some time afterward. Statement of Offense ¶¶ 4, 5, 16. The footage, in relevant part, showed Mr. Chansley traversing hallways in the Senate side of the Capitol, sometimes followed by and sometimes following law enforcement officers who did not visibly impede Mr. Chansley' s movements. The footage did not include any audio recordings. The host claimed that the videos undermined the legitimacy of the government's prosecution against Mr. Chansley. Two days later, plea counsel stated on the same television program that he had not seen the videos at any point during his representation of Mr. Chansley.5

On March 9, 2023, Dominic Pezzola, who at the time was on trial for his own felonious conduct on January 6, 2021, moved to dismiss his indictment based on the government's failure to disclose the footage aired on March 6, which Pezzola claimed was "exculpatory" for himself and Mr. Chansley.6 See United States v. Pezzola, 21-cr-175-6 (TJK), ECF No. 679. On March 12, 2023, the government opposed, claiming that the footage of Pezzola and Mr. Chansley aired during the broadcast was neither withheld from the defense nor exculpatory. Pezzola, ECF No. 689, at 2. Specifically, the government asserted that all of the footage aired on the broadcast, save for one 10-second clip, was produced to defense counsel via the database by September 24, 2021, and that the remaining clip was produced on January 23, 2023. Id. at 3. Based on these representations, along with a consideration of the applicable law, Judge Timothy J. Kelly denied the motion because "Pezzola ha[ d] not shown that the video footage tends to show his innocence" "[n]or ha[d] the evidence been suppressed." Mem. Order, Pezzola, ECF No. 755, at 3.

On March 17, 2023, Mr. Chansley's post-conviction counsel contacted the government via letter asking specific questions about when the CCTV videos appearing in the March 6, 2023 segment were produced. Def.'s Mot. at 11; Gov't Opp'n at 9. The government responded on March 27, 2023, explaining that all of the clips appearing in the broadcast, except for the 10-second clip, were produced on October 22, 2021, and that the remaining clip was produced on February 21, 2023. Def.'s Mot. at 12; Gov't Opp'n at 9-10.

The Court summarizes the videos aired on March 6, 2023 as the following: 

Approximate Time on January 6, 2021 / U.S. Capitol CCTV Camera7 / Time Stamp in Television Segment / Government's Representation of Approximate Date Disclosed to Defense via

2:13 pm / Camera A / 2:48 / May 2021 or October 22, 2021 8
2:49 pm / CameraE / 2:06 / October 22, 2021
2:51 pm / CameraE / 3:09 / October 22, 2021
2:56pm / CameraF / 4:31 / October 22, 2021
2:56 pm / Camera F / 5:14 / October 22, 2021
2:57 pm / CameraD / 3:35 / October 22, 2021
2:57pm / CameraD / 5:21 / October 22, 2021
2:57pm / CameraE / 4:12 / October 22, 2021
2:57pm / CameraE / 5:00 / October 22, 2021
2:57pm / CameraH / 3:40 / October 22, 2021
2:57pm / CameraH / 5:25 / October 22, 2021
2:59pm / CameraB / 3:28 / October 22, 2021
2:59pm / Camerae / 4:01 / October 22, 2021
2:59pm / CameraG / 3:48 / February 21, 2023 9

See Def's Mot. at 12; Gov't Opp'n at 9-10.

In April 2023, Mr. Chansley, through counsel, moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, claiming newly discovered evidence and ineffective assistance of his plea counsel. Def. 's Mot. at 2--4. Specifically, he claims that conduct by both the government and his plea counsel with respect to the videos aired during the March 6 broadcast rendered both his plea agreement and resulting sentence unconstitutional. Id. First, Mr. Chansley asserts that the videos were both exculpatory and withheld from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that, had the videos been disclosed to the defense prior to sentencing, plea counsel would have used the videos' contents to argue for, and that this Court would have imposed, a lower sentence than the one Mr. Chansley received. Id. at 16-1 7. Second, he claims that plea counsel was unconstitutionally ineffective because counsel did not seek production of the videos from the government and because counsel recommended that Mr. Chansley accept the plea agreement containing a sentencing-enhancement stipulation and waiving appeal rights without this evidence. Id. at 17-21. Relatedly, he insists that further discovery into the video-disclosure issue is required, particularly due to government's conflicting statements regarding the dates of production as stated in filings in this and the Pezzola case. Id. at 21-22.

In June 2023, the government opposed, insisting that Mr. Chansley has not met his burden to establish that he is entitled to collateral relief because he either waived his claims or they are meritless. Gov't Opp'n at 1. Mr. Chansley submitted a brief reply. Def.'s Reply, ECF No. 126. Mr. Chansley's motion is now ripe for review.


A. 28 U.S.C. § 2255

A prisoner may move to vacate, set aside, or correct his sentence if (1) the sentence was imposed "in violation of the Constitution or laws of the United States"; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence "was in excess of the maximum authorized by law"; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The petitioner bears the burden to prove his right to relief by a preponderance of the evidence. United States v. Baugham, 941 F. Supp. 2d 109, 112 (D.D.C. 2012). A court need not hold an evidentiary hearing when "the motion and the files and records of the case conclusively show the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).

B. Government's Discovery Obligations

The government has a constitutional obligation, as recognized in Brady and its progeny, to disclose "evidence in its possession that is favorable to the accused and material either to a defendant's guilt or punishment." United States v. Trie, 21 F. Supp. 2d 7, 23 (D.D.C. 1998). Favorable evidence "tends to help the defense by either bolstering the defense case or impeaching potential prosecution witnesses." United States v. Sa/avian, 233 F.R.D. 12, 16 (D.D.C. 2005); see also Brady, 373 U.S. at 87; Giglio v. United States, 405 U.S. 150, 153-55 (1972). To prevail on a Brady claim, the defendant must show prejudice; in other words, '" a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' United States v. Sitzmann, 893 F.3d 811, 826 (D.C. Cir. 2018) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). "A court should evaluate prejudice under Brady based on the suppressed evidence as a whole rather than an 'item by item' basis." United States v. Martin, No. 98-cr-329 (RCL), 2021 WL 4989983, at *4 (D.D.C. Oct. 27, 2021) (quoting Kyles v. Whitley, 514 U.S. 419,420 (1995)). Importantly, "[f]or an item to be Brady, it must be something that is being 'suppress[ed] by the prosecution."' United States v. Blackley, 986 F. Supp. 600,603 (D.D.C. 1997) (quoting Brady, 373 U.S. at 87).

C. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a petitioner "must prove both incompetence and prejudice." Kimme/man v. Morrison, 477 U.S. 365, 381 (1986). Specifically, the petitioner must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). That sets a high bar, as a court's evaluation of counsel's actions "must be highly deferential," and is assessed under the circumstances present at the time of representation without the benefit of hindsight. Id. at 689. Furthermore, a "reasonable probability" under Strickland's second prong is one that is "sufficient to undermine confidence in the outcome." Id. at 694. To establish prejudice, the petitioner must show there is "a substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (internal quotations and modifications omitted). An ineffective assistance of counsel claim is defeated if the defendant fails to demonstrate either prong. Strickland, 466 U.S. at 700.


Mr. Chansley' s motion concocts a Brady claim, and a derivative ineffective assistance of counsel claim, based on videos aired devoid of context and supposedly inconsistent disclosure dates provided by government counsel in two separate cases. These videos are decidedly not exculpatory, especially when viewed in context with the "miles and miles and miles of footage" recorded of Mr. Chansley on January 6, 2021. ECF No. 28, at 7:5--6. Such footage, conveniently omitted by the March 6, 2023 program, shows nearly all of Mr. Chansley's actions that day, including: carrying a six-foot-long pole armed with a spearhead, unlawfully entering the Capitol through a broken door, disobeying orders from law enforcement on more than a half-dozen occasions, screaming obscenities, entering the Senate chamber, climbing onto the Senate dais, sitting in the Vice President's chair, and leaving a threatening message for the Vice President. Moreover, the precise date that the particular videos appearing in the program were disclosed is immaterial because Mr. Chansley and plea counsel were aware of the videos' content -- Mr. Chansley interacting with law enforcement officers who did not visibly impede his progress -- by May 20, 2021. In other words, Mr. Chansley possessed the facts in the videos well in advance of his plea agreement, yet still determined, quite sensibly, to accept responsibility for his role in the criminal events of January 6, 2021. What is more, the record shows that the government disclosed virtually all of the videos at issue weeks before Mr. Chansley' s sentencing. These facts and the underlying law conclusively demonstrate that Mr. Chansley is not entitled to relief under § 2255.

A. Mr. Chansley's Claims Are Timely, Not Waived, and Not Moot

As a threshold matter, Mr. Chansley claims are not time-barred. Under the Anti-Terrorism and Effective Death Penalty Act, a defendant must bring any § 2255 claims within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(£)(4). Mr. Chansley's claims rely on facts, namely alleged discrepancies in the dates and circumstances surrounding discovery in his case, discovered in March 2023. Because Mr. Chansley filed his motion within one year after these events, his motion is timely.

Nevertheless, the government insists that Mr. Chansley's Brady claim is procedurally barred because he waived this claim through his plea agreement. 10 Gov't Opp'n at 14-16. Mr. Chansley agreed to waive a collateral challenge to his conviction unless the motion was based on "newly discovered evidence." Mr. Chansley responds that his claim is not waived because neither he nor his plea counsel were aware of the specific evidence (the videos broadcast on March 6, 2023), even if they may have been aware of the facts contained in the evidence. Def.'s Reply at 2-3. The Court is mindful of the government's view that the "concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas." Gov't Opp'n at 15 (quoting Bousley v. United States, 523 U.S. 614, 621 (1998)). At the same time, this Court "will not bar the door" to Mr. Chansley's collateral attack when "his waiver only arguably or ambiguously forecloses his claims." United States v. Hunt, 843 F.3d 1022, 1027 (D.C. Cir. 2016). Because it is not clear that Mr. Chansley's plea agreement unambiguously waived his right to bring his claim, and because the government admits that one 10-second video appearing in the March 6, 2023 was not disclosed prior to Mr. Chansley's plea and sentencing, the Court concludes that Mr. Chansley did not waive his Brady claim.

Additionally, although not raised by either party, the Court notes that Mr. Chansley's claims are not moot even though he ended his period of incarceration prior to filing his motion. In addition to a prison term, the Court sentenced Mr. Chansley to supervised release, a special assessment, and restitution. He may still pursue relief from the remaining aspects of his sentence under§ 2255. See United States v. Mejia, No. 10-cr-256-03 (RCL), _ F. Supp._, 2023 WL 2297465, at *2 (D.D.C. Feb. 23, 2023) (citing United States v. Mejia, No. 20-3086, 2022 WL 4280686, at *1 (D.C. Cir. Sept. 14, 2022)).

The Court will therefore proceed to the merits of Mr. Chansley' s claims.
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Re: Trump lashes out at Gov. Doug Ducey following certificat

Postby admin » Thu Jul 27, 2023 12:52 am

Part 2 of 2

B. Brady Applies at the Plea-Bargaining Stage

Mr. Chansley' s motion assumes that Brady provides a right to the disclosure of exculpatory information by the government to the criminal defendant at the plea-bargaining stage but does not directly address this question or offer any authority to support his position. The government, on the other hand, does engage with the question-whether Brady applies throughout the criminal proceeding or if it is only a trial right-and notes that there is currently a circuit split on the issue with no binding authority in this Circuit, but does not take a formal position. See Gov't Opp'n at 11 n.5; compare United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (holding that Brady applies to the non-disclosure of exculpatory evidence prior to plea bargain); Campbell v. Marshall, 769 F.2d 314, 322-24 (6th Cir. 1985) (same); White v. United States, 858 F.2d 416,422 (8th Cir. 1988) (same); Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995) (same); United States v. Ohiri, 133 Fed. App'x 555, 561--62 (10th Cir. 2005) (same); with United States v. Moussaoui, 591 F.3d 263,285 (4th Cir. 2010) (holding that Brady applies to the non-disclosure of exculpatory evidence only at the trial stage); Matthew v. Johnson, 201 F.3d 353, 361--62 (5th Cir. 2000) (same).

This Court joins the weight of authority and the principles enshrined in Brady to conclude that a defendant may challenge the validity of his guilty plea on the basis of Brady. Plea bargaining is a critical component of our modern criminal justice system. As the Supreme Court emphasized in Brady, "our system of the administration of justice suffers when any accused is treated unfairly." 373 U.S. at 87. When a defendant is forced to decide whether to go to trial or plead guilty without knowledge of exculpatory evidence in the government's possession, he suffers unfairness of the highest order. This is because shielding the plea-bargaining process from Brady creates perverse incentives for prosecutors to "deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas." Sanchez, 50 F .3d at 1453. What is more, plea bargaining is just one step in the process of preparing for a trial. Plea agreements, like any other contract, are only finalized after the assent of both parties. See Puckett v. United States, 556 U.S. 129, 137 (2009). In the situation where a defendant and the government fail to reach a plea agreement, or if that agreement is not accepted by the Court, a defendant must proceed to trial. A Brady rule that absolves the government of any responsibility to disclose exculpatory evidence until the eve of trial would impermissibly hinder a criminal defendant in the preparation of his defense. See United States v. Pollack, 534 F.2d 964, 973-74 (D.C. Cir. 1976). Under these circumstances, the Court agrees with the majority of circuit courts that Brady provides a right to the disclosure of exculpatory information at the plea-bargaining stage.

C. Mr. Chansley's Brady Argument Is Without Merit

Even though Mr. Chansley may assert his Brady claim, he does not meet his burden to show that he is entitled to relief on that basis. He argues that the government violated its obligations under Brady, and therefore secured an unconstitutional sentence, by not disclosing the videos broadcast on March 6, 2023. Mr. Chansley's argument, and its various permutations, is belied by the record, applicable law -- or both.

1. Nearly all of the videos at issue were disclosed to the defense

Mr. Chansley relies primarily on a televised statement by his former counsel-unswom and not subject to Rule 11 sanctions-along with the absence of plea counsel's discussion of the videos at sentencing as evidence that the videos were withheld from the defense. Perhaps plea counsel's memory has faded over the past two years. Perhaps plea counsel's statement was fueled by personal motives contrary to the interest of his former client. Regardless, the record is plain that the vast majority of the videos, and all the pertinent content contained therein, was indeed disclosed to the defense as early as May 2021 and by mid-October 2021 at the latest. 11

All of the facts surrounding Mr. Chansley's movements around the Capitol featured in the television program were disclosed months before Mr. Chansley's guilty plea, as he concedes. Def. 's Reply at 2-3. For example, the program showed Mr. Chansley's interaction with enforcement officers in the Senate stairwell, after he left the Senate gallery and before he entered the Senate chamber. This same footage was captured by MPD body-worn cameras that were made discoverable on May 17, 2021. Gov't Opp'n at 18; ECF No. 38-1 at 2. Finally, grand jury transcripts containing testimony of an officer who encountered Mr. Chansley several times on January 6, 2021, and who appears in the footage aired in the March 6, 2023 broadcast, were disclosed to plea counsel by May 19, 2021. Gov't Opp'n at 19; ECF No. 38-1 at 2. 12

The television program also discussed Mr. Chansley' s time on the Senate floor. The record demonstrates that footage depicting these same events, recorded by The New Yorker, was disclosed to plea counsel on April 24, 2021. Gov't Opp'n at 18; ECF No. 38-1 at 2. On May 14, 2021, plea counsel confirmed by email that he was aware of the video and that it was his position that the video "depict[ ed] the door to the Chamber being held for Mr. Chansley by law enforcement as he entered into the Chamber (followed thereafter by law enforcement)[,]" whom plea counsel later identified as Officer Robishaw. Gov't Opp'n at 18 (quoting Email, Ex. 1 to Sealed Gov't Opp'n, ECF No. 124-1 at 1, 5). Plea counsel further claimed that the video showed Mr. Chansley "being escorted into the Chamber just before 3:00p[m]." Id. (quoting Email at 1). In fact, plea counsel demonstrated awareness of evidence of his client supposedly interacting peacefully with law enforcement in the Capitol building two months earlier when he argued in support of his client's (unsuccessful) motion for pre-trial release. ECF No. 28 at 10:2-4. Thus, plea counsel's statements by email and in court reveal that counsel was aware of all pertinent facts aired in the March 6, 2023 program at least four months prior to Mr. Chansley' s plea.

The vast majority of the CCTV footage aired on the program, which did not contain any new facts, was made discoverable through prior to Mr. Chansley's sentencing. Gov't Opp'n at 16-17. Mr. Chansley cries foul at the government's representation in the Pezzola case -- that disclosure occurred on September 24, 2021-and the government's representation in this case -- that disclosure occurred on October 22, 2021-and claims that both representations are likely "false." Def.'s Mot. at 12. Rather than intentional government obfuscation, there is a far more likely, innocent explanation for the date discrepancy. As the government stated in its second discovery update in this case, filed on September 17, 2021, the government merely "expect[ ed]" to produce the videos via by September 24, 2021. The next update, filed on October 25, 2021, confirmed that the videos were, in fact, produced as of October 21, 2021 (which the government now clarifies as October 22, 2021). Regardless, contrary to defense counsel's assertions, the information was, in fact, produced by October 2021 at the very latest.

In alternative, Mr. Chansley argues that even if the videos were disclosed, the government provided too many videos too late because it would have been physically impossible for defense counsel to review the 4,800 hours of footage disclosed on October 22, 2021 before Mr. Chansley' s sentencing in mid-November 2021. Def.'s Mot. at 16 & n.3. Aside from the fact that "[Mr. Chansley] cite[ s] no authority for the proposition that the government fails to meet its Brady [] obligations by providing too much discovery," United States v. Bingert, Nos. 21-cr-91-1, 21-cr- 91-2 (RCL), 2023 WL 3203092, at *6 (D.D.C. May 9, 2023) (emphasis in original), this argument is an obvious red herring. As the government points out, Mr. Chansley was well aware of the path he walked on January 6, 2021. Gov't Opp'n at 17. That knowledge, combined with the government's disclosure of maps showing the CCTV cameras' locations and a guide for identifying the relevant cameras, certainly enabled the defense to focus on reviewing footage captured by cameras only in the areas of the Capitol that Mr. Chansley actually visited.

Mr. Chansley's Brady claim fails at the outset because the record confirms that none of the relevant facts have been suppressed. Blackley, 986 F. Supp. at 603. The Court further notes that "the volume of discovery does not excuse defense counsel," including Mr. Chansley's post-conviction counsel, "from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures." Mem. Order, Pezzola, at 3.

2. None of the videos are exculpatory

Despite spilling much ink on the supposed significance of the videos, Mr. Chansley does not explain why he believes the videos are exculpatory with respect to the charge to which he pleaded guilty: obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(2). This is likely because he cannot make this showing.

Mr. Chansley admitted to engaging in the following conduct on January 6, 2021, all before the events recorded in the videos aired in the March 6, 2023 program: participating in a violent riot; being one of the first rioters to unlawfully enter the Capitol; traveling through hallways, stairwells, and the Senate gallery for approximately 38 minutes; encountering law enforcement on several occasions; ignoring their direct orders; screaming obscenities; and demanding that fleeing lawmakers be brought out to face the mob. Moreover, Mr. Chansley admitted to engaging in the following conduct after the events recorded in the videos: entering the Senate chamber; climbing on the Senate dais; ignoring multiple direct orders from the lone law enforcement officer in the chamber; sitting in the Vice President's chair; leaving a threatening message for the Vice President; leading the rioters in the chamber in a demonstration; and only vacating the chamber after multiple other law enforcement officers arrived. These facts show that Mr. Chansley intended to, and did, obstruct the certification proceedings. That law enforcement officers outnumbered by the quantity of rioters did not physically engage Mr. Chansley or impede his progress is irrelevant to his guilt with respect to Count Two.

Of the videos appearing in the March 6, 2023 segment, one 10-second video was disclosed in February 2023, after the conclusion of Mr. Chansley's case. The clip, capturing Mr. Chansley's movements at approximately 2:59 pm, appears to show him outside of the Senate chamber accompanied by two law enforcement officers. One of the law enforcement officers reaches out to briefly touch a door before leading Mr. Chansley away from the Senate chamber. Mr. Chansley argues that this video, and others, provide further context "about how he came to be inside the Senate Chamber," which he argues is evidence casting doubt on his intent to obstruct the certification proceedings. Def.' s Mot. at 19. This argument, like his others, misses the mark. The circumstances surrounding his entry into the Senate chamber are not legally relevant. His presence that day, his refusal to obey multiple orders :from law enforcement, and his specific statements and actions all created serious safety concerns and forced an end to the certification proceedings, consistent with his expressed intent. In addition, entry into the Senate chamber, or even the Capitol building, is not a required element for guilt under 18 U.S.C. § 1512(c), as this Court has implicitly determined numerous times. See, e.g., Notes for Oral Ruling, United States v. Worrell, No. 21-cr- 292-1, ECF No. 245 (D.D.C. May 12, 2023); Notes for Oral Ruling, Bingert, ECF No. 166; Notes for Oral Ruling, United States v. Hostetter, No. 21-cr-392-1 (RCL), ECF No. 275 (D.D.C. July 13, 2023); Findings of Pact and Conclusions of Law, United States v. Powell, No. 21-cr-179 (RCL), ECF No. 110 (D.D.C. July 18, 2023).

As a fallback position, Mr. Chansley appears to argue that the videos show that "he committed no acts of violence, that he expressed no hostility or intention to do violence to any property or individuals" and therefore the 8-point sentencing enhancement was improper. Def. 's Mot. at 19; see also id. at 17-19. But that argument suffers from the same fatal defect as the March 6, 2023 broadcast: it lacks the context of what occurred before and after. The enhancement applies "[i]f the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice[.]" U.S.S.G. § 2Jl.2(b)(l)(B). As explained above, Mr. Chansley's actions on January 6, 2021 more than fit the bill.

Whether the videos from the March 6, 2023 television segment are viewed individually or in context with the rest of the evidence against Mr. Chansley, the videos are not exculpatory. Therefore, Mr. Chansley's Brady claim fails at the second prong of the analysis as well.

3. The government's discovery approach in his case did not violate its Brady obligations

Separate from the alleged failure to disclose specific videos, Mr. Chansley argues that the government's approach to discovery contravened the applicable Brady standard in this District. See, e.g., Def. 's Mot. at 9; Def. 's Reply at 3-4. That argument, like his others, is misplaced.

In cases involving voluminous discovery, courts are "wary of requiring the government to, in effect, do defense counsel's work for them and of inserting itself into the fray of micromanaging discovery in these cases." United States v. Sheppard, No. 21-cr-203 (JDB), 2022 WL 17978837, at *14 (D.D.C. Dec. 28, 2022). "On the other hand, [courts are] sympathetic to the needle-in-thehaystack problem defendants face when confronted with such enormous amounts of discovery, only some of which is relevant to their cases, particularly since defense counsel have comparatively fewer resources at their disposal for identifying which evidence is relevant." Bingert, 2023 WL 3203092, at *6 (citing United States v. Hsia, 24 F. Supp. 2d 14, 29 (D.D.C. 1998)). Balancing the government's obligations and defendants' responsibilities, courts in this District have settled on the following standard: '"[T]o the extent that the government knows of any [Brady] material in its production,' the Court will 'require [the government] to identify' it." Sheppard, 2022 WL 17978837, at *14 (alterations in original) (quoting United States v. Saffarinia, 424 F. Supp. 3d 46, 86 (D.D.C. 2020)).

Mr. Chansley cites the government's first September 17, 2021 discovery update, and the two district court cases referenced in a footnote therein, as evidence that the government's approach to discovery does not adhere to Saffarinia. Def 's Mot. at 14; ECF No. 75 at 2 (citing United States v. Meek, No. 19-cr-378 (JMS/MJD), 2021 WL 1049773, at *5 (S.D. Ind. Mar. 19, 2021) and United States v. Ohle, No. S3-08-cr-1109 (JSR), 2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011)).

Taking the second portion of his argument first-and declining to opine on the wisdom of the government's choice to cite out-of-circuit, unpublished memorandum orders for points oflaw as important as Brady-Mr. Chansley' s argument misses the mark. The government cited those cases merely for the proposition that "[ d]efendants are in a better position to determine what evidence they believe is exculpatory and will help in their defense" than the government. ECF No. 75 at 2 (citing Meek, 2021 WL 1049773, at *5). That proposition is not inconsistent with Saffarinia. What is more, Mr. Chansley reads Saffarinia far too broadly. That opinion clearly held that the government is only required "to identify Brady material already known to it based on its existing knowledge of the documents it collected and reviewed in the first instance[,]" and that, as a corollary, the government is not required to "sift through the evidence in search of anything that could help the defense[.]" Saffarinia, 424 F. Supp. 3d at 86 (emphases in original) (internal citations omitted). In other words, Saffarinia does not require the government to specifically identify to a defendant any evidence in the government's voluminous disclosures that could conceivably qualify as Brady material based on the government's anticipation of any possible defense theory. Instead, Saffarinia only requires the government to identify exculpatory evidence of which it is aware.

The first part of Mr. Chansley's Brady argument similarly falters. In his view, the government's en masse production of discovery with the opportunity for defendants to lodge specific requests for information that they believe to be exculpatory is improper because this District "looks with disfavor on narrow readings of the government's Brady obligations[.]" Def. 's Mot. at 10 (collecting cases). But it is precisely the government's recognition of this District's exacting Brady standards that compelled the government to contract for, fund, and facilitate the introduction of a platform to disseminate massive amounts of discovery in cases related to January 6, 2021, and to equip defense teams with the tools necessary to digest the information made available on the platform. To be sure, this unprecedented prosecutorial effort places enormous disclosure burdens on the government and necessitates novel approaches to sharing discovery information with defendants. That said, Mr. Chansley has not demonstrated how the government's approach is inconsistent with Brady.

As a last gasp, Mr. Chansley faults the government for not providing him with specific discovery earlier because he was "easy to identify in the crowd of people who entered the Capitol" due to his distinctive costume. Def.'s Mot. at 13. Mr. Chansley does not cite any authority, and the Court is aware of none, stating that the government faces a heightened Brady obligation merely because a defendant is recognizable. Regardless, as previously discussed, the evidence that Mr. Chansley claims is exculpatory is decidedly not so.

* * *

Mr. Chansley has failed to demonstrate that the government fell short of its Brady obligations with respect to the production of video evidence in his case. Therefore, this claim fails.

D. Mr. Chansley's Ineffective Assistance of Counsel Argument Is Without Merit

Despite his repeated assertions that he was satisfied with plea counsel in writing and on the record, Mr. Chansley now argues that plea counsel was ineffective in two ways: (1) by encouraging him to accept a plea agreement containing a sentencing enhancement and appeal waivers; and (2) by not demanding production of the CCTV videos aired during the March 6, 2023 program prior to sentencing in order to use such video at sentencing. Def.'s Mot. at 17-21. He claims that he suffered prejudice because, absent these errors, he would have received a more favorable plea agreement and the Court would have imposed a lower sentence. Id. His argument is wildly speculative, contrary to established caselaw and practice, and devoid of common sense.

1. Mr. Chansley has not demonstrated that plea counsel's performance was deficient

Mr. Chansley's ineffective assistance of counsel claim stumbles at the start because he is unable to establish that his plea counsel's performance was deficient.

Mr. Chansley's first argument, that plea counsel erred in negotiating the terms of his plea agreement, collapses upon cursory inspection. First, a "prosecutor is not obligated to make a plea offer at all, let alone a plea offer on any particular terms." United States v. Zaia, 751 F. Supp. 2d 132, 143 (D.D.C. 2010). Similarly, Mr. Chansley does not point this Court to any authority stating that counsel has a constitutional duty to pursue a plea agreement more favorable than the agreement actually offered. What is more, dissatisfaction with the terms of a plea agreement alone cannot serve as a basis for an ineffective assistance of counsel claim. See United States v. Brunetti, 376 F.3d 93, 95 (2d Cir. 2004); Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998). Second, plea counsel's suggestion to Mr. Chansley that he accept the plea agreement with the sentencing enhancement and appeal waiver fell squarely within the "wide range of reasonable professional assistance" that Strickland protects. 466 U.S. at 689. In exchange for Mr. Chansley's plea, the government agreed to dismiss the other charges pending against him and not to pursue other potential sentencing enhancements. Gov't Opp'n at 24 n.11. This sort of bargained-for-exchange is entirely consistent with effective performance by counsel during the plea process.

Mr. Chansley' s second claim, that plea counsel erred by not demanding or using the CCTV footage, also fails. As previously discussed, plea counsel did, in fact, have access to the videos well in advance of Mr. Chansley's sentencing. Similarly, as the government correctly notes, the record reflects that plea counsel reviewed such evidence with Mr. Chansley. See id. at 27 ( citing Sent'g Hr'g Tr. at 26:13-16). And contrary to Mr. Chansley's insistence, plea counsel's decision not to present the videos during sentencing does not demonstrate ineffective assistance-in fact, it was quite effective. The Court agrees with the government that plea counsel's strategic choice to use his presentation to focus on Mr. Chansley's remorse and acceptance of responsibility, rather than present additional video evidence in a futile attempt to contradict the obvious facts of the case, was objectively reasonable. See id. at 27-28. And that decision was all the more reasonable when considering that the Court previously rejected as unpersuasive plea counsel's attempt to cite the facts contained in the videos in light of the rest of the evidence of Mr. Chansley's conduct. See Chansley, 525 F. Supp. 3d at 170-71. Plea counsel sensibly changed course at sentencing, noting that the government was still pursuing investigations and gathering evidence related to the events of January 6, 2021, but that he and Mr. Chansley were "not in a position of slowing this court proceeding down because [they didn't] have to, because those investigations, those outcomes are irrelevant as to [Mr. Chansley], as to the defendant in this case, as to the decision of [Mr. Chansley] to enter a plea[.]" Sent'g Hr'g Tr. at 16:11-15. Plea counsel emphasized that Mr. Chansley wanted "to be held accountable based on evidence that we have today, that this court has seen." Id. at 16:16-17. Based on this presentation, along with Mr. Chansley's own comments, the Court determined that the appropriate sentence in his case was the bottom of the applicable Guidelines range, despite the seriousness of Mr. Chansley' s conduct.

Mr. Chansley does not meet his burden to establish that plea counsel performed deficiently.

2. Mr. Chansley has not demonstrated that he suffered any prejudice

As for prejudice, Mr. Chansley attempts to tread a fine line. He wisely does not claim that he would have opted for trial absent counsel's performance. Nor could he.13 Instead, he argues that, had plea counsel performed effectively, he would still have proceeded with a plea agreement, but would have agreed to one absent the sentencing-enhancement stipulation or the appeal waivers. Def.'s Mot. at 20-21. Mr. Chansley argues that without the stipulation, his recommended Guidelines sentence would have been lower and that without the waiver, he would have been able to appeal his sentence on any grounds he wished. Id. However, these hypothetical scenarios fall woefully short of establishing a legally sufficient showing of prejudice.

As discussed above, neither the government nor plea counsel had any obligation to reach a plea agreement without the sentencing enhancement or appeal waiver. Also, the enhancement at issue, U.S.S.G. § 2Jl.2(b)(l)(B), has been approved by courts in this District in a variety of cases involving the events of January 6, 2021, including this Court. Gov't Opp'n at 26 (collecting cases). And regarding the appeal waiver, it is clear that "[a] 'knowing, intelligent, and voluntary' waiver of the right to appeal 'generally may be enforced."' United States v. Adams, 780 F .3d 1182, 1183 (D.C. Cir. 2015) (quoting United States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009)). Mr. Chansley has not alleged, much less shown, that his plea was not knowing, intelligent or voluntary. Nor has he so much as hinted at what other legal challenges to his conviction he could or would have raised had he not waived his direct-appeal rights. Under these circumstances, he cannot show that he suffered any prejudice due to the terms of the plea agreement that he accepted.

Similarly, Mr. Chansley has not met the required prejudice showing with respect to plea counsel's alleged failure to demand or use the CCTV footage appearing in the March 6, 2023 broadcast. Even if plea counsel had presented the Court with this footage, which, as discussed above, plea counsel was correct not to, Mr. Chansley would not have received a lower sentence. The criminal nature of Mr. Chansley's actions that day, including his decision to leave a note threatening "It's Only A Matter of Time. Justice Is Coming!" at the heart of the U.S. government, establish the appropriateness of a sentence of at least 41 months' incarceration. 14 In fact, without Mr. Chansley' s apparently unequivocal acceptance of responsibility, the Court is confident that he would have received a higher sentence.

In sum, Mr. Chansley cannot demonstrate that either the absence of certain terms in the plea agreement or the presence of the CCTV footage at sentencing would have resulted in even a "conceivable[] likelihood of a different result," much less a "substantial" one. Cullen, 563 U.S. at 189. Therefore, he has not established prejudice.

* * *

Mr. Chansley' s claims are without merit. Thus, the Court will DENY his motion to vacate, set aside, or correct his conviction under 28 U.S.C. § 2255.

The Court is disappointed to learn that, through his filings and public statements, Mr. Chansley has recanted the contrition displayed at his sentencing nearly two years ago. 15 Such an about-face casts serious doubt on the veracity of any of Mr. Chansley' s claims, here or elsewhere.

Finally, the Court would be remiss if it did not address the ill-advised television program of March 6, 2023. Not only was the broadcast replete with misstatements and misrepresentations regarding the events of January 6, 2021 too numerous to count, the host explicitly questioned the integrity of this Court -- not to mention the legitimacy of the entire U.S. criminal justice system with inflammatory characterizations of cherry-picked videos stripped of their proper context. In so doing, he called on his followers to "reject the evidence of [their] eyes and ears," language resembling the destructive, misguided rhetoric that fueled the events of January 6 in the first place. 16 The Court finds it alarming that the host's viewers throughout the nation so readily heeded his command. But this Court cannot and will not reject the evidence before it. Nor should the public. Members of the public who are concerned about the evidence presented in Mr. Chansley's case and others like may view the public docket and even attend court proceedings in these cases. Those of us who have presided over dozens of cases arising from, listened to hundreds of hours of testimony describing, and reviewed thousands of pages of briefing about the attack on our democracy of January 6 know all too well that neither the events of that day nor any particular defendant's involvement can be fully captured in a seconds-long video carelessly, or perhaps even cynically, aired in a television segment or attached to a tweet.


Before appealing a final order denying a § 2255 motion, a court must "issue or deny a certificate of appealability." Fed. R. Governing § 2255 Proceedings 1 l(b). The defendant may not appeal without this certificate of appealability, which requires "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Doing so requires the defendant to demonstrate "that reasonable jurists could debate whether ( or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (internal quotation marks omitted)). When a district court denies relief on procedural grounds, the defendant must also show that reasonable jurists would debate "whether the district court was correct in its procedural ruling." United States v. Baxter, 761 F.3d 17, 26 n.10 (D.C. Cir. 2014) (quoting Slack, 529 U.S. at 484).

Mr. Chansley's arguments are without merit. For these reasons, the Court finds that reasonable jurists would not debate whether his claims deserve encouragement to proceed further. Mr. Chansley has not made a substantial showing of the denial of a constitutional right. The Court will therefore decline to issue a certificate of appealability for Mr. Chansley's claims.


For these reasons, the Court concludes that Mr. Chansley's motion and the record in his case do not show his entitlement to relief. No evidentiary hearing is warranted, see 28 U.S.C. § 2255(b), and the Court will DENY Mr. Chansley's motion. No certificate of appealability shall issue. A separate Order consistent with this Memorandum Opinion shall issue.

SIGNED this 20th day of July, 2023.

Royce C. Lamberth
United States District Judge



1 In total, the government provided nine discovery updates in this case. Gov't Opp'n at 3 n.2.

2 Mr. Chansley appealed his conviction, ECF No. 108, but the U.S. Court of Appeals for the District of Columbia Circuit later issued a mandate dismissing Mr. Chansley's appeal pursuant to his own motion, ECF No. 112.

3 Scott Macfarlane, "QAnon Shaman" Jacob Chansley Released Early from Federal Prison, Transferred to Halfway House, CBS News, ... onhalfway- house-jan-6/ [].

4 Fox News, Tucker: This Video Tells A Different Story of Jan 6, YouTube (Mar. 6, 2023), [].

5 Fox News, "QAnon Shaman's" Lawyer Speaks Out After Jan. 6 Bombshell Footage Released, YouTube (Mar. 9, 2023) [].

6 In early May 2023, a jury convicted Pezzola of eight of the ten crimes for which he was indicted, including seditious conspiracy in violation of 18 U.S.C. § 2384. Verdict, United States v. Pezzola, 21-cr-175-6 (TJK), ECF No. 804.

7 The Court follows government counsel's lead in referring to cameras by letter instead of their true identifiers due to the sensitive nature of the cameras and their locations. See Gov't Opp'n at 9 n.4.

8 Mr. Chansley's motion contains a purported excerpt from the government's March 27 letter indicating that this video was produced via on October 22, 2021 along with the vast majority of the other videos appearing in the segment. Def.'s Mot. at 12. However, the government's opposition indicates that this file was produced in May 2021. Gov't Opp'n at 9. The exact date of production is immaterial, as the Court will explain, because the record unmistakably shows that this video was not suppressed nor is it exculpatory.

9 Even though this clip was not available to Mr. Chansley prior to the conclusion of his case, it does not exculpate him nor would its disclosure have affected this Court's sentencing determination. See Part 111.C.

10 Mr. Chansley's plea agreement expressly reserved the right to collaterally attack his conviction based on a claim of ineffective assistance of counsel. Plea Agreement ¶ IX(E).

11 One 10-second video showing Mr. Chansley's movements outside of the Senate chamber was not disclosed to plea counsel prior to sentencing. However, because that video was not exculpatory, there is no Brady violation with respect to that video. See Part III.C.2.

12 In fact, as Mr. Chansley admits, counsel was aware of this information even earlier. On January 9, 2021, Mr. Chansley participated in an interview with the Federal Bureau of Investigation. Def. 's Mot. at 18-19. In that interview, Mr. Chansley "claimed that police escorted him into the Senate Chamber and asked if he would assist in getting the protestors to vacate the Chamber. [Mr.] Chansley claimed to use his megaphone to request that protestors depart." Id. at 19. Though Mr. Chansley later contradicted the second claim through his agreement to the facts as outlined in the Statement of Offense, the first claim is consistent with the Statement of Offense.

13 Both the government and plea counsel acknowledged the overwhelming evidence of Mr. Chansley's guilt, Sent'g Hr'g Tr. at 4: 13-16; 16:18-21. Given these facts, "[i]t is highly improbable" that Mr. Chansley would have declined to plead guilty and instead proceed to trial. United States v. Thomas, 999 F.3d 723, 738 (D.C. Cir. 2021). Furthermore, Mr. Chansley faced a potential sentence of 20 years in prison-more than five times longer than the term he actually received-had he gone to trial. Sent'g Hr'g Tr. at 42:12-18. A defendant cannot establish prejudice under these circumstances. See United States v. Ayers, 938 F. Supp. 2d 108, 115 (D.D.C. 2013).

14 At the time of his November 2021 sentencing, the government had not gathered any evidence that Mr. Chansley was aware of the noose hanging outside of the Capitol building at the time that he sat in the Vice President's chair and wrote his threatening note. Sent'g Hr'g Tr. at 8:7-13. Therefore, the Court did not take that event into consideration in imposing Mr. Chansley's sentence. Since then, the government has gathered terabytes of additional evidence regarding the events of January 6, 2021. Were Mr. Chansley to be resentenced today, perhaps the government would be able to present such evidence and, if so, the Court would certainly consider such evidence in imposing a new sentence.

15 See, e.g., Caitlin Sievers, "QAnon Shaman" Looks to Overturn Sentence, Says He Never Renounced QAnon, A'Z Mirror (June 22, 2023), ... s-henever- renounced-qanon/ [https://perma.ccN84G-UUR.7]; Mike Wendling, The 'QAnon Shaman' and Other Capitol Rioters Who Regret Pleading Guilty, BBC News (July 16, 2023), 66169914 [].

16 George Orwell, 1984, at 103 (1949).
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