Judge Colleen Kollar-Kotelly Asks DOJ for Signs of Life

/26 Comments/in , , , , /by

Judge Colleen Kollar-Kotelly granted Dan Richman his request for a Temporary Restraining Order, preventing the government from snooping in his stuff, one that goes through Friday. And while I agree with Gerstein and Cheney (and Bower and Parloff) that it could have the effect of thwarting another indictment of Jim Comey — indeed, it may undercut an attempt to stonewall Richman — I find KK’s order interesting for other reasons.

Partly, it’s the way she’s demanding signs of life from DOJ.

Judge KK attempts to forestall a stonewall

As a reminder, Judge Cameron Currie threw out the indictment against Jim Comey on November 24, the Monday of Thanksgiving week. Two days later, the day before Thanksgiving, Richman cited that dismissal and the expired Statute of Limitations in his bid to get his data back. As far as I know, no one noticed it until Anna Bower pointed to it on Tuesday.

Notably, Richman attached the warrants used to obtain his records as sealed exhibits.

The same day Bower noted it (the day it was assigned), December 2, Judge KK issued an order, half of which dealt with Richman’s sealing request, which she provisionally granted. But she also told him that if he wants to keep the government out of his data, he needs to get a Temporary Restraining Order. Her order emphasized that that request must submit some sign of life from DOJ.

Finally, Petitioner Richman’s 1 Motion requests that this Court “issue a temporary restraining order enjoining the [G]overnment from using or relying on in any way” the materials at issue in his 1 Motion while this matter is pending. Consistent with Local Rule of Civil Procedure 65.1, it is ORDERED that Petitioner Richman shall file his application for a temporary restraining order by separate motion, accompanied by a certificate of counsel that either (1) states the Government has received actual notice of the application and “copies of all pleadings and papers filed in the action to date or to be presented to the Court” in connection with the application; or (2) identifies “the efforts made by the applicant to give such notice and furnish such copies.”

A Certificate of Service Richman filed later that day explains part of the reason KK made that order: For some reason, the motion was not docketed. So, Richman attorney Mark Hansen explained that he formally served Jocelyn Ballantine and DC USAO on December 1.

This Corrected Certificate of Service corrects the service date listed for the public redacted Motion for Return of Property and accompanying attachments, see ECF No. 1 at 3, and the sealed version of that Motion with accompanying attachments, see ECF No. 2, from November 26, 2025, to December 1, 2025. Although Petitioner filed those papers on November 26, 2025 and intended to serve them on that date, the filings were not docketed at that time. I promptly caused the filings to be served on counsel for respondent upon receiving notification from the Clerk’s Office, on December 1, 2025, that the filings had been accepted for submission and docketed.

But to comply with the other part of her order, Richman’s attorneys also included the emails they exchanged with Ballantine. And among the things those emails showed is that after agreeing to attorney Nick Lewin’s midafternoon December 3 request to respond by close of day on December 4,

Based on the government’s use of such property in connection with the Comey case (as described in Judge Fitzpatrick’s November 17, 2025 opinion), we are concerned that, absent a TRO, the government may continue to use the property in a manner that violates Professor Richman’s rights – particularly in light of recent news reports that the DOJ may seek a new indictment of Mr. Comey. However, if the government has no such intention and will agree to refrain from searching, using, or relying in any way upon Professor Richman’s property pending resolution of the Rule 41(g) motion, that would address our concerns and obviate the need for a TRO.

Please let us know the government’s position by COB tomorrow.

[snip]

Nick,

Thanks for your email. I will reach out to the appropriate people at DOJ with your request and will respond to you tomorrow by COB.

Jocelyn

Ballantine had not responded by 9PM on December 4.

Hi Jocelyn,

Did you get an answer? Please let us know.

Ballantine had a good excuse: she was busy prosecuting accused pipe bomber Brian Cole. Nevertheless, when she did respond at 9:12PM Thursday night, she said that her leadership — Jeanine Pirro — had already engaged with DOJ leadership (Bondi spent part of Thursday with Pirro bragging about the pipe bomber arrest), but she would not have an answer until “early next week.”

Thank you so much for the prompt. I met with my leadership today, and they have engaged Department of Justice leadership. I have also shared your pleadings and request with the prosecutors who handled the Comey prosecution out of EDVA.

I do not have an answer for you this evening, but I expect to have one early next week.

That’s what led Richman to file his motion for a TRO, maybe around 10PM Friday night. Judge KK responded just under a day later.

Her order specifically ruled that DOJ knows about Richman’s request.

Third, the Court finds that the Government has received actual notice of Petitioner Richman’s [9] Motion, ensuring that the Government is positioned to act promptly to seek any appropriate relief from this Order. Specifically, counsel for the Government may move to dissolve or modify this Order immediately upon entering an appearance, and the Court will resolve any such motion “as promptly as justice requires.” Fed. R. Civ. P. 65(b). Under the circumstances, the Court will allow and consider such a motion at any time upon contemporaneous notice to counsel for Petitioner Richman. See id. (providing that such a motion may be filed “[o]n 2 days’ notice to the party who obtained the order” or “on shorter notice set by the court”).

And barring the government requesting a different schedule, Judge KK’s order set up the following schedule:

  • Richman should “promptly” serve Judge KK’s order and everything filed in the docket to Pam Bondi (KK identifies Bondi by title specifically).
  • By noon on Monday, “the Attorney General of the United States or her designee” must confirm “the United States,” so everyone!, is in compliance with KK’s order not to “access … share, disseminate, or disclose” Richman’s data “to any person.”
  • By Tuesday at 9AM, DOJ must respond to both of Richman’s requests.
  • He must reply by 5PM that day.
  • The order will expire at 11:59PM on Friday night if Judge KK has not issued an order first.

If DOJ follows Judge KK’s order, then it will have the effect of:

  1. Slightly accelerating the response deadline for DOJ, which may have been due sometime on Tuesday anyway, while dramatically accelerating Richman’s reply, which is now due that same day.
  2. Flip the default status of Richman’s data, restricting DOJ from accessing it before Judge KK issues an order rather that allowing them to access it until any such order is in place.

In other words, the government can’t stall Richman’s effort in a bid to use the data in the interim. If DOJ follows the order, then it would prevent DOJ from using the data to get a new indictment before such time as Ballantine responds, “early next week.” Unless DOJ got an indictment on Friday with hopes of a big show arrest tomorrow morning, then KK would have thwarted any effort to stonewall Richman’s assertion of his rights.

If DOJ blows off the order, it’ll make it even easier for Comey to argue any indictment is malicious (unless, of course, he has to argue that to Aileen Cannon).

Did Judge KK smell a rat?

That’s the logistics of the order. The other parts of it are more interesting.

First, KK’s analysis on the TRO is cursory: just one paragraph stating that the government probably has violated Richman’s Fourth Amendment rights by searching his data without a warrant.

The Court concludes that Petitioner Richman is likely to succeed on the merits of his claim that the Government has violated his Fourth Amendment right against unreasonable searches and seizures by retaining a complete copy of all files on his personal computer (an “image” of the computer) and searching that image without a warrant. See United States v. Comey, No. 1:25-CR272-MSN-WEF, 2025 WL 3202693, at *4–7 (E.D. Va. Nov. 17, 2025). The Court further concludes that Petitioner Richman is also likely to succeed in showing that, because of those violations, he is entitled to the return of the image under Federal Rule of Criminal Procedure 41(g).

That’s on the third page of the four-page memo.

Before she gets there (and in addition to formally finding that DOJ has notice of Richman’s request), she focuses on the way DOJ is playing dumb. She notes she has spoken to unnamed people from DC USAO, who were helpful on administrative matters, thank you very much.

First, although the Court has been in communication with attorneys from the U.S. Attorney’s Office for the District of Columbia, 1 the U.S. Attorney’s Office for the District of Columbia has not yet entered an appearance to make representations on behalf of the Government, and counsel for the Government has not yet been identified. See Pet’r’s Ex. A, Dkt. No. 9-2.

1 These attorneys have helpfully facilitated communication on administrative matters. The Court appreciates counsel’s prompt assistance on these matters.

But no one, including Jocelyn Ballantine, wants to put their name on this docket.

And that’s a problem, Judge KK notes, because until someone files notice of appearance, there’s no formal way to start figuring out who has the data.

Second, the Government has not yet indicated who has custody of the material at issue, and neither the Petitioner nor the Court can determine the identity of the custodian until the Government appears in this case. Given that the custody and control of this material is the central issue in this matter, uncertainty about its whereabouts weighs in favor of acting promptly to preserve the status quo.

Maybe it’s something those helpful DC USAO personnel told her. Maybe it’s the way Ballantine deftly shared Richman’s motion with the Loaner AUSAs at EDVA, but not the DOJ leadership with whom Pirro had consulted by late day Thursday.

It’s like Colleen Kollar-Kotelly suspects DOJ is hiding the ball, and that’s why she ordered Richman to go right to the top with his request, to ensure Pam Bondi can’t pretend she’s ignorant of his request.

The perma-sealed Bill Barr dockets

There’s something else sketchy going on here.

As I noted, Richman attached the warrants used to seize his stuff. They’re still sealed and Judge KK has provisionally permitted them to remain that way.

But why are they still sealed?

Back on November 5, Magistrate Judge William Fitzpatrick ordered the Loaner AUSAs to get them unsealed or, if not, then to file a motion justifying the seal in DC.

ORDERED that the Government shall, on or before November 10, 2025, move in the issuing district to unseal the four 2019 and 2020 search warrants referenced in the Government’s Reply to Defendant’s Response to the Government’s Motion for Implementation of Filter Protocol (ECF 132), together with all attendant documents, or, in the alternative, file a motion in the issuing district setting forth good cause as to why the subject search warrants and all attendant documents should remain under seal, in whole or in part;

In that same order, he ordered that there’d be a discussion about unsealing all the references to the warrants in the Comey docket on November 21, which was before Judge Currie dismissed the indictment on November 24. The government was also going to have to defend keeping the filing explaining the notice given to Comey — and submitted as an exhibit to his first response to the effort to get a taint team — sealed that same day.

ORDERED that, if necessary, the Court shall hold a hearing on the pending motions to seal (ECFs 56, 72, 109, and 133) on November 21, 2025, at 10:00 a.m. in Courtroom 500, and the materials subject to those motions shall remain UNDER SEAL until further order of the Court; and it is further ORDERED that, to the extent the Government seeks to seal Exhibit A to Defendant’s Response to the Government’s Motion for Expedited Ruling (ECF No. 55-1), the Government shall file a supporting brief in accordance with Local Criminal Rule 49 on or before November 12, 2025; Defendant may file a response on or before November 19, 2025; and, if necessary, the Court shall hold a hearing on the Government’s sealing request on November 21, 2025, at 10:00 a.m. in Courtroom 500;

Best as I can tell, that never happened. For example, there are no gaps in the Comey docket hiding a sealed discussion about these sealed warrants.

And that’s interesting because when Fitzpatrick asked about all this back on November 5 — this is the hearing that led to the order to unseal the warrants — Rebekah Donaleski revealed that they asked Loaner AUSA Tyler Lemons about the warrants twice at that point, but had gotten no response.

Before we begin, what I’d like to do is — before we address the underlying issues, the government’s motion for a filter protocol, the defendant’s position, we have four outstanding sealing motions, and I do think those sealing motions will touch, at least in some way, on this motion; if not, motions that you-all are going to argue in the future. So what I’d like to do is see if we can nail down what the parties’ positions are and see if we can kind of resolve some of those sealing issues now, if possible.

As I understand it, there are four sealing motions that are outstanding. The defense has filed three; the government has filed one. All these sealing motions deal with either warrants that were issued in a sister district or one document that the government has provided to the defense in discovery.

MS. DONALESKI: Thank you, Your Honor. With respect to the one document provided in discovery, that’s our position, we have no objection. With respect to the underlying warrants which we attached to our motions, my understanding from Mr. Lemons is that he has moved to unseal those. We don’t know where — he hasn’t moved to unseal them — when. We’ve asked him twice for that information, and he hasn’t provided it. The defense’s view is that we should be entitled to proposed reasonable redactions for PII of those warrant affidavits and warrant materials. We have asked for an opportunity to do that and have not heard from the government. So our position is, the information in our motions, in the motion papers themselves, we have no objection to that being under seal — to that being publicly filed; but with respect to the warrants, which my understanding is those remain under seal by the District of D.C. court, we would ask that we be permitted an opportunity to propose redactions with the government.

[snip]

But with respect to the information that we’ve described in our motion papers, specifically referring to the offenses at issue in the Artic Haze warrants, the dates that the warrants authorize to search, the defense believes that those should be discussed publicly and those can be discussed publicly.

THE COURT: What about the affidavits in support of the warrants?

MS. DONALESKI: Those remain under seal. I don’t expect that we’ll need to get into what is in those affidavits in this hearing today, but if the government or the Court feels differently, we’d welcome that discussion.

And when Fitzpatrick asked Lemons about the warrants, the Loaner AUSA got a bit squirmy. Lemons had asked the AUSA to unseal the warrants. He had not filed a motion to unseal them, as if someone — maybe the AUSA in question, who may be Jocelyn Ballantine — advised him that was not a good idea.

THE COURT: Mr. Lemons, what’s the status of that?

MR. LEMONS: Thank you, Your Honor. Your Honor, we have made a request to the issuing district as to those search warrants, for them to be unsealed. My understanding, last speaking with an AUSA in that district, is that motion has not been filed at this time. They are preparing to provide notice to other potentially interested parties, per their practice and the rules they have to abide by in that district. So we requested it, and our understanding is at this time that the warrants all remain completely under seal. That is the only reason why the government designated these search warrants as protected material and filed them under seal and understands why the defense filed them under seal. If it was in my power and ability here today, those search warrants would be totally unsealed. [my emphasis]

“Preparing to provide notice to other potentially interested parties”? Who else would need notice? Richman and Comey were the ones suspected of leaking!

It has been a month but these dockets remain sealed.

One possible explanation for that is that the Loaner AUSAs (or perhaps Ballantine) filed a motion in DC on November 10 that is under seal, one that should not be sealed for Judge KK. So perhaps everyone is trying to hide the fact that after being ordered by Fitzpatrick not to access this data, Kash Patel just dealt it to someone else (possibly Jason Reding Quiñones). That might explain why Judge KK ordered the government they can only contest her order after giving “contemporaneous notice to counsel for Petitioner Richman:” because (hypothetically), having been ordered by MJ Fitzpatrick to stay out of Richman’s data, they instead dove deeper into it without telling him.

Or maybe the squirminess is about hiding how the underlying warrants were managed … by Jocelyn Ballantine.

Revealing those warrants, after all, should not thwart the effort to keep snuffling about Richman’s data, except insofar as it would raise questions not directly addressed in Judge KK’s order. Just as one example, even though Richman in his initial motion and TRO request relied heavily on Magistrate Judge William Fitzpatrick’s opinion effectively describing rampant Fourth Amendment violations, he does not mention that when the FBI seized his iCloud account in 2020, they took content through August 13, 2019, more than two years after the date of the warrant (basically, through the date of the Comey Memo IG Report release).

According to an April 29, 2020 letter from Mr. Richman’s then-attorney to the government–produced to the Court ex parte by the defense–the Department of Justice informed Mr. Richman that the data it obtained from his iCloud account extended to August 13, 2019, well outside the scope of the warrant and well past the date on which Mr. Richman was retained as Mr. Comey’s attorney. ECF 181-6 at 20. The same letter further states that the Department of Justice informed Mr. Richman that it had seized data from Mr. Richman’s hard drive that extended to June 10, 2017–again well into the period during which Mr. Richman represented Mr. Comey–despite the warrant (19-sw-182) imposing a temporal limit of April 30, 2017. Id.

Did Ballantine — in whom Pirro has invested the trust to limit the blowback of the pipe bomb prosecution — allow the FBI to obtain data outside the scope of a warrant? Are there secret John Durham warrants someone is hiding?

It’s not clear who all this squirminess is designed to protect. But I feel like, whether or not Judge KK’s order halts DOJ efforts to dive into this unlawfully collected data, it may lead to some interesting disclosures about why everyone is so squirmy.

Update: Right wing propagandist (and daughter of a former whack job FBI agent) Mary Margaret Olohan gives the game away. One of her DOJ sources says this won’t be a setback … which sort of confirms that DOJ intends to continue to violate Richman’s Fourth Amendment.

Share this entry

SignalGate: “This Chat’s Kinda Dead”

/12 Comments/in , /by

DOD IG has released the unclassified version of the report confirming what was clear months ago: Whiskey Pete Hegseth has no business leading DOD.

He was wildly uncooperative with the investigation, refusing to be interviewed, refusing to let DOD inspect his phone, refusing to turn over other threads.

But Whiskey Pete may not look quite as stupid as JD Vance.

You see, Whiskey Pete turned over the Signal chat that was left on his phone after all the autodeleting these scofflaws had been doing. Most of the thread was gone. But there was a single text that post-dated Jeffrey Goldberg’s departure from the list, something the Deputy General Counsel used to suggest the Atlantic thread might not be reliable (a claim DOD IG refused to put in the body of the report because, some people still refuse bullshit).

After Jeff Goldberg left the group, JD Vance said, “This chat’s kind of dead. Anything going on?”

One after another participant on the thread changed their ID, perhaps in hopes … I don’t know what they fuck they were thinking.

These are dumb people.

No one more so, though, than JD.

Share this entry

The Hacking Hole Where John Bolton Should Be

/6 Comments/in , , /by

Unless DOJ disguised him, the hack of John Bolton described in his indictment didn’t show up in the Iranian hack-and-leak indictment. It should have. After listing the 2022 attempt to assassinate Bolton (where he is described as “a former US National Security Advisor,” the indictment lists a slew of people that Iran IRGC attempted to hack (starting in 2020) and (starting in 2021) nine people it succeeded in hacking before it hacked Roger Stone and four other Trump flunkies.

Bolton should have, could have, been included along with those nine people.

As the (nifty color-coded) timeline below makes clear, Bolton told the FBI about the hack of him, on July 6, 2021, just as the Iranian hackers were setting up infrastructure to hack a set of people that include those, like Bolton, who played a role in the Qasem Soleimani assassination and Trump’s hardline first term approach with Iran.

To be sure, there are potentially good reasons why Bolton is not in there. There’s a sealed notice of related case in the Bolton docket (at docket entry 6), which could reflect charges against the people who hacked him, charges that might have been filed shortly after he alerted the FBI about the hack. Prosecutors could have left Bolton out to obscure that he told the FBI about the hack (and that therefore the FBI had been working backwards from that ever since, which is consistent with the timeline). Prosecutors could have left Bolton out because the criminal investigation into him remained open.

All plausible reasons to leave him out.

But when you put the hack and assassination targeting of Bolton on the same timeline as the hack-and-leak targeting first fellow Iran hawks and then the Trump campaign, as well as the second alleged assassination attempt by Asif Merchant, all presumed to be IRGC, it raises further questions.

First, one reason I was interested in Merchant’s disclosure yesterday that he was under surveillance from the moment he arrived in the US in April 2024 is because it suggests US spies were already well aware of the efforts to retaliate for the Soleimani killing. Indeed, the timeline explains how the FBI was magically able to get CHSes in both the Shahram Poursafi and the Asif Merchant attempt to hire hit squads to target Bolton and others: the FBI identified those people via those intercepts and flipped them early on in the plot.

It does raise questions about whether the FBI also knew of the hack-and-leak targeting Bolton in advance. The FBI would have been tracking the IRGC closely after their 2020 effort to attack Democrats under the guise of the Proud Boys (an earlier plot that makes the targeting of Proud Boy ally Roger Stone more interesting).

There is some separation between these two plots. While Poursafi eventually had access to non-public intelligence targeting Bolton, he didn’t even know Bolton’s home address at first, which he would have known if he had the emails stolen from Bolton available to him. But the hack-and-leak indictment, at least, lists as one of the goals of the hacking campaign, “to advance the IRGC’s malign activities, including ongoing efforts to avenge the death of Qasem Soleimani,” and the first hack included, of someone at State who led the Abraham Accords, implies that’s how they used, “travel, lodging and other information” from someone who was “a senior U.S. Department of State official at the time of Qasem Soleimani’s death and therefore of interest to the IRGC.” Near the tail end of the Poursafi complaint, so just weeks before the hack of that victim, Poursafi turned to another target.

But that’s the other reason this timeline is of such interest. The progression with Bolton went Hack > Extortion > Assassination Attempt. Bolton could simply have cooperated with the IRGC, but instead he went to the FBI (which has now led to his prosecution).

Trump, however did not.

It was over two months between the time hackers got into Roger Stone’s Hotmail account in May 2024 and the time the hack became public. In July, when they first became aware of the hack, the campaign affirmatively decided not to report it to the FBI.

Trump’s mistrust of federal agencies has complicated the investigation into Iran’s cyberattack on his campaign. When a technology firm first discovered the breach, campaign aides huddled to discuss what they should do. After hours of discussions in July, they decided they trusted the software experts to handle the matter and did not call the FBI. Co-campaign manager Susie Wiles, whose email account was targeted, was among those who questioned whether they could trust the Justice Department. The fears centered on giving federal officials access to campaign email servers and whether they would leak information out publicly.

As I noted at the time, Trump made that decision after relentlessly (and falsely) accusing the FBI of failing to get the server from the DNC hack. The decision was understandable (once you account for Trump’s venality and paranoia), because according to the initial reports, the hackers claim to have gotten information on Trump’s legal cases, not just his campaign.

The sender would not speak on the telephone with a Post reporter but indicated they had access to additional information, including internal campaign emails and documents related to Trump’s court cases.

And one reason that’s interesting is because — as Reuters disclosed only this summer — the lawyer targeted in the attack was Lindsey Halligan, who had no public role on the campaign but who did represent Trump on the stolen documents case.

In online chats with Reuters on Sunday and Monday, the hackers, who go by the pseudonym Robert, said they had roughly 100 gigabytes of emails from the accounts of White House Chief of Staff Susie Wiles, Trump lawyer Lindsey Halligan, Trump adviser Roger Stone and porn star-turned-Trump antagonist Stormy Daniels.

Which brings me back to Merchant, to the delay in turning over his own conversations until October 28.

Two public things might explain that delay (there are no doubt a bunch of secret things that could too): The conviction of Ryan Routh, who did have Iranian ties, though no Iranian role in his assassination attempt was publicly disclosed, and the indictment of Bolton, which disclosed that Bolton alerted the FBI to this hack back in 2021, just months before the FBI would preempt an assassination effort targeting Bolton as well.

The FBI took far greater efforts to rein in any publication of the materials stolen from Trump’s people than they ever have on another leak save WikiLeaks’ biggest document dumps. I can’t help but wonder whether there’s more about the Trump hack we weren’t told.

Timeline

December 19, 2018: Hackers establish account using Israeli politician’s name.

April 15, 2019: IRGC designated as FTO.

January 3, 2020: Trump kills Qasem Soleimani.

April 11, 2020: Hackers get an account in the name of a SCOTUS spouse.

October 22, 2020: Treasury sanctions IRGC for tampering in 2020 election.

June 16, 2021: Bolton and DOJ enter settlement on book.

July 6, 2021: Bolton representative tells FBI Iran has hacked Bolton.

July 7, 2021: Hackers register fake domain mailerdaemon.online.

July 25, 2021: Hacker threatens to release Bolton materials.

I do not think you would be interested in the FBI being aware of the leaked content of John’s email (some of which have been attached), especially after the recent acquittal. 

This could be the biggest scandal since Hillary’s emails were leaked, but this time on the GOP side!

Contact me before it’s too late…

July 28, 2021: Bolton representative tells FBI about threat.

July 29, 2021: Bolton rep tells FBI he would delete account.

August 5, 2021: Iran threatens Bolton again.

OK John … As you want (apparently), we’ll disseminate the expurgated sections of your book by reference to your leaked email…

October 22, 2021: Shahram Poursafi asks Individual A to photograph Bolton. Individual A suggests CHS.

November 9, 2021: Hackers register fake domain mailer-daemon.live. CHS contacts Poursafi; Poursafi asks if he could hire someone to “eliminate someone.”

November 14: Poursafi tells CHS he doesn’t need pictures anymore. After searching for it online, Poursafi provides Bolton’s DC office address with name of scheduling assistant.

November 18: Poursafi note with Bolton’s name, website, social media handle, and former title.

November 19: CHS asks for home address and asks how to do it.

November 21: Poursafi ups the payment to $300,000.

November 23: CHS tells Poursafi he traveled from Texas to DC; Poursafi still did not have home address, but that Bolton walked or was driven to work.

December 7, 2021: Poursafi says because of a recent failed operation, Iran did not approve payment.

December 10, 2021: Poursafi told the CHS that Bolton didn’t go outside often.

December 12, 2021: Hackers register tinyurl.ink.

December 14, 2021: Hackers create persona based on DC think tank employee and phish State employee (Victim 1). 

December 16, 2021: Poursafi asked CHS to refer to Bolton by name “Benham.”

December 20, 2021: With Bolton’s consent, CHS sent pictures of Bolton leaving his office.

December 22, 2021: Poursafi sends picture of cash he claims is for CHS.

January 3, 2022: Iranian President Ebrahim Raisi says Trump and other high ranking Trump officials need to face trial for Soleimani killing. Poursafi tells CHS the murder was not timed to coincide with anniversary of Soleimani death. Poursafi says he has a source who says Bolton is at home.

January 5, 2022: CHS tells Poursafi he would do the job on January 16 or 17.

January 7, 2022: IRGC head Esmail Ghani promises revenge.

January 10, 2022: CHS asks if Ghani’s speech was a reference to this job.

January 15, 2022: CHS claims to have three vans. Poursafi warns not to talk operational details on phone, instructs CHS to crush phone and/or change Poursafi contact to “Mark” in it.

January 18, 2022: CHS sent Poursafi public information stating that Bolton might be traveling; Poursafi said that Bolton was not. “The information does not appear to have been publicly available. POURSAFI did not specify whether his source was a person conducting surveillance, a cyber intrusion, or another type of source.”

January 20, 2022: Poursafi told CHS Bolton did not have a body guard, had not yet left town.

January 28, 2022: Poursafi instructs CHS to get surveillance cameras for Bolton’s home and office.

January 29, 2022: Poursafi instructs CHS to restore social media account.

February 1, 2022: Poursafi told CHS the area around Bolton’s home was clear.

April 13, 2022: Poursafi pushes CHS to do a second job.

April 28, 2022: Poursafi told CHS to finish the second job in six days.

April 30, 2022: Hackers create another persona, persona 3.

May 9, 2022: Jalili accesses persona 3 account, other hackers arrive in office, send test message to book author.

May 31, 2022: Hackers register mailer-daemon.me.

June 18, 2022: Hackers create persona 4, phish victim 1.

August 2, 2022: Hackers create spoof of think tank, with two more personas.

August 5, 2022: Shahram Poursafi complaint.

August 6, 2022: Hackers start stealing from victim 1, including his passport.

Early August 2022: Hackers create persona based on DC journalist/think tanker (victim 4).

August 23, 2022: Victim 4 responds to phish.

August 29, 2022 through October 5, 2022: Hackers hack former Homeland Security Advisor (Victim 5).

October 4, 2022: Hackers pose as assistant to Victim 1 to contact peace organization employee (Victim 2), using stolen passport and get Victim 2 to buy business class ticket for Victim 1.

October 26, 2022: Hackers used Victim 1 passport to query about UAE conference.

November 23, 2022: Hackers create persona based on UAE embassy employee in DC, then use account to invite Victim 1, a former senior CIA person (Victim 6), a former US Ambassador to Israel (Victim 7), and a former Deputy CIA Director (Victim 8) as well as other targeted persons to a party at UAE embassy.

December 20, 2022 to January 23, 2022: Hackers compromise Victim 6’s personal email.

January 16, 2023: Hackers create encrypted app account in the name of DC think tank employee and phish Iranian Human Rights worker (Victim 9).

April 2024: Hackers try to phish Victim 5.

April 13, 2024: Merchant arrives in Houston.

April 22, 2024: Merchant pitches CHS on business.

May 23, 2024: Hackers attempt to log into Roger Stone’s account.

May 24 ,2024: Hackers use recovery code to access Stone’s account.

June 3-4, 2024: Merchant presents plan.

June 10, 2024: Merchant and CHS meet fake hitmen.

June 12, 2024: Hackers access Stone’s account and access campaign official (Victim 11).

June 13, 2024: Merchant establishes code.

June 15, 2024: Hackers use Stone’s account to attempt to phish Victim 13 (Susie Wiles?).

June 18, 2024: Merchant arranges payment with US-based associate.

June 20, 2024: Hackers hack a second Stone account.

June 21, 2024: Via WhatsApp Merchant’s cousin arranges payment.

June 27, 2024: Hackers send Trump debate prep to two people on Biden’s campaign; neither responded.

July 3, 2024: Hackers send Trump info to another Biden associate; that person did not respond.

July 12, 2024: Merchant arrest.

July 20, 2024: Hackers use 2FA hack to access Trump lawyer [Lindsey Halligan?], Victim 12.

July 22, 2024: Hackers started pitching content to journalists, including by pitching one journalist on things campaign official said to Susie Wiles about that journalist’s reporting.

August 9, 2024: Microsoft report on Iran hack.

August 10, 2024: Politico reports hack; WaPo follows.

August 13, 2024: Hackers ousted from Victim 11 account and Victim 12 account.

August 14, 2024: Google report on Iran hack.

August 31, 2024: Hackers pitch more journalists (including me).

September 24, 2024: Iran hack-and-leak indictment.

October 2, 2024: FISA notice in Merchant prosecution.

December 20, 2024: Initial CIPA request in Merchant prosecution.

July 1, 2025: Hackers attempt to sell Susie Wiles, Lindsey Halligan, Stone, and Stormy Daniel emails.

July 11, 2025: CIPA filing in Merchant prosecution.

August 11, 2025: CIPA meeting in Merchant prosecution.

September 23, 2025: Ryan Routh guilty verdict.

October 18, 2025: Bolton indicted.

October 28, 2025: Delayed discovery provided in Merchant prosecution.

November 12, 2025: Ex parte communication in Merchant prosecution.

 

Purple: Shahram Poursafi complaint

Blue: Iran hack-and-leak indictment

Pink: Asif Merchant complaint

Green: Bolton prosecution

 

Share this entry

Asif Merchant Says EDNY Screwed Up Its Intercepts

/3 Comments/in /by

Asif Merchant wants EDNY to provide all the spying the FBI did targeting him — or at least the spying that they say matches the calls he made while they were surveilling him.

As you’ll recall, Merchant is the Pakistani guy that EDNY arrested in July 2024 for allegedly soliciting someone to kill political targets, possibly including Donald Trump. Since then, Merchant has been sitting in prison, under communication restrictions, awaiting trial, which is currently scheduled for February 23, 2026. On October 2, 2024, DOJ informed Merchant they used FISA to find him. Just over a year ago, on December 20, 2024, DOJ kicked off the Classified Information Procedures Act (CIPA) process. It filed a CIPA Section 4 motion (where the government asks to withhold certain materials that aren’t relevant or helpful to the defense) on July 11, and met with Judge Eric Komitee about it on August 11, after which point Komitee ordered the government to provide the materials they had discussed with the Court Information Security Officer.

In a letter asking the judge to intervene in a discovery dispute, Merchant’s lawyers reveal that the initial story DOJ told — that the guy Merchant asked to help him find a hit squad simply went to the FBI which is where the FBI first learned of the plot — is inaccurate. In fact, Merchant was under FISA surveillance even before he arrived in the United States in April 2024 and he was closely surveilled the entire time he was in the US.

Discovery has revealed that Asif was under investigation before he arrived in the United States, and he was under surveillance from the moment he arrived in this country. In addition, Asif was the subject of electronic surveillance under the Foreign Intelligence Surveillance Act (“FISA”). (See Notice of Intent to Use ForeignIntelligence Surveillance Act, Docket Entry No. 20). As a result, the government is in possession of his communications which it obtained through this electronic surveillance. In addition, Asif was also under surveillance by teams of agents. The government produced reports from these surveillance teams, which indicate that Asif was constantly speaking on his phone. In addition, Asif was also under surveillance by teams of agents. The government produced reports from these surveillance teams, which indicate that Asif was constantly speaking on his phone. The government also set-up a hidden camera in a hotel room where he stayed for a number of days, which also indicates that Asif made a number of calls on his cellphone (though the calls can be difficult to hear). Both the surveillance reports and the hidden camera cover only a portion of the time between Asif’s entry into the United States and his arrest. 

On November 8, 2024, the government produced five recordings of Asif’s intercepted telephone calls. On October 28, 2025,1 Defendant received sixty-four additional audio-recordings of Asif’s telephone calls from the government. These sixty-nine recordings, however, do not match up with the phone calls noted in the surveillance reports. Moreover, given the frequency with which Asif used his phone while under surveillance and while his phone was subject to monitoring (as can be observed on the surveillance videos produced by the government, for example), the government is likely in possession of many additional recordings that have not been produced. In addition to the sixty-four recordings, the October 21, 2025, production included a number of FBI reports that were redacted.

1 The government’s cover-letter is dated October 21, 2025. (See Docket Entry No.60).

Among the many concerns Merchant’s lawyers raised was why they didn’t get this discovery until October 28 (with a letter dated October 21).

During the November 25, 2025, meet and confer, the Defense (1) expressed concerns about the timing of the October 28, 2025, production and asked why the government had not produced the recordings at an earlier date, since they appear to have been in the government’s possession throughout the pendency of this case;

But his attorneys are also asking for all the intercepts of Merchant, particularly those that match with the surveillance of him.

Both the surveillance reports and the camera recording indicate that he used his cellphone constantly. The recordings produced by the government, however, do not match the communications which occurred during the surveillance. In other words, many more recordings of Asif should exist that correspond to telephone calls noted in the reports or indicated by the footage. Second, the additional recordings are material. Asif is accused of coordinating anti-American activity and assassinations on behalf of a foreign government over the course of the approximately three months he was in the United States. The content of the recordings is relevant to show his actual activity during that time period, and the government’s refusal to produce the recordings implies that these communications do not constitute evidence of the alleged plot. On the other hand, the additional recordings would show him engaging in activity and discussing matters unrelated to the allegations in this case.

Probably, these problems simply reflect a delayed CIPA decision that they had to share the intercepts and incompetence, possibly arising from the competence drain under Trump.

But the revelation that the FBI was watching Merchant when he arrive in April 2024 is interesting for a slew of reasons, which I’ll return to.

Share this entry

Alina Habba: A Parking Garage Lawyer with $1 Million in Sanction Penalties

/24 Comments/in , , /by

In the first appellate court decision on Donald Trump’s persistent effort to put Insurance Lawyers, Election Deniers, and other sundry actors play-acting as US Attorneys, the Third Circuit has unanimously ruled that Alina Habba really is nothing more than a Parking Garage lawyer.

Habba is not the Acting U.S. Attorney for the District of New Jersey by virtue of her appointment as First Assistant U.S. Attorney because only the first assistant in place at the time the vacancy arises automatically assumes the functions and duties of the office under the FVRA. Additionally, because Habba was nominated for the vacant U.S. Attorney position, the FVRA’s nomination bar prevents her from assuming the role of Acting U.S. Attorney. Finally, the Attorney General’s delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA’s exclusivity provision. Therefore, we will affirm the District Court’s disqualification order.

This ruling, if applied elsewhere, would cause problems for Lindsey the Insurance Lawyer, Sigal the Election Denying Laywer, and Bill the Chapman Nut, as well — including Essayli, whom a judge ruled could act as First AUSA.

Abbe Lowell, who represents Letitia James in EDVA, argued this case before the court.

The Third Circuit ruling comes even as the Eleventh Circuit ruled that Alina the Parking Garage lawyer is not only just a Parking Garage lawyer, but a frivolous one at that, sustaining the $1 million in fees on her and her liege Donald Trump.

Share this entry

Trump Fired the People Who Could Dispute His False Claims about Ukraine Aid

/24 Comments/in /by

Trump is having a tantrum because Volodymyr Zelenskyy called out Trump for parroting Russia disinformation.

The President sent out a post riddled with false claims, including that Zelenskyy has admitted to losing half the money the US has given.

Politifact debunked that claim earlier this month (while catching Elon Musk in — gasp!! — a lie about it).

“One-hundred billion (dollars) of these 177, or 200, some people even say, we have never received,” Zelenskyy said, according to the translation of the clip. “We are talking about specific things, because we got it not with money but with weapons. We got $70 something billion worth of it. There is training, there is additional transport. There are not only prices for weapons, there were humanitarian programs, social et cetera.”

It was not clear what exactly Zelenskyy was including in his accounting of the military support Ukraine has received, but his comments align with the public data on how Ukraine aid is being spent.

The money is not missing or laundered, as some posts claimed. It’s being spent as Congress intended: on U.S. weapons manufacturing, nonmilitary support in Ukraine and support elsewhere in the region.

I’m particularly interested in the disinformation that Trump and Elon are spreading about the money Ukraine has received (though this is not new — it’s one way Trump undercut support for funding last year).

As you know, I’ve been pretty obsessed (one, two, three) by the way that Trump and DOGE have repeatedly pointed to fraud identified by some of the Inspectors General that Trump fired to substantiate their claim there are hundreds of billions of dollars of fraud to find.

Effectively, DOGE is using Trump’s own mismanagement of COVID to justify their assault on the federal government.

But that’s not the only subgroup of Inspectors General Trump targeted on his fourth day on the job. By terminating State Department Inspector General Cardell Richardson and DOD Inspector General Robert Storch, followed weeks later by Paul Martin after he released a report showing the impact of cuts on USAID, Trump has fired the main people responsible for oversight of aid to Ukraine.

Indeed, both Richardson and Storch talked about how their firing will disrupt the work of tracking the aid to Ukraine.

In his declaration submitted with their wrongful termination lawsuit, Richardson emphasized that by firing him, Trump has prevented him from continuing to supervise that oversight work.

4. The work of the OIG advances U.S. foreign policy objectives and the nation’s national security. For instance, my office was responsible for overseeing programs that provided funding to support Ukraine in its war against Russia. Overseeing programs that fund initiatives in other countries makes OIG’s work uniquely challenging.

5. This crucial work is ongoing, and my unlawful termination has prevented me from continuing to supervise it during my lawful term of office.

And Storch tied his role in supervising Ukraine funding to key national security interests. He specifically described the import of tracking “the most sensitive equipment and technology provided to Ukraine.”

3. The work of DoD’s Office of the Inspector General (“OIG”) helps to safeguard U.S. national security. For example, as Inspector General, I was the Lead Inspector General, and then the congressionally-designated Special Inspector General for Operation Atlantic Resolve (“SIG OAR”), which operation includes U.S. assistance to Ukraine. I worked closely with colleagues from the Offices of Inspector General for the State Department, the U.S. Agency for International Development, and others from across the oversight community on this and the other two ongoing overseas contingency operations, which relate to countering ISIS and assisting local partners in Iraq and Syria (Operation Inherent Resolve) and to furthering U.S. policy goals in Afghanistan (Operation Enduring Sentinel).

4. As SIG OAR, I was responsible for all oversight related to U.S. security assistance to Ukraine, and for coordinating and reporting on oversight of all aspects of U.S. assistance. One of many areas where my office’s programmatic oversight has been particularly consequential is evaluating DoD’s efforts to ensure the accountability of the most sensitive equipment and technology provided to Ukraine. As has been publicly reported, assistance to Ukraine became a highly partisan issue, and it was only because of the non-partisan nature of the OIG that we were able to do this impactful oversight and to do it authoritatively and credibly. All told, as of January 2025, during my tenure as Inspector General, my office had (1) issued approximately four dozen programmatic oversight reports covering all aspects of U.S. security assistance, and (2) coordinated with our oversight colleagues on dozens more, all as transparently reported on the public website whose development I led, www.UkraineOversight.gov.

Given Trump’s abject capitulation to Putin and his overt efforts to replace Zelenskyy, I can’t help but wonder whether blinding this oversight was part of the plan. As Storch alludes, the US sent a whole bunch of sophisticated tools to Ukraine, and I’m sure there are people who’d like to put them to uses other than helping Ukraine repel Russia’s attack.

Whatever the case, when reporters push back on Trump’s false claims about Zelenskyy, they might include a question about why, if he cared about oversight of the money spent with Ukraine, one of his first acts in office amounted to gutting it.

Update: Daniel Dale has a fact check of all the lies Trump is telling about Zelenskyy.

Share this entry

Emil Bove Throwing Gold Bars Off the Titanic

/11 Comments/in , /by

As multiple outlets have reported, the woman appointed to lead the DC US Attorney’s Office Criminal Division, Denise Cheung, resigned yesterday after refusing orders from Ed Martin and Emil Bove to order a bank to freeze appropriated EPA funds based on probable cause (as opposed to just the possibility) that a crime was committed.

As Reuters reported, Cheung was asked to open a criminal investigation, and then asked to freeze funds based on probable cause that a crime was committed. When she refused, she was ordered to resign.

Denise Cheung, who supervised criminal cases at the U.S. Attorney’s Office in Washington, said she had been ordered to open a probe into a contract that she did not identify and that she believed the request was not supported by evidence, in a letter reviewed by Reuters.

When she declined to launch a grand jury investigation citing a lack of evidence, she said she was ordered instead to pursue an asset seizure to prevent the recipient of the contract from drawing down the government funds.

[snip]

“When I explained that the quantum of evidence did not support that action, you stated that you believed that there was sufficient evidence,” she wrote.

“Based upon the evidence I have reviewed, I still do not believe there is sufficient evidence to issue the letter you described, including sufficient evidence to tell the bank there is probable cause to seize the particular accounts identified.”

Cheung said in her letter she was ordered to resign. She announced her departure early Tuesday.

Effectively, she was ordered to chase Lee Zeldin’s conspiracy theories, in turn based on a Project Veritas video of a single staffer who was almost certain inebriated (even before you consider PV’s practice of misleadingly editing videos).

 

Politico’s trade outlet (subscriptions to which are being cut everywhere as a purported cost-savings) explains what really happened, including that Zeldin may be the one violating the law in attempting to clawback appropriated funds.

[I]f Zeldin tries to claw back money from the Greenhouse Gas Reduction Fund without cause, it could put the government at risk of breaching its contracts with some or all the green bank participants, experts say. And that could cost taxpayers more in damages than the sum Zeldin hopes to recover.

“If the government abrogates the contract without legal justification, then it will eventually owe damages to these people when they sue, but will not be getting the services that are under contract here,” said David Super, a professor of law and economics at Georgetown University Law Center.

During the Biden administration, EPA officials worked with the Treasury Department to contract Citibank as the financial agent for two grant programs — the $14 billion National Clean Investment Fund, or green bank, and the $6 billion Clean Communities Investment Accelerator program, which seeks to build green lending capacity at institutions that serve low-income communities.

That means the money is in accounts at Citibank in the names of the eight awardees for those two programs. The money and income from any interest belongs to the grantees to be used for purposes consistent with their award agreements with EPA. But Citibank reports extensively to Treasury and EPA on any transactions.

People familiar with the contract between Citibank and Treasury and granted anonymity to discuss a private contract say it has provisions to allow EPA and Treasury to exercise a security interest on those accounts if it discovers the awardees have engaged in conduct that meets official definitions of waste, fraud and abuse.

In those instances, the federal government could freeze accounts or recover funds. But Zeldin did not reference any specific instances of misconduct when he announced his plans for the green bank program Wednesday on the social media site X. He also stated that EPA had found no evidence of “any wrongdoing” on the part of Citibank.

Click through for further explanation that there is oversight in place — or would be, if not for Trump’s firing spree.

In a functioning bureaucracy, DOJ would tell Zeldin that he’s the one out of order, unless and until more evidence than a Project Veritas video is developed.

But that’s not what happened. In her resignation letter, Cheung describes that she first reached out to the FBI and then spent much of a day engaged in a good faith effort to assess the allegations.

Earlier yesterday. I was asked to review documentation supplied by the Office of the Deputy Attorney General (ODAG) to open a criminal investigation into whether a contract had been unlawfully awarded by an executive agency before the change in Administration and to issue grand jury subpoenas pursuant to this investigation. I was told that there was time sensitivity and action had to be taken that day because there was concern that contract awardees could continue to draw down on accounts handled by the bank handling the disbursements. I conferred with others in the Office, all of whom have substantial white collar criminal prosecution experience, and reviewed documentation provided by ODAG, in determining whether the predicate for opening such a grand jury investigation existed. Despite assessing that the existing documents on their face did not seem to meet this threshold, an ODAG representative stated that he believed sufficient predication existed, including in the form of a video where statements were made by a former political appointee of the executive agency in question.

After eight years of Republican insistence that one should never predicate an investigation solely on oppo research, and less than two weeks after SDNY closed a criminal investigation into Project Veritas based on suspicion they committed crimes in pursuit of political hit jobs, DOJ was pressuring prosecutors to open an investigation relying primarily on a Project Veritas video.

I contacted a supervisor at the Washington Field Office (WFO) of the FBI and provided him with the materials received from ODAG and also referenced the possible existence of the video and statements made by the head of the executive agency. I further conveyed ODAG’s desire to send out the freeze letter to the bank as soon as possible as to avoid subsequent payouts. The FBI-WFO supervisor forwarded links of these statements and the video, which I also reviewed. Despite the federal holiday yesterday, the FBI-WFO supervisor, as well as other FBI-WFO managers, spoke frequently throughout the day yesterday with me to discuss the matter, including what, if any, possible criminal charges might be applicable, as well as the sufficiency of the evidence of any criminal offense or the connection of any alleged crime to the accounts at issue.

During this period, I sent a draft freeze letter provided by the FBI-WFO supervisor to the PAUSA at 4:31 p.m. In an email sent at 4:46 p.m., the PAUSA conveyed suggested language “in case it [was] helpful” from the ODAG representative, which included language represented to be from the Second Circuit, including the phrase “the government has probable cause to believe that the funds on deposit in the above-referenced account(s) at [named bank] are subject to seizure and forfeiture to the United States based upon violations…” I subsequently informed the PAUSA that the suggested language was not appropriate to the matter at hand.

Despite expressing some concern about the current lack of evidence of any apparent crime and the need to send out any such freeze letter, FBI-WFO personnel were able to consult with necessary individuals, including legal counsel, at their office. I was told that if FBI-WFO was unwilling to send out such a freeze letter, that you would direct someone from USAO-DC to send out such a correspondence to the bank. However, that contingency did not come to pass, as FBI-WFO determined that they were willing to send out the freeze letter, but asked that I first send them an email stating that, based on the evidence, there was possible evidence of certain criminal violations. I emailed them the following statement: “Based upon the information we received from ODAG and public-source materials, including a video of statements by a former [executive agency] official, USAO-DC believes that there may be conduct that constitutes potential violations of 18 U.S.C. Sec. 371 (conspiracy to defraud the United States) and 18 U.S.C. Sec. 1343 (wire fraud) that merits additional investigation.”

After they received this email, FBI-WFO subsequently issued a letter to the bank recommending a thirty-day administrative freeze on certain assets. After this letter was issued at approximately 7:28 p.m. yesterday night, I received a call from the PAUSA and you shortly thereafter. You expressed your dissatisfaction about the adequacy of the FBI-WFO letter and criticized that the language merely “recommended” that a freeze of the accounts take place, notwithstanding that the same language was used in the draft I sent to the PAUSA earlier in the day. You also directed that a second letter be immediately issued to the bank under your and my name ordering the bank not to release any funds in the subject accounts pursuant to a criminal investigation being run out of USAO-DC. When I explained that the quantum of evidence did not support that action, you stated that you believed that there was sufficient evidence. You also accused me about wasting five hours of the day “doing nothing” except trying to get what the FBI and I wanted, but not what you wanted. As I shared with you, at this juncture, based upon the evidence I have reviewed, I still do not believe that there is sufficient evidence to issue the letter you described, including sufficient evidence to tell the bank that there is probable cause to seize the particular accounts identified. Because I believed that I lacked the legal authority to issue such a letter, I told you that I would not do so. You then asked for my resignation.

By going public like this, Cheung alerts the magistrates who might approve such orders and Judge James Boasberg who would oversee any grand jury investigation that this investigation is being predicated without probable cause.

But she also makes clear that Martin and Bove are going to predicate criminal investigations off the flimsiest propaganda, perhaps, in part, as cover that Trump is the one breaking the law by violating the Impoundment Act. And if they need to get rid of career prosecutors with over two decades of experience to do that — the gold bars of the Department of Justice — they won’t hesitate.

Share this entry

Dale Ho Asks for Signed Consent from Eric Adams; Alex Spiro and Bill Burck Don’t Provide It

/42 Comments/in /by

In his first order following Emil Bove’s submission of his request to dismiss the Eric Adams prosecution, Judge Dale Ho notes the same thing I was among the only people to mention: Bove claimed that Adams had consented to dismissal without prejudice in writing, but he did not include that consent with the filing.

ORDER as to Eric Adams: The motion to dismiss states that “Defendant Eric Adams has consented in writing to this motion,” see ECF No. 122 at 1, but no such document has been provided to the Court. Defendant is therefore ORDERED to file his “consent[] in writing” on the docket by 5:00 pm ET today. The parties are further ORDERED to appear before the Court for a conference on February 19, 2025, at 2:00 pm in Courtroom 318 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, NY. The parties shall be prepared to address, inter alia, the reasons for the Government’s motion, the scope and effect of Mayor Adams’s “consent[] in writing,” ECF No. 122 at 1, and the procedure for resolution of the motion. SO ORDERED. (Status Conference set for 2/19/2025 at 02:00 PM in Courtroom 318, 40 Centre Street, New York, NY 10007 before Judge Dale E. Ho) (Signed by Judge Dale E. Ho on 2/18/2025) (See ORDER as set forth) (lnl) (Entered: 02/18/2025) [my emphasis]

Here’s what I wrote over the weekend:

[T]here are obvious documents we’d all like to see that, if these other documents are formally aired in this case, I expect Judge Ho to request, starting with the notes someone from SDNY took at a January 31 hearing. Bove also described written submissions from prosecutors and Adams’ team in his response and a February 3 memo from SDNY that, he describes, denied a quid pro quo. He also claims Sassoon, “acknowledged previously in writing” that there was no quid pro quo, which may be that February 3 memo. And there are all the letters that are public but not formally before him.

Again, Judge Ho may demand all that if and when he begins to look closely.

But there’s another document that is missing, conspicuously so.

Bove’s Nolle Prossequi motion describes that Adams has consented to dismissal, but he does not include it.

Through counsel, Defendant Eric Adams has consented in writing to this motion and agreed that he is not a “prevailing party” for purposes of the Hyde Amendment. See P.L. 105- 119, § 617, 111 Stat. 2440, 2519; 18 U.S.C. § 3006A note.

This is, quite frankly, either insane or rank incompetence. There is no way any judge, former ACLU voting rights lead or not, would accept a dismissal without prejudice without seeing that documented.

Sometime after Judge Ho issued that order, Alex Spiro (the attorney Eric Adams shares with Elon Musk) and Bill Burck (who serves as Trump Organization’s outside ethics advisor), submitted a filing claiming that they know nothing about a quid pro quo. The last thing they did, they claim, was to submit the January 3 letter Emil Bove asked for in writing.

Acting Deputy Attorney General Bove invited us to a meeting at which he asked us to address how the case might be affecting Mayor Adams’s ability to do his job and whether there was evidence of politicization. At that meeting, which occurred on January 31, 2025, we explained that the indictment and upcoming trial were impeding Mayor Adams in myriad ways, including as to enforcement of federal immigration laws, and that Damian Williams’s post-SDNY conduct raised serious concerns about his motives in authorizing the prosecution. Ms. Sassoon and her colleagues were present and actively participated in the meeting. We had a polite and professional debate under questioning from Mr. Bove. At the conclusion of the meeting, Mr. Bove asked us and the SDNY lawyers to memorialize our respective positions in writing, which we did in a letter we submitted to the Department on February 3, 2025, a copy of which is attached as Exhibit A.

We heard nothing further until February 10, 2025, when we learned from the press that the Department had decided to dismiss the case. We had no heads up or prior notice. We never coordinated with the Department or anyone else. [my emphasis]

The thing is, the February 3 letter — the last that Spiro and Burck heard, they say — mentions nothing about dismissal without prejudice. This is the only mention of dismissal.

An honest balancing of these concerns against the unsupported prosecution theories in this case militates strongly in favor of dismissal.

So now they’re on the hook for submitting some other document, signed before Friday, that consents to having this indictment hang over Adams’ head while he does all the things he claims he wants to do for NYC.

Update: Ho’s order itself says the motion to dismiss is not itself conclusive.

The government’s determination to abandon a prosecution is “entitled to great weight” and to a “presumption [of] good faith[,] . . . but it is not conclusive upon the Court; otherwise there would be no purpose to Rule 48(a), which requires leave of Court to enter the dismissal.” United States v. Greater Blouse, Skirt & Neckwear Contractors Ass’n, 228 F. Supp. 483, 486 (S.D.N.Y. 1964) (Weinfeld, J.). Thus, “[w]hile there can be no doubt that the government has broad discretion in deciding which cases to prosecute and how to prosecute those cases, once the government has involved the judiciary by obtaining an indictment or a conviction, its discretion is tempered by the courts’ independent obligations.” Blaszczak, 56 F.4th at 259 (Sullivan, J., dissenting).

Rule 48(a)’s requirement of judicial leave . . . contemplates exposure of the reasons for dismissal.” United States v. Ammidown, 497 F.2d 615, 620 (D.C. Cir. 1973). “Since the court must exercise sound judicial discretion in considering a request for dismissal, it must have sufficient factual information supporting the recommendation.” 3B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 802 (4th ed. 2013). In granting a motion under Rule 48(a), the Court “should be satisfied that the reasons advanced for the proposed dismissal are substantial.” Ammidown, 497 F.2d at 620.

Update: Spiro and Burck have now sent the consent letter, dated February 14, with a cover letter, dated today.

The document creation time for the latter,

Precedes the letter created on Friday.

If they had sent it by email on Friday, as the lawyers claim, they would have a PDF copy from then.

Update: A few more details about the consent issue. Bove’s February 10 memo instructed Sassoon to get that signed consent — and that it be signed by the defendant, not his lawyer.

You are directed, as authorized by the Attorney General, to dismiss the pending charges in United States v. Adams, No. 24 Cr. 556 (SDNY) as soon as is practicable, subject to the following conditions: (1) the defendant must agree in writing to dismissal without prejudice; (2) the defendant must agree in writing that he is not a prevailing party under the Hyde Amendment, Pub. L. 105-119 (Nov. 26, 1997); and (3) the matter shall be reviewed by the confirmed U.S. Attorney in the Southern District of New York, following the November 2025 mayoral election, based on consideration of all relevant factors (including those set forth below).

That’s a no-brainer. The existing consent is simply not sufficient: SDNY would need proof that the lawyers advised Adams on the significance of the without prejudice dismissal and that he, not they, consented.

But then Sassoon’s letter makes it clear that Bove negotiated this at some unidentified time before she sent the letter on February 13.

Mr. Bove specifies that Adams must consent in writing to dismissal without prejudice. To be sure, in the typical case, the defendant’s consent makes it significantly more likely for courts to grant motions to dismiss under Rule 48(a). See United States v. Welborn, 849 F.2d 980, 983 (5th Cir. 1988) (“If the motion is uncontested, the court should ordinarily presume that the prosecutor is acting in good faith and dismiss the indictment without prejudice.”). But Adams’s consent— which was negotiated without my office’s awareness or participation—would not guarantee a successful motion, given the basic flaws in the stated rationales for dismissal. See Nederlandsche Combinatie, 428 F. Supp. at 116-17 (declining to “rubber stamp” dismissal because although defendant did not appear to object, “the court is vested with the responsibility of protecting the interests of the public on whose behalf the criminal action is brought”). Seeking leave of court to dismiss a properly returned indictment based on Mr. Bove’s stated rationales is also likely to backfire by inviting skepticism and scrutiny from the court that will ultimately hinder the Department of Justice’s interests. In particular, the court is unlikely to acquiesce in using the criminal process to control the behavior of a political figure.

It’s unclear when that could have happened, if Spiro and Bove didn’t speak between February 3 and February 10.

Share this entry

Why Elon Musk Can’t Run DOGE [sic] Anymore

/42 Comments/in , /by

Yesterday, Judge Tanya Chutkan had a Presidents Day hearing on a lawsuit challenging DOGE’s actions. While she reportedly seemed inclined not to grant an emergency restraining order, she did order the government to provide her with two pieces of information: how many people had and were going to be fired, and what Elon Musk’s status is.

In a response and declaration, the government blew off the first question, but on the second, denied that Musk has the power of DOGE. He’s just a senior Trump advisor, one solidly within the White House Office, and so firewalled from the work of DOGE, yet still protected from any kind of nasty disclosure requirements.

But as the attached declaration of Joshua Fisher explains, Elon Musk “has no actual or formal authority to make government decisions himself”—including personnel decisions at individual agencies. Decl. ¶ 5. He is an employee of the White House Office (not USDS or the U.S. DOGE Service Temporary Organization); and he only has the ability to advise the President, or communicate the President’s directives, like other senior White House officials. Id. ¶¶ 3, 5. Moreover, Defendants are not aware of any source of legal authority granting USDS or the U.S. DOGE Service Temporary Organization the power to order personnel actions at any of the agencies listed above. Neither of the President’s Executive Orders regarding “DOGE” contemplate—much less furnish—such authority. See “Establishing and Implementing the President’s Department of Government Efficiency,” Exec. Order No. 14,158 (Jan. 20, 205); “Implementing the President’s ‘Department of Government Efficiency’ Workforce Optimization Initiative,” Exec. Order 14,210 (Feb. 11, 2025).

The statement is quite obviously an attempt to retcon the structure of DOGE [sic], one that Ryan Goodman has already found several pieces of evidence to debunk.

But it is a testament that the suit in question — by a bunch of Democratic Attorneys General, led by New Mexico [docket] — might meet significant success without the retconning of Elon’s role.

Partly for more general benefit, let me talk about the various kinds of lawsuits filed so far against Trump’s attacks.

Kinds of plaintiffs:

  • Imminent, individual personal injury: The cases that have had the most success, so far, are examples of individuals who describe a specific imminent injury. The most obvious such example is a number of Trans women prisoners who’ve argued, successfully so far, that they face a very high likelihood of assault and/or rape if they are moved to male prisons.
  • Unions or other representatives of federal workers: These lawsuits address the imminent injury of privacy violations or firing and other mistreatment. The most successful (and eye-popping) so far has been the American Foreign Service Association lawsuit challenging the USAID shutdown [docket], in which a Doe employee yesterday provided another horrifying declaration describing another instance of a pregnant woman being deprived of promised medevac, and another from a woman in South Africa running up debt taxpayers will have to pay and about to lose access to electricity on the compound. But there are limits to the recourse that unions can seek on both these theories. For example, while Trump appointed judge Carl Nichols imposed a temporary restraining order on actions targeted at employees oversees, he has not done so for the USAID personnel stuck without the ability to fix anything in DC, because being put on paid leave is not the same kind of injury as being stuck overseas with no access to security warnings.
  • States (all with Democratic Attorneys General): The states are arguing a variety of things, both contractual breaches and injuries to their citizens. Contractual challenges may have little ability to halt ongoing destruction.
  • Private entities, like corporations or associations: These entities are often arguing contractual breaches, or privacy damages. The latter are likely to have more success than the former because of the way the Privacy Act works.

Kinds of challenges:

  • Many of these challenges claim a violation of the Administrative Procedures Act, basically arguing that the government changed the rules without going through the process they are required to use to change the rules.
  • Many lawsuits also claim violations of the Privacy Act, which requires that the government follow certain rules if they’re accessing your data in new ways. Thus far, the government has argued that employees have more limited protections than private citizens.
  • Underlying many of these suits are claims about the Impoundment Act and Separation of Powers because the government is not spending money the way Congress said it had to, but argued through an APA challenge. These challenges are particularly important because a key project of Project 2025 is to effectively strip Congress of the power of the purse.
  • Some lawsuits have tried to get at cybersecurity violations or even hacking (Computer Fraud and Abuse Act) claims, but thus far with little success. In any case, those would pivot on how DOGE [sic] got access to various computer systems, and in most cases, a senior Agency official ultimately relented to give them access.
  • This lawsuit, and another similar one brought by 26 anonymous USAID employees, argue that Elon Musk’s role in all this violates the Appointments Clause. This basically argues that Elon is acting as a superior officer, which requires Senate confirmation.

The injury suffered by each set of plaintiffs and legal theory largely limits the ability of judges to weigh in. So, for example, if a suit is arguing only Privacy Act violations, a judge can do no more than limit the dissemination outside of authorized channels of the data of the plaintiffs, something that has been ineffective once agencies started giving DOGE formal authorization to access computer servers. If a suit worries about firings, but the government instead puts tons of people on paid leave (as happened with USAID), then the plaintiffs are not yet suffering an irrevocable injury.

Here’s how the Appointments Clause theory, arguing that Elon is exercising powers that need to be created by Congress and confirmed by them, looks in the complaint.

64. Although he occupies a role President Trump—not Congress—created and even though the Senate has never voted to confirm him, Mr. Mr. Musk has and continues to assert the powers of an “Officer[] of the United States” under the Appointments Clause. Indeed, in many cases, he has exceeded the lawful authority of even a principal officer, or of the President himself.

65. As explained below, Mr. Musk: (1) has unprecedented and seemingly limitless access across the federal government and reports solely to President Trump, (2) has asserted significant and sweeping authority across a broad swath of federal agencies, and (3) has engaged in a constellation of powers and activities that have been historically associated with an officer of the United States, including powers over spending and disbursements, contracts, government property, regulations, and agency viability.

66. In sum, Mr. Musk purports to exercise and in fact asserts the significant authority of a principal officer on behalf of the United States. Yet, he does not occupy an office created by Congress and has not been nominated by the President or confirmed by the Senate. As a result, all of Mr. Musk’s actions are ultra vires and contrary to law.

You can see why the White House has decided that Elon is boxed away inside the White House with no direct control over the dismantling of government bureaucracy. The retconning of his role is all the more obvious when you understand that the right wing judges on SCOTUS feel very strongly about the Appointments Clause. And Trump is on the record relying on it, most spectacularly in convincing Aileen Cannon that Jack Smith had to be confirmed by the Senate before he could indict Trump.

In practice, Trump is saying Elon can dismantle entire agencies without Senate confirmation, but Jack Smith couldn’t prosecute him as a private citizen without it.

Or he was. Now he’s arguing that all this is happening without Elon’s personal direction.

There is plenty in the complaint already that debunks this, not least the narrative of how Elon started disappearing USAID even before, by his own description, Trump approved.

93. With a budget of over $40 billion, USAID accounts for more than half of all U.S. foreign assistance. USAID has missions in over 100 countries. As of January 2025, USAID had a workforce of over 10,000, with approximately two-thirds serving overseas.

94. On Saturday, February 1, 2025, a group of about eight DOGE personnel entered the USAID building and demanded access to every door and floor, despite only a few of them having the requisite security clearance.34 The areas to which they sought access included a sensitive compartmented information facility—commonly known as a SCIF—an ultra-secure room where officials and government contractors take extraordinary precautions to review highly classified information. DOGE personnel, aided by phone calls from Mr. Musk, had pressured USAID officials for days to access the secure facility and its contents.35

95. When USAID personnel attempted to block access to some areas, DOGE personnel, including Mr. Musk, threatened to call federal marshals. Under threat, the agency personnel acquiesced, and DOGE personnel were eventually given access to the secure spaces.

96. Later that day, top officials from USAID and the bulk of the staff in USAID’s Bureau for Legislative and Public Affairs were put on leave. Some of them were not notified but had their access to agency terminals suspended. USAID’s security official was also put on leave.36 97. Within hours, USAID’s website vanished. It remains inoperative.37

98. On Sunday, February 2, 2025, Mr. Musk tweeted, “USAID is a criminal organization. Time for it to die.”

38 Later, he tweeted, “We spent the weekend feeding USAID into the woodchipper.”39

99. Mr. Musk provided no support for his claim that USAID is a criminal organization. 100. On Monday, February 3, 2025, Mr. Musk stated that he was in the process of closing the agency, with President Trump’s blessing. Mr. Musk stated: “I went over it with him [President Trump] in detail, and he agreed that we should shut it down. And I actually checked with him a few times [and] said ‘are you sure?’ The answer was yes. And so we’re shutting it down.”40

Now, before DOJ gave this answer and blew off Judge Chutkan’s order to provide details of the ongoing firing spree, she seemed inclined not to grant a restraining order to stop all this.

It’s unclear whether this defiance will change that. Or, at the very least, whether it will lead to more questions about whether White House wrote any of this down.

What is clear is that the White House recognizes a real risk if Elon is held accountable for all the things Elon has done.

Share this entry

John Barrasso Declares Programs Protecting Christian Minorities and Combatting Migration “Wrong”

/21 Comments/in , /by

On an appearance on Fox News Sunday yesterday, Senator John Barrasso claimed Democrats are “filing lawsuit after lawsuit because they want the border to remain open, they want to have boys playing in girls’ sports, and they want to spend money on things that people think are ridiculous — these transgender comic books, operas, surgery in foreign countries — all of these things are wrong.”

It’s unclear whether Wyoming’s Senator has simply pickled his brain with too much Fox News, made the grave mistake of believing any single thing Karoline Leavitt and/or Elon Musk says, or simply been ill-served by his staffers.

Several of the spending issues he alluded to, for example, have been publicly explained (and represent State Department funding, not USAID funding).

The rest were awarded by the State Department’s Office of the Under Secretary for Public Diplomacy and Public Affairs. In 2022, it granted $70,884 to an Irish company for “a live musical event to promote the U.S. and Irish shared values of diversity, equity, inclusion, and accessibility.” A grant for $25,000 was awarded in 2021 to a university in Colombia “to raise awareness and increase the transgender representation” through the production of an opera, with an additional $22,020 coming from non-federal funding. And $32,000 awarded in 2022 to a Peruvian organization funded “a tailored-made comic, featuring an LGBTQ+ hero to address social and mental health issues.”

The bigger problem for the badly misled Senator Barrasso, however, is in claiming that “all of these things are wrong,” he is saying he opposes a bunch of programs that did get shut down, including protecting the religious freedom of Christian minorities in Asia and Africa and combatting migration to the United States at its source.

That’s what declaration after declaration after declaration submitted in lawsuits reveal. Many these lawsuits haven’t been filed by Democrats; some of which have been filed by representatives of small businesses devastated because Donald Trump has decided to renege on billions of dollars of signed contracts, which is the key injury alleged in one of the more sweeping Temporary Restraining Orders thus far.

More importantly, rather than halting things that Barrasso is sure are wrong, they’ve halted programs that go to the core of what Trump claims he supports.

Disrupting migration at its source in El Salvador and Venezuela

One USAID contractor, Chemonics, describes several programs designed to disrupt migration to the US at its source. It describes the disruption of a program targeting El Salvador:

Working with urban municipalities and communities to counter incentives to join gangs and creating safe public spaces, addressing the root causes of migration to the U.S. from El Salvador;

[snip]

In El Salvador, each day the stop work order is in effect undermines progress made by Chemonics enhancing safety, economic opportunities, and safer environments. These work stoppages disrupt services designed to prevent organized crime and reduce migration, and they impede the development and implementation of long-term policies and organizational capacity of our government counterparts to sustain these gains.

And another program facilitating Venezuelan migration to Colombia, in lieu of migration to the US.

Helping resettle Venezuelan migrants permanently in Colombia by supporting Colombian visa processes and assisting with job skills training and placement to prevent migration to the U.S. southern border;

[snip]

In Colombia, 11 one-stop-shops for Venezuelan migrants to obtain temporary visas and nine workforce development centers now lack the resources necessary to operate, leaving migrants without access to social integration services. Agreements that Chemonics had negotiated with four banks to provide bank account registration and other financial services for migrants could not be signed, resulting in reputational harm. Similarly, each day the stop-work order remains in place, we lose the engagement of more than 1,500 private sector companies across different sectors that had agreed to promote job hiring and placement of Venezuelan migrants and connect migrant-led businesses to market opportunities. Chemonics fears that, without access to these services, more Venezuelan migrants will turn to illegal smuggling and human trafficking to on-migrate to the U.S. border.

Protecting Christian minorities

One contractor described that its human rights defenders protecting Christian communities from terrorists are at risk.

In Burkina Faso, human rights defenders who are working to track violence by the military junta and terrorist groups that have targeted Christian communities are at risk of being killed because the program can no longer help them relocate to safer locations and provide them with food, shelter, and subsistence support.

The American Bar Assocation also described having programs supporting religious freedom in Asia shut down.

With our partners in Indonesia, ABA is actively pursuing six religious freedom cases, including 4 representing Christian churches who were denied necessary permits to hold worship services and 2 representing Shia and Ahmadiyya Muslims who were accused of blasphemy/heresy

Combatting human trafficking

The ABA also supports programs fighting human trafficking in the Congo and Colombia.

The ABA is building the long-term capacity of the Congolese government, lawyers, and local service providers to combat human trafficking and violence against women, children, and other vulnerable groups around the country. ABA’s partners include medical, legal, psychological, shelter, and economic support providers alongside security actors, Congolese government representatives, and judicial personnel who receive training, technical assistance, capacity building, and direct distribution of goods or services for survivors. The project also works with local NGOs to raise public awareness on existing laws, rights, referral pathways, and resources for survivors to collectively improve long-term attitudes toward victims of trafficking and violence against women, children, and other vulnerable groups.

[snip]

In Colombia, ABA ROLI is implementing the Child Protection Compact (CPC) Partnership program, which aims to strengthen investigations, prosecutions and adjudications of child and adolescent trafficking cases through institutional strengthening as well as advocacy and increased access to justice. Emphasizing sustainable outcomes, this program adopts highly participatory approaches that increase commitment of the government, ensures sustained technical knowledge, and has developed tools and standard operating procedures, and improved law enforcement’s practices to obtain reliable data. As a result of the funding freeze, despite Colombia’s efforts to address the worst forms of child labor, children will still remain subjected to commercial sexual exploitation, illicit activities, forced labor, and recruitment by criminal groups.

Competing with China for Congo’s resources

One USAID employee describes how the evacuation and defunding has put programs designed to provide Congo alternate markets to those of China have been put at risk.

My portfolio focuses on establishing conflict-free supply chains of critical minerals from the DRC to the U.S. The overarching objective of my role is to strengthen the supply chain of DRC’s vast critical minerals sector to the U.S. Much of my job is establishing relationships with Government of DRC officials and informing them of the benefits partnerships with the U.S. offer. Over 70% of the world’s cobalt is produced in the DRC, which is almost entirely shipped to China. My job was to help reduce the country’s dependence through increased trade with the U.S.

[snip]

[T]he shutdown is ruining the U.S.’s strong relationship with the DRC government and private sector partners in the mining sector. USAID had many partnerships and programs active in the DRC’s mining sector focused on improving the environmental and social aspects of mining so that minerals could be legally exported to the U.S. Likewise, USAID was the primary donor supporting the development of the Lobito Corridor in the DRC. We have essentially “ghosted” all of our partners and our reputation may forever be tarnished as a result. Over the past few years, the DRC had expressed their preference for U.S. partnerships and USAID worked hard to develop strong, mutually beneficial partnerships that increase trade, benefitting the DRC economy and U.S. consumers who rely on the critical minerals that only the DRC produces. This is in jeopardy. China is ready to immediately jump in and take over.

John Barrasso has a job to do, and that is to oversee the actions taken by the President, of either party.

And rather than doing the least due diligence to learn about the damage that Trump’s shutdowns have caused, Barrasso instead went on TV and — presumably without knowing the least little bit about what he was talking about — cheered the shutdown of programs protecting Christian minorities around the world.

Share this entry