Georgia prosecutors seek trial testimony from top Trump adviser

Georgia prosecutors intend to call Boris Epshteyn, a top lawyer and adviser to former President Donald Trump, as a witness in the upcoming trial of Kenneth Chesebro and Sidney Powell, two of Trump’s co-defendants in a sprawling racketeering case related to Trump’s effort to subvert the 2020 election.

Epshteyn is one of six witnesses who reside outside of Georgia that Fulton County District Attorney Fani Willis is attempting to summon to the state for the Oct. 23 trial, the first for any of the 19 co-defendants charged in the alleged conspiracy. Compelling his testimony may be a challenge in such a short timeframe, particularly given his attorney-client relationship with Trump.

Other witnesses include three Republican activists who were involved in the Trump campaign’s efforts to send false slates of electors to Washington. They are Arizona’s Greg Safsten, Nevada’s Jim DeGraffenreid — who signed false documents claiming to be presidential electors from their states — and Pennsylvania’s Lawrence Tabas, a former head of the Pennsylvania GOP who dropped out before signing the false documents. Willis indicated she anticipates their testimony to reveal concerns about the legality of Chesebro’s proposals to send the “contingent” slates and sign documents claiming to be legitimate electors despite Biden’s win in their states.

Willis’ requests, unveiled in court documents made public Thursday, provide some of the clearest insight yet into her trial strategy and the case she intends to lay out against Trump and his co-defendants.

For example, she says Epshteyn can testify about his contacts with Powell related to a November 2020 press conference in which Powell alleged that the “algorithm” used by Dominion Voting Systems machines could flip votes from Trump to Joe Biden. Willis also noted that Epshteyn was in touch with key lawyers orchestrating Trump’s last-ditch bid to stay in power, including Chesebro and John Eastman.

Willis is also seeking testimony from Lin Wood, an attorney who aligned with Powell and some of her discredited efforts to claim that Dominion machines had been manipulated to deliver the election to Biden. Wood hosted Powell and other allies, like former Trump national security adviser Mike Flynn, at his South Carolina estate, and Willis indicated it was there that Powell drafted a plan to seize Dominion voting machines. A second witness related to that meeting, Aaron Vick, is also on Willis’ list.

Prosecutors have charged Powell with overseeing an effort to illegally access voting equipment in Coffee County, Ga. as part of that larger plan. Powell has argued that she had no role in orchestrating the effort.

Chesebro and Powell elected to have speedy trials, which under Georgia law required them to face a jury by early November. Prosecutors have said they intend to offer the full suite of evidence that they intend to bring out against all 19 defendants, including Trump, in the trial, which they say could last months.

To compel the attendance of witnesses from out of state, Willis must secure a court order from their home districts — a process similar to what she undertook to demand their testimony during her investigation. Some of her efforts met resistance from witnesses who challenged her authority to compel testimony, but courts — from local and state all the way up to the U.S. Supreme Court — largely backed her efforts.

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Biden team weighs using State Department grants to fund weapons for Ukraine

The Biden administration is considering using a State Department grant program to send additional military aid to Ukraine as Congress continues to battle over weapons funding, according to two U.S. officials with knowledge of the discussions.

The White House is weighing a range of options as it scrambles to find additional money to support Ukraine after lawmakers stripped funding in a last-minute deal to avert a government shutdown, said the officials, who like others interviewed for this story were granted anonymity to discuss internal deliberations.

President Joe Biden hinted at this strategy on Wednesday, saying “there is another means by which we may be able to find funding for that.” He declined to comment further.

One of the officials said the president’s comments referred to “existing funding authorities” Congress previously gave the administration “that allow us to provide additional support to Ukraine for a bit longer if Congress doesn’t act.”

One option under consideration is using foreign military financing — a program run by the State Department that provides grants or loans to help partner countries purchase weapons and defense equipment — intended for Ukraine and other countries impacted by Russia’s full-scale invasion, said the two officials.

As of Sept. 21, the U.S. had roughly $650 million remaining out of $4.6 billion in foreign military financing that Congress appropriated across two supplemental packages for Ukraine and “countries impacted by the situation in Ukraine,” according to the State Department.

Even if the U.S. uses the financing authority to purchase weapons, Congress still needs to authorize additional funding to support Ukraine, the U.S. official said.

The administration could also potentially ask Congress to redirect funding from elsewhere in the Pentagon budget to support Ukraine, according to a Defense Department official familiar with the discussions. However, this route would require approval from lawmakers.

A top Pentagon spokesperson said no decision had been made on what route the department will take.

“Reprogramming is always an option for urgent needs. At this time right now, though, to my knowledge, no decision has been made on using reprogramming as a way to support Ukraine security assistance,” said Brig. Gen. Patrick Ryder. “We remain committed to working with Congress on the Ukraine supplemental and receiving a full budget.”

Pentagon leaders warned lawmakers last week that department’s portion of previous aid packages has nearly run out. Comptroller Mike McCord wrote in a letter to congressional leaders that the Defense Department “has exhausted nearly all available security assistance funding for Ukraine.” No money remains for the Ukraine Security Assistance Initiative, the program used by the Pentagon to purchase new weapons and equipment for Kyiv, while $1.6 billion remains to replenish U.S. inventories.

Congress cleared a short-term funding patch to keep the government open last weekend without any new Ukraine money, sidelining Biden’s $24 billion emergency request.

While Biden said he was concerned about the possibility of running out of funding to support Ukraine, he had confidence “a majority of members of the House and Senate, in both parties” support funding the war.

Senate Majority Leader Chuck Schumer said on Wednesday that he and GOP leader Mitch McConnell plan to “work together to get a big package done” for Ukraine. But its fate in the Republican-led House, where a majority of GOP lawmakers last week opposed more money, is less certain.

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Massachusetts Democrats drag Biden over migrants

BOSTON — Top Massachusetts Democrats fed up with federal inaction on immigration are beginning to lash out at President Joe Biden.

“The guy’s running for president. He better start paying attention to this,” an audibly frustrated House Speaker Ron Mariano said Wednesday. He had just been asked by POLITICO whether the White House should designate a point person to coordinate states’ responses to the migrant surge, as Democratic Illinois Gov. JB Pritzker suggested in a letter to Biden this week.

“We need to put a framework around this from the feds,” Mariano told reporters. “We need someone to take charge of this and say ‘this is what you can expect.’”

Massachusetts Democrats used to be careful not to name-drop Biden when talking about immigration issues even as they publicly pleaded with his administration for more money for the state’s emergency shelter system and expedited work permits for migrants. They instead made nonspecific references to the federal government and directed their concerns toward Homeland Security Secretary Alejandro Mayorkas.

But Biden is safe no longer as frustrations with his administration’s response — or lack thereof — to the deluge of new arrivals overwhelming Democratic strongholds begin to outweigh the potential political consequences of publicly berating the president.

“We need two things from the Biden administration: We need federal funding and we need expedited work authorizations,” Gov. Maura Healey, a Democrat who sits on Biden’s national campaign advisory board, reiterated on Wednesday at the State House.

They’re not confident they’ll get it. Healey and top legislative leaders met with Massachusetts’ federal delegation Thursday morning to amplify their calls for help. Mariano walked away from the virtual confab just as frustrated as he was the day before.

“The hope is — and it’s only a prayer — that cold weather slows the flow of the families coming over the border. But we’re not even sure if that will work,” Mariano told reporters late Thursday morning. “Unless we get help, we are going to have some difficulties.”

Massachusetts Democrats’ exasperation with the Biden administration comes as state lawmakers weigh Healey’s request for $250 million in additional funding for the emergency shelter system that’s now housing more than 6,700 homeless families, about half of which the state estimates are migrants.

The Healey administration is burning through existing state money for the shelter program at a rapid clip. If families continue to flood the system at the current rate (about 25 per day), the Healey administration predicts it will exhaust the $325 million the state budgeted this fiscal year for the emergency shelter program in January — a full six months early.

Money could run out even sooner for the administration’s “family welcome centers” and temporary emergency shelters at Eastern Nazarene College and Joint Base Cape Cod, and to pay the state’s contracts with hotels housing homeless families. That’s all according to the administration’s responses to House leaders’ questions about the cost and mechanics of the shelter system that were provided to POLITICO.

The extra $250 million “would fund our current caseload through the end of the fiscal year,” the administration said. It includes $130 million for shelter and associated services, $33 million for the temporary emergency shelters and $87 million for “wraparound services and community supports” like school district reimbursements.

But lawmakers are taking their time with this one as they work to understand the scope of the rapidly worsening shelter crisis. And the process could be further dragged out if they separate out the shelter funding from the rest of the $2 billion supplemental spending bill Healey filed to close out the last fiscal year.

Shelter aid is “really not part of the closeout discussion, because that is fiscal ’24 dollars that we’re supplementing,” Senate Ways and Means Chair Michael Rodrigues said. “My first priority is closing the books on fiscal ’23.”

Kelly Garrity contributed to this report.

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Biden administration waives 26 federal laws to allow border wall construction in South Texas

McALLEN, Texas — The Biden administration announced on Wednesday that it had waived 26 federal laws in South Texas to allow border wall construction, marking the administration’s first use of a sweeping executive power employed often during the Trump presidency.

The Department of Homeland Security posted the announcement on the U.S. Federal Registry with few details outlining the construction in Starr County, Texas, which is part of a busy Border Patrol sector seeing “high illegal entry.” According to government data, about 245,000 illegal entries have been recorded in this region during the current fiscal year.

“There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project areas,” Alejandro Mayorkas, the DHS secretary, stated in the notice.

The Clean Air Act, Safe Drinking Water Act and Endangered Species Act were some of the federal laws waived by DHS to make way for construction that will use funds from a congressional appropriation in 2019 for border wall construction. The waivers avoid time-consuming reviews and lawsuits challenging violation of environmental laws.

Starr County’s hilly ranchlands, sitting between Zapata and McAllen, Texas, is home to about 65,000 residents sparsely populating about 1,200 square miles (3,108 square kilometers) that form part of the Lower Rio Grande Valley National Wildlife Refuge.

Although no maps were provided in the announcement, a previous map shared during the gathering of public comments shows the piecemeal construction will add up to an additional 20 miles to the existing border barrier system in the area. Starr County Judge Eloy Vera said it will start south of the Falcon Dam and go past Salineño, Texas.

“The other concern that we have is that area is highly erosive. There’s a lot of arroyos,” Eloy Vera, the county judge said, pointing out the creeks cutting through the ranchland and leading into the river.

Concern is shared with environmental advocates who say structures will run through public lands, habitats of endangered plants and species like the Ocelot, a spotted wild cat.

“A plan to build a wall through will bulldoze an impermeable barrier straight through the heart of that habitat. It will stop wildlife migrations dead in their tracks. It will destroy a huge amount of wildlife refuge land. And it’s a horrific step backwards for the borderlands,” Laiken Jordahl, a southwest conservation advocate for the Center for Biological Diversity, said Wednesday afternoon.

During the Trump administration, about 450 miles of barriers were built along the southwest border between 2017 and January 2021. Texas Gov. Greg Abbott renewed those efforts after the Biden administration halted them at the start of his presidency.

The DHS decision on Wednesday contrasts the Biden administration’s posturing when a proclamation to end the construction on Jan. 20, 2021 stated, “building a massive wall that spans the entire southern border is not a serious policy solution.”

U.S. Customs and Border Protection had no immediate comment.

The announcement prompted political debate by the Democratic administration facing an increase of migrants entering through the southern border in recent months, including thousands who entered the U.S. through Eagle Pass at the end of September.

“A border wall is a 14th century solution to a 21st century problem. It will not bolster border security in Starr County,” Rep. Henry Cuellar (D-Texas) said in a statement. “I continue to stand against the wasteful spending of taxpayer dollars on an ineffective border wall.”

Political proponents of the border wall said the waivers should be used as a launching pad for a shift in policy.

“After years of denying that a border wall and other physical barriers are effective, the DHS announcement represents a sea change in the administration’s thinking: A secure wall is an effective tool for maintaining control of our borders,” Dan Stein, president of the Federation for American Immigration Reform, said in a statement. “Having made that concession, the administration needs to immediately begin construction of wall across the border to prevent the illegal traffic from simply moving to other areas of the border.”

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Florida Rep. Frederica Wilson calls out John Kelly: ‘He knew Mr. Trump's record’

Rep. Frederica Wilson has many things to say about former White House chief of staff John Kelly. None are very nice.

“Mr. Kelly is an idiot,” she said in an interview Wednesday.

The Florida Democratic congressmember was reacting to Kelly’s recent statement to CNN, where he asserted on the record that his old boss, former President Donald Trump, made disparaging comments about military families and veterans behind closed doors — and publicly.

“A person that did not want to be seen in the presence of military amputees because ‘it doesn’t look good for me’ … and rants that our most precious heroes who gave their lives in America’s defense are ‘losers’ and wouldn’t visit their graves in France,” Kelly told CNN in a statement.

But five years earlier, Kelly defended the former president and attacked Wilson. At the time, Kelly accused Wilson of being “selfish” for calling Trump’s comments to the widow of a fallen Marine insensitive. Trump had told the widow her husband “must have known what he signed up for,” a comment Wilson overheard because she was nearby with the grieving family.

Wilson took the comments very personally. The widow’s husband, Army Sgt. La David Johnson, was killed in an ambush attack in Niger in 2017 and was in a mentoring program Wilson started in Miami. She said she is still close with the family.

Trump’s handling of the Niger ambush was heavily scrutinized, as was his conduct toward the families of the slain soldiers.

“He knew Mr. Trump's record,” Wilson said, in reference to Kelly. “For him to stand in the White House behind the podium and lie — he's an idiot and he should be ashamed of himself.”

Wilson wasn’t the only one who took offense at Trump’s comments. Johnson’s mother, Cowanda Jones-Johnson, was also present during the 2017 call and told the Washington Post that “Trump did disrespect my son and my daughter and also me and my husband.”

Wilson said she wanted to take the phone away to curse Trump out.

And now, all these years later, Wilson said she’s considering suing Kelly for defamation.

“This is personal. This has to do with my feelings and my name,” Wilson said. “I don't want generations of children, years from now, to pick up a book or read an article about me and John Kelly and I’m misrepresented.”

Kelly did not immediately respond to requests for comment.

Wilson said she hopes some Gold Star families may feel some relief from Kelly confirming the former president’s statements and speaking out against them. But she said she feels no relief.

“He's an idiot for selling his soul for so long to a man who he knew was lying, a man who he knew who was disrespectful to military families, to Gold Star families, to widows, to members of Congress — anything that had to do with the military,” she said.

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New Jersey leaders agree to overhaul troubled veterans homes following scathing DOJ investigation

New Jersey Gov. Phil Murphy on Wednesday announced a “conceptual agreement” to move state-run veterans homes — which have been criticized for their poor quality of care and high death tolls during the pandemic — out of the Department of Military and Veterans Affairs and into a new cabinet-level agency.

The announcement, made alongside Democratic lawmakers, marks the first major proposal Murphy has endorsed since a scathing report from the Department of Justice found that the quality of care at veterans homes were so poor they violated the constitutional rights of its residents — with issues persisting even years after the worst days of the pandemic.

Murphy and the lawmakers also said they expect a federal monitor that would come and also oversee improvements at the veterans homes.

The proposal to take the homes out of the purview of the state Department of Military and Veterans Affairs and have a new cabinet-level entity has been publicly floated by Democratic senators since last year. Murphy made the announcement in a joint statement with Sens. Joe Vitale (D-Middlesex), Joe Cryan (D-Union), Pat Diegnan (D-Middlesex) and Joe Lagana (D-Bergen).

“After thoughtful discussion, today we are announcing a conceptual agreement to pursue structural reforms to the delivery of veteran services in New Jersey,” the group said in a statement. “As highlighted in both the United States Department of Justice (DOJ) and the State of New Jersey Commission of Investigation reports, comprehensive reform — from ensuring we have adequately paid staff, to upgrading communication and physical infrastructure, to instilling a thorough understanding of best practices — is necessary.”

Over 200 residents and staff died at the three state-run veterans homes due to Covid-19 — with the largest death tolls at the homes in Paramus and Menlo Park — although federal investigators have said the death toll is much higher. The scathing DOJ report said that the veterans homes in Menlo Park and Paramus were ill-equipped at the start of the pandemic, even relative to their peers in long-term care. Poor infection control practices and lackluster medical care contributed to the high death toll and continue today, the DOJ found.

The new cabinet-level agency will oversee more than just veterans homes. In an interview, Vitale — who has played a key role in the proposed overhaul — said it will encompass “all the services veterans are entitled to once they leave the military” including the homes.

Vitale also said the proposal will not be finished by the end of the so-called lame duck session, the period after the November election and before the start of a new legislative session, where some legislation traditionally moves quickly.

“It would be dishonest to say we could build a new department, detail resources and vision in two months," he said.

Nothing will be privatized as part of the agreement, Vitale added.

The agreement between the governor’s office and lawmakers would also create a new “veterans advocate” position to investigate complaints. The veterans homes currently have a patient advocate as well as the long-term care ombudsman who oversees all licenses long-term care facilities.

Vitale compared the bifurcation of the veterans homes from DMAVA to splitting child welfare services from the New Jersey Department of Human Services, which happened in the early 2000s after the state’s child welfare program faced scandals.

“You take out what is a vexing problem without a current solution and move it to a new palace where it gets the attention it deserves and eventually DCF is now … a national model,” he said. “Where in the early days [DCF was] a disgrace.”

The state has paid approximately $68 million to families who lost loved ones at the veterans homes during the pandemic. The state did not admit wrongdoing as part of the settlements.

Rich McGrath, a spokesperson for Senate President Nick Scutari, said in an email that Scutari "supports their efforts and commends their progress towards effective reforms" when asked if the Senate leader supported the agreement from the governor's office on moving the veterans homes out of DMAVA.

A spokesperson for Assembly Speaker Craig Coughlin did not immediately respond to a request for comment.

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Appeals court doubtful on Trump’s lawsuit against Twitter

A federal appeals court panel sounded skeptical Wednesday about reviving former President Donald Trump’s lawsuit over being banned from Twitter two years ago.

A three-judge panel of the 9th Circuit Court of Appeals heard Trump’s lawyer contend that Twitter, now known as X, acted at the behest of members of Congress and other U.S. government officials when it deplatformed Trump in January 2021, shortly after thousands of his supporters stormed the Capitol. The company said at the time that Trump’s tweets — including one in which he declared he would not be attending Joe Biden’s inauguration — were “highly likely” to incite further violence.

Twitter’s action on Jan. 8, 2021, came after some lawmakers called on social media companies to permanently ban Trump from their platforms. Trump’s lawyers allege that the ban violated Trump’s freedom of speech under the First Amendment because Twitter was responding to government pressure.

But two of the three appeals judges suggested that the calls from about a half dozen House members and senators were not enough to plausibly threaten the companies with legal consequences.

“That's a very, very small group of Congress,” Judge Mark Bennett said. “Why do statements from, let's say, four senators at a committee hearing all of a sudden commit all of the power of the federal government to create state action here? … I don’t know of any case that stands for that proposition.”

The new owner of X, Elon Musk, reinstated Trump on the platform in November 2022. He has posted just once since then. Meanwhile, he has continued his legal crusade against the company. That crusade is now being helmed by a libertarian attorney once considered one of the leading legal intellectuals of his generation: former 9th Circuit Chief Judge Alex Kozinski.

Kozinski, an appointee of President Ronald Reagan, retired abruptly under a cloud in 2017 amid reports that he acted inappropriately toward law clerks and other female colleagues, making sexual comments and in some instances groping, kissing or hugging them. Kozinski denied many of the allegations, but also apologized for making his clerks feel uncomfortable.

As the Trump case was argued Wednesday in the Pasadena, Calif., courthouse he once presided over, there was no public mention of Kozinski’s more than three decades on the court or his unceremonious exit. The judges hardly seemed deferential. The only member of the panel who served with Kozinski, Judge Jay Bybee, referred to his former colleague simply as “counsel.”

During the arguments, Kozinski told Bennett that the ouster of House Speaker Kevin McCarthy this week illustrates how one doesn’t need a large number of lawmakers to have a major impact.

“As we have learned recently, a single congressman can dethrone the speaker of the House,” Kozinski said. He also noted that the suit contends some of the pressure on the social media companies came from Biden, Vice President Kamala Harris and one of their aides.

While Trump’s ban from Twitter came before Biden was sworn in, the suit points to Biden’s comments as a presidential candidate about revoking legal protections for social media companies and to public calls by some Biden aides for the firms to limit access to misinformation about Covid-19.

Private companies ordinarily have no obligation to respect free-speech rights and indeed have their own First Amendment right to endorse or refrain from endorsing certain messages. However, some legal precedents say that private companies can violate the First Amendment if they are acting as agents for government officials or if those officials are deeply intertwined in decisions about content.

In recent months, Kozinski and Trump’s other lawyers detected an opening for his Twitter lawsuit — and similar suits Trump has filed against other social media companies — through evidence obtained in a separate lawsuit brought by the attorneys general of Missouri and Louisiana. Those states claim that the Biden administration violated the First Amendment by intensely urging the platforms to remove certain content related to elections, Covid vaccines and other issues.

Kozinski said that case produced a gold mine of evidence of pressure on the social media firms and of government entanglement in the companies’ decisions about what to leave up and what to take down.

“The government was all over Twitter — all over them,” the former judge said.

Bennett, the only Trump appointee on the 9th Circuit panel, did not seem to be in the former president’s corner Wednesday. The judge was dismissive of the 5th Circuit’s finding in the Missouri case that the federal government appeared to intrude on users’ First Amendment rights by threatening the platforms with negative fallout.

“What if I don’t accept it? What if I don’t accept the 5th Circuit’s reading?” Bennett said emphatically.

Bybee, an appointee of President George W. Bush, did not sound as skeptical about the Trump suit as Bennett did.

However, Bybee suggested that Trump’s position was undercut by a 9th Circuit ruling in May denying Democratic presidential candidate Robert F. Kennedy Jr. relief in a suit he brought against Sen. Elizabeth Warren (D-Mass.). Kennedy alleged that Warren violated the First Amendment through pressure on Amazon to limit access to what she said was vaccine disinformation in a book Kennedy co-authored.

Bybee also repeatedly raised the possibility of the appeals panel leaving the appeal unresolved until the Supreme Court rules in a pair of cases it just agreed to hear about the constitutionality of Florida and Texas laws aimed at preventing what critics call censorship by social media firms.

The third member of the appeals panel, Judge Roopali Desai, is a Biden appointee. She said less during the argument and her views were harder to assess.

In July 2021, Trump filed a trio of lawsuits targeting Twitter, Facebook and Google’s YouTube over various measures the platforms took to suspend his accounts due to his alleged role in fomenting the violence on Jan. 6, 2021. He filed the suits in Florida, but they were quickly moved to federal court in California at the companies’ request.

In May 2022, U.S. District Court Judge James Donato threw out Trump’s suit against Twitter. The San Francisco-based Obama appointee ruled that the company was not acting as an arm of the state when it suspended Trump. Litigation in Trump’s suits against Facebook and YouTube is on hold pending the outcome of Trump’s appeal of Donato’s ruling in the Twitter case.

Twitter contends that the case is moot with respect to Trump because the company, under Musk, has revised its content-moderation policies and restored Trump’s account. However, other political and anti-vaccine activists joined with Trump in the suit, and not all their accounts have been restored.

“There’s obviously a new direction at the company,” Twitter lawyer Ari Holtzblatt said.

Part of the new direction is a legal battle the company fought — and lost — to keep special counsel Jack Smith’s prosecutors from obtaining data about Trump’s Twitter account during his effort to subvert the 2020 election. A federal judge held the company in contempt for missing court-ordered deadlines to produce the information, leveling a $350,000 fine that was later upheld by a Washington, D.C.-based appeals court panel. Twitter is challenging the appeals court’s rejection of its demand to inform Trump about the search warrant, despite a non-disclosure order.

During the arguments Wednesday, Holtzblatt emphasized Twitter’s rights to make its own decisions about content without legal liability for acting as a government agent.

“This is, I think, an extraordinary circumstance where the Supreme Court has made clear there needs to be a zone of private liberty that is not intruded on,” he said.

Kyle Cheney contributed to this report.

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