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As Jordan Goes Down, Nancy Pelosi Mocks Republican Men Who Can’t Count

Jim Jordan just did worse on the first round of voting than Kevin McCarthy did in January: 200 votes compared to Hakeem Jeffries’ 212.

Jeffries has, by my count, now gotten the most votes to be Speaker in a dozen votes this year.

I’m mostly posting this as an open thread. But I have to say I was gleeful that minutes after I wished someone would interview Nancy Pelosi about how Republican boys can’t count, she said,

“I feel sad for the institution. I think it’s sad that they’re getting worse and worse.”

“They should take a lesson in mathematics and learn how to count.”

Update: Jordan has delayed a revote until tomorrow at 11.

A Parliamentary Congress or a Batshit One?

With the call of two Arizona and one California House race yesterday, it seems clear the Republicans will hold a majority in the House next year — though it’s not yet clear whether the Congress will start with a 219-216 split or a 221-214 split. Sometime today, Kevin McCarthy will win a majority of votes in the GOP caucus to be the presumptive Speaker next year, though not before defeating Andy Biggs, in what will be a test vote of conservative votes.

That’s when things get interesting.

To win today, McCarthy only needs a majority. To win in January, McCarthy needs a majority of the votes cast, presumably 218. So if the final count is 219-216, he can’t afford any defections.

Marjorie Taylor Greene and Jim Jordan have already endorsed McCarthy. Marge — one of the shrewder wingnuts — explained why she would support McCarthy.

If we don’t unify behind Kevin McCarthy, we’re opening up the door for the Democrats to be able to recruit some of our Republicans and they may only need one or two since we don’t know what we will have in the majority.

Since then, Don Bacon has announced that — if Republicans don’t get 218 votes on January 3 — he would consider backing a moderate Democrat as Speaker.

Even newly elected Long Island Republican George Santos, who is a fire-breathing MAGAt but who will be one of the most vulnerable Republicans in 2024, has said he wants the GOP to wait six months before they start launching witch hunts into Biden.

I know maybe four people (aside from Nancy Pelosi) who understand enough about rules of Congress to comprehend the full implications of such a close Congress. For some reason — possibly because they’ve spent the last six months writing beat sweeteners — the press seems to think the Freedom Caucus (led by Scott Perry, whose phone was seized as part of the January 6 investigation) will be in the driver’s seat going forward. In the short term, it’s just as likely that people like Don Bacon will be.

There are several possibilities: One is that McCarthy does get the votes on January 3 and presides over a Congress that reels from day-to-day, serially held hostage by the worse instincts, legal challenges, and health concerns of the members of both parties (the current Congress has lost 16 members over the last two years, six to death, and McCarthy has already said he’ll end proxy voting even as COVID continues to recur in new variants).

If that happens, expect many if not most things to get done via Discharge Petition, in which members can bypass the Speaker if they get 218 votes on something.

Also expect the most vulnerable Republicans to be susceptible to flipping parties if the fire-breathers in the party demand too much, particularly if the margin gets close to even.

Another possibility is that McCarthy doesn’t get the votes, giving Democrats a chance to cobble together a majority of the solid middle, led by someone other than Nancy Pelosi (non-members like Tim Ryan or Adam Kinzinger could be options, though Bacon has said that Liz Cheney is not one). Such a majority would need to command the votes of a larger number of people — probably closer to 240 — but it would also be more sustainable over the Congress.

And all this will be happening as the GOP fights among itself about whether it will continue down a Trumpist cult or become a political party again.

DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

As I laid out here, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him last week. Click through for my explanation of why it matters that Judge Mehta — among the most respected of DC judges — issued this decision.

But there’s another reason why it matters that Mehta issued this ruling.

I was, frankly, unsurprised that Mehta ruled for plaintiffs on their claims that Trump entered into a conspiracy with two militias to attempt to prevent the vote certification. I’ve been laying out all the evidence Trump could be included in a conspiracy with the militias to obstruct the vote count for some time. And on a motion to dismiss, the judge must  assume all the alleged facts were true and only tests those claims for plausibility. Mehta didn’t rule that Trump did so; he ruled that plaintiffs will have a chance to make that case.

I was far more surprised that Judge Mehta also ruled it plausible that Trump aided and abetted the actual and threatened physical assaults committed by the rioters. Here’s how Eric Swalwell’s suit argued that Trump abetted the threatened attacks on Members of Congress, including Speaker Pelosi:

240. Many individuals in the mob either carried weapons or used objects such as poles and fire extinguishers as weapons before and after entering the building. Some individuals in the mob also carried restraints such as plastic handcuffs and rope.

241. The mob also unlawfully and intentionally entered non-public areas of the Capitol building, including the members’ private offices. Members of the mob damaged and vandalized personal and public property and stole documents, electronics, and other items from some members’ offices.

242. As the mob made its way through the Capitol looking for Members, participants threatened to kill numerous individuals, including, but not limited to, Vice President Mike Pence and Speaker of the House Nancy Pelosi. The mob terrorized and injured scores of people inside and outside of the Capitol, including the Plaintiff.

[snip]

248. Before directing the mob to the Capitol, the Defendants instructed them to “fight like hell,” “start taking down names and kicking ass,” and that it was time for “trial by combat.”

249. The Defendants intended these words to be taken literally.

250. For several hours after the mob had stormed the Capitol, the Defendants refused to communicate anything to the mob that might discourage continued unlawful action.

251. The Defendants knowingly and substantially assisted in the assault that was perpetrated upon the Plaintiff. The Defendants riled up the crowd and directed and encouraged the mob to attack the Capitol and seek out members of Congress and assault them.

Here’s how Capitol Police officer Sidney Hemby, described being assaulted while trying to protect the East doors of the Capitol in his lawsuit with James Blassingame.

63. Officer Hemby ran to the East Front stairs to try to stop the crowd, but it was too late, and the crowd was too large and aggressive.

64. The crowd chased him and his fellow officers to the top of the stairs and forced them against the doors.

65. At 1:49 p.m. 1 , after Trump had returned to the White House, and was reportedly watching on TV as events were unfolding at the Capitol, he tweeted out the entirety of his speech:

66. At 1:59 p.m., insurrectionists pushed Capitol Police to the top of the east Capitol steps, and by 2:10 p.m., insurrectionists began attempting to break into the building through windows on the west side.

67. Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back. Over and over, he tried to tell the insurrectionists that the doors opened outward and that pressing him into the door would do no good.

68. But the insurrectionists continued to scream, “Fight for Trump,” “Stop the Steal,” and various other slogans, as they struck him with their fists and whatever they had in their hands. Things were being thrown at him, and he was sprayed with chemicals that irritated his eyes, skin, and throat.

Judge Mehta rejected Trump’s bid to dismiss those arguments.

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-andabetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.

Again, this is just the first step. It will be appealed. This is not a final ruling. But Mehta’s decision means that both sets of plaintiffs may get a chance to hold Trump accountable for the violence attempted or committed by people who responded to the President’s command to, “fight like hell.”

This part of Mehta’s ruling is far more important than the conspiracy side. To understand why, consider some of the cases over which Judge Mehta is presiding, which would be what he might have in mind when he thinks of what it means that Trump may have abetted assaults.

Landon Copeland

Landon Copeland is an Iraq War veteran with PTSD that has contributed to some epic meltdowns in court hearings. He traveled to DC on January 6 from the Four Corners region of Utah, taking a full week off work. He said he made the trip, he told the FBI, because President Trump ordered him to be there.

The defendant said that he traveled to the Capitol in part because former President Trump ordered him and others to be there.

Copeland went to Trump’s rally, then went with the crowd to the Capitol. He’s a really big guy and is accused of several assaults at the first barricades.

At the front of this crowd, the defendant shouted at the officers; he was visibly angry. Shortly thereafter, another rioter approached a police officer, began shouting at the officer, and put his hands on or around the officer’s neck. Copeland pushed that other rioter, from behind, into the officer, causing that officer to fall to the ground. After this, other officers stepped forward in an apparent attempt to protect the fallen officer. Copeland grappled with and pushed them, grabbing onto one officer’s riot shield, another officer’s jacket, and then pushing against the riot shields of two other officers.

Thomas Webster

Thomas Webster is a former Marine and retired NYPD cop who traveled to DC from New York with a revolver, a bullet-proof vest, and some MREs. While he claims he left the revolver in his hotel room, he wore his bullet proof vest to the rally at the Ellipse, then walked to the Capitol, carrying a Marine flag. After verbally attacking one of the cops at a barricade, he pushed over it, wrestled the cop to the ground, and grabbed his helmet, seemingly (though not in fact) gouging the cop’s eyes.

Shane Woods

Shane Woods drove to DC from Illinois on January 5. Like the others, Woods went to the Trump rally and then walked with the crowd to the Capitol.  In some of the early fighting at the west side of the Capitol he is accused of tripping a female cop.

Then, a few hours later, Woods was involved in a group attack on some media, allegedly tackling a cameraman in similar fashion to the attack on the cop.

Peter Schwartz

Peter Schwartz is a violent felon who traveled to DC while out on release from prison because of COVID. Schwartz is accused (along with a woman I believe to be his partner) of involvement in a range of assaults on cops protecting the Lower West Terrace and the Tunnel on January 6, including stealing mace from and then using it on cops and throwing a chair.

On January 7 he described his actions as being part of “What happened yesterday was the opening of a war. I was there and whether people will acknowledge it or not we are now at war.”

The Oath Keepers

As I’ve noted repeatedly, Mehta is also presiding over the Oath Keepers, who all entered the East door and therefore would be among those kitted out people who violently pushed past Sidney Hemby. A few of the Oath Keepers are individually accused of assault. For example, video shows veteran Joshua James fighting with a cop in the Rotunda, screaming, “Get out! … This is my fucking Capitol!”

But members of the Stack who pushed past Hemby as he was protecting that door are suspected of far more serious plans for assault. As Mehta noted in ruling for the pre-trial detention of Stewart Rhodes on Friday — the same day he issued this ruling — once the Stack broke into the Capitol, they split up, with part of the group trying to make it to the Senate and the other part going to Nancy Pelosi’s office.

The latter is of particular concern because, on Election Day, Kelly Meggs told his wife and kid he was “gonna go on a killing spree … Pelosi first.”

Then after he had gone to her office, he told someone (probably his kid again), that “we looked for[] her.”

Judge Mehta has good reason to suspect (and likely knows far more about how serious this plot was) that the Oath Keepers, after busting into the Capitol past Hemby, took steps to hunt down Nancy Pelosi, and possibly someone in the Senate, like Pence.

When Judge Mehta says he thinks it is plausible that Donald Trump abetted assaults and threatened assaults at the Capitol, he’s not speaking abstractly. Judge Mehta has a very specific understanding of the kinds of assaults that happened that day. Those were  violent attacks on cops — several allegedly committed by military veterans and one by a retired NYPD cop. Those include a gratuitous attack on the media. It includes an attempt to hunt down the Speaker of the House.

With this ruling, Trump may be on the hook for such assaults civilly.

But given that the judge presiding over some spectacularly violent assaults that day has judged that Trump’s actions may rise to an aid and abet standard, it may make DOJ more seriously consider Trump’s exposure for such acts criminally.

Related Post

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

Stewie’s Assault Rifle: Comings and Goings in the Sedition Militia

I’d like to return to what DOJ did with the Oath Keeper indictments.

As I explained, one thing the sedition indictment did is provide DOJ an easy way to split the unwieldy 17-person indictment into two trials. The first, the sedition trial, includes a barely manageable 11 people, all of whom played a leadership role and/or an active role in putting together the Quick Reaction Force stashed at the Comfort Inn in Ballston.

The second, with seven people charged, named “Crowl” after Donovan Crowl, is still just a conspiracy to obstruct the peaceful transfer of power, though charged under the obstruction statute (18 USC 1512(k)), making the potential sentence for the conspiracy charge higher even for those who, like James Beeks, really just hopped on a stack at the last minute. On top of everything else, these defendants now face the prospect of going to trial after what will surely be a high profile sedition trial, which will make it a lot harder to convince a jury of one’s innocence.

In addition, curiously, DOJ charged Jonathan Walden by himself with just obstruction and trespassing.

Whether DOJ charged Walden by himself in preparation of a plea from him or for some other reason, charging him by himself makes a change in naming convention a lot easier.

In past Oath Keeper conspiracy indictments, DOJ referred to charged defendants in all-caps, those who entered cooperating plea deals in standard text, and those who hadn’t been charged yet using a number system, with Person One being Rhodes, as in this paragraph from the December indictment.

The Crowl indictment generally adheres to this practice, listing both those charged in Crowl and those charged with sedition at the beginning to make it clear it’s all one conspiracy.

But because of the way the Crowl indictment is scoped — focusing on what the sedition indictment calls “Stack One” (the one that busted into the Capitol in spectacular fashion) — certain people are not named at all. Roberto Minuta and Joshua James from the sedition indictment aren’t there, Walden, now spun off on his own is not there.

And cooperating witness, Mark Grods, is not there, at all. Whatever references there are to him just refer to him as a co-conspirator.

It’s not just Grods. A bunch of people, formerly numbers, are just co-conspirators now. Perhaps DOJ did that to sow as much paranoia as possible, so that the defendants have no idea who has flipped and who hasn’t. But I’m particularly interested in Grods’ absence for reasons I’ll explain in a follow-up.

Anyway, this naming convention is most notable with the treatment of Person Ten, who has been identified as Michael Simmons by Mother Jones and others, but who is referred to in the sedition indictment as “the operation leader.”

As with Walden, it’s not entirely clear what’s up with Simmons. It cannot be the case that DOJ decided he had no criminal exposure. As prosecutor Kathryn Rakoczy noted in December, Simmons’ attempts to pretend he didn’t know about the insurrection in May FBI interviews “lack credibility.”

Person Ten’s Statements Are Lacking in Credibility

Person Ten, as an uncharged individual who was aware that others have already been charged, had a motive to downplay or disregard both his own involvement and any preplanning efforts. And documentary evidence contradicts Person Ten’s blanket denials. For instance, on October 8, 2021, the government disclosed a Signal chat thread named “Jan 5/6 DC Op Intel team,” which included Person One, Person Ten, codefendant Joshua James, and about seven other individuals. On the Signal thread, shortly before 2:00 p.m. on January 6, a participant posted a video titled “live stream of patriots storming capital.” Another participant asked, “Are they actually Patriots – not those who were going to go in disguise as Patriots and cause trouble[?]” Person Ten authoritatively answered, “[T]here [sic] patriots.” Person One added, “Actual Patriots. Pissed off patriots[.] Like the Sons of Liberty were pissed off patriots[.]” Codefendant Joshua James followed with, “Were coming to Capitol ETA 30 MIN[.]”

The Sixth Superseding indictment alleges that at 2:14 p.m. on January 6, Person Ten informed the “DC OP: Jan 6 21” Signal chat that “The[y] have taken ground at the capital,” and, “We need to regroup any members who are not on mission[.]” ECF 513 ¶ 125. At 3:05 p.m.— twenty minutes after Defendant Harrelson and other codefendants breached the Capitol, and ten minutes before Defendant James and his second wave of coconspirators breached the same doors—Person Ten also messaged another individual, “Were [sic] storming the capital.”

So something had to have happened with Simmons, with a cooperation deal a likely explanation. That’s why I’m interested in a few details laid out in the sedition indictment.

The main QRF for the people charged in the sedition indictment was (as I never tire of saying) in the Ballston Comfort Inn. Here’s what these guys looked like toting their gun cases around on luggage carts on the surveillance footage.

But before Kelly Meggs and Thomas Caldwell and others settled on the Ballston Comfort Inn for the QRF, Rhodes offered to store weapons for Meggs in the trunk of Simmons’ car.

50. On January 2, 2021, RHODES messaged MEGGS on Signal, “If you want to stow weapons with [the operation leader] you can. He’ll have a secure car trunk or his hotel room (or mine).” MEGGS responded, “Last night call … we discussed a QRF RP so we may do that. As well as the NC team has a hotel room close by.” RHODES messaged, “Ok, We WILL have a QRF. this situation calls for it.” [my emphasis]

The sedition indictment seems to describe Joshua James dropping off weapons at the Hilton Garden Inn in Vienna, VA.

68. On January 5, 2021, JAMES dropped off firearms and ammunition that he, ULRICH, and other co-conspirators had transported to the Hilton Garden Inn in Vienna, Virginia, where RHODES, JAMES, MINUTA, and others were staying.

One of the “others” staying at the Hilton Garden Inn referred to in this paragraph, the earlier indictment makes clear, was Simmons.

On January 4,2021, PERSON TEN checked into the Hilton Garden Inn in Vienna, Virginia. The room was reserved and paid for using a credit card in PERSON ONE’s name.

Anyway, it’s not entirely clear whether that paragraph 68 means that James dropped off weapons he had driven to Vienna at the Comfort Inn, or whether he brought those weapons to the Hilton Garden Inn and they stayed there. It’s worth noting, though, that by leaving Grods out of the sedition indictment, DOJ left out this paragraph from earlier indictments.

On January 2, 2021, Grods messaged JAMES on Signal and asked, “So, I guess I am taking full gear less weapons? Just reading through all the posts. Would rather have it and not need it.” JAMES responded, “Yeah full gear… QRF will have weapons Just leave em home.”

That is, by leaving Grods out, DOJ got to leave out some details about the fate of James’ weapons, too.

And while the sedition indictment has a ton of new details about Rhodes serially arming himself as he drove to insurrection…

On January 3, 2021, RHODES departed Granbury, Texas, and began traveling to the Washington, D.C., metropolitan area. While traveling, RHODES spent approximately $6,000 in Texas on an AR-platform rifle and firearms equipment, including sights, mounts, triggers, slings, and additional firearms attachments.

[snip]

On January 4, 2021, while still traveling toward the Washington, D.C., metropolitan area, RHODES spent approximately $4,500 in Mississippi on firearms equipment, including sights, mounts, an optic plate, a magazine, and various firearms parts.

… The sedition indictment provides not one detail of where Stewie’s personal arsenal ended up once he got to VA. It doesn’t say he kept all those weapons at the Hilton Garden Inn in Vienna. It doesn’t say the weapons got moved to the Comfort Inn in Ballston.

The sedition indictment does, however, explain that Rhodes and Simmons drove to DC together the morning of insurrection.

At approximately 8:30 a.m., RHODES and the operation leader, and others departed a hotel in Virginia for Washington, D.C., and drove to the Capitol area.

So Rhodes and Simmons traveled to DC in something that had a trunk, like the one days earlier where, Rhodes said, Meggs could stash his weapons.

And I find that interesting because Rhodes and Simmons weren’t together when the insurrection kicked off. Earlier indictments make clear that Rhodes was trying to meet up with Simmons as everyone started converging on the Capitol.

At 2:06 p.m, PERSON ONE sent another message to the Leadership Signal Chat asking for PERSON TEN’s location before stating, “I’m trying to get to you.”

And in fact, Rhodes kept trying to get people to come to the south side of the Capitol, even though all the action was happening north of there.

At 2:25 p.m. PERSON ONE forwarded PERSON TEN’s message (“The have taken ground at the capital[.] We need to regroup any members who are not on mission.”) to the Leadership Signal Chat and instructed: “Come to South Side of Capitol on steps” and then sent a ‘photograph showing the southeast side of the Capitol.

Rhodes’ 2:06 text got cut from the sedition indictment, though his 2:25 one made the cut.

At 2:32, as the Stack was assembling outside the East steps of the Capitol, Kelly Meggs called Rhodes and got conferenced into an already existing call with Simmons.

At 2:32 p.m., MEGGS places a phone call to RHODES, who was already on the phone with the operation leader. RHODES conferenced MEGGS into the call.

Minutes later, after Kelly Meggs and the first stack busted into the Capitol, and Meggs walked towards the office of Pelosi (whom he threatened to kill on election day) with Joseph Hackett and others, Hackett came back out to the entrance as if he was trying to meet up with someone, only to give up and leave.

The detention memo suggests they — apparently including Berry and Connie Meggs, though the detention motion doesn’t mention them — went from here to stand outside Pelosi’s office, and then Hackett — apparently by himself — came back through the Rotunda, stood outside the East Door, looking outward, as if waiting to meet with someone.

Hackett then enters back into the Capitol, goes back to where he (apparently) left Moerschel, Harrelson, and Meggs, along with Berry and Connie Meggs (though they aren’t mentioned) and then he and Moerschel exit the building.

Neither Rhodes nor Simmons entered the Capitol.

To be clear: we have no idea what happened to Simmons and it’s not clear whom Hackett was looking for as Kelly Meggs attempted to hunt down Nancy Pelosi.

But I think it distinctly possible that Simmons drove Stewie’s weapons into DC. Which — particularly if there were a plot to assassinate Nancy Pelosi — would increase Simmons’ exposure significantly.

Update: I just re-read Mike Simmons’ 302s. And he claims that he parked by the Jefferson Memorial.

That’s the location of the “sea” landing point for the QRF teams.

On the evening of January 2, 2021, at about 5:43 p.m., KELLY MEGGS posted a map of Washington, D.C. in the Leadership Signal Chat, along with the message, “1 if by land] North side of Lincoln Memorial[,] 2 if by sea[,] Corner of west basin and Ohio is a water transport landing 11” KELLY MEGGS continued, “QRF rally points[.] Water of the bridges get closed.”

Latex Gloves Hiding Evidence of Conspiracies: On the Unknown Adequacy of the January 6 Investigation

Since I’ve acquired new readers with my January 6 coverage and since the financial stress of COVID is abating for many, it seems like a good time to remind people this is not a hobby: it is my day job, and I’d be grateful if you support my work.

Update, 6/2: As this post lays out, Hodgkins’ plea was indeed just a garden variety plea. During the hearing he explained the latex gloves. He carries a First Aid kit around all the time and saw Joshua Black’s plastic bullet wound (though he didn’t know Black and didn’t name him in the hearing) and put gloves on in preparation to provide medical assistance. After Black declined his help, he took the latex gloves off.

On Wednesday, June 2, insurrectionist Paul Allard Hodgkins will plead guilty, becoming just the second of around 450 defendants to publicly plead guilty (particularly given the number of people involved, there may be — and I suspect there are — secret cooperation pleas we don’t know about).

NOTICE OF HEARING as to PAUL ALLARD HODGKINS: A Plea Agreement Hearing is set for 6/2/2021, at 11:00 AM, by video, before Judge Randolph D. Moss. The parties shall use the same link for connecting to the hearing.(kt)

This could be the first of what will be a sea of plea deals, people accepting some lesser prison time while avoiding trial by pleading out. But there’s one detail that suggests it could be more, that suggests Hodgkins might have knowledge that would be sufficiently valuable that the government would give him a cooperation deal, rather than just a plea to limit his prison time.

Hodgkins is one of the people who made it to the Senate floor and started rifling through papers there, which by itself has been a locus of recent investigative interest. But he is an utterly generic rioter, wearing a Trump shirt and carrying a Trump flag. According to an uncontested claim in his arrest affidavit, he told the FBI he traveled to the insurrection from Florida alone, by bus. Because the only challenge he made to his release conditions — to his curfew — was oral, and because the prosecutor in his case hasn’t publicly filed any notice of discovery (which would disclose other kinds of evidence against him), there’s nothing more in his docket to explain who he is or what else he did that day, if anything.

But one thing sticks out about him: before he started rifling through papers in the Senate, he put on latex gloves.

It’s not surprising he had gloves. During the pandemic, after all, latex gloves have been readily available, and I’ve wandered around with gloves in my jacket pocket for weeks. But he did show the operational security to put them on, when all around him people were just digging in either bare-handed or wearing the winter or work gloves they had on because it was a pretty cold day.

There’s just one other instance I know of where someone at the insurrection showed that kind of operational security (though there is one person identified by online researchers by the blue latex gloves he wore while playing a clear organizational role outside the Capitol). When one of the guys that Riley June Williams was with started to steal Nancy Pelosi’s laptop, Williams admonished him, “dude, put on gloves” and threw black gloves (which may or may not be latex) onto the table for him to use.

There’s no reason to believe there’s a tie (as it happens, Williams had a status hearing last week where her conditions were loosened so she can look for work). There is a cybersecurity prosecutor, Mona Sedky, who is common to both cases, which sometimes indicates a tie, but she is also on cases against defendants who have no imaginable tie to Williams. But Hodgkins exhibited the kind of operational security that, otherwise, only other people who seemed to be operating from some kind of plan exhibited.

My point is not that there’s a tie, but that we don’t know whether there’s something more interesting about Hodgkins, and we might not even learn whether there is on Wednesday, in significant part because if there is one, prosecutors may not want to share that information publicly.

And I think, particularly in the wake of Republicans’ successful filibuster of a January 6 Commission and discussions of whether there will be any real accountability, that’s a useful illustration about the limits of our ability to measure the efficacy of the investigation right now. Paul Hodgkins could be (and probably is) just some Trump supporter who hopped on a bus, or his latex gloves could be the fingerprint of a connection to more organized forces.

With that said, I’d like to talk about what we can say about the investigation so far, and where it might go.

Last week, when I read this problematic and in several areas factually erroneous attempt to describe the attack in military terms, I realized that readers new to my work may not understand what I do.

I cover a range of things, but when I cover a legal case, I cover the legal case as a means to understand what prosecutors are seeing. That’s different than describing the alleged crime itself; particularly given the flood of defendants, I’m not, for example, reading through scraped social media accounts from before the attack to understand what was planned in the semi-open in advance. But reading the filings closely is one way to understand where the criminal investigation might go and the chances it will be successfully prosecuted and if so how broadly the prosecution will reach.

I’m not a lawyer, though I’ve got a pretty decent understanding of the law, especially the national security crimes I’ve covered for 17 years. But my background in corporate documentation consulting and comparative literature (plus the fact that I don’t have an editor demanding a certain genre of writing) means I approach legal cases differently than most other journalists. For the purposes of this post, for example, my academic expertise in narrative theory makes me attuned to how prosecutors are withholding information and focalizing their approach to preserve investigative equities (or, at times, hide real flaws in their cases). Prosecutors are just a special kind of story-teller, and like novelists and directors they package up their stories for specific effects, though criminal law, the genre dictated by court filings, and prohibitions on making accusations outside of criminal charges impose constraints on how they tell their stories.

One of the tools prosecutors use, both in a legal sense and a story-telling one, is conspiracy. The problematic military analysis, linked above, totally misunderstood that part of my work (as have certain Russian denialists looking for a way to attack that doesn’t involve grappling with evidence): when I map out the conspiracies we’re seeing in January 6, I’m not talking about the overarching conspiracy that made it successful, how the entire event was planned. Rather, I’m observing where prosecutors have chosen to use that tool — by charging four separate conspiracies against Proud Boys that prosecutors are sloppily treating as one, and charging (as of yesterday) sixteen members of the Oath Keepers in a single conspiracy — and where they haven’t, yet — for a set of guys who played key roles in breaching the East door and the Senate chamber who armed themselves and traveled together. As that set of guys shows, prosecutors aren’t limited to using conspiracy with organized militias, and I expect we’ll begin to see some other conspiracies charged against other networks of insurrectionists. It’s virtually certain, for example, that we’ll see some conspiracies charged against activists who first organized together in local Trump protests; I expect we’ll see conspiracies charged against other pre-existing networks (like America First or QAnon or even anti-vaxers who used those pre-existing networks to pre-plan their role in the insurrection).

Conspiracies are useful tools for prosecutors for several purposes. For example, a conspiracy charge can change what you need to prove: that the conspiracy was entered into and steps taken, some criminal, to achieve the conspiracy, rather than the underlying crime. It can used to coerce cooperation from co-conspirators and enter evidence at trial in easier fashion. And it’s the best way to hold organizers accountable for the crimes they recruit others to commit.

If Trump, or even his flunkies, are going to be held accountable for January 6, it will almost certainly be through conspiracy charges built up backwards from the activities at the Capitol. I am agnostic on whether they will be, but it’s not as far a reach as some might think. This handy guide to conspiracy law that Elizabeth de la Vega laid out during the Mueller investigation provides a sense of why that is.

Conspiracy Law – Eight Things You Need to Know.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

We know that Trump and his flunkies shared the goal of the conspiracies that have already been charged: to prevent the certification of the vote. Trump (and some of his flunkies) played a key role in one of the manner and means charged in most of the conspiracies: To use social media to recruit as many people as possible to get to DC. Arguably, Mike Flynn played another role, in setting the expectation of insurrection.

What’s currently missing is proof (in court filings, as opposed to the public record) that people conspiring directly with Trump were also conspiring directly with those who stormed the Capitol. But we know the White House had contact with some of the conspirators. We know that organizers like Ali Alexander and Alex Jones likewise had ties to both conspirators and Trump’s flunkies (an Alex Jones producer has already been arrested). We know that Flynn had other ties to QAnon (which is why I’ll be interested if the government ever claims QAnon had some more focused direction with respect to January 6). Most of all, Roger Stone has abundant ties with people already charged in the militia conspiracies, and was at the same location as some of the Oath Keepers before they raced to the Capitol in golf carts to join the mob. If Trump or his flunkies are held accountable, I suspect it will go through conspiracies hatched in Florida, and the overlap right now between the Oath Keeper and Proud Boys conspiracies are in Floridians Kelly Meggs and Joe Biggs. But if they are held accountable, it will take time. It’s hard to remember given the daily flow of new defendants, but complex conspiracies don’t get charged in four months, and it will take some interim arrests and a number of cooperating witnesses to get to the top levels of the January 6 conspirators, if it ever happens.

This post, which is meant to be read in tandem with this one, assesses developments in the last week or so in the Oath Keepers conspiracy case.

January 6: On the Track of the Missing Laptops

In recent days there have been developments in the investigation into two laptops stolen on January 6. First, a woman in Homer, Alaska claims the FBI seized her own devices, based off a suspicion that she is the woman who currently has Nancy Pelosi’s laptop.

Marilyn and Paul Hueper, owners of the Homer Inn and Spa, told Alaska’s News Source that agents broke through their door early Wednesday morning with guns drawn, handcuffed the couple and two guests, and started searching the premises.

“They basically took me out of the handcuffs and said something like, ‘So you probably know why we’re here.’ I was like, ‘no, probably not.’” Marilyn Hueper said Friday. “And they said, ‘well, we’re looking for Nancy Pelosi’s laptop and we know you were in the building and you were in the room at the time.’”

The FBI isn’t saying much about what they know about the search.

“I can confirm that, on April 28, the FBI was conducting court authorized law enforcement activity at the location you are referring to. At this time, and until it reaches the public realm, we can’t discuss the details,” Chloe Martin, Public Affairs Officer for the Alaska Field office of the FBI, told Alaska’s News Source via email Friday.

The Huepers’ name does not come up in a search of online court records for the U.S. District of Alaska.

The couple declined to provide a copy of the search warrant the FBI had, but said it permitted agents to search for items stolen from the Capitol.

Agents seized cell phones, laptops and a copy of the U.S. Declaration of Independence, the Huepers said.

“We never got within 100 yards of the main doors of the Capitol,” Paul Hueper said.

Her arguments that she’s not the person in the BOLO the FBI showed her are pretty convincing.

That said, she and her spouse claimed they were on the other side of the Mall on the day of the riot, even though they posted to Facebook from closer to the Capitol. I hope we learn how it’s possible that they have two GeoFences from the Capitol but could make a mistake like this.

Meanwhile, discovery correspondence filed yesterday in the case of Long Island CPA Justin McAuliffe suggests he may know something about what happened to Jeff Merkley’s laptop, which was also stolen during the riot.

Merkley did a video showing the damage done to his office after the insurrection, describing the laptop taken from his table and the broken hinges on the unlocked door.

And if you look closely in the arrest affidavit for McAuliffe, you can see the maps that appear in Merkley’s video, as well as the flag left behind.

But the discovery correspondence yesterday included a picture of the stolen laptop and the broken door among other items.

To be clear: McAuliffe has not been charged with theft or damage at all. He remains charged under his original complaint with just trespassing.

But rather than indicting him for any role in those crimes, the government continued his case until May 19, which either means he’s planning on pleading or the government believes that he (like Riley June Williams, who is accused of stealing Pelosi’s laptop) may know more about who took the laptop and what they did with it.

Or maybe the government is just waiting on DNA tests from that joint described in evidence picture, “joint.jpg,” before charging this case?

Where Were They Radicalized? Two Mike Flynn Supporters Guilty of Threatening Assassination

Yesterday, two Trump supporters were held accountable for threats of violence against Trump’s perceived opponents.

In DC, QAnoner Frank Caporusso pled guilty to threatening Emmet Sullivan because of his decisions in the Mike Flynn case. His statement of facts admitted that he called Sullivan’s chamber and warned,

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise.

Caporusso faces an 18-24 month sentence, though will get credit for time served since August.

In New York, a jury found Trump supporter Brendan Hunt guilty of making death threats against government officials, including calling for the execution of AOC, Chuck Schumer, and Nancy Pelosi on December 6. On January 8, he called to return to DC with guns to “slaughter these motherfuckers.” On January 12, in response to a General Flynn Parler text calling on people to act responsibly, Hunt responded, “enough with the ‘trust the plan’ bullshit. lets go, jan 20, bring your guns.”

Hunt’s sentence will likely be longer given that he went to trial, not to mention some violent behavior committed while detained pre-trial.

This is one day. One day, and two Trump and Flynn supporters found guilty of the same crime for threatening political violence.

How Did the Proud Boys Have Better Lines of Communication about National Guard Reinforcements than the National Guard Did?

At 3:38 on January 6, according to the Proud Boy leaders conspiracy indictment, Charles Donohoe announced on the 60-member operational Telegram channel the Proud Boys used that day that, “we are regrouping.”

Sometime around that time, a bunch of Oath Keepers, having already entered the Capitol, were gathered together on the east side of the Capitol.

According to the most recent Oath Keepers indictment, two minutes after Donohoe announced the Proud Boy plan to regroup, at 3:40, Oath Keeper Joshua James called Person Ten — who was doing much of the coordination for the Oath Keepers that day — and had a 3 minute, 4 second phone call, their second longest call described in the indictment.

Roberto Minuta and Rhodes exchanged two calls just after 4:00 — 42 seconds, then 2 minutes 56 seconds. At 4:10, according to a Thomas Caldwell detention motion, someone on the Oath Keepers’ operational channel said, “Fight the good fight. Stand your ground.”

It seems the militias were preparing for a second, seemingly coordinated, operation of the day: resuming the assault on the Capitol.

Indeed, some of the fighting and attempted breaches at the Capitol did intensify about that time (for example, that’s shortly before, as some cops were trying to help Rosanne Boyland, who had been trampled, they were allegedly assaulted by James Lopatic, Jeffrey Sabol, Peter Stager, and Wade Whitten, with police officer BW being dragged down the steps prone and beaten).

But not the militias, at least not the Proud Boys.

According to the government’s detention memo for Donohoe, he subsequently — they don’t provide the time — sent out a message that the National Guard and DHS agents were incoming.

Donohoe’s intent to create mayhem and disrupt the proceedings at the Capitol continued well after the initial breach into the restricted grounds and up to the west terrace. Indeed, at 3:38 p.m., more than an hour after Pezzola and others had broken into the building, Donohoe indicated that he had left the Capitol grounds, but then announced over Telegram, “We are regrouping with a second force.” That plan appears to have been short-lived, as Donohoe subsequently advised the group that the National Guard and “DHS agents” were “incoming.”

This is fairly remarkable timing, as it came during the most inexplicable period of DOD’s delayed response with the National Guard. At 2:30, just before the second breach by militia-led groups, Acting Defense Secretary Christopher Miller met with (among others) Army Secretary Ryan McCarthy about requests for help from the city and the Capitol Police. At 3, Miller determines the Guard is needed at the Capitol and McCarthy orders them to prepare to move. At 3:04, Miller provides verbal approval for the Guard to support MPD. At 3:19 and 3:26, McCarthy was on the phone with first Chuck Schumer and Nancy Pelosi and then Bowser, assuring them the Guard was on the way. At 3:48, McCarthy leaves to go to MPD headquarters, taking 22 minutes to transit, even as two trained militia groups full of military veterans prepared to make a second assault on the Capitol. At 4:32, after calls back and forth among the militia, Miller provided verbal authorization for the Guard to help the Capitol Police.

Tick tock, tick tock, tick tock.

But then, according to the guy DOD sent to the Senate to not answer questions like this, Robert Salesses, General William Walker, the guy in charge of the Guard, didn’t get that order for another 36 minutes.

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

Tick tock, tick tock, tick tock.

Somehow, it seems, Proud Boy Charles Donohoe knew that the National Guard was coming to reinforce the Capitol before DC Guard Commander General Walker.

Somehow, it seems, the militias assaulting the Capitol had better lines of communication than the US Department of Defense.

Timeline

2:30PM: Acting Secretary of Defense Christopher Miller and Army Secretary Ryan McCarthy meet to discuss the requests for assistance from the MPD and CPD.

2:40PM: Oath Keepers and Proud Boys breach second front of the Capitol.

3PM: Miller determines the Guard is needed.

3:04PM: Miller authorizes Guard assistance to MPD.

3:19PM: McCarthy on the phone with Democratic leaders. Roberto Minuta enters Capitol.

3:26PM: McCarthy on the phone with Mayor Bowser.

3:38PM: Charles Donohoe announces, “we are regrouping.”

3:40PM: James calls Person Ten, speaks for 3:04.

3:48PM: McCarthy leaves for MPD.

4PM: Meeting with Stewart Rhodes on east side of Capitol.

4:04PM: Minuta calls Rhodes, speaks for 42 seconds.

4:05PM: Rhodes calls Minuta, speaks for 2:56.

4:10PM: McCarthy arrives at MPD. Proud Boy leader channel instructs, “Stand your ground.”

4:32PM: Miller provides the verbal order for the Guard to reinforce the Capitol Police

5:08PM: General Walker gets the order to reinforce the Capitol Police

Unknown time: Donohoe advises that National Guard and “DHS” are incoming.

Chain of Command: The AWOL Descriptions of the Commander in Chief’s Role in the National Guard Non-Response on January 6

The only formal explanation Trump has offered to describe his role in deploying the National Guard in response to the attack on the Capitol on January 6 came in his impeachment defense. As part of that defense, Bruce Castor pointed to things he claimed happened before Trump’s speech ended. In Castor’s inaccurate portrayal of the timeline, he suggested that the first action Acting Secretary of Defense Christopher Miller took was when, at 1:05 (which Castor said was 11:05), Miller “received open source reports of demonstrator movements to the U.S. Capitol.” He continued to claim that,

At 1:09 PM, US Capitol Police Chief’s Steven Sund called the House and Senate Sergeants at Arms, telling them he wanted an emergency declared and he wanted the National Guard called. The point: given the timeline of events, the criminals at the Capitol were not there to even hear the President’s words. They were more than a mile away engaged in a preplanned assault on this very building.

Admittedly, this was probably no more than an incompetent parroting of the existing timeline released by DOD. It’s possible that Trump’s lawyers didn’t ask him what happened inside the White House that day, because if they did, it would not help their case.

Still: Trump’s own defense claimed that the first that Acting Secretary Miller did in the matter was at 1[1]:05 on January 6.

That’s mighty interesting because there have been two claims that Trump proactively offered up National Guard troops for January 6 in the days beforehand. The first came in a Vanity Fair piece written by a journalist that Trump’s DOD flunkies permitted to embed with them (he requested to do so before the insurrection, but didn’t start his embed until January 12, meaning the claims reported in this article were retrospective). That piece claimed that, the night before the attack, Trump told DOD they would need 10,000 people.

The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

“We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

What did Miller think of the criticism that the Pentagon had dragged its feet in sending in the cavalry? He bristled. “Oh, that is complete horseshit. I gotta tell you, I cannot wait to go to the Hill and have those conversations with senators and representatives.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.

So according to Acting Secretary of Defense Christopher Miller, Trump had given him “clear instructions” to “do what you need to do,” and had warned him to have thousands of Guardsmen available. Miller said he was speaking non-stop to Mark Meadows, though an anonymous source stated that they tried but failed to get the President on the line.

Long after impeachment and even after his CPAC speech, Trump went to Fox to make the same claim that appeared in Vanity Fair.

Former President Trump told Fox News late Sunday that he expressed concern over the crowd size near the Capitol days before last month’s deadly riots and personally requested 10,000 National Guard troops be deployed in response.

Trump told “The Next Revolution With Steve Hilton” that his team alerted the Department of Defense days before the rally that crowds might be larger than anticipated and 10,000 national guardsmen should be ready to deploy. He said that — from what he understands — the warning was passed along to leaders at the Capitol, including House Speaker Nancy Pelosi — and he heard that the request was rejected because these leaders did not like the optics of 10,000 troops at the Capitol.

“So, you know, that was a big mistake,” he said.

Fox and other Trump mouthpieces have suggested that Nancy Pelosi rejected the Guard. That’s false. According to then Capitol Police Chief Steve Sund, House Sergeant at Arms Paul Irving did.

On Monday, January 4, I approached the two Sergeants at Arms to request the assistance of the National Guard, as I had no authority to do so without an Emergency Declaration by the Capitol Police Board (CPB). My regular interactions with the CPB, outside of our monthly meetings regarding law enforcement matters, were conducted with the House and Senate Sergeant at Arms, the two members of the CPB who have law enforcement experience. I first spoke with the House Sergeant at Arms to request the National Guard. Mr. Irving stated that he was concerned about the “optics” of having National Guard present and didn’t feel that the intelligence supported it. He referred me to the Senate Sergeant at Arms (who is currently the Chair of the CPB) to get his thoughts on the request. I then spoke to Mr. Stenger and again requested the National Guard. Instead of approving the use of the National Guard, however, Mr. Stenger suggested I ask them how quickly we could get support if needed and to “lean forward” in case we had to request assistance on January 6.

Notably, Sund’s request and Irving’s response occurred before the conversation between Miller and Trump purportedly took place the night before the attack (which was far too late to deploy 10,000 people in any case). Moreover, Pelosi, Zoe Lofgren, and Mark Warner, among others, raised concerns about staffing for the day, so it’s not like Democrats weren’t raising the alarm.

Still, over a month after making no such claim as part of his Impeachment defense, Trump and his flunkies want to claim that Trump was proactive about deploying 10,000 people to defend the Capitol against his most ardent supporters.

That’s interesting background to the testimony offered by Robert Salesses, the “Senior Official Performing the Duties of the Assistant Secretary for Homeland Defense and Global Security,” in a joint Rules/Homeland Committee hearing on January 6 yesterday. As several people noted during the hearing, for some reason DOD sent Salesses, who wasn’t involved in the key events on January 6, rather than people like General Walter Piatt or General [Mike’s brother] Charles Flynn — who were on a call with MPD Chief Robert Contee and Sund on January 6 and who have made disputed claims about what occurred, including that Piatt recommended against sending the Guard because of optics. Effectively, Salesses was repeating what others told him, offering no better (indeed, more dated) information than Vanity Fair was able to offer. Salesses apparently called General Piatt the day before and dutifully repeated Piatt’s claim that he did not use the word, “optics,” which DC National Guard Commander General William Walker had just testified did occur.

General Piatt told me yesterday, Senator, that he did not use the word, “optics.”

Salesses then gave more excuses, explaining,

Senator, in fairness to the committee, General Piatt is not a decision-maker. The only decision-makers on the Sixth of January were the Secretary of Defense and the Secretary of the Army Ryan McCarthy. It was a chain of command from the Secretary of Defense to Secretary McCarthy to General Walker. That was the chain of command.

General Walker, the Commander of the DC National Guard, responded by reiterating the response he had gotten from Piatt (and the brother of the guy who had incited many of the insurrectionists) implicitly correcting Salesses about chain of command. The Commander in Chief, of course, is in that chain of command.

Yes, Senator. So the chain of command is the President, the Secretary of Defense, the Secretary of the Army, [points to self] William Walker Commanding General District of Columbia National Guard.

After General Walker described more of the restrictions placed on him ahead of time, including the preapproval before moving a traffic control point from one block to another (which restriction, Walker said, he had never experienced in 19 years) and the issuance of riot gear, Salesses made more excuses (repeating his silence about the role of the President’s role in the chain of command). Remarkably, he described how Ryan McCarthy dithered from 3:04 until 4:10 because shots had been fired at the Capitol.

Salesses: Sir, Secretary Miller wanted to make the decisions on how the National Guard was going to be employed on that day. As you recall, Senator, the spring events, there was a number of things that happened during those events, that Secretary Miller as the Acting Secretary –

Rob Portman: Clearly he wanted to. The question is why? And how unusual. Don’t you think that’s unusual based on your experience at DOD?

Salesses: Senator, there was a lot of things that happened in the spring that the Department was criticized for — Sir, if I could. Civil Disturbance Operations? That authority rests with the Secretary of Defense. So if somebody’s gonna make a decision about employing military members against US citizens in a Civil Disturbance Operation —

Salesses: At 3:04, Secretary Miller made the decision to mobilize the entire National Guard. That meant that he was calling in all the National Guard members that were assigned to the DC National Guard. At 3:40–at 3:04 that decision was made. Between that period of time — between 3:04 and 4:10, basically, Secretary McCarthy had asked for — he wanted to understand, because of the dynamics on the Capitol lawn, with the explosives, obviously shots had been fired, he wanted to understand the employment of how the National Guard was going to be sent to the Capitol: what their missions were going to be, were they going to be clearing buildings, be doing perimeter security, how would they be equipped, he wanted to understand how they were going to be armed because, obviously, shots had been fired. He was asking a lot of questions to understand exactly how they were going to be employed here at the Capitol, and how many National Guard members needed to be deployed to the Capitol.

When asked whether restrictions placed on Walker hampered his defense, yes or no, Salesses again invoked the chain of command, again leaving out the Command-in-Chief.

Senator, General Walker, in fairness to him, can’t respond to a civil defense — a Civil Disturbance Operation without the authority of the Secretary of Defense.

Finally, Salesses explained a further 36-minute delay, from 4:32 until 5:08, when Walker was given approval to move, this way:

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

It’s not just that the people who were actually involved didn’t show up to explain all this to Congress. It’s not just that there were big gaps in the timeline, or gaps explained by dithering even after DOD learned about explosives and shots fired.

It’s that the guy sent to provide improbable answers seems to have removed the Commander-in-Chief, who was watching all this unfold on TV and now wants credit for proactively telling DOD they would need at least 10,000 people, from the chain of command he used to justify the delay.

That’s all the more striking given that — as Dana Milbank noted — the delay until Miller’s authorization (to say nothing of the 36-minute delay in informing Walker) also meant that DOD did not respond until after Trump had instructed his insurrection to go home.

Curiously, the Pentagon claims Miller’s authorization came at 4:32 — 15 minutes after Trump told his “very special” insurrectionists to “go home in peace.” Was Miller waiting for Trump’s blessing before defending the Capitol?

DOD’s selected witness yesterday said that General Walker couldn’t send the Guard to help protect the Capitol because of the chain of command. But the Commander-in-Chief seems to be AWOL from that chain of command.

Update: On Twitter AP observed that there is a discrepancy between Miller’s 10,000 person claim and Trump’s: Trump says it happened days before January 6, which would place it before Miller’s letter imposing new restrictions on the Guard.