The DOD Flunkies’ Convenient Lapse of Executive Privilege

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The first thing you should take away from this long Vanity Fair profile of the Trump loyalists who led DOD during the Transition period is that Kash Patel has a very selective approach to Executive Privilege. Deep in the story, when caught in a lie about a plot to have him replace CIA Director Gina Haspel, Patel invokes Executive Privilege to refuse to answer.

I asked Patel about an Axios story that broke just before we sat down to talk. It asserted that CIA director Gina Haspel threatened to resign after learning that Trump planned to install Patel as her deputy. “I’m not going to comment on what the president wanted to do or didn’t want to do, but there’s no conversations of that now or this week or this year,” he replied. But he seemed to be playing coy. The CIA gambit took place last year. In fact, when I had spoken with Cohen about the matter, he had told me, “The idea was to put Kash in as the deputy, which doesn’t require Senate approval, and then to fire Gina the next day, leaving Kash in charge…. Robert O’Brien, [Trump’s national security adviser], is the one who deep-sixed it.” When I pressed Patel further about these machinations, which had occurred in December, I saw him turn lawyerly: “That stuff is between me and the boss. That’s the only thing I don’t comment on. Ever. It’s executive privilege.”

But in the first lines of the profile, both he and former Acting Secretary of Defense Christopher Miller happily offer up a tale of how Trump not only claimed to know what an appropriate deployment of National Guard troops would be in preparation for January 6, but ordered DOD to have them deployed.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. 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.”

I could not recall the last time a contingent that large had been called up to supplement law enforcement at all, much less at a demonstration—the Women’s March and the Million Man March sprang to mind—and so I asked the acting SECDEF why Trump threw out such a big number. “The president’s sometimes hyperbolic, as you’ve noticed. There were gonna be a million people in the street, I think was his expectation.” Miller maintained that initial reports on the anticipated crowd size were all over the map—anywhere from 5,000 to 40,000. “Park Police—everybody’s so hesitant to give numbers. So I think that was what was driving the president.”

There’s a lot of reason to believe this is bullshit. Trump wouldn’t ask for the Guard if he wanted a show of force, he’d ask for a helicopter flyover or something else inappropriate.  Trump isn’t a detail guy. Miller and Patel offered up a key (and dubious) excuse used elsewhere — that they hadn’t been told the Park Service had expanded the Trump rally to 30,000 attendees.

Most importantly, Patel demonstrated that he believes his actual conversations with Trump should be protected by Executive Privilege. Certainly, he would refuse to say anything bad about Trump.

Ezra Cohen[-Watnick], by contrast, isn’t prompted to. While he is permitted to claim that Trump threw everyone — the entire country — under the bus, he’s not asked about his mentor Mike Flynn’s role in the conspiracy.

Ezra Cohen, another of Miller’s top confidants, believes that his colleagues’ words and deeds may be well and good, but are beside the point: “The president threw us under the bus. And when I say ‘us,’ I don’t mean only us political appointees or only us Republicans. He threw America under the bus. He caused a lot of damage to the fabric of this country. Did he go and storm the Capitol himself? No. But he, I believe, had an opportunity to tamp things down and he chose not to. And that’s really the fatal flaw. I mean, he’s in charge. And when you’re in charge, you’re responsible for what goes wrong.”

[snip]

His promotion was fodder for trolls of every stripe. “To the left I became this horrible person that enabled the president, attacking [Obama officials] and all this other stuff like that,” Cohen contended as we sat in his kitchen and later drove through a Chick-fil-A before tooling around northern Virginia. “And then to the crazy people on the right—that are dangerous people that did the horrible, antidemocratic behavior with the Capitol—these nutjobs are saying that I am QAnon.”

The silence about Flynn’s call for martial law is all the more telling given Cohen’s nod to the way QAnon has worked him into their conspiracies. Flynn played a key role in mobilizing QAnon to serve as Trump’s army.

Also missing from this profile? Any mention of Flynn’s brother, Charles, who participated in a call with local DC officials calling for more help but whose role DOD hid until after Biden was inaugurated.

There are other silences as well, perhaps most notably Miller’s stubborn effort to burrow in a fourth ally, Mike Ellis, at NSA in the last hours of the Trump Administration.

So even before you get into the details, this profile should be regarded as an effort by three very slick dudes to recast their role as Trump flunkies in the wake of an inexcusable event.

With all that said, it appears to differ in key ways from the timeline DOD released days after the coup attempt. The Vanity Fair narrative makes several claims that are probably true: That Miller came to work expecting he might not get home that night (though didn’t stay in DC even as the National Guard did in advance of the inauguratoin), and that DOD was chastened given the gross abuse in response to June protests.

But it also suggests Muriel Bowser called for help 48 minutes after DOD’s timeline shows she did.

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “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.”

The security posture and response on January 6 did not occur in a vacuum. June 1, 2020, had been a perilous precedent. On that day federal police had expelled peaceful protesters from Lafayette Square to facilitate the president’s saunter over to St. John’s Church for a publicity stunt. But the brute force displayed to clear out the area proved a national embarrassment and allegedly influenced Washington mayor Muriel Bowser’s view, come January, about how the capital should be policed—and by whom. On the day before all hell broke loose on the Hill, she made it clear the D.C. police (MPD) would be running the show on the 6th, though 340 unarmed National Guard troops had been requested to help with traffic: “The District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with, MPD.”

Miller told me that when Trump made him head of the Pentagon, in November, “the bar was pretty low.” He had three goals. “No military coup, no major war, and no troops in the street,” before observing dryly, “The ‘no troops in the street’ thing changed dramatically about 14:30…. So that one’s off [the list].”

The day began with a lull. “We had meetings upon meetings. We were monitoring it. And we’re just like, Please, God, please, God. Then the damn TV pops up and everybody converges on my office: [Joint Chiefs of Staff] chairman [Mark Milley], Secretary of the Army [Ryan] McCarthy, the crew just converges.” And as intelligence started cycling in, things went from watch and see to “a current op.” Miller recalled, “We had already decided we’re going to need to activate the National Guard, and that’s where the fog and friction comes in.”

“The D.C. mayor finally said, ‘Okay, I need more,’” Kash Patel would tell me. “Then the Capitol police—a federal agency and the Secret Service made the request. We can support them under Title 10, Title 32 authorities for [the] National Guard. So [they] collectively started making requests, and we did it. And then we just went to work.”

With his use of the word “finally,” Patel insinuates there was a delay before Bowser called and asked for help. Meanwhile, Miller suggests that DOD’s response took place at 2:30PM.

The timeline, however, shows that Bowser requested help 29 minutes after DOD says they got “open source reports” of demonstrators moving on the Capitol.

1305: A/SD receives open source reports of demonstrator movements to U.S. Capitol.

1326: USCP orders evacuation of Capitol complex.

1334: SECARMY phone call with Mayor Bowser in which Mayor Bowser communicates request for unspecified number of additional forces.

1349: Commanding General, DCNG, Walker phone call with USCP Chief Sund. Chief Sund communicates request for immediate assistance.

1422: SECARMY phone call with D.C. Mayor, Deputy Mayor, Dr. Rodriguez, and MPD leadership to discuss the current situation and to request additional DCNG support.

1430: A/SD, CJCS, and SECARMY meet to discuss USCP and Mayor Bowser’s requests. 1500: A/SD determines all available forces of the DCNG are required to reinforce MPD and USCP positions to support efforts to reestablish security of the Capitol complex.

1500: SECARMY directs DCNG to prepare available Guardsmen to move from the armory to the Capitol complex, while seeking formal approval from A/SD for deployment. DCNG prepares to move 150 personnel to support USCP, pending A/SD’s approval.

1504: A/SD, with advice from CJCS, DoD GC, the Chief of the National Guard Bureau (CNGB), SECARMY, and the Chief of Staff of the Army, provides verbal approval of the full activation of DCNG (1100 total) in support of the MPD. Immediately upon A/SD approval, Secretary McCarthy directs DCNG to initiate movement and full mobilization. In response, DCNG redeployed all soldiers from positions at Metro stations and all available non-support and non-C2 personnel to support MPD. DCNG begins full mobilization.

The Vanity Fair profile suggests DOD made the decision based off watching TV — presumably those open source reports — that reinforcements would be needed. But they didn’t even begin to “discuss” doing so until 2:30, and didn’t move to make that deployment until 3:04 (so 34 minutes after Miller describes).

Plus, Patel makes no mention of the call from Capitol Police at 1:49.

Ezra Cohen would like you to believe that he got thrown under the bus along with all the people supporting rule of law. Patel would like you to believe the failures of DOD under his watch were not attributable to the Chief of Staff. And Miller would like you to know his family doesn’t much like Donald Trump.

But the whole story reads like a fairy tale.

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Now We Know Why Jeffrey Rosen Has Been Silent, How About Chris Wray?

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Since the attempted coup, both Jeffrey Rosen and Chris Wray (and Wray’s then-Deputy David Bowdich) were almost silent about the attack. A week after the attack, Rosen  a video in the middle of the night, explaining what he had done during the coup.

The day after, Wray released a short statement. More than a week later, he spoke at a closed-press meeting on inauguration security. Neither provided the kind of daily updates one would expect after such an attack.

Last night (as Rayne laid out here), NYT reported on why Rosen was so silent: because he’s a witness in what should be a criminal investigation into how the attack relates to the effort to overturn the election.

As the NYT lays out, in the days leading up to the coup attempt, Trump already tried to replace Rosen with someone, Jeffrey Bossert Clark, who would be willing to take steps to overturn the vote.

The effort to force Rosen to use DOJ resources to undermine a democratic election started on December 15, the day after Bill Barr resigned.

When Mr. Trump said on Dec. 14 that Attorney General William P. Barr was leaving the department, some officials thought that he might allow Mr. Rosen a short reprieve before pressing him about voter fraud. After all, Mr. Barr would be around for another week.

Instead, Mr. Trump summoned Mr. Rosen to the Oval Office the next day. He wanted the Justice Department to file legal briefs supporting his allies’ lawsuits seeking to overturn his election loss. And he urged Mr. Rosen to appoint special counsels to investigate not only unfounded accusations of widespread voter fraud, but also Dominion, the voting machines firm.

Then, over the weekend in advance of the certification, Assistant Attorney General Jeffrey Bossert Clark told Rosen Trump was going to make him Attorney General so he could chase Rudy Giuliani’s conspiracy theories.

On New Year’s Eve, the trio met to discuss Mr. Clark’s refusal to hew to the department’s conclusion that the election results were valid. Mr. Donoghue flatly told Mr. Clark that what he was doing was wrong. The next day, Mr. Clark told Mr. Rosen — who had mentored him while they worked together at the law firm Kirkland & Ellis — that he was going to discuss his strategy to the president early the next week, just before Congress was set to certify Mr. Biden’s electoral victory.

Unbeknown to the acting attorney general, Mr. Clark’s timeline moved up. He met with Mr. Trump over the weekend, then informed Mr. Rosen midday on Sunday that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

In a replay of the 2004 Hospital Hero moment, the others involved (including White House Counsel Pat Cipollone) agreed they’d resign en masse if Trump replaced Rosen, which led him to back off the plan.

NYT had four sources for this story, all of whom fear — even after Trump has been relegated to Florida — retaliation.

This account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Clark claimed there were errors in this story, but ultimately he claimed Executive Privilege (his statement to WaPo on the topic, which I’ve used here, is more expansive).

In a statement that seemed to draw on language in the New York Times account, Clark said, “I categorically deny that I ‘devised a plan . . . to oust’ Jeff Rosen. . . . Nor did I formulate recommendations for action based on factual inaccuracies gleaned from the Internet.”

“My practice is to rely on sworn testimony to assess disputed factual claims,” Clark said. “There were no ‘maneuver[s].’ There was a candid discussion of options and pros and cons with the President. It is unfortunate that those who were part of a privileged legal conversation would comment in public about such internal deliberations, while also distorting any discussions. . . . Observing legal privileges, which I will adhere to even if others will not, prevent me from divulging specifics regarding the conversation.”

The WaPo version of this story names all who were involved in the confrontation with Trump (though the sources for the story are likely, in part, their aides).

At the meeting were Trump, Clark and Rosen, along with Richard Donoghue, the acting deputy attorney general; Steven A. Engel, the head of the department’s Office of Legal Counsel; and Pat Cipollone, the White House counsel, the people familiar with the matter said. The people said Rosen, Donoghue, Engel and Cipollone pushed against the idea of replacing Rosen, and warned of a mass resignation.

Clark says he will only respond to a sworn statement. By all means, the impeachment managers should demand sworn testimony, from all involved.

Of course, that would mean Pat Cipollone, who led the former President’s defense in his first impeachment trial, would be asked about the second time Trump tried to use government resources to cheat. Steve Engel, who authorized the withholding of a whistleblower complaint describing Trump’s earlier attempt, would also testify. Rosen, who participated in having DOJ chase Sidney Powell’s conspiracy theories about Mike Flynn, would be asked to testify about why the conspiracy theories about Dominion machines were any less credible than the Flynn ones. And Donoghue, who served as a filter for some of the conspiracy theories Rudy Giuliani had been fed by men who have since been named Russian agents, would be asked to testify about why Rudy wasn’t a credible source.

Rosen was silent in his final two weeks, presumably, for fear he might get fired and replaced by someone who would be more pliant to a coup attempt. But he — and the three others — are also witnesses to a larger plot that ended up in violence and death.

I wonder if Chris Wray has similar evidence he’ll be asked to share.

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Crowdsourced Timeline: Tick-Tock to Insurrection and Beyond [UPDATE-3]

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[NB: Check the byline. Updates or changes to this timeline will be emphasized (note dark blue font). /~Rayne]

You’ll recall Marcy’s January 8 post, “Investigate Tommy Tuberville’s Pre-Speech and Debate Actions” in which she wrote about Rudy Giuliani’s January 6 phone calls intended for Sen. Tommy Tuberville (R-AL).

EDIT: One The first call was received by Sen. Mike Lee (R-UT), which he handed over to Tuberville even as they were preparing to evacuate the Senate chambers. The caller was Trump.

Giuliani’s The second call, from Rudy Giuliani, was left instead on another unnamed senator’s phone.

Giuliani’s voicemail message asked Tuberville to slow down the election certification process on January 6, buying Team Trump time to get more information from states to contest multiple states’ elections with the aim for states to pull their certifications of their elections altogether.

How this would all come together and result in an overturned election wasn’t clear. What was the mechanism by which the states, which had already certified their elections, would reverse those certifications?

Last evening a missing piece dropped, deep in the Friday night news dump zone. The New York Times reported Trump and a little-known Department of Justice attorney, Jeffrey Clark, attempted a takeover of the DOJ, with the intent to use the department’s powers to persuade the state of Georgia to overturn its election results.

Overturning Georgia’s results and fraudulently awarding the state’s electoral votes to Trump wouldn’t have been enough to give Trump the election. But the same powers might have been used to pressure other states or to provide cover for states with GOP elected officials or legislature which favored Trump. We really need to know if Trump made calls to other states like the one he made to Georgia’s secretary of state to lean on him for 11,780 votes.

~ ~ ~

The following timeline has been pulled together from community members harpie’s and Eureka’s comments over the last several weeks as reports were published about the events leading up to and during the January 6 Capitol Building insurrection.

11/12/2020 — Cybersecurity and Infrastructure Security Agency (CISA) Director Chris Krebs said he expected he would be fired for CISA’s website dedicated to debunking election-related disinformation, much of which was spread by Trump and campaign associates.

11/17/2020 — Krebs was fired by Trump tweet after Krebs tweeted, “59 election security experts all agree, ‘in every case of which we are aware, these claims (of fraud) either have been unsubstantiated or are technically incoherent.’”

11/17/2020 — Michigan election officials certified the state’s election.

11/18/2020 — 8:04 AM – Trump tweets that Michigan can’t certify its election because of voter fraud.

11/18/2020 — GOP Michigan election officials attempt unsuccessfully to rescind their certification of the state’s election.

11/25/20 — Sham “hearing” in Gettysburg, PA (Rudy, Jenna, Trump via phone).

11/25/2020 — Michael Flynn pardoned by Trump.

11/30/2020 — Trump nominated Charles Flynn to be the Army’s “deputy chief of staff for operations, plans and training.”  submitted a nomination for elevation of Lt. Gen. Charles Flynn to full general. Flynn began his current and ongoing role as Deputy Chief of Staff G3/5/7 in June 2019; he is retired Lt. Gen. Michael T. Flynn’s sibling.

12/01/2020 — Attorney General Bill Barr told Associated Press there was no widespread voter fraud during the November 2020 election, disputing Trump’s claims to the contrary.

12/01/2020 — Michigan’s state senate oversight committee held a 7-hour long hearing listening to testimony about the conduct of the November general election.

12/02/2020 — Rudy Giuliani appeared before Michigan’s state house oversight committee in a hearing about the conduct of the November general election; Giuliani maintained Trump won the election. Neither state senate or house oversight committees “have the power or authority to mandate a recount, audit or review of vote processes anywhere in the state.”

12/08/2020 — Texas Attorney General Ken Paxton files suit with U.S. Supreme Court against Georgia, Michigan, Pennsylvania, and Wisconsin in an effort to force elections in these states back to their respective states’ legislatures where they could be invalidated.

12/11/2020 — Texas v. Georgia, Michigan, Pennsylvania, and Wisconsin dismissed by SCOTUS for lack of standing; Trump escalates pressure on DOJ leadership officials (*including Barr* and Rosen) to file suit in Supreme Court to overturn relevant states.

12/12/2020 — General Michael Flynn and Family speak at Jericho March in DC.

12/12/2020 — 8:47 AM Trump tweets, WE HAVE JUST BEGUN TO FIGHT!!! [time stamp subject to confirmation]

12/12/2020 — approx. 9:00 AM Proud Boy leader Enrique Tarrio posts a photo (which appears to be taken by someone else) on Parler social media platform. 

12/14/2020 — Jacob Chansley (now recognized as the buffalo-headed shirtless insurrectionist) was reported to Capitol Police for 12/14 for carrying a weapon on Capitol Grounds; “higher ups” okay’d him being there.
[see https://twitter.com/mcbyrne/status/1350137671084089345]

12/14/2020 — Trump announced by tweet AG Bill Barr’s resignation effective 12/23/2020. Barr confirmed his resignation by letter to Trump.

12/15/2020 — Trump summons Acting Attorney General Jeffrey Rosen to the Oval Office and makes requests detailed in NYT article; Rosen refuses; he “reiterated what Mr. Barr had privately told Mr. Trump: The department had investigated voting irregularities and found no evidence of widespread fraud.”

After 12/15/20 — [Date(s) TBD] Trump continues to press Rosen in phone calls and in person.

Mid December  — [Date(s) TBD] Clark had been introduced to Mr. Trump by  Rep. Scott Perry (R-PA); he told the president that he agreed that fraud had affected the election results. Mr. Trump quickly embraced Mr. Clark, who had been appointed with Rosen’s assistance the acting head of DOJ’s civil division in September; Clark was also the head of the department’s environmental and natural resources division, confirmed October 2018.

Mid to Late December — [Date(s) TBD] Trump complains about U.S. Attorney-Northern District of Georgia Byung J. “BJay” Pak. Deputy Attorney General Richard Donoghue warns Pak.

Mid to Late December — [Date(s) TBD] Clark drafts a letter that he wants Rosen to send to Georgia state legislators. Rosen and Donoghue again reject Mr. Clark’s proposal

12/19/2020 — Trump, Sydney Powell and Mike Flynn meet at WH [NYT].

“During an appearance on the conservative Newsmax channel this week, Mr. Flynn pushed for Mr. Trump to impose martial law and deploy the military to ‘rerun’ the election. At one point in the meeting on Friday, Mr. Trump asked about that idea. […]”

12/19/2020 — Trump tweets about the Solar Winds hack.
[see https://twitter.com/emptywheel/status/1340666651658899457 ]

12/20/2020 — Charles Flynn‘s elevation to full general from lt. general confirmed by the Senate by voice vote to be Army’s “deputy chief of staff for operations, plans and training.”.

12/21/2020 — Sidney Powell was back at the White House again, for third time in four days [NYT]

12/23/2020 — Bill Barr’s last day as AG.

12/23/2020 — Paul Manafort, Roger Stone, Charles Kushner, and 23 other individuals were pardoned by Trump.

12/23/2020 — Trump arrived late evening at Mar-a-Lago for vacation through New Year’s Day.

12/30/2020 — Trump to quit FL vacation early, return to DC on 31st:

“The White House announced the abrupt change in the president’s schedule late Wednesday, hours after Sen. Josh Hawley, R-Mo., said he would raise objections next week when Congress meets to affirm President-elect Joe Biden’s victory in the November election.”
[see https://apnews.com/article/donald-trump-politics-florida-coronavirus-pandemic-mar-a-lago-87a839746b4d1a6dca7441791bbc20bc]

12/31/2020 — Rep. Louie Gohmert (R-TX) and 10 other plaintiffs from across the GOP filed suit in Texas federal court against Vice President Mike Pence, asking the court to find Pence has the authority to certify the election, possibly throwing out the results in states previously contested by TX AG Paxton.
[see https://www.nytimes.com/2020/12/31/us/politics/justice-department-mike-pence-louie-gohmert.html]

12/31/2020 — DOJ’s Rosen, Donoghue, and Clark meet to discuss Clark’s refusal to hew to the department’s conclusion that the election results were valid. Donoghue is blunt and tells Mr. Clark that what he was doing was wrong.

01/01/2021 — Trump appointee U.S. District Court Judge Jeremy Kernodle dismissed Rep. Louie Gohmert’s lawsuit against VP Pence for lack of standing.

01/01/2021 — Clark tells Rosen that he was going to discuss his strategy with the president early the next week. [How and when was this decision made?] [But this meeting ended up happening “over the weekend”: Saturday 1/2/21, Sunday 1/3/21]

01/01/2021 and/or 2 — Capitol Police Chief Steven Sund confers with D.C. Police Chief Robert J. Contee III, who offered to lend a hand if trouble arose.

01/02/2021 — “Roughly a dozen Republican senators are in talks to join Missouri Senator Josh Hawley in objecting to the electoral college results when congress meets Wednesday, according to multiple Republican sources familiar with the ongoing talks.”
[see https://twitter.com/johnkruzel/status/1349198860573421568]

01/02/2021 — Trump along with on the call were WH Chief of Staff Mark Meadows, attorney Cleta Mitchell calls Georgia’s secretary of state Brad Raffensperger and the GA legal counsel Ryan Germany, pressuring him to “find 11,780 votes” in order to change the outcome of Georgia’s election. Raffensperger and Germany refute Trump’s claims he won GA’s election.

01/02/2021 and/or 01/03/2021 — [Date(s) TBD] Clark meets with Trump.

01/03/2021 — 8:57 AM – Trump tweets about the call to GA-SoS Raffensperger. Raffensperger tweets a reply, saying, “Respectfully, President Trump: What you’re saying is not true.”

01/03/2021 — Midday [time TBD] Clark informs Rosen that he had met with Trump and that the president intended to replace him with Clark, who could then try to stop Congress from certifying the Electoral College results. He says that Rosen could stay on as his deputy attorney general. Rosen insisted on talking with Trump.

01/03/2021 — Early afternoon – The Washington Post releases a story along with a roughly one-hour-long audio recording of Trump’s conversation with Raffensperger the previous evening.

01/03/2021 — Afternoon – Rosen works with Cipollone, to convene a meeting with Trump for early that evening.

01/03/2021 — Later afternoon – Donoghue convenes a call with the department’s remaining senior leaders, laying out Clark’s efforts to replace Rosen. Should  Rosen be fired, they all agreed to resign en masse.

01/03/2021 — 6PM – 9PM White House meeting convened with Trump, Rosen, Donoghue, Clark, White House Counsel Pat Cipollone, Deputy Counsel Pat Philbin, Assistant Attorney General for the Office of Legal Counsel Steve Engel, “and other lawyers.”

01/04/2021 — Sund called House Sergeant at Arms Paul Irving and Senate Sergeant at Arms Michael Stenger to ask for permission to request that the National Guard be put on emergency standby. Irving didn’t like the idea, Sund said; he said it would look bad because it would communicate that they presumed an emergency. He said he’d have to ask House leaders. [DID HE ASK PELOSI?] [Questionable if that was necessary. See 1:15 PM, 1/6/21]

01/04/2021 — Following Stenger’s advice, Sund calls Maj. Gen. William J. Walker, the head of the 1,000-member D.C. National Guard, to tell him that he might call on him for help. Walker says he thought he could send 125 personnel fairly quickly.

01/05/2021 — Sund [said he] briefed Irving and Stenger, who said that backup seemed sufficient.

01/05/2021 — More than 100 representatives from Wisconsin, Michigan, Pennsylvania, Arizona and Georgia asked for at least 10 more days, so they could investigate and then vote on the election in their state legislatures. The two-page letter with more than 60 pages of attachments was sent to Pence to purportedly show “the illegalities present in the 2020 election” and provide “evidence of a coordinated and structured multi-state effort to undermine state law protecting election integrity.”
[see https://wisconsinexaminer.com/2021/01/14/these-15-state-legislators-asked-pence-not-to-certify-election-results/]

01/05/2021 — Capitol Building CCTV feeds showed Reps. Louie Gohmert R-TX, Jim Jordan R-OH, Matt Gaetz R-FL, Lauren Boebert R-CO, Marjorie Taylor Greene R-GA, Paul Gosar R-AZ, Andy Biggs R-AZ were involved in giving ‘reconnaissance’ tours to groups 1/5.
[Disclosed on 01/13/2021 via https://twitter.com/FrankSowa1/status/1349574338060685312]  Claim regarding CCTV not verified. Rep. Mikie Sherrill (D-NJ) later shared via Facebook live broadcast that she had seen “members of Congress who had groups coming through the Capitol that I saw on January 5th as a reconnaissance for the next day”; she and 33 other House Dems later requested an investigation into these tour(s). 

01/05/2021 — Georgia’s U.S. Attorney Bjay Pak resigned unexpectedly. A “Never-Trumper” U.S. Attorney was mentioned but not named in Trump’s phone call to Georgia’s SoS Raffensperger on January 2; it’s believed Pak was the subject.

01/05/2021 — VP Pence tells Trump he doesn’t have the authority to overturn election results. Trump rejects this. (This needs to be validated as perspectives in multiple outlets are sourced to NYT’s Haberman.)

—————

01/06/2021 — Day of Capitol Building insurrection

TBD — Rep. Lauren Boebert (R-CO) was photographed at the Women for America First event during the rally in front of the White House. [Exact time TBD; unclear how and when she gets to the Capitol Building ahead of the rioters.]

Just before 12 PM — Sund was monitoring Trump’s speech to the crowd on the Ellipse when he was called away by reports of two pipe bombs — near the Capitol grounds.

12:40 PM — The first wave of rioters arrived at the Capitol Building roughly 40 minutes after Trump had begun speaking at the Ellipse.

1:00 PM — Sund called Contee, who sent 100 District of Columbia (DCPD) police officers to the scene

1:09 PM — Sund [said he] called Irving and Stenger, telling them it was time to call in the Guard.

He wanted an emergency declaration. Both men said they would “run it up the chain” and get back to him, he said. [Questionable if that was necessary. See 1:15 PM, 1/6/21] // Sund said he called Irving twice more and Stenger once to check on their progress.

1:10 PM — Some officers arrive from DCPD.

[1:15 PM?] — [Minutes later] aides to the top congressional leaders were called to Stenger’s office for an update on the situation — and were infuriated to learn that the sergeants at arms had not yet called in the National Guard or any other reinforcements, as was their responsibility to do without seeking approval from leaders.

1:50 PM — Sund called Maj. Gen. William J. Walker, the head of the 1,000-member D.C. National Guard to tell him to get ready to bring the Guard.

1:59 PM — The Capitol Building was breached. D.C. police had hundreds of officers on the scene.

2:10 PM — Irving called back with formal approval. By then, plainclothes Capitol Police agents were barricading the door to the Speaker’s Lobby just off the House chamber to keep the marauders from charging in.

2:10 PM (est.) — Rudy Giuliani Trump called Sen. Tommy Tuberville (R-AL) around this time, before senators were evacuated, but reached Sen. Mike Lee’s (R-UT) phone. Lee handed his cell phone to Tuberville who spoke with Giuliani Trump briefly.

2:13 PM — Vice President Pence was escorted off the Senate floor. Sen. Charles E. Grassley begins presiding, but almost immediately calls a recess.

2:15 PM — Senate sealed. [WaPo]

2:17 PM — [Boebert tweets] We were locked in the House Chambers

2:18 PM — [Boebert tweets] The Speaker has been removed from the chambers.

2:XX PM — Exact time TBD – Rep. Ayanna Pressley and staff notice the panic button for her office had been removed without any notice. The button had been functional and used previously.

2:20 PM — Capitol was on lockdown. [NOTE: I have to find a cite for this]

2:21 PM — Jim Acosta from CNN tweets (link to tweet needed):

“A source close to the White House who is in touch with some of the rioters at the Capitol said it’s the goal of those involved to stay inside the Capitol through the night.”

2:22 PM — Capitol Police chief Sund requests National Guard support.

2:23 PM — A dense group of protestors rioters* has shattered the windows of the Capitol. We can hear roaring chants of “USA” outside. [VIDEO]

2:24 PM — [TRUMP TWEETS about PENCE / ECHOES CROWD: “USA”]

CROWD: ‘Where is Pence? Find Pence!’ ” and also “Fight for Trump!” [NYT]

2:26 PM — CONFERENCE CALL organized by D.C’s homeland security director, Chris Rodriguez. Among those on the screen were the District’s police chief, [D.C. Police Chief Robert J. Contee III] mayor [Bowser] and Walker. [head of the 1,000-member D.C. National Guard]

3:04 PM — [DOD said] Acting Secretary of Defense Christopher Miller verbally authorized the activation of the entire D.C. Guard

3:45 PM — Stenger told Sund that he would ask his boss, Senate Majority Leader Mitch McConnell (R-Ky.), for help getting the National Guard authorized more quickly. Sund never learned the result.

More of Contee’s officers had arrived and were helping remove rioters from the grounds. Capitol Police worked with other federal authorities, including the Secret Service, the Park Police and the FBI, to secure lawmakers, eject rioters and sweep the building so lawmakers could return to finish counting the electoral college votes that would allow them to formally recognize Biden’s victory later that night.

5:40PM — First National Guard personnel arrive at the Capitol.

About 7:00 PM — Rudy Giuliani leaves a voicemail message for Sen. Tuberville but on a senator’s phone.

[RUDY:] “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you.”
“If you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote.”

After 8:00 PM — Congress reconvenes and completes certification of the election.

—————

01/13/2021 — Trump tells staff not to pay any more of Giuliani’s legal fees (unclear if this is campaign, Trump org, or White House staff, or all of the above).

01/15/2021 — MyPillow CEO Michael Lindell has a meeting in the afternoon at White House; his notes are caught on camera.

7 NOW as Acting National Security
8 him with getting the evidence of ALL the
9 as the election and all information regarding
10 people he knows who already have security
11 done massive research on these issues
12 Fort Mead. He is an attorney with Cyber-
13 and is up to speed on election issues.
14
15 [insurrection?] Act now as a result of the assault on the
16 marial law if necessary upon the first hint of any
17
18
19 Sidney Powell, Bill Olsen, Kurt Olsen.
20 Move Kash Patel to CIA Acting.
21
22 up Foreign Interference in the election. Trigger
23 powers. Make clear this is China/Iran
24 used domestic actors. Instruct Frank
25 evidence on [—–] the [—-]broad
26 account [————–]-ary
27 the line [—————] evidence
28 caus [——————-] attorney

01/16/2021 — WaPo: Acting Defense Secretary Orders NSA director to immediately install former GOP operative as agency’s top lawyer

01/17/2021 — The NSA is ‘moving forward’ to install Michael Ellis, a former GOP operative, as its top lawyer
[see https://twitter.com/nakashimae/status/1350855207270445059]

01/20/2021 — Ellis placed on leave pending an investigation.

“He will remain on administrative leave while his hiring is investigated by the Pentagon’s inspector general.”

~ ~ ~

What seemed random a week or more ago looks much less so today. If you have any item you believe is relevant to this developing timeline, please feel free to share in comments.

NOTE: Please restrict comments in this thread to content germane to this timeline. Thanks.

~ ~ ~

UPDATE-1 — 11:45 AM 23-JAN-2021 —

  • Corrections made re: first known phone call to Tuberville – call was from Trump, not Giuliani, who made the second call left on a senator’s voicemail.
  • Strike claim about CCTV of Capitol Building tours on January 5, add Rep. Mikie Sherrill’s observation of tours that day along with House Dems’ request for investigation into the tours.
  • Added Trump’s 12/12/2020 tweet and Proud Boy Enrique Tarrio’s visit to White House same day.
  • Added link to Philadelphia Inquirer story about 11/25/2020 hearing.

~ ~ ~

UPDATE-2 — 2:15 PM 23-JAN-2021 —

  • 01/06/2021 2:21 PM tweet by CNN’s Acosta added
  • 01/20/2021 Michael Ellis’s change in status added

~ ~ ~

UPDATE-3 — 5:40 PM 25-JAN-2021 —

* Once they are engaged in destruction they are no longer protesters but rioters.

Added these items, tweaked others:

  • 11/17/2020 Michigan election officials certified the state’s election.
  • 11/18/2020 Trump tweets that Michigan can’t certify its election because of voter fraud.
  • 11/17/2020-11/18/2020Details about Michigan’s election certification and GOP officials attempt unsuccessfully to rescind their certification of the state’s election.
  • 12/08/2020-12/11/2020  Filing and dismissal of Texas lawsuit before SCOTUS.
  • 12/31/2020-01/01/2021 Rep. Gohmert’s Hail Mary lawsuit filed and tossed.
  • 01/06/2021 Rep. Pressley’s panic button discovered missing.
  • 01/02/2021-01/03/2021 More details about Trump’s call to Georgia secretary of state Raffensperger added.
  • 01/13/2021  Trump wants to stiff Rudy.
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“Stand Back and Stand By:” The Proud Boys Node of the January 6 Attack

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As I and others have reported, a node of three people with ties to the Oath Keepers is, thus far, the first sign of a larger conspiracy charge in the government’s investigation of the January 6 insurrection.

It’s clear the government believes they can get there with the Proud Boys, either in conjunction with or parallel to the Oath Keepers. But they’re not there yet.

I want to lay out what they’ve shown about the Proud Boys operations thus far.

In addition to Enrique Tarrio (who was arrested before the riot for vandalizing a black church in December), the government has identified six people as Proud Boy adherents in affidavits (plus Robert Gieswein, who coordinated with them):

While some of these — notably, Bryan Bentancur, who lied to his parole officer about handing out bibles to excuse a trip to DC that day — were caught incidentally, it’s clear that Biggs and Pezzola were priorities, the former for his leadership role in the group and the latter for his appearance in videos breaking in a window with a police shield.

Between these affidavits, the government has provided evidence that the Proud Boys plan their operations in advance, with this quote from a Joe Biggs interview.

When we set out to do an event, we go alright, what is or main objective? And that’s the first thing we discuss. We take three months to plan an event. And we go, what’s our main objective? And then we plan around that, to achieve that main objective, that goal that we want.

In the case of the January 6 insurrection, that pre-planning involved creating a false flag to blame Antifa. The government showed this in a Tarrio message posted in December.

For example, on December 29, 2020, Tarrio posted a message on the social media site Parler1 about the demonstration planned for January 6, 2021. Among other things, Tarrio announced that the Proud Boys would “turn out in record numbers on Jan 6th but this time with a twist… We will not be wearing our traditional Black and Yellow. We will be incognito and we will be spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.” I believe the statement about dressing in “all BLACK” is a reference to dressing like the group known as “Antifa,” who the Proud Boys have identified as an enemy of their movement and are often depicted in the media wearing all black to demonstrations.

And the government showed agreement between Tarrio and Biggs with this similar message from Biggs.

On or around the same day, BIGGS posted a similar message to his followers on Parler in which he stated, among other things, “we will not be attending DC in colors. We will be blending in as one of you. You won’t see us. You’ll even think we are you . . .We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.” I understand that BIGGS was directing these statements at “Antifa.”

Daniel Goldwyn, texting that day, addressed the claim of a false flag on texts.

The government provided evidence that members of the Proud Boys had followed the false flag plan, with pictures of the men marching through DC “incognito” before the insurrection.

On January 6, 2021, an individual that I have identified as BIGGS and a group of people that hold themselves out as Proud Boys were depicted on the east side of the U.S. Capitol. Consistent with the directive issued by organizers of the Proud Boys, including Tarrio and BIGGS, none of the men pictured are wearing Proud Boys colors of black and yellow, but are instead dressed “incognito.” Indeed, BIGGS, wearing glasses and a dark knit hat, is dressed in a blue and grey plaid shirt.

In Biggs’ affidavit (the most recent of the six), the government also provided evidence of communications between members during the attack.

Your affiant has reviewed additional footage from the events inside the U.S. Capitol. In one image, shown below, Pezzola appears to have what I believe to be an earpiece or communication device in his right ear. In my experience, such a device could be used to receive communications from others in real time. Your affiant also notes that multiple individuals were photographed or depicted on videos with earpieces, including other individuals believed to be associated with the Proud Boys. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, an individual believed to be part of the group is pictured wearing a similar earpiece.

Your affiant has also identified certain Proud Boys at the U.S. Capitol on January 6, 2021, who appear to have walkie-talkie style communication devices. For instance, in the picture of the Proud Boys referenced above in Paragraph 13, both BIGGS and the individual next to him have such devices on their chests.

Gabriel Garcia is described as captain by another of the men (though it’s unclear whether thank rank was replicated in the group).

Additionally, on January 8, 2021, the FBI received information from the public regarding a separate subject (“S-1”). S-1 uploaded to Facebook pictures of himself inside of the Capitol building on January 6, 2021. As FBI Agents reviewed the evidence related to that report, they discovered that S-1 posted a status on Facebook tagging GARCIA and calling him “El Capitan.” The caption reads, “El Capitan doing his duty. Gabriel Garcia.” Systems checks reveal that GARCIA is a former captain in the United States Army. GARCIA also uses the handle “Captain” as his display name on the social media platform Telegram

Affidavits provide two different descriptions of Pezzola being among the first to break into the Capitol.

One such video depicts an individual, now identified as Proud Boys member Dominic Pezzola, breaking the window of the U.S. Capitol Building with a clear plastic shield at approximately 2:13 p.m.3 Shortly after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” Several individuals enter the building through the broken window, including Pezzola. A nearby door was opened and a crowd of people began to enter the U.S. Capitol.

This one comes from the Pezzola affidavit.

On January 8, 2021, FBI received a lead depicting publicly available photographs and videos of an unknown individual breaking the window of the U.S. Capitol Building, which is located in Washington, D.C., with a clear plastic shield, and then entering the Capitol building. According to time and date stamps, this occurred on January 6, 2021, at approximately 2:39 p.m.. Below are screen shots from one such video. In the video, soon after the glass in the window is broken, an unidentified individual can be heard yelling words to the effect of, “Go, Go, Go!” The individual with the shield is depicted in the video as entering the Capitol building, while still holding the shield. The screen shot on the left shows the individual breaking the window, and the screen shot on the right, which is taken seconds after the other screenshot, shows his face.

The government has provided some (albeit thus far, scant) evidence that one plan was to target members of Congress, which Garcia calling Pelosi out personally.

Approximately 35 seconds into the video, GARCIA says loudly, “Nancy come out and play.”

There is a witness (who may not be entirely reliable) describing the group to be armed.

W-1 stated that other members of the group talked about things they had done during the day, and they said that anyone they got their hands on they would have killed, including Nancy Pelosi. W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.1 W-1 stated the men said they all had firearms or access to firearms.

In Biggs’ affidavit, the government describes Biggs disclaiming having any advance plan.

On or about January 18, 2021, BIGGS spoke with agents of the FBI after video emerged online of him inside the U.S. Capitol. BIGGS stated, in substance and in part, that he was present in Washington, D.C. for the demonstration on January 6, 2021. BIGGS admitted to entering the Capitol building on January 6, 2021, without forcing entry. BIGGS informed the interviewing agent that the doors of the Capitol were wide open when he made entry into the building. BIGGS denied having any knowledge of any pre-planning of storming the Capitol, and had no idea who planned it.

And in two cases, the government has provided evidence that the group was responding to Trump’s orders.

On November 16, 2020, OCHS made a post to the social media site Parler, in which he forwarded a Tweet by President Trump declaring, “I WON THE ELECTION!” and OCHS stated, “Show this tweet to leftists and say they won’t do shit when he just keeps being president. Don’t say it was stolen or rigged. Just say we’re doing it and they won’t fight back. They are getting scared, and they don’t function when they’re scared.

In Goodwyn’s case, the government shows him adopting Trump’s avatar on Twitter and repeating Trump’s own line from the debate, “Stand back and stand by.”

Again, this is just what’s public two weeks after the attack, and just those whom the government identified as members. There are others (notably John Sullivan, whose brother has not been arrested but who has ties to the group), who would be obvious candidates to flip to learn more about the group, and there are some tangential figures not included here.

This route is one of the most likely ones via which the government will tie the violence to those close to Trump trying to undermine the election and — with Trump’s “Stand back and stand by” comment — possibly even Trump.

Update: Corrected how Pezzola broke in.

Update: Tarrio was also offering to pay for lawyers for people.

Update, 1/26: I’ve added Robert Gieswein to this list, based on this WSJ video showing him involved throughout the day with the Proud Boys.

Update, 1/27: I’ve added Andrew Bennett, who was described as wearing a Proud Boy hat in his affidavit.

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Amanda Gorman Made Silvester Beaman Sad, Joe Biden Happy, and John Lewis Dance

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"https://youtu.be/lI1c-Lbd4Bw

The saddest person on the Inaugural stage was not Mike Pence, the outgoing Vice President. Indeed, after what he had to put up with from Trump for the last month, he’s probably relieved if not outright happy. The saddest person was not Amy Klobuchar or other presidential hopefuls who came up short during the primaries, who no doubt imagined themselves as the person taking the oath of office today. The saddest person on the stage today was the Reverend Doctor Silvester Beaman of Bethel AME Church in Wilmington, Delaware.

The happiest person on the stage was President Joe Biden, but it’s not because he was sworn in as the 46th president of the United States of America. It’s not because the inauguration went off without more violence. It’s not because he can finally *do* things to address all the problems he and we are facing, which had to have been incredibly frustrating as the transition floundered and foundered and blundered its way to today. It’s not because he accomplished what Beau wanted him to do.

The reason Beaman was so sad and Biden was so happy is this: Biden finished before Amanda Gorman spoke and Beaman had to follow her. Honestly, I half expected Beaman to step up to the microphone, ask “Can I get an Amen?”, and then drop the folder with his prepared benediction and sit down. Don’t get me wrong: Beaman’s words were good, but he had to know that he was following something epic.

When I saw Gorman come down the Capitol steps wearing her yellow power coat, her bold hoop earrings, her bright red wrap around the powerful tight braids atop her head, I just sat back and smiled. Michelle Obama looked great in her purple, but she was a member of the audience today. Lady Gaga and Jennifer Lopez both made their entrances before they picked up the microphone, and were fine, but Gorman owned those steps in a way that no on else did today. Seeing her enter reminded me of AOC stepping onto the House floor in her power red suit as she prepared to respond to being called a “fucking bitch” by Florida Congressman Ted Yoho. Before Gorman opened her mouth, it was clear that she had Something To Say and it was going to be good.

And make no mistake: she did, and it was.

It was incredibly powerful for three reasons. First, Gorman was unapologetically herself: young, African-American, articulate, and proud of all three. She did not cast herself as Maya Angelou or Robert Frost, two earlier inaugural poets. She spoke with the rhythms of rap that are the language of her generation and her community, embracing the whole heritage of Africans on this continent, and conscious of her power in this moment.

Second, Gorman was unflinchingly honest. She spoke of the ugliness of our history at times, at the tragedies we have been through, and the reality of what is going on right now. There were no pious platitudes to paper over the pain that far too many have had to deal with for far too long.

Most of all, Gorman was unimaginably hopeful. If she owned and possessed the four centuries of pain poured out on the Africans brought to this country in chains and their descendants who lived through slavery, official Jim Crow, and unofficial oppression, she also owned and possessed the strength that carried them through it all, forcing this country to slowly and painfully look at its past, decide to change, and actually make those changes begin to come to be.

But while democracy can be periodically delayed,
it can never be permanently defeated.
In this truth, in this faith we trust
for while we have our eyes on the future, history has its eyes on us.

This is the era of just redemption.
We feared it at its inception.
We did not feel prepared to be the heirs of such a terrifying hour,
but within it, we found the power
to author a new chapter,
to offer hope and laughter
to ourselves so while once we asked,
how could we possibly prevail over catastrophe?
Now we assert:
how could catastrophe possibly prevail over us?

We will not march back to what was,
but move to what shall be
a country that is bruised, but whole,
benevolent, but bold,
fierce, and free.
We will not be turned around or interrupted by intimidation
because we know our inaction and inertia will be the inheritance of the next generation.
Our blunders become their burdens.
But one thing is certain,
if we merge mercy with might and might with right,
then love becomes our legacy and change our children’s birthright.

And with these words, I thought immediately of John Lewis, the happiest person *not* on the stage today.

Gorman was not mindlessly repeating the words of an earlier generation of activists, but building on them. Just as the 23 year old John Lewis spoke on the steps of the Lincoln Memorial in 1963, so the 22 year old Amanda Gorman stood at the other end of the Mall, on the steps of the Capitol in which John Lewis served until he died, and she is taking this nation one more step forward. She isn’t asking permission to do this, or suggesting this be done. She is declaring reality: we will not be turned around or interrupted by intimidation.

I am glad that Joe Biden and Kamala Harris defeated Donald Trump and Mike Pence. I am relieved that we have made it through the transition between the election and today. I am still shaken by the insurrection of January 6th and what may yet lie ahead on that front. But I am dancing in my living room right now, and am convinced that John Lewis is dancing in heaven today, because in Amanda Gorman we see that the good troublemaking goes on.

How could catastrophe possibly prevail?

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Inauguration Day 2021: Celebrate!

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Not much content going into this post apart from an observation of key landmarks:

— First woman vice president

— First Black and Asian vice president

— First Jewish Second Spouse

— First Catholic president sworn in by a Catholic Chief Justice

— First cabinet in which there is a greater percentage of Black appointees compared to percentage of Black population

— Oldest president sworn into office

— First Democratic control of Senate since 2011

President Biden will sign executive orders today which include returning to the Paris Agreement on climate change:

Vice President Harris will swear in Georgia’s new senators Jon Ossoff and Rafael Warnock, and her replacement for California, Alex Padilla.

Let’s celebrate the moral universe’s arc shifting toward justice again.

If you have a landmark you believe we should note, please share it in comments.

~ ~ ~

UPDATE-1 — 3:50 P.M. ET —

Biden has named new acting leadership in departments; this should counteract some of the hangers on left behind by the Trump administration until more permanent personnel changes can be made including the approval of Biden’s nominees.

Hope network access and security clearance has been removed from a few folks whose status is questionable going forward. The cost to put them into special assignments would be much less than the cost of remediating a security threat.

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Bannon Turned Out to Be the Irreplaceable One

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All outlets are reporting that after equivocating all day and all week, Trump has decided to pardon Steve Bannon (along with Eliot Broidy and Paul Erickson). Here’s the WaPo version:

President Trump has pardoned Stephen K. Bannon, the firebrand architect of his 2016 campaign who was charged last year with defrauding donors to a private fundraising effort for construction of a wall on the U.S.-Mexico border, according to a senior White House official involved in the process.

Trump approved Bannon’s pardon late Tuesday, after days of frantic deliberations. Some aides said as recently as Monday night that the move appeared unlikely. Trump vacillated throughout the day Tuesday, and even after he said he was going to sign off on the pardon, it remained unclear for some time that he would actually do so, the official said, speaking on the condition of anonymity to discuss internal conversations.

WaPo correctly notes, it won’t be clear what this really means until we see how broadly it is written. The White House language seems to suggest it covers just the already charged crimes for fraud, though.

Stephen K. Bannon – President Trump granted a full pardon to Stephen Bannon. Prosecutors pursued Mr. Bannon with charges related to fraud stemming from his involvement in a political project. Mr. Bannon has been an important leader in the conservative movement and is known for his political acumen.

If it just excuses his fraud charges in SDNY, it’ll end that federal prosecution, leave him open for state prosecution on the same crimes plus civil suits, and/or make him the star witness against his co-defendants.

If it is broader, it will cover some of Bannon’s activities leading up to the insurrection, something that is likely to make a Trump conviction in the Senate more likely (as the Bannon pardon may all by itself).

One way or another, it probably doesn’t end Bannon’s legal woes (there’s also an investigation into his foreign influence peddling). Plus, there’s still the matter of his grand jury testimony in the Mueller investigation, just some of which was unsealed for the Roger Stone trial.

But Bannon, alone among Trump’s closest associates, got a pardon after the coup attempt made such pardons more risky.

Which makes the reasons for the pardon all the more interesting.

Update: There’s been some chatter that Trump might issue his spawn or himself “pocket pardons,” which I think was irresponsible speculation. There’s no way a Trump pardon that is not formally lodged with DOJ by noon will be deemed valid.

That said, the means by which he pardoned Bannon (and others) would allow room for Trump to have pardoned Bannon for more than the existing fraud charges against him. While some of the pardons Trump signed last night enumerated the crimes, Bannon and Broidy were pardoned

It’s possible that DOJ “enumerated” other crimes for Bannon which would then be covered under this language.

I doubt it though — and in any case, everything will be lodged in the next day or so, presumably in time to be included in impeachment considerations in the Senate.

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The First Node of the Insurrection Conspiracy: The Oath Keepers

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With a fairly steady drumbeat since the day of the attempted coup pm January 6, the government has been charging one after another person involved, most based off evidence obtained via social media and tips from those who know them. But that has left the picture surrounding the event rather formless, probably (given that almost all the affidavits were written by different FBI Agents) intentionally so.

That began to change in the last two days with charges against Jessica Watkins, retired Marine Donovan Ray Crowl, and Edward Caldwell, with the former two members of an Ohio militia and Caldwell coordinating their efforts as part of a larger Oath Keepers effort.

These Affidavits describes that Watkins and Crowl were in the disciplined unit that entered the Capitol in formation.

I have reviewed footage of the January 6, 2021, incursion of the U.S. Capitol, including a video that, at the approximate 3 minute and 8 second mark, shows 8 to 10 individuals in paramilitary equipment aggressively approaching an entrance to the Capitol building.1 These individuals, who are wearing helmets, reinforced vests, and clothing with Oath Keepers paraphernalia, move in an organized and practiced fashion and force their way to the front of the crowd gathered around a door to the U.S. Capitol.

It relies for that claim on Parler postings from Watkins describing using force to get into the Capitol and entering the Senate, not to mention IDing her compatriots.

Crowl also did an interview with Ronan Farrow.

The Caldwell affidavit describes that, after returning home to Ohio after the initial riot, Watkins then went back to the DC area to stay with Caldwell.

During the course of this investigation, law-enforcement authorities spoke with Witness-1 (W-1). W-1 informed that although WATKINS returned to Ohio after the January 6, 2021 incursion, she subsequently left Ohio on or about January 14, 2021, to stay with a friend and fellow Oath Keeper whom W-1 knew as “Tom” or “Commander Tom.” As described below, your affiant believes this individual is CALDWELL. WATKINS also provided W-1 with instructions on how to contact her, including by providing a phone number at the location where she would be staying, 540-XXX-XXXX. A database check for this phone number reveals that it is a phone on CALDWELL’s property, the PREMISES. [number substituted]

The Caldwell affidavit then describes him, before the January 6 insurgency, recommending they pile into one or two rooms at the Comfort Inn in Ballston. It describes Crowl messaging Caldwell that he’d be seeing him soon and calling him Commander.

It also cites Caldwell’s own social media posts from the riot, including his report of what the Proud Boys had done to push the cops out of the way.

Caldwell also sent a Facebook message (this may be private, which, since there’s no mention of a warrant, would suggest another witness shared it with the FBI) saying,

We need to do this at the local level. Lets storm the capitol in Ohio. Tell me when!

Watkins and Crowl were charged with the two trespassing-based charges virtually everyone gets charged with, along with 18 USC 1512(c)(2), tampering with a proceeding, which carries a 20 year sentence.

Caldwell is charged with the two trespassing charges, the tampering one, along with conspiracy to tamper, and abetting.

Presumably, the FBI has been obtaining search warrants to identify the other people involved in this node of activity, including the common communication between (for example) Caldwell and the Proud Boys, as well as the Ohio Militia and the Oath Keepers more generally. Likewise, the FBI is likely using location data from within the Capitol to understand precisely what these people were doing.

This is not the first use of a conspiracy charge (the zip tie guy and his mom were charged with conspiracy, too, but that was probably because there was less direct social media evidence of her inside the Capitol and also as a means to get her son to cooperate), but it is one that is likely to be fleshed out as a way to force people to confess what the larger plan, if any, was.

Update: Corrected how zip tie guy and mom were charged.

Update: DOJ has released a more detailed conspiracy charge against these dirtbags. This Facebook message is one of the most chilling:

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

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Trump’s Second Impeachment Has Already Had a Beneficial Effect

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After Billy Barr spent eight months dedicating DOJ resources to supporting Sidney Powell’s conspiracy theories about Mike Flynn, Trump pardoned his short-lived National Security Advisor for everything associated with the Mueller investigation. Within weeks, Flynn called for martial law, a three-star General with an avid QAnon following inciting an insurrection.

After Billy Barr dismissed the seriousness of threats against Randy Credico and Amy Berman Jackson backed by Proud Boy associates of Roger Stone, Trump first ensured that Stone would do no prison time and then pardoned him for his cover-up of the Trump campaign’s efforts to optimize the release of stolen John Podesta files. While Roger Stone claims to have had no role, the key organization behind the riot, Stop the Steal, adopted the name and the methods he used in 2016. And thus far five members of the Proud Boys have been arrested in association with the coup attempt.

It seems that Trump’s belief in his own invincibility — one he got, in significant part, by successfully obstructing the Mueller investigation by buying silence with promised pardons, then hiring an Attorney General who would and did repeatedly protect him from consequences — not only led him to believe he could incite a riot, but led key bridges between him and the foot soldiers in this coup attempt to believe they had impunity too.

But according to stories in virtually all major outlets (here’s the CNN version), in the wake of both the coup attempt and impeachment for it, Trump has backed off plans to complete that act of impunity by pardoning his spawn and himself.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one — unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

[snip]

The January 6 riots that led to Trump’s second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20.

After the riots, advisers encouraged Trump to forgo a self-pardon because it would appear like he was guilty of something, according to one person familiar with the conversations. Several of Trump’s closest advisers have also urged him not to grant clemency to anyone involved in the siege on the US Capitol, despite Trump’s initial stance that those involved had done nothing wrong.

I predicted this would happen here.

To be clear, I don’t think Trump’s moderated plans come from any remorse or sense of contrition. Rather, after the riot Pat Cipollone apparently refused to be a part of such plans anymore (though I also think the Stone and Paul Manafort pardons were far more modest than they might have been). Lindsey Graham’s efforts to minimize the impeachment trial in the Senate also helped, as Lindsey knows any attempt to prevent conviction in the Senate is premised on Trump avoiding any further abuse.

None of this changes the fact that Trump has abused the pardon power far more than any president before him. Nor will it prevent a great many other abusive pardons today.

But to restore legitimacy and belief in the rule of law, the story of Trump’s crimes needs to be told, and told in a way that makes the damage he caused and the betrayal of his supporters clear. If, indeed, Trump decides not to pardon his lawyer, his spawn, and himself, it will be one important step in that process.

Update: This CNN story reports on precisely this phenomenon.

The decision to not pardon any Republican lawmakers or his family members was a last minute one. After initially defending the idea that he may pardon himself or his family members out of concern they would be targeted once he’s out of office, Trump decided Saturday night that he would not pardon anyone in his family or himself.

Trump agreed with the attorneys and other advisers that doing so would increase the appearance of guilt and could make them more vulnerable, but was disappointed at the outcome, according to people familiar with the matter.

Trump, according to people he’d spoken to, appeared more taken with the message of unchecked power it might send to his naysayers than actual protection from liability. His pardon power was among his favorite perks of the job.

The newfound concerns about actually exercising this favorite perk of the job extends to members of Congress worried about their own legal exposure and Ed Snowden and Julian Assange.

Several Republican lawmakers who are alleged to have been involved in the rally that preceded the deadly riot on the US Capitol have sought clemency from Trump before he leaves office, but after meeting with his legal advisers for several hours on Saturday, the President decided he would not grant them, according to two people familiar with his plans.

[snip]

Trump is also not expected to pardon Edward Snowden or Julian Assange, whose roles in revealing US secrets infuriated official Washington.

While he had once entertained the idea, Trump decided against it because he did not want to anger Senate Republicans who will soon determine whether he’s convicted during his Senate trial. Multiple GOP lawmakers had sent messages through aides that they felt strongly about not granting clemency to Assange or Snowden.

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But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

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The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.

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