“Thanks to your bullshit we’re now under siege”

As numerous outlets have reported, a January 6 Committee challenge to John Eastman’s attempt to shroud his communications regarding the attempted coup under a privilege claim laid out three crimes they want the judge to use to consider crime-fraud exceptions to the claims. Two of the crimes they say they’ve got solid evidence Trump committed are the ones I said Trump would be prosecuted for back in August.

A. Obstruction of an Official Proceeding

The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly. Id. (emphasis added). To date, six judges from the United States District Court for the District of Columbia have addressed the applicability of section 1512(c) to defendants criminally charged in connection with the January 6th attack on the Capitol. Each has concluded that Congress’s proceeding to count the electoral votes on January 6th was an “official proceeding” for purposes of this section, and each has refused to dismiss charges against defendants under that section.75

[snip]

B. Conspiracy to Defraud the United States

The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). The conspiracy need not aim to deprive the government of property. See Haas v. Henkel, 216 U.S. 462, 479 (1910). It need not involve any detrimental reliance by the government. See Dennis v. United States, 384 U.S. 855, 861

In spite of the fact I laid this all out in August, TV lawyers continue to assume I don’t know what I’m talking about with respect to this prosecution.

I’m starting my read of the filing with the exhibits — most notably some emails exchanged between John Eastman and Mike Pence’s Counsel, Greg Jacob, the day before and day of the insurrection. While it’s not always clear what time zone these are, I’ve tried to place these times in ET.

What they show is how even after the riot had kicked off, Eastman was badgering Pence (through Jacob) to violate the Electoral College Act. Twice, Jacob noted that Eastman’s shitty advice had led to the “siege,” emphasizing that his wife and kids were panicked about his own safety. As rioters were breaking in, Eastman badgered Jacob saying that he was wrong that Pence could not adjourn.

And then, as we know, Pence had to adjourn, so he could be rushed to safety, which Jacob reiterated was caused by Trump, “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.”

Then, after Congress had reconvened, Eastman seemingly pointed to the delay caused by the mob Trump sent as proof that the ECA is not sacrosanct, and asked Pence outright to violate the ECA some more.

There’s abundant evidence that Trump used the mob in utilitarian fashion to intimidate Pence and others and — as I have laid out — equally abundant evidence that it was the intent of many of the rioters to maximize the degree to which they would intimidate him, if not to kill him.

But this suggests another utilitarian motive: that Eastman, at least, figured that by forcing the Congress to adjourn, they would effectively force Pence into breaking the ECA, which Eastman shamelessly used to demand Pence further violate the law.

Update: Fixed the typos, I think. Thanks for the help!


January 5, 9:29PM: Eastman emails Jacob referencing a “good talk earlier tonight,” attaching a commitment from PA state senators to “recertify” their vote if Pence “implements the plan we discussed” (which Jacob’s testimony makes clear was a request to throw out the certificates).

January 6, 10:44AM: Jacob responds to the email from the night before saying, “Will call,” with some legal questions.

January 6, 1:33PM: Eastman respond “this is small minded” and claims Jacob is “sticking with minor procedural statutes while the Constitution is being shredded.” He cites a law George W Bush ignored during the Iraq War.

January 6, 2:14PM: Jacob responds and notes that no Justice or Circuit Judge would approve Eastman’s plan and explains that the role for States ends as soon as they certify their vote. He ends by saying,

I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.

And thanks to your bullshit, we are now under siege.

January 6, 2:25PM: Eastman responds saying,

My “bullshit” — seriously? You think you can’t adjourn the session because ECA says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming. The “siege” is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.

January 6, 3:05PM: Jacob responds to Eastman’s complaint about bullshit by pointing out he’s being moved to a secure location.

I do apologize for that particular language, which was unbecoming of me, and reflective of a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people, “mostly peaceful” as CNN might say, who believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that.

But the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.

For the record, we were in the middle of an open, widely televised debate that was airing every single point that you gave members of Congress to make when all of this went down and we had to suspend.

[snip]

Respectfully, it was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

January 6, 6:09PM: Eastman claims that Pence only addressed the most outlandish option and didn’t address a more moderate one.

January 6, 6:29PM: Jacob asks Eastman whether he advised Trump that “the Vice President DOES NOT have the power to decide things unilaterally.”

January 6, 6:45PM: Eastman claims Jacob was on the call when he did provide that advice, but then declines to,

discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him — once he gets something in his head, it is hard to get him to change course.

January 6, 11:44PM: Eastman responds to the most recent Jacob email stating that because the House and Senate had “debated the Arizona objections for more than 2 hours” (which may account for the time Congress had been hiding from the mob) and observed that that and other things were violations of the Electoral Count Act. He then asks that, “now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed,” he should adjourn the vote for 10 days “to allow the legislatures to finish their investigations.”

What Sedition Looks Like: Lots of Stewart Rhodes, but Key Uncharged Others

When DOJ first unrolled the seditious conspiracy charges against Oath Keeper Stewart Rhodes and others on January 13, I noted that one goal of that indictment was to pressure those with the most important information to flip.

It worked.

Less than fifty days later, Joshua James pled guilty to seditious conspiracy and obstruction as part of a cooperation deal.

James’ statement of offense, as all statements of offense must, lays out the things DOJ would have used to prove not just the crimes charged, but the enhancements, which in James’ case includes the following for both the seditious conspiracy and obstruction charges:

Particularly because he’s the first to plead to the sedition charge, the government lays that out carefully, bookending the description of January 6 with an explanation of James’ intent both to obstruct the vote count and to attack the government.

James agreed to take part in a plan developed by Rhodes to stop the lawful transfer of presidential power by January 20, 2021, by deploying force to prevent, hinder, and delay the execution of the laws of the United States governing the transfer of presidential power. They used encrypted and private communications, equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes’s call to take up arms. James and others amassed firearms on the outskirts of Washington, D.C.—some distributed across hotels and “quick reaction force” (“QRF”) teams—and planned, if called upon, to use them in support of the plan to halt the lawful transfer of presidential power.

[snip]

In advance of and on January 6, 2021, James and others agreed to take part in the plan developed by Rhodes to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.

[snip]

James intended to use force and did, in fact, use force in the Capitol and when engaging in physical altercations with law enforcement, in order to prevent, hinder, and delay the execution of the laws governing the transfer of power. James corruptly obstructed, influenced, and impeded an official proceeding, that is, a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States and 3 U.S.C. §§ 15-18.

In taking such actions, James intended to influence or affect the conduct of the United States government or to retaliate against the United States government. He accomplished this by intimidating and coercing government personnel who were participating in or supporting the Congressional proceeding, including Members of Congress, Congressional staff, and law enforcement officers with the Capitol Police and Metropolitan Police Department.

But much of the rest of the statement implicates others, making them more likely to plead, as well.

Most of the new detail in this statement describes actions of Stewart Rhodes, many of which James would be one of, or the only, witness to. That starts with the detail that, after James came out of the Capitol and then again days later, after Rhodes reviewed video of James’ fight with a cop, Rhodes expressed his approval of James’ actions.

After exiting the Capitol, James gathered with Rhodes and other co-conspirators approximately 100 feet from the Capitol, near the northeast corner of the building. Rhodes told James he was glad James and others had gone inside the Capitol.

[snip]

On January 8, 2021, James met with Rhodes and others at a restaurant in Alabama. There, James showed Rhodes a video of James’s physical altercation with law enforcement officers inside the Capitol on January 6, 2021.

DOJ will use this as evidence that Rhodes ratified the violence that James, at least, engaged in (and is proof that James always knew there was evidence of the confrontation with the cops, even though it took some time after James’ arrest for DOJ to find it).

There are a great many details in the statement about the immediate response after the riot. Almost immediately, it seems, Rhodes came to believe they were being pursued (DOJ is coy about whether he had reason to believe, which may prove interesting later). And so almost immediately, they left town.

At Rhodes’s instruction, James, Vallejo, and others met Rhodes that evening at a restaurant in Vienna, Virginia. Rhodes discussed saving “the Republic” by stopping the transfer of presidential power and began to make plans to oppose the Inauguration on January 20, 2021, including by having people open-carry firearms at state capitols around the country.

While at the restaurant, Rhodes and James came to believe that law enforcement was searching for Rhodes and others after their attack on the Capitol. The group immediately returned to their hotel, collected their belongings, and met at a nearby gas station. There, James saw what he estimated to be thousands of dollars’ worth of firearms, ammunition, and related equipment in Rhodes’s vehicle. Rhodes divvied up various firearms and other gear among James and others who occupied a total of three cars. Rhodes left his mobile phone with one person and departed with another person in that person’s car so that law enforcement could not locate and arrest him. The three cars departed in separate directions.

James returned to Alabama with some of Rhodes’s gear, including firearms and other tactical equipment.

This explains the behavior of some others, such as Graydon Young’s decision to drive back to Florida from his sister’s house in North Carolina rather than flying.

Rhodes continued to provide James orders to obscure his actions.

Rhodes expressed gratitude for James’s actions and told James to alter his physical appearance to conceal his identity.

[snip]

Rhodes gave James a burner phone—a cell phone used for concealing the identity of the user through a false registration and/or temporary use before discarding it for another cell phone. Rhodes instructed James to manufacture a false identity— including a false name and address—for the phone. James subsequently wrote the false name and address, “John Smith, 201 Oak Street, Albie, NE 68001,” along with a phone number and “Signal pin” on a sticky note placed inside the back of the phone’s battery case. Rhodes did not allow James and others to have their mobile phones powered on or nearby any time they discussed the Presidential Election and next steps.

But it wasn’t just Rhodes. One paragraph describes someone James “understood to be an attorney for the Oath Keepers” instructing them all to delete their communications. After this instruction, James in turn told Mark Grods and Brian Ulrich to delete their own communications.

On January 8, 2021, James received a Signal message, in a group chat that included Rhodes, from an individual he understood to be an attorney for the Oath Keepers that stated, “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. You are under zero obligation to leave them up. You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM. I can’t delete them because this is a legacy Signal chat that doesn’t let me delete comments. Only the comment author can delete a comment. So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now …”

Thereafter, on January 8, 2021, James forwarded to Grods the message from the attorney and instructed him to “make sure that all signal comms about the op has been deleted and burned.” James also messaged Ulrich on Signal and instructed him to delete messages with photographs that included their faces.

It’s unclear who this person is — Kelly SoRelle is one possibility. Whoever it is, DOJ has described this in such a way as to remain ambiguous about the lawyer’s actual role, which is important because, as part of the later investigation, DOJ got another Oath Keeper to disavow SoRelle’s role as an attorney (meaning they wouldn’t have to treat her communications as privileged). In any case, whoever this lawyer is, the person is now implicated in James, Grods, and Ulrich’s efforts to obstruct the investigation, and as such becomes a candidate to be charged as a co-conspirator him or herself.

The other actions implicating Rhodes serve to show that Rhodes and James (as well as Kelly Meggs, though the evidence against him is weaker), started pursuing sedition before January 6 and continued it even after the inauguration.

In advance of and on January 6, 2021, James and others agreed to take part in the plan developed by Rhodes to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.

[snip]

On January 8, 2021, James collected his firearms and Grods’s shotgun, and he traveled to Texas where he met and stayed with Rhodes and others to, in part, serve as Rhodes’s security and be prepared to carry out Rhodes’s next instructions. James remained with Rhodes in Texas until February 2021.

While with Rhodes in Texas, and before the Inauguration on January 20, 2021:

[snip]

b. James accompanied Rhodes on multiple trips where Rhodes purchased thousands of dollars’ worth of firearms and tactical equipment, including scopes, ammunition, magazines, bipods, duffel bags, holsters, and firearm-maintenance equipment.

c. While in a vehicle together, Rhodes gave James an AR-platform firearm and explained that Rhodes would not be taken by law enforcement without a fight. James understood Rhodes to be ordering him to help defend Rhodes against law enforcement with force in the event of an arrest.

[snip]

James departed Texas in February 2021. At Rhodes’s instruction, James took with him multiple firearms, thousands of rounds of ammunition, multiple burner phones, scopes, magazines, night-vision equipment, and other tactical gear. Rhodes told James to be prepared to transport and distribute the equipment to others upon Rhodes’s instruction and to be prepared for violence in the event of a civil war. James stored this equipment in a storage shed in Alabama and awaited Rhodes’s instructions.

In short, the first person DOJ got to flip after the sedition charges was probably the most important witness against Rhodes as the leader of a seditious conspiracy.

But it’s not just Rhodes endangered by James’ cooperation. DOJ has included new details about what happened to James’ and others’ guns (including that they remained at the Hilton Garden Inn in Vienna, rather than in the Ballston Comfort Inn) — the significance of which I laid out here.

James and others amassed firearms on the outskirts of Washington, D.C.—some distributed across hotels

[snip]

On January 4, 2021, James traveled with Ulrich, Grods, and others to the Washington, D.C., metropolitan area. James brought a semi-automatic handgun, and Ulrich, Grods, and others brought firearms, including a rifle, a shotgun, a semi-automatic handgun, and ammunition. James stored their firearms at the Virginia hotel where he, Rhodes, Minuta, and others had rooms.

The statement of offense makes it clear that James has told DOJ about his conversations during the riot with Mike Simmons (but not what they included).

Between 2:00 p.m. and 4:05 p.m., James exchanged multiple phone calls with the operation leader Rhodes had appointed for January 6.

The statement implicates Roberto Minuta directly in James’ violence.

At 3:16 p.m., while inside the Capitol lobby outside the Rotunda, James asked Minuta, “Want to keep pushing in?” Minuta responded, “yup.” James then pushed toward the Rotunda, yelling, “Keep fucking going!”

[snip]

Other members of the mob, including Minuta, began pushing James forward into the Rotunda while James yelled, “Keep going!” James and Minuta breached the Capitol Rotunda, and then James was expelled by at least one officer who aimed chemical spray directly at James. Multiple officers pushed James out from behind.

And in a really interesting passage, the statement describes planning that happened on November 14 and 15 in the DC area and VA.

On November 14 and 15, 2020, James met with Rhodes and others in the Washington, D.C., metropolitan area and at Caldwell’s Virginia farmhouse and learned about the start of their plans to oppose by force the lawful transfer of presidential power.

As WO noted yesterday, there may have been an earlier reference to Thomas Caldwell removed in this draft (in which his first name was used), which might have described some reconnaissance Caldwell did on or before November 9, as described in the indictment. The November 14 planning is important, however, because it suggests broader coordination with “others” at the MAGA March. It may reflect Jon Schaffer’s cooperation; his arrest affidavit is one of the few, among all January 6 defendants, that mentions that march. DOJ now has a witness to that planning.

Perhaps the most interesting detail of the statement describes a plan to report to White House grounds and secure the perimeter.

In the weeks leading up to January 6, 2021, Rhodes instructed James and other coconspirators to be prepared, if called upon, to report to the White House grounds to secure the perimeter and use lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard or other government actors who might be sent to remove President Trump as a result of the Presidential Election.

The “if called upon” language reflects some of what we’ve seen in Rhodes’ (and the Oath Keepers’) ideology generally — that they believed they would become a legal militia once the President called on them. It reflects the contingent nature of the preparedness, something Rhodes has already tried to use to undercut the charges. But it also raises questions about why James and others, after having “provided security” for Roger Stone at the Willard the morning of the riot, hung around the Mayflower Hotel until the Capitol was breached. That is, they may have remained close to the White House that day until Rhodes decided there were more immediate objectives. All of which makes me more interested in whether the Oath Keepers brought weapons into DC that day.

Finally, there are the interesting details that aren’t in this statement, but which surely are key aspects of James’ cooperation. As noted above, the statement describes James’ contacts with Mike Simmons after 2:00PM. But we know those communications started earlier, at least by 10:06AM, when James was with Roger Stone.

Then there’s a comment from the indictment that doesn’t show up in this statement, in which James shares his opinion with “another individual” that Joe Biden’s inauguration would lead to “Civil War 2.0.”

On Inauguration Day, January 20, 2021, JAMES messaged another individual, “After this .. .if nothing happens .. .its war … Civil War 2.0.”

This statement has far more details showing that James was taking steps to prepare for such a civil war. But this detail of reflecting intent doesn’t appear in it.

Which is to say, there’s a lot here for Stewart Rhodes and others to see, to entice them to follow James’ lead in pleading.

But there’s a lot left unsaid to make others worry.

It’s Official: January 6 Was Sedition

Joshua James, the Oath Keeper who provided “security” to Roger Stone the morning of January 6 and who later plotted with Stewart Rhodes, just pled guilty to seditious conspiracy and obstruction. Here’s my live thread.

The key takeaways are that seditious conspiracy plea. It means, henceforward, we can legally describe January 6 as such.

And also that James is cooperating with prosecutors. His allocution, which I’ll return to tomorrow after it’s posted, focused closely on Rhodes.

But James is a crucial witness about how the Oath Keepers were in touch with Roger Stone.

For those of you who’ve been wondering what Merrick Garland’s DOJ has been doing for the last year, it’s this: January 6 was officially, for at least one participant, sedition.

Update: Here’s the statement of offense. I’m heading to bed. I’ll read and post on it overnight.

Putin’s Playmates Trump and Tucker Remind Trumpsters They’ve Been Trained to Love Putin

As I’ve been watching Putin expand his war in Ukraine, I’ve been thinking a lot about his timing. Why launch it now rather than two years ago, when Trump would have facilitated it, or another year from now, when Republicans are expected to control at least one house of Congress?

I suspect there are a lot of things that dictate the timing. Any invasion was going to come in winter. It’s easier for heavy tanks to move, but more importantly, winter temperatures make it easier to use gas prices to impose a cost on Europe.

I think it happened this year, under Biden’s first full winter rather than 2021 or even 2020 because, up until Biden’s inauguration, Putin’s investment in Trump might still have paid off by allowing Putin to achieve his objectives without launching a war. He almost did, in the insurrection, which was undoubtedly led by MAGAts but which included the participation of some key Russian projects (such as Patrick Byrne).

To be sure, there are European reasons, even beyond the gas squeeze. Boris Johnson is fighting to keep power. Angela Merkel’s retirement surely led Putin to hope that the EU would be left without a strong leader (or that he could more easily manipulate Emmanuel Macron, especially in an election year).

But I believe this invasion represents the culmination of a plan not just to reassert what he imagines is Russian greatness, but also to end US hegemony, which Putin has pursued for a decade.

Ukraine has been a part of that and starting in 2010, Paul Manafort was useful to giving his puppets the patina of legitimacy. After Viktor Yanukovych’s ouster, Ukraine was useful as a testing ground for various kinds of hybrid warfare, most spectacularly with the NotPetya attack in 2018.

Ukraine — the partnership of Konstantin Kilimnik and Oleg Deripaska, along with their leverage over Paul Manafort — was also whence Russian launched its 2016 attack (I need to find the reference, but they knew they could place Manafort as campaign manager before the end of 2015). As I have written (in a piece on my understanding of the role of using the Steele dossier as a vehicle for disinformation), Russia’s interference in 2016 is best understood as a win-win. If Hillary won, Roger Stone would have rolled out the same Stop the Steal plan that was used in 2020 back in 2016 to destabilize the US in 2017 rather than 2021, as happened.

Trump’s win was an unexpected bonus.

As part of the 2016 operation, Russia also did unprecedented damage to the NSA (through the Shadow Brokers operation) and the CIA (in the way that WikiLeaks rolled out the Vault 7 release).

The failure of Russia’s attempt to blame its 2016 interference on a false flag thwarted Russia’s best laid plans — which would have involved Kilimnik calling in the quid pro quo made with Manafort on August 2, 2016 and getting Trump to help carve up Ukraine in the same way Russia is currently doing with tanks.

Even still, the Russian investigation paid huge dividends and, given Putin’s long game, to date has surely been more than worth it. That’s because the FBI-led investigation into Trump’s cooperation with Russia, over time, came to train Republicans to trust Putin more than they trust Democrats.

Republicans genuinely believe, falsely, that the FBI deliberately attempted to take Trump out (entirely memory holing Jim Comey’s role in getting Trump elected, much less that the FBI Agents running informants on the Clinton Foundation during the election were explicitly anti-Hillary). The dossier disinformation project proved so wildly successful that most Republicans genuinely believe, falsely, that there wasn’t abundant proof of cooperation between Trump and Russia, including communications directly with the Kremlin during the election that Michael Cohen lied to hide. Republican members of Congress genuinely came to believe — because they had to! — that criticism of Trump’s refusal to spend the money in support of Ukraine they had appropriated was just another Democratic attack on Trump and not an attempt to save the integrity of American democracy. All this culminated in Stop the Steal 2.0, a literal attack on American democracy; Republican fealty to Trump forced them — more reluctantly at first and driven in large part by real terror — to defend an assault on Congress.

By February 13, 2021, the date the Senate voted to acquit Donald Trump of inciting an attack on Congress, Republicans had put loyalty to Donald Trump over defense of the country and the Capitol in which they worked.

Sure, Putin didn’t get Trump to carve up Ukraine as President. But he got so much more from Trump’s presidency.

Putin did get Trump to do real damage to NATO. He got Trump to largely abandon Syria. Trump made a humiliating deal with the Taliban that would result in the US withdrawing its military from Russia’s back door. After years of Russia having to work hard to highlight American hypocrisy on human rights, Trump did things like pardon war criminals, forever tainting America’s claim to be exceptional.

And through it all, Trump created his own authoritarian-supporting militias, heavily armed troops inspired by resentment who have the ability to make the United States ungovernable. Trumpist Republicans are making localized efforts to dismantle democracy. Trump’s Supreme Court nominees have abandoned legal precedent.

Which brings us to this moment.

I think Putin faced a moment of diminishing returns. Republicans are finally beginning to wake up from their Trump cult. If COVID subsides and the US economy takes off, Democrats might surprise at midterms. I wouldn’t be surprised, either, if Russia expected some details of what it has done over the last decade — involving Julian Assange, involving 2016 (with the prosecution of Vladislav Klyushin), possibly even involving Trump — to become public in the near future. And so Putin chose this moment to launch a war to try to solidify the efforts he has made over the last decade.

Thus far, however, things haven’t gone Putin’s way.

I believe that Putin thought he could demonstrate Five Eyes fragility by conducting war games off the Irish coast without inciting the nationalism of a bunch of Irish fisherman. I believe Putin expected the US and/or Europe would fail to fully incorporate Ukraine in its planning, thereby discrediting Volodymyr Zelenskyy. I believe that Putin expected he would be able to peel away France and Germany (after Olaf Scholz’s initial announcement that it is halting Nord Stream 2, there seems to be some hesitation). I believe Putin expected his false flags would work. I believe Putin believed he’d be able to blame someone else for this invasion. I agree with Dan Drezner, thus far Biden has done just about everything right.

I believe that Putin believed his invasion would split NATO, the EU, and the US. Thus far it has had the opposite effect.

Which brings us to the weird pivot that Trump and his top Fox associates: white nationalist Tucker Carlson, Chief of Staff Sean Hannity, and Laura Ingraham.

Yesterday, Trump hailed Putin’s actions as genius.

“I went in yesterday and there was a television screen, and I said, ‘This is genius.’ Putin declares a big portion of the Ukraine — of Ukraine — Putin declares it as independent. Oh, that’s wonderful,” Trump told conservative podcaster Buck Sexton.

I said, ‘How smart is that?’ And he’s gonna go in and be a peacekeeper. That’s strongest peace force… We could use that on our southern border. That’s the strongest peace force I’ve ever seen. There were more army tanks than I’ve ever seen. They’re gonna keep peace all right,” Trump continued. “Here’s a guy who’s very savvy… I know him very well. Very, very well.”

Last night, Tucker did a chilling monologue, suggesting that Americans have been trained to hate Vladimir Putin.

Tucker suggested that Putin’s invasion is just a border dispute. He’s suggesting that Biden is doing this to pay off imagined debts to Ukrainian Oligarchs. Tucker laid out Putin’s plan for costs to impose on Americans, in terms of energy costs. Tucker included every single false claim about Ukraine that Russia has been planting since 2016. Every single one.

This is the monologue you’d expect of a man who believes there are two years of records showing Russian and Hungarian sources trying to set up one meeting between him and Putin.

To win this war, Putin needs to achieve both goals at once: splitting the US so that he can take Ukraine. One goal serves the other.

And in days ahead, Putin undoubtedly plans to take great risks to impose some costs on European and American voters. In gas prices, sure, but probably also with some ambitious cyberattacks and efforts to support another insurrection. Those costs, I imagine Putin plans, will lead American and European voters to lose patience with support for Ukraine, to forget that this is about the ability to enjoy real democracy.

But to get away with that, Putin has to ensure that it won’t backfire by overcoming the polarization he has invested great effort to encourage in the last five years.

Via whatever means last night, Putin’s two biggest assets in the US (speaking in terms of advantages, not recruited assets, but I don’t rule it out) went out and reminded Trump supporters that they’ve been trained to like Putin more than they like their own country.

Update: Philip Bump notes that Republicans like Putin more than Biden.

The Half of Trump’s Conspiracy to Obstruct JustSecurity Left Out: Inciting an Insurrection

Two days after Judge Amit Mehta ruled that it was plausible that Trump conspired with the Oath Keepers and Proud Boys, JustSecurity has posted an imagined prosecutor’s memo laying out the case that Trump, John Eastman, and Rudy Giuliani (and others known and unknown) conspired to obstruct the vote count that almost entirely leaves out the militias.

It has gotten a lot of attention among the TV lawyer set, who imagine that it would save Merrick Garland time.

With this obnoxious tweet, Laurence Tribe betrays (yet again) that he has completely missed what DOJ has been doing for the past year. What Barb McQuade did is lay out the theory of prosecution that DOJ has long been working on — as I laid out in August. Except that McQuade (of whom I’m a great fan both personally and professionally) misses great swaths of public evidence, and in so doing, makes her case far weaker than it would need to be to prosecute a former President.

Start with McQuade’s argument substantiating that Trump corruptly tried to obstruct the vote count.

Here, attempting to prevent the certification of the votes for president is illegal only it is wrongful or for an improper purpose. It would be wrongful or improper for Trump to seek to retain the presidency if he knew that he had been defeated in the November election. His public statements suggest that he genuinely believed that he had won the election, but, as discussed above, by Jan. 6, it was apparent that there was a complete absence of any evidence whatsoever to support his belief, which at this point had become merely a wish. The statements from Krebs, Barr, Rosen, Donoghue, Ratcliffe, and Raffensperger, and the memo from his own campaign team all permit a fair inference that Trump knew that there was no election fraud, and that his efforts to obstruct the certification was therefore corrupt.

Independently, regardless of his knowledge or belief in election fraud, it was an improper purpose to hold into power after the 50 states had certified their election results, the Electoral College had voted, and litigation had been exhausted after an across-the-board rejection by the federal courts.

This is the theory of prosecution where an obstruction case against Trump would succeed or fail. And I’m not sure it meets the understanding of obstruction already laid out by the judges who would preside over the case.

Defendants have been challenging DOJ’s application of 18 USC 1512(c)(2) to the vote certification since at least April, and so there’s a great deal of background and seven written, one oral, and one minute opinions on the topic:

  1. Dabney Friedrich (my post on it and the obstruction application generally)
  2. Amit Mehta (my post on his intransitive application of it to the Oath Keepers)
  3. Tim Kelly (my post on its application to the Proud Boys)
  4. Randolph Moss (my post situating his application with his past OLC opinion on charging a President)
  5. John Bates
  6. James Boasberg
  7. My livetweet of Beryl Howell’s oral opinion
  8. Colleen Kollar-Kotelly
  9. Richard Leon by minute order
  10. Christopher Cooper

One of the central issues addressed in these — and something any prosecution of Trump under 18 USC 1512(c)(2) would need to address — is how you establish that the effort to obstruct the vote count is “corrupt.” While thus far all judges have upheld the application, there’s some differentiation in their understanding of corruption (something that a site like JustSecurity might productively lay out).

Two key issues are whether corruption, under 18 USC 1512(c)(2) must be transitive (meaning someone tried to coerce another to do something improper) or intransitive (meaning someone exhibited corruption with their own actions), and the extent to which corruption is proven by doing acts that are otherwise illegal.

Importantly, Judge Friedrich’s opinion, and so the first jury instructions, only extends to illegal actions. In a recent hearing, she warned the Guy Reffitt prosecutors (both of whom also happen to be prosecuting cases charged as a conspiracy) that they will not prove him guilty of obstruction without first proving him guilty of other crimes at the riot.

Trump acted both transitively and intransitively corruptly

McQuade’s formulation is unnecessarily weak on the transitive/intransitive issue. There are at least two things that are missing.

First, citing some tax precedents, defendants wanted the application of obstruction to apply only to those who were obtaining an unfair personal advantage. That’s not the standard adopted in the opinions thus far, but it is a standard that some Justices one day might try to uphold. And while that standard was doable for the charged rioters (because they were attempting to make their own votes count more than the votes of the 81 million people who voted for Biden), it is a slam dunk for Trump. It’s not just that Trump was trying to win an election he knew he lost, he was trying to retain the power of the Presidency for himself. My complaint here, though, is mostly stylistic. McQuade could rewrite this paragraph easily to take advantage of the fact that, for Trump, obstruction of the vote count really was an attempt to gain personal advantage.

It’s in leaving out Trump’s transitive obstruction — even in a piece that focuses closely on the pressure of Pence — where McQuade’s memo could and I think might need to, to pass muster given the existing opinions on it — be vastly improved. That’s because it’s in Trump’s corruption of others where he clearly conspired in illegal acts.

Trump didn’t just do things an ethical President shouldn’t do (intransitive corruption). He carried out an extended campaign to pressure Pence to do something that violated Pence’s Constitutional obligations. That is, he tried to corrupt Pence (transitive corruption).

Trump transitively corrupted by conspiring with people who committed crimes

And it’s in the means by which Trump’s tried to corrupt Pence on the day of the insurrection that McQuade largely leaves out, and in the process forgoes an easy way to meet Friedrich’s current requirement (that those charged with obstruction commit a crime in attempting to obstruct the vote count).

Bizarrely, McQuade’s overt acts on January 6 are focused largely on John Eastman.

T. Trump Speaks at the Ellipse

On Jan. 6, 2021, Trump addressed a crowd of his supporters at approximately 1 p.m. on the Ellipse outside the White House.[129] During his remarks, Trump said, “If Mike Pence does the right thing we win the election.”[130] He explained, “All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”[131] Trump then spoke directly to Pence: “Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now. I’m not hearing good stories.’”[132]

Giuliani, a former United States Attorney, also spoke at the rally. He declared that it would be “perfectly appropriate” for the Vice President to “cast [] aside” the laws governing the counting of electoral votes, and “decide on the validity of these crooked ballots or he can send it back to the state legislators, give them five to ten days to finally finish the work.”[133]

Another speaker at the rally was Eastman. “All we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not!” Eastman told the crowd. [134] “We no longer live in a self-governing republic if we can’t get the answer to this question!”[135]

According to reports, Trump was directly involved in planning the speaker lineup.[136]

U. Pence Issues Public Letter Rejecting Eastman’s Theory

On Jan. 6, at 1:02 p.m., Pence posted to Twitter a letter stating that as Vice President, he lacked “unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress.”[137] His duties, the letter stated, were “merely ministerial,” and were limited to counting the votes. The letter further stated that he would instead follow the Electoral Count Act, permitting members of Congress, as “the people’s representatives,” to resolve any disputes.[138] The letter had been drafted with the help of two conservative legal experts — former federal Judge J. Michael Luttig and former Justice Department official John Yoo.[139] Both have confirmed that they advised Pence’s staff and outside counsel that there was no basis for the vice president to intervene in the counting of electoral votes on Jan. 6. “I advised that there was no factual basis for Mike Pence to intervene and overturn the results of the election,” said Yoo, who now teaches law at the University of California at Berkeley. “There are certain limited situations where I thought the Vice President does have a role, for example in the event that a state sends two different electoral results. . . . But none of those were present here.”[140]

Luttig wrote subsequently that “Professor Eastman was incorrect at every turn of the analysis,” including his suggestion that the vice president could delay the electoral vote count.[141]

V. U.S. Capitol Attack Begins

At about 2 p.m., protestors broke a window at the U.S. Capitol and climbed inside.[142] The Senate and House of Representatives soon went into recess and members evacuated the two chambers.[143] At 2:24 p.m., Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”[144] The Capitol would not be secured again until about 6 p.m.[145]

Her discussion here doesn’t explicitly mention a single one of the 750 people already being prosecuted for crimes for their actions on January 6. She mentions neither Alex Jones (whom Trump ordered to take the mob on an unpermitted march to the Capitol and two of whose employees are already among those 750 being prosecuted) nor Roger Stone (who has ties to the two militias that orchestrated events that day and who has been a subject in the Oath Keeper investigation from its early days).

It’s not just or even primarily that Trump grasped John Eastman’s crackpot theory and used it to pressure Pence (which is not  itself a crime). It’s that he incited thousands of people to take an unpermitted walk to the Capitol to physically threaten Pence and other members of Congress directly.

As I laid out last month, DOJ has already collected a great deal of evidence that those who did break the law at the Capitol did so in response to Trump’s incitement with the motive of pressuring Pence.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.’”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President KePence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

I would add (because Amit Mehta did in his oral ruling that Stewart Rhodes should be detained pre-trial), in addition to the explicit attempt by Kelly Meggs to hunt down Nancy Pelosi, the other group of Oath Keepers appears to have tried to find those in the Senate, presumably including Mike Pence. If prosecutors can prove that, then, the militia that was checking in with Stone the day of the riot took overt steps to physically threaten Mike Pence.

Importantly, with the exception of QAnoner Chansley, all of the January 6 defendants I’ve laid out here were part of a conspiracy (Colt and Bisignano, because they flipped on co-conspirators, are not charged with one). All of these Jan6ers are accused of conspiring with others to carry out Trump’s will to transitively corrupt Pence by physically pressuring him to violate his Constitutional duty.

And Judge Mehta has now ruled it plausible (though he was careful to note he was addressing the lower standard of a civil suit) that Trump’s incitement amounts to entering into a conspiracy with all of these people who acted on his incitement to pressure and in some cases physically hunt down Pence.

McQuade’s theory of corruption may not meet Judge Friedrich’s standard for corruption (which we should assume as a baseline of one that Brett Kavanaugh might find palatable).

Which is why you cannot ignore the other half of the conspiracy: Trump entering into an agreement with Roger Stone to coordinate with the militias, entering into an agreement with Alex Jones to lead the mob to the Capitol, and Trump entering into an agreement with those he incited to directly pressure Pence to violate his Constitutional duty.

750 people have been charged with committing crimes at the Capitol. And the easy way to demonstrate that Trump employed illegal means in his effort to obstruct the vote certification is to point to the mountains of evidence that he conspired both via his close associates Stone and Jones but more directly via incitement with a vast number of those 750 people who allegedly broke the law.

Update: One thing McQuade does focus on (she’s a Michigander who does a lot of work on voter protection) are the fake electors. That’s another illegal act that probably should be brought in any statement of corrupt intent for the same reason Trump’s ties to the rioters should be.

Update, 2/25: Added link to Kollar-Kotelly’s opinion and noted that Leon and Cooper have now ruled.

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

Bennie Thompson filed his original lawsuit against Donald Trump on February 16, 2021. He amended it on April 7, 2021 to account for the legal dissolution of the Proud Boys, to add plaintiffs, and to add more details.

That means the allegations addressed in Judge Amit Mehta’s order rejecting Trump’s motion to dismiss are over ten months old and entirely predate the foundation of the January 6 Select Committee. The amended complaint was filed just days after DOJ arrested Joe Biggs’ co-travelers (providing the first documentary visibility on his second breach of the building) and similarly shortly after the first Oath Keepers superseding indictment to incorporate the Grand Theft Golf Cart chase by those who had been at the Willard the morning of the attack. In other words, the allegations addressed in Friday’s opinion were laid out an eternity ago in our understanding of the insurrection.

As Trump described it in his response to the amendment complaint, the only new things added pertained to Roger Stone and a public report that the FBI had found communications between a Trump associate and the Proud Boys.

The Amended Complaint added little in the way of additional material allegations. In paragraphs 70 and 71, Plaintiffs cryptically claim that someone associated with the White House communicated with the Proud Boys, without specifying who. They also try guilt by association. They claim to show a conspiracy to incite the January 6 riot by suggesting that at the “end of December” President Trump communicated with Roger Stone, who they then allege also communicated with members of the Proud Boys. Am. Compl. ¶ 71. Of course, they do not allege what conspiratorial statements were supposedly exchanged between any of the parties, other than to say that Mr. Stone met with Mr. Trump to ensure he “continues as our president.” Plaintiffs incredibly and without any detail also claim that Mr. Trump “knew” of the planning of the violence at the U.S. Capitol because of statements by supporters found on the dark corners of the Internet, seeking to implausibly impute his awareness of those statements. Id. at ¶¶ 66, 56-62.

Here’s that language from the amended complaint.

70. The White House was also in contact with the Proud Boys. An FBI review of phone records showed that, in the days leading up to the rally, a person associated with the Trump White House communicated with a member of the Proud Boys by phone.

71. At the same time, Defendant Trump was in contact with long-time associate Roger Stone, who was in contact with both the Proud Boys and the Oath Keepers. Mr. Stone posted on the social media website Parler that, at the end of December, he met with Defendant Trump to “ensure that Donald Trump continues as our president.” Proud Boys leader Enrique Tarrio confirmed that he called Roger Stone in early January. Members of the Oath Keepers agreed to serve as Mr. Stone’s security detail during the January 6 protests.

Judge Mehta, of course, has had front row seats as DOJ has continued to supersede the Oath Keeper indictments. That’s why his treatment of this exchange bears close notice.

The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.

He’s not relying on either of these allegations, and doesn’t think much of the first one.

I have always suspected that was a reference to Rudy Giuliani, who posted then immediately deleted and reposted newly-cropped communications with Proud Boy affiliate James Sullivan a week after the riot. In it, Sullivan proposed blaming the entire riot on his brother John. But Sullivan also spoke of at least five people who had participated in the riot (an “agent,” three Utahns, and Kash Kelly).

Kash Kelly remains charged by complaint over 13 months after his arrest. And other judges (Emmet Sullivan for John Sullivan, and possibly Randolph Moss for the most likely Utahns) are presiding over the cases in which this exchange might have shown up in some manner.

So unless Landon Copeland (also from Utah) is one of Sullivan’s Utahns, then Mehta would have little separate means to understand this reference, if it is even the one that came up in FBI toll records.

But even the public record of the Oath Keeper case has shown how close the ties between Stone and the Oath Keepers are, both in the weeks leading up to the insurrection in Florida and in the repeated calls from the Willard Hotel that morning. Indeed, Mehta may be persuaded of the plausibility of a conspiracy between the Oath Keepers and Proud Boys because of what he has seen of Stone’s role linked to the two, including in Kelly Meggs’ claims to have brokered a Florida-based alliance in December 2020.

And Mehta has almost certainly seen more of Stone’s role than what can be read through the redactions, particularly now that DOJ has spun off the part of the Oath Keeper conspiracy that most closely implicates Stone’s actions that day.

Judge Mehta didn’t rely on what he may know of Stone’s role in this conspiracy. But as the person with more familiarity about what the evidence is than anyone else, he suggested there’s a there there.

Update: Fixed “Utahan,” which is a misspelling I adopted from Sullivan before and which as someone who loved Utah when I lived there I really regret.

Related Posts

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

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

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

As I noted and you’ve no doubt heard elsewhere, on Friday, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him, along with those of the Proud Boys and Oath Keepers. This is just the first step in an effort by police and some members of Congress to hold the former President civilly accountable for conspiring to prevent them from certifying the electoral vote on January 6. All he did was rule that the claims, as alleged, were plausible; this is not a ruling that Trump did conspire with two militias.

Judge Mehta’s decision will undoubtedly be appealed, by plaintiffs, the militias, and Trump.

But the decision matters because it lays out a framework to understand Trump’s actions on January 6 as a conspiracy between himself and two militias that played key roles in the insurrection on January 6.

It matters, too, because Mehta is not just any judge. He is well-respected by all involved (indeed, some Oath Keeper defendants have explicitly suggested that retaining Mehta as the presiding judge might worth more than challenging venue). Mehta’s order will carry a good deal of weight with any of his colleagues who might preside over a Trump criminal case, and with the DC Circuit. Plus, as the judge presiding over the Oath Keeper conspiracy and a number of other high profile January 6 cases, he has a far greater understanding of how the day’s events unfolded than, say, Chief Judge Beryl Howell, who is presiding over a disproportionate number of trespassing cases. As I’ll show in a follow-up, his opinion reflects a far greater understanding of January 6 (including, possibly, non-public information) than most others have.

So while this decision is nowhere near the last word on whether Trump conspired with two militias to attack the Capitol, it is a really important first word.

It is plausible that Donald Trump entered into a conspiracy with two militias

As Judge Mehta laid out, accepting the claims alleged as true (which one must do on motions to dismiss), there were five things Trump did that made the plaintiffs’ claims of a conspiracy plausible, which is the standard required to reject the motion to dismiss:

  • They agreed to pursue the goal of disrupting the vote certification: “The President, the Proud Boys, the Oath Keepers, and others “pursu[ed] the same goal”: to disrupt Congress from completing the Electoral College certification on January 6th.”
  • Trump encouraged means of obstructing the vote count and the militias (and others) carried them out: “He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts.”
  • Trump incited law-breaking: “Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so. When he called on them to march to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited here by the President of the United States.”
  • Trump called for collective action: “Fourth, the President’s January 6 Rally Speech can reasonably be viewed as a call for collective action. The President’s regular use of the word “we” is notable.”
  • Trump ratified the riot: “And then, around 6:00 p.m., after law enforcement had cleared the building, the President issued the following tweet: ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!’ A reasonable observer could read that tweet as ratifying the violence and other illegal acts that took place at the Capitol only hours earlier.”

Laying out the conspiracy like this is the easy part.

The hard part is finding that the sitting President could be sued, and could be sued substantially for his speech.

The President has no role in certifying the vote count

Mehta got there in three key moves.

The first was dismissing Trump’s claim that his actions amounted to fulfilling his duty to Take Care that election laws were faithfully executed.

President Trump argues that these acts fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3,

[snip]

President Trump says that he “had an ever-present duty to ensure that the election laws were followed, including the certification process.” Thompson Trump Reply at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core of the executive branch’s duty to faithfully execute the law.” Id.

As Mehta notes, Trump’s law review student note sees the President’s role in enforcing election law to be litigation, not intervening to prevent the actual vote certification.

What President Trump omits from that quote, however, makes his citation grossly misleading. The full quote reads: “However, enforcing election laws through litigation [strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore belong solely to the executive.” Lightsey, supra, at 573 (emphasis added). Including “through litigation” completely changes the meaning of the sentence. The President can enforce election laws through litigation initiated by the Department of Justice or the Federal Election Commission, agencies over which he has appointment authority. The case the Lightsey note cites, Buckley v. Valeo, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed.’” 424 U.S. 1, 138 (1976). This case, of course, does not involve litigation to enforce federal election laws, and so the President’s reliance on the Lightsey note is inapt.

This comment has further implications, both because Trump’s campaign personally tried to sue to overturn the election results, but failed in spectacular fashion, and because Trump’s efforts to force DOJ to launch such suits failed. Mehta mentions neither of these details, but they do matter in understanding Trump’s actions.

Outside of such litigation, Mehta notes, the Constitution assigns the President no role in certifying the vote count.

[A] sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College. So, perhaps it is not surprising that President Trump does not identify any law relating to the Certification that he was purportedly executing through his tweets and the January 6 Rally Speech.

The other legal duties involved in certifying election results are explicitly assigned to other parties, including a co-equal branch of government.

President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the President.11 The Constitution provides that States are to select Electors who will cast votes for President and Vice President, and the Electors transmit a tally of those votes to the President of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the presence of the Senate and House of Representatives” shall “open all the certificates and the votes shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.

The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details not addressed in the Constitution. It, too, prescribes no role for a sitting President.

This language closely models language that DOJ is using in obstruction cases to establish that the vote certification was an official proceeding.

Then-President Trump was not speaking, as President, about matters of public concern

Mehta then dismisses Trump’s claim that he is immune from suit because his January 6 speech simply amounted to him, in the role of President, commenting on matters of public concern.

He bases his approach on a DC Circuit case that ruled that any claim of immunity must be rooted in the actual duties of the office.

Rather than apply the parties’ proffered categorial rules to the immunity question, the court thinks the better course is to evaluate the defense on the specific facts alleged and, based on those facts, determine whether President Trump’s words were spoken in furtherance of a presidential function. That is the approach that the D.C. Circuit took in Banneker Ventures, LLC v. Graham, a case in which then–Board Member of the Washington Metropolitan Area Transit Authority (“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly interfering with a developer’s ultimately unsuccessful project negotiations with WMATA.

[snip]

“The appropriate focus,” the court wrote, “is on the relationship between ‘the act complained of’ and the corresponding ‘matters committed by law to [the official’s] control or supervision.’” Id. (quoting Barr, 360 U.S. at 573). The court noted that “[o]ne way that an official acts manifestly beyond his authority is through the use of ‘manifestly excessive means,’ even if he does so in the conduct of duties otherwise within his official purview.” Id. at 1141 (citation omitted). The court emphasized that the burden of establishing immunity rests on the official claiming it. Id. at 1140.

Using that as a framework (and spending a paragraph admitting that consideration of a President’s role is a far more weighty matter), Mehta holds that it is not within the scope of the President’s duties to ensure his own incumbency.

In undertaking this analysis, the court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency.

He goes allegation by allegation showing that Trump’s alleged actions served to ensure his own incumbency, including this key paragraph laying out the purpose of the Rally itself.

That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”

Via this approach, then, Mehta arrives precisely where DOJ did — in making a Hatch Act argument that campaigning is not among the duties of any federal employee — via different means. It is not the duty of the President to remain President, but that’s what Trump was doing in all the alleged acts.

Trump incited violence (and also ordered his followers to do something unauthorized)

Mehta ultimately judges that Trump’s speech on January 6 meets the Brandenberg test for incitement.

But before he gets there, he makes another important point. It was Trump’s campaign’s idea — and he was personally involved in — sending people on an unpermitted march to the Capitol.

President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”).

[snip]

[T]he President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.”

After a good deal of legal analysis, Mehta conducts a detailed analysis of Trump’s speech, focusing closely on how his call for non-violence come long before an airing of Trump’s false grievances and attacks on Mike Pence, leading up to calls to fight and to walk down Pennsylvania Avenue.

Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. It is plausible that those words were implicitly “directed to inciting or producing imminent lawless action and [were] likely to produce such action.” Brandenburg, 395 U.S. at 447.

[snip]

That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.

It’s not just the call for violence and Trump’s awareness (because of the threats leading up to January 6) that violence was likely to result. It’s also the call for a march that was not permitted.

That is, it’s not even just speech, or just incitement to violence. It’s also the call for a march that the campaign knew was not permitted.

While Mehta obviously returns to the unpermitted march over and over, he doesn’t dwell on the significance of it. That’s not the task before him. Moreover, though he alludes in passing to Alex Jones’ role (which I may return to), that likewise is not a developed part of the complaints before him.

The alleged complaints — the most recent of which was filed in March, an eternity ago in our understanding of January 6 — primarily focus on a theory of incitement.

But Trump did more than that. After riling up his supporters, he told them to do something he could have permitted but did not: march to the Capitol, to confront lawmakers directly.

Related Posts

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

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

 

American Patriots Deleting Presidential Records: Ivanka’s Destruction of Evidence about an Ongoing Conspiracy

Yesterday, the Archives sent House Oversight Chair Carolyn Maloney a letter on all the gaps in the production of social media records under Donald Trump’s White House. It describes that the efforts to capture the former President’s tweets were inadequate. It then explains that there was no effort to capture the deleted social media content from other White House staffers until 2018, and even then, some people were not enrolled until just before the end of the Administration.

The Trump White House did not take any steps to capture deleted content from any Trump Administration social media account other than @realDonaldTrump or @POTUS prior to enrolling them with ArchiveSocial. As with @realDonaldTrump, many other Trump Administration social media accounts were not enrolled until the summer or fall of 2018, even though these accounts were active for over a year prior to enrollment, during which time deleted or modified Presidential record content was not captured. Other accounts were not enrolled until just prior to the end of the administration.

It then lists seven people whose Twitter traffic was not captured by the White House. Ivanka was among those seven.

NARA identified seven Twitter accounts that we think contain presidential record information, but were not captured by the Trump Administration. These accounts belonged to Andrew Giuliani, Chad Gilmartin, Ivanka Trump, Kayleigh McEnany, Kellyanne Conway, Mark Meadows, and Peter Navarro. After the end of the administration, NARA obtained the publicly available tweets from these accounts in order to supplement its archival collection.

That’s important because Ivanka tweeted things on January 6 that are central to both the FBI and Select Committee investigations into that day, including a tweet in which she encouraged the rioters, but called on them to avoid violence.

This is the tweet she cited in a statement released after the Select Committee invited her to formally disavow the agreement her father entered into with multiple charged conspiracies.

Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”

But as CNN reported the day of the riot, Ivanka deleted the tweet minutes after sending it, thereby violating the Presidential Records Act. (h/t SB for reminding me she had deleted tweets)

As the Guardian reported Thursday, the Select Committee is considering subpoenaing Ivanka.

The House select committee investigating the Capitol attack is considering issuing a subpoena to Ivanka Trump to force her cooperation with the inquiry into Donald Trump’s efforts to return himself to power on 6 January, according to a source familiar with the matter.

Any move to subpoena Ivanka Trump and, for the first time, force a member of Trump’s own family to testify against him, would mark a dramatic escalation in the 6 January inquiry that could amount to a treacherous legal and political moment for the former president.

The panel is not expected to take the crucial step for the time being, the source said, and the prospect of a subpoena to the former president’s daughter emerged in discussions about what options remained available after she appeared to refuse a request for voluntary cooperation.

But the fact that members on the select committee have started to discuss a subpoena suggests they believe it may ultimately take such a measure – and the threat of prosecution should she defy it – to ensure her appearance at a deposition on Capitol Hill.

If they subpoena her, she will be obligated, by law, to turn over all the records pertinent to that day, including that tweet she sent, hailing the rioters who had obstructed the vote certification, but disclaiming violence.

The Archives seems to believe she may be unable to produce an original copy of that tweet. (This would be the case if she was among the people whose tweets “were not enrolled [in the archiving system] until just prior to the end of the administration.”)

The Presidential Records Act has no legal teeth. Ivanka will not get in legal trouble for the act of deleting that tweet itself. But given that she (and the White House) had an affirmative obligation to ensure that did get archived, having deleted it may pose other kinds of legal jeopardy for her.

Relatedly, as you’ve likely heard, Judge Amit Mehta upheld part of the conspiracy lawsuits against the former President based, in part, on a reading that Trump’s later tweets encouraging rioters could be seen as ratifying the violence. Here’s that decision, which I’ll return to.

Updated to clarify that this may have automatically been archived, depending on whether and when her tweets were enrolled in the automatic archiving system.

Stewart Rhodes’ Detention Hearing Clarifies Investigative Challenges

Last April, I noted that Stewart Rhodes was on overlapping phone calls with Kelly Meggs and Person Ten (since identified as Mike Simmons AKA Greene) that suggested Rhodes had conferenced the two together.

We now know that about a month after that, the FBI interviewed both Rhodes Simmons AKA Greene and obtained their phones. Here’s what Simmons AKA Greene said about his calls during this period in his second interview.

We have yet to see Rhodes’ interview report (it must not be that helpful, or Meggs or Kenneth Harrelson would have released it). Prosecutor Kathryn Rakoczy described that there were tens of thousands of Signal texts on Rhodes phone, and it took a good deal of time to sift through that all for both exculpatory and inculpatory evidence.

Whether just those interviews or call records, the investigation has confirmed I was right. Here’s how that call appears in the sedition conspiracy indictment charging Rhodes and Meggs, but not Simmons, unsealed last month.

92. At 2:32pm., MEGGS placed a phone call to RHODES, who was already on the phone with the operation leader. RHODES conferenced MEGGS into the call.

The call was one of the contentious issues in a detention hearing for Rhodes before Judge Amit Mehta yesterday that illustrates why even this investigation has taken so long.

Prosecutor Kathryn Rakoczy argued that the call suggested that, before the Stack busted into the Capitol, Rhodes encouraged the intrusion in some way. Rhodes’ attorney James Bright, on the other hand, noted that all three men have denied they talked about busting into the building. Mehta seemed reasonably convinced by Rakoczy’s inference — but absent more proof about what was said, wasn’t sure that was strong enough to hold Rhodes on.

Judge Mehta didn’t resolve the detention question yesterday. Rakoczy also presented evidence that the third party custodians proposed by Rhodes weren’t entirely forthright about their ties to the Oath Keepers in an earlier detention hearing. Plus, Mehta seemed unconvinced that placing Rhodes in the custody of family members who would be in a different house (he would share a building with no Internet access with older adults) would provide enough supervision. One way or another, though, Rhodes will either be under home incarceration or remain jailed.

Which made the hearing more interesting for the way it revealed certain things about the case.

Take Mike Simmons AKA Greene, currently referred to as the “operation leader” in indictments. He called into the hearing as a potential witness for Rhodes (he failed to keep his second pseudonym secret before other journalists called in), meaning he was willing to testify under oath and be cross-examined about the substance of that call. That makes it quite clear he is not cooperating with the government. Which, in turn, means that the government simply hasn’t found probable cause to charge him yet (unlike Rhodes, he hasn’t left a string of damning comments online and on his cell phone). The government believes he didn’t tell the truth in two interviews last May, but thus far they’re not prepared to charge him.

Part of the problem pertains to that phone call. The government has multiple cooperating witnesses to what Meggs did in Florida before the riot. They’ve got cooperating witnesses to what Meggs did inside the Capitol. They’ve got a cooperating witness implicating Joshua James’ actions that day. They may have a witness to James’ side of conversations with Simmons AKA Greene from the Willard Hotel, where the Oath Keepers were with Roger Stone.

But because all three men on that critical phone call — Rhodes, Simmons AKA Greene, and Meggs — remain uncooperative, the government can’t prove what happened on it. The government likely needs to flip one of them or James to get further.

Which may be why the attorney for Jonathan Walden, Thomas Spina, submitted a motion to continue yesterday, discussing a, “possible resolution of this case.” Notably, the motion was dated February 15, but it stated that a reverse proffer necessary to conduct what must be plea discussions couldn’t happen until February 11, which would have been last Friday. If Walden has key information prosecutors need to move further in its investigation into what the Oath Keepers were doing with Roger Stone, he can likely demand a pretty sweet plea deal.

There was one other really fascinating development yesterday. Rhodes’ attorney, Bright, argued that everything Rhodes did was designed to comply with the law. The Quick Reaction Force remained, all the time, in VA, even when Ed Vallejo offered to bring in arms. Bright argued that was proof that Rhodes didn’t take the opportunity to arm when he could have.

More interesting still, it’s clear Bright will argue that, under an interpretation of the Insurrection Act, the President can rely on private militias. That is, Rhodes is going to argue that an insurrection would be legal.

That’ll be an interesting legal debate!

There are factual problems with Rhodes’ story that I’ll let the prosecutors unpack at a future time.

But yesterday’s hearing confirms something I laid out some time ago: Each step prosecutors take away from those who trespassed, defendants will be able to make First Amendment challenges to their prosecution, however unbelievable, that will make prosecution more difficult. To get from Stewie to Roger Stone, I’m sure they’ll need some more cooperators.

And until then, DOJ will be able to make a persuasive inference about what happened on that phone, but not direct proof.

Update, February 19: Last night Judge Mehta detained Rhodes. Interestingly, AUSA Kathryn Rakoczy stated that she agrees Rhodes shouldn’t be housed in the DC jail with the other Jan6ers, so he may stay in Texas. The Oath Keepers investigation is run so much more smartly than the Proud Boys one.

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

Happy Valentines Day, the day on which TV lawyers proclaim that DOJ has let the statutes of limitation on Trump crimes expire, in this case, Trump’s request of Jim Comey that he let the Mike Flynn investigation go.

As I noted in a relevant post last week, Randall Eliason wrote a column last week demanding that the “Biden Justice Department [] issue a report on the Mueller report.”

Today, Ben Wittes and Quinta Juercic wrote a worthwhile piece positing five different possibilities for how Garland dealt with the Mueller Report. Those five are:

  1. “Garland considers the matter closed as a result of Barr’s having closed it.”
  2. DOJ “review[ed] Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible.”
  3. DOJ “quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts.”
  4. DOJ “quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones.”
  5. “The Garland-run Justice Department never even considered the question of whether to, well, consider the question.”

It’s a worthwhile piece because it gets inside the brain of a DOJ institutionalist and attempts to game out how they might think.

But their discussion is absolutely silent about several pieces of public evidence showing Garland’s DOJ taking action, even while demanding that Garland, himself, “fill the silence.”

That is, they make the mistake of claiming DOJ has been entirely silent. It has not been. They simply haven’t listened to what DOJ has already said.

“The matter” was not closed as of November 2020

Jurecic and Wittes treat “this matter” as a self-evident whole, without defining what they mean by it. I assume when they use the term, “this matter,” they’re referring to Trump’s obstructive actions described in the second Volume of the Mueller Report.

Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), account for the fact not all of Trump’s criminal exposure was in the second Volume. Materials unsealed in September 2020, for example, confirm that DOJ continued to investigate Trump for a big infusion of cash from an Egyptian bank in September 2016 until that summer (CNN’s reporting on it confirmed that timing).

A footnote unsealed (and therefore buried and still all-but unreported) the day before the 2020 election revealed that the investigation into whether Roger Stone conspired with Russia continued after Mueller shut down. Redactions that (in an earlier release) were identified as relating to the Stone matter treated that matter as an ongoing investigation in November 2020.

Similarly, in October 2020, DOJ treated the investigation into a pardon dangle for Julian Assange as an ongoing investigation. In fact, one of the issues that Lawfare treats as exclusively a matter of obstruction –Trump’s direction to Corey Lewandowski to order Jeff Sessions to shut down the entire Russian investigation — likely relates closely to the pardon dangle to Assange, because it came days after Stone told Assange he was intervening with the highest level of government to alleviate Assange’s woes.

We don’t know how many of the ten referrals still redacted in November 2020 remain ongoing; when DOJ released information to Jason Leopold last week, they just chose to release the four pages covered by a DC Circuit order and not a full reissued report. But we do know that “the matter” of the Mueller investigation was not closed as recently as November 2020.

DOJ IG was investigating follow-on obstruction

Both before Trump was ousted by voters and since, reports confirmed that DOJ’s Inspector General was investigating things that should be treated as follow-on obstruction, most explicitly Billy Barr’s efforts to undercut the Roger Stone prosecution but also Barr’s preferential treatment of Paul Manafort as compared to Michael Cohen (the latter will be part of Michael Horowitz’s review of BOP COVID response). Given DOJ IG’s past work, it’s not clear that this will be very critical of Barr’s own role.

One way or another, though, we have weeks-old confirmation that some of it remains under review. Depending on what DOJ IG finds, it’s possible (though unlikely) that might provide predicate to reopen past decisions.

But such a review also means that, because DOJ IG reviews add years to any investigative process, there will be a significant delay before we hear about such matters.

Merrick Garland has told you what he thinks about the OLC memo on prosecuting a President (and, to a lesser extent, OLC memos generally)

Two of Lawfare’s possibilities, especially the second, rely on a deference to OLC, including the declination memo that Amy Berman Jackson partially unsealed (and about which further unsealing the DC Circuit is currently considering).

We know that Garland’s DOJ will defer to most previous OLC memos, in part because his DOJ did so in fighting further unsealing of this memo. But we know even more about what Garland thinks of the memo prohibiting charging a president from an exchange on the topic Garland had with Eric Swalwell in October.

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

In the exchange, Garland makes quite clear that, “it’s extremely rare to reverse” OLC memos because, “we have the same kind of respect for our precedents as the courts do.” Garland also explained that memo and any others (including Barr’s declination memo), “would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now.”

One reason the memo is not at issue right now is because, “The memorandum that you’re talking about is limited to acts while the person was in office.” But as has often been ignored (though I pointed it out last month), the most recent known version of an OLC memo prohibiting the indictment of a sitting president is significantly premised on the constitutionality of a President being prosecuted after he leaves office even if he was acquitted by the Senate for the same conduct in an impeachment trial.

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

By stating that those odious OLC memos remain valid — that is, by deferring to OLC precedent — Garland was in the same breath saying that a former President can be indicted, including for things he was acquitted of in the Senate.

Obviously, Mueller’s findings never made it to the Senate. But Trump’s attempt to coerce Ukraine did and Trump’s attempted coup did.

There are four relevant investigations that tell you how Garland’s DOJ has approached this

In their piece and podcast, Jurecic and Wittes speak as if what Garland would do is entirely hypothetical, as if we don’t know what DOJ would consider palatable regarding earlier criminal exposure.

Except we do know, a bit, because four of the eight investigations into Trump flunkies that have been publicly confirmed provide some insight. For example:

  • Tom Barrack: Barrack confirmed in a recent filing what prior reporting had laid out: this investigation arose out of the Mueller investigation. “As early as December 2017, Mr. Barrack voluntarily produced documents and met with prosecutors in the Special Counsel’s Office investigation, which was led by Robert Mueller and included prosecutors from the Eastern District of New York.” It’s possible it was the first of those ten referrals that remained sealed in November 2020. If it was, it is an indication DOJ would pursue a prosecution arising out of the Mueller investigation that was substantially complete before Trump left, though even in that case it took four months after Garland was sworn in.
  • Erik Prince: It’s not clear whether the investigation into Erik Prince that Billy Barr shut down in 2019-2020 arose out of the Mueller investigation (though it is clear that any Mueller investigation into Prince had been closed by September 2020). I first alluded to a renewed investigation into Prince in this post, and NYT has since publicly confirmed it. I’m no more certain about the scope of the renewed investigation than the NYT, but I do know it is in a different District and it does overlap with the prior investigation, at least somewhat. That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Lisa Monaco would permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.
  • Rudy Giuliani: The confirmed investigation into Rudy pertains to his Ukraine influence-peddling with a scope from May 2018 through November 2019. As such, except insofar as those actions were a continuation of efforts Paul Manafort had started in 2016, they say nothing about how Garland would treat a continuing Mueller investigation. But we do know one utterly critical fact and another key detail: First, the warrants to seize Rudy’s phones were approved on Monaco’s first day in office. That’s a pretty compelling piece of proof that Garland’s DOJ is not going to shy away from Trump’s closest flunkies. Significantly, SDNY successfully fought to get a privilege waiver spanning from January 1, 2018 (so before Rudy started Trump obstruct the Mueller investigation) through the date of seizure, April 28, 2021 (so through the attempted coup). This tells you that Garland’s DOJ could investigate Rudy for any of his suspected criminal actions, and no one would know about it.
  • Robert Costello: Costello is the lawyer through whom, the Mueller Report describes, Rudy was dangling a pardon for Michael Cohen for back in April 2018 (so within the scope of the privilege review). Currently, he is both Rudy’s lawyer overseeing that privilege review and Steve Bannon’s lawyer. After getting Bannon out of his Build the Wall fraud indictment with a pardon (sound familiar?), Costello helped Bannon walk into a contempt indictment based off non-cooperation with the January 6 investigation. All that background establishes that Costello is just tangential to the Mueller Report (though where he appears, he appears as part of the efforts to obstruct the investigation). But the details of DOJ’s seizure of Costello’s toll records after he made some contradictory claims in FBI interviews on the Bannon contempt case are worth examining closely. That’s because DOJ’s interest in the toll records cannot pertain solely to the January 6 subpoena to Bannon; the scope of the seizure not only predates the subpoena, but predates the establishment of the committee entirely (and happens to cover the entirety of the privilege review Costello oversaw). It’s tough to know what to make of this, but it is indication, like the approval of warrants targeting Rudy, that Garland’s DOJ will take fairly aggressive action pursuing obstruction and other crimes.

Trump is likely on the hook for other obstructive actions

The Lawfare piece claims that, aside from the pardons of Manafort, Stone, and Flynn, there’s no new evidence pertaining to Mueller-related obstruction (and other crimes).

And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn.

But that’s not true. On top of whatever evidence DC USAO obtained on Stone after Mueller shut down (one of which was Andrew Miller’s long-awaited testimony), the government appears to have obtained more evidence on the other example of direct conspiracy with Russia. In the years since Mueller finished, the government has apparently developed new certainty about two details Mueller expressed uncertainty about: Konstantin Kilimnik is a “known Russian Intelligence Services agent,” and he, “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” in 2016. That suggests DOJ obtained new evidence (and may be why FBI put a $250,000 reward out for Kilimnik’s arrest in summer 2020). Whatever new details are behind this increased certainty, it could change DOJ’s understanding of Manafort’s actions as well. Add in the fact that Treasury accuses Kilimnik of continuing such information operations into the 2020 election — when Rudy was the pivot point — and Trump’s three big scandals may be converging.

But there may well be other obstructive acts, pertaining to the Mueller crimes, as well. Amid all the discussion of Trump’s destruction or removal of classified Presidential Records when he left the White House, for example, there has been little consideration about whether any of those documents pertain to Mueller or the other two investigations Trump obstructed. The January 6 Commission has already confirmed, for example, that some of the Trump documents they obtained were ripped up, and since the investigation into January 6 started immediately, it is highly likely the attempted document destruction happened while the investigation was pending. CNN’s most recent update on Trump’s stand-off with the Archives (in which someone who sounds like Impeachment One Defense Attorney Pat Philbin refused to turn over a document NARA knew to come looking for) is consistent with obstruction, possibly tied to the original Perfect Transcript.

None of this is proof of discrete new evidence on obstruction. Rather, it looks more like the never-ending wave of obstruction all runs together, with the pardons for Stone and Flynn (either, like Stone, known to be under investigation or closely tied to someone, Sidney Powell, known to be)  linking the obstruction of Mueller with the implementation of the coup attempt.

I can’t explain what, precisely, Garland’s DOJ is doing with the Mueller Report (besides prosecuting Trump’s top donor as a foreign agent on a referral from it). But it is simply false that DOJ has been silent about it.

Where DOJ has been speaking, however, is in active dockets and not in a three year old report.

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