On January 19, 2022, SCOTUS Upheld Judge Tanya Chutkan’s Decision Rejecting Trump’s Executive Privilege Claims

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On November 9, 2021, Judge Tanya Chutkan — the judge who randomly got assigned to Trump’s January 6 prosecution — rejected Trump’s request to enjoin the Archives from turning over documents to the January 6 Committee.

Chutkan held that because the incumbent President had waived Executive Privilege and the January 6 Committee had a legislative interest in preventing another attack on the peaceful transfer of power, she had no reason to second guess the political branches of government about the import of the investigation.

The legislative and executive branches believe the balance of equities and public interest are well served by the Select Committee’s inquiry. The court will not second guess the two branches of government that have historically negotiated their own solutions to congressional requests for presidential documents. See Mazars, 140 S. Ct. 2029-31.

Defendants contend that discovering and coming to terms with the causes underlying the January 6 attack is a matter of unsurpassed public importance because such information relates to our core democratic institutions and the public’s confidence in them. NARA Br. at 41. The court agrees. As the Supreme Court has explained, “the American people’s ability to reconstruct and come to terms” with their history must not be “truncated by an analysis of Presidential privilege that focuses only on the needs of the present.” Nixon v. GSA, 433 U.S. at 452-53. The desire to restore public confidence in our political process, through information, education, and remedial legislation, is of substantial public interest. See id.

Plaintiff argues that the public interest favors enjoining production of the records because the executive branch’s interests are best served by confidentiality and Defendants are not harmed by delaying or enjoining the production. Neither argument holds water. First, the incumbent President has already spoken to the compelling public interest in ensuring that the Select Committee has access to the information necessary to complete its investigation. And second, the court will not give such short shrift to the consequences of “halt[ing] the functions of a coordinate branch.” Eastland, 421 U.S. at 511 n.17. Binding precedent counsels that judicially imposed delays on the conduct of legislative business are often contrary to the public interest. See id.; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 589 (D.C. Cir. 1978) (describing Eastland as emphasizing “the necessity for courts to refrain from interfering with or delaying the investigatory functions of Congress”).

Accordingly, the court holds that the public interest lies in permitting—not enjoining— the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again.

On December 9, 2021, the DC Circuit upheld Chutkan’s ruling. Patricia Millett repeated Chutkan’s argument that the agreement of Congress and the Executive provided no basis for the courts to intervene. But she also described that even by a heightened standard — even if Trump were withholding these documents while still President — the need for the documents would overcome his privilege claim.

While former President Trump can press an executive privilege claim, the privilege is a qualified one, as he agrees. See Nixon v. GSA, 433 U.S. at 446; United States v. Nixon, 418 U.S. at 707; Appellant Opening Br. 35. Even a claim of executive privilege by a sitting President can be overcome by a sufficient showing of need. See United States v. Nixon, 418 U.S. at 713; In re Sealed Case, 121 F.3d at 292. The right of a former President certainly enjoys no greater weight than that of the incumbent.

In cases concerning a claim of executive privilege, the bottom-line question has been whether a sufficient showing of need for disclosure has been made so that the claim of presidential privilege “must yield[.]” Nixon v. GSA, 433 U.S. at 454; see United States v. Nixon, 418 U.S. at 706, 713. 12

In this case, President Biden, as the head of the Executive Branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees. So the tests that courts have historically used to police document disputes between the Political Branches seem a poor fit when the Executive and Congress together have already determined that the “demonstrated and specific” need for disclosure that former President Trump would require, Appellant Opening Br. 35, has been met. A court would be hard-pressed under these circumstances to tell the President that he has miscalculated the interests of the United States, and to start an interbranch conflict that the President and Congress have averted.

But we need not conclusively resolve whether and to what extent a court could second guess the sitting President’s judgment that it is not in the interests of the United States to invoke privilege. Under any of the tests advocated by former President Trump, the profound interests in disclosure advanced by President Biden and the January 6th Committee far exceed his generalized concerns for Executive Branch confidentiality.

[snip]

Keep in mind that the “presumptive privilege” for presidential communications “must be considered in light of our historic commitment to the rule of law.” United States v. Nixon, 418 U.S. at 708. In United States v. Nixon, the particular component of the rule of law that overcame a sitting President’s assertion of executive privilege was the “right to every [person]’s evidence” in a criminal proceeding. Id. at 709 (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). Allowing executive privilege to prevail over that principle would have “gravely impair[ed] the basic function of the courts.” Id. at 712.

An equally essential aspect of the rule of law is the peaceful transition of power, and the constitutional role prescribed for Congress by the Twelfth Amendment in verifying the electoral college vote. To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would “gravely impair the basic function of the” legislature. United States v. Nixon, 418 U.S. at 712.

On January 19, 2022, the Supreme Court upheld Chutkan’s ruling. With only Clarence Thomas dissenting, Justice Kavanaugh noted that the DC Circuit’s ruling that Trump’s appeal would have failed even under more stringent standards made any review of this decision unnecessary.

The Court of Appeals concluded that the privilege claim at issue here would not succeed even under the Nixon and Senate Select Committee tests. Therefore, as this Court’s order today makes clear, the Court of Appeals’ broader statements questioning whether a former President may successfully invoke the Presidential communications privilege if the current President does not support the claim were dicta and should not be considered binding precedent going forward.

I have written repeatedly about how Merrick Garland set up a framework in July 2021 by which Congress’ investigative requests would provide an opportunity for President Biden to waive Executive Privilege without violating DOJ’s contacts policy. That is, in July 2021, Garland solved a tricky problem with investigating the former President: how to obtain privilege waivers while keeping the existing President entirely walled off from the criminal investigation.

But this legal background, in which, with just one dissent, SCOTUS upheld a Tanya Chutkan opinion pertaining to an investigation into Donald Trump, will prove critically important in the days ahead, for two reasons that go to the screeds the former President is engaging in on his failed social media platform.

Along with making a venue complaint that has failed the dozens of times other January 6 defendants have made it (here’s a Roger Parloff post from before the Riley Williams and Oath Keepers trials showed that juries will rule against the government on precisely the same charges), Trump is preparing to claim that Judge Chutkan is biased and must be recused.

And Trump has been claiming that DOJ could have brought this case years ago, before the election season.

As to the first point, on a topic directly pertinent to this investigation, eight Justices have already upheld Judge Chutkan. Three Trump appointees, with Justice Kavanaugh writing the decision, have already ruled with Judge Chutkan.

That will make it harder to claim her prior central involvement in the January 6 investigation presents a conflict.

More importantly, that Judge Chutkan decision in November 2021 led to a SCOTUS decision, on January 19, 2022, upholding the DC Circuit’s opinion that the peaceful transfer of power is a sufficiently important basis to overcome an Executive Privilege claim, even if only for a congressional investigation, which litigation in the stolen documents case noted was a significantly lower standard than a criminal investigation.

Yet, even in spite of that decision on January 19, 2022, Donald Trump continued to make Executive Privilege claims that delayed DOJ’s investigation. He did so to stall DOJ’s interviews with Mike Pence’s advisors in summer 2022. He did so to stall DOJ’s interviews of Trump’s White House Counsel later that summer. He did so to stall DOJ’s interviews with other top aides in January 2023. And he did so to stall Mike Pence’s testimony.

Donald Trump continued to stall DOJ’s investigation using Executive Privilege claims for 463 days after a Justice that he himself had appointed had already rejected such claims. At the very least, these frivolous Executive Privilege invocations were critically responsible for any delay from July 2022, when Greg Jacob and Marc Short first refused to answer some questions because of Trump’s privilege claims, until April 2023, when Mike Pence testified — nine months.

Nine months, Trump kept making Executive Privilege claims that it was clear SCOTUS wouldn’t uphold.

Indeed, Trump’s frivolous Executive Privilege claims are responsible for even more of any delay than his own Special Master demand in the stolen documents investigation caused — in that case, three months.

Donald Trump is complaining that he wasn’t charged for his attempt to overthrow the peaceful transfer of power in 2020 until during his campaign to regain the presidency.

But he is personally responsible for much of that delay.

Protection Racket: Donald Trump Thinks He’s More Special Than Steve Bannon

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As you no doubt know, Trump and his January 6 prosecutors had a bit of a spat about the protective order governing evidence in the case.

The timeline goes like this:

August 2, 9:55PM: A Jack Smith prosecutor — given the initials, probably Thomas Windom — sends John Lauro a proposed protective order, “largely track[ing] the existing protective order in SDFL.”

“Evening of August 3 and early afternoon of August 4:” DOJ reaches out twice more.

Friday, August 4, 1:09PM: Trump’s latest defense attorney sends their own proposed protective order.

Friday, August 4, 2:39PM: A prosecutor (probably Windom) responds saying that Trump’s proposed order doesn’t make sense, notes that DOJ is again proposing the same order as adopted (by Aileen Cannon) in SDFL.

Friday, August 4, 2:45PM: Someone responds saying they adopted their proposal “form [sic] similar orders used in the district.”

Friday, August 4, 6:06PM: An AUSA responds, noting that Trump’s proposed order “would leave large amounts of material completely unprotected in a way not contemplated by standard orders in” DC.

Friday, August 4, 6:39PM: Someone responds saying they should brief it to Magistrate Judge Upadhyaya, whom they do not name, and ask that DOJ note “that we have did not have adequate time to confer.”

Friday, August 4: Trump tweets out video attacking the prosecutors prosecuting him and Joe Biden.

Friday, August 4: Trump tweets, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

Friday, August 4, at least 3 hours after Trump’s tweet: DOJ files for a protective order, noting that Trump plans to just spill out grand jury information. The proposed motion is closely modeled on the Steve Bannon one.

Saturday August 5: Judge Chutkan orders Trump to respond by 5PM Monday

MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:00 PM on August 7, 2023, Defendant shall file a response to the government’s 10 Motion for Protective Order, stating Defendant’s position on the Motion. If Defendant disagrees with any portion of the government’s proposed Protective Order, ECF No. 10-1, his response shall include a revised version of that Protective Order with any modifications in redline

Saturday, August 5: Trump attorney John Lauro moves for reconsideration, claiming — while misrepresenting the timeline — that the government had not conferred with him about the protective order.

Saturday August 5: DOJ responds noting that Trump is holding things up and noting that Lauro left out other efforts to consult.

In emails not appended to the defendant’s extension motion, the Government followed up on the evening of August 3 and early afternoon of August 4. Thereafter, defense counsel finally responded by sending an entirely different protective order.

Saturday, August 5: Judge Chutkan denies Lauro’s motion, ordering him to comply by 5PM on Monday.

MINUTE ORDER as to DONALD J. TRUMP: Defendant’s 11 Motion for Extension of Time is hereby DENIED. Defendant may continue to confer with the government regarding its proposed protective order before or after the August 7, 2023 5:00 PM deadline for his response. The court will determine whether to schedule a hearing to discuss the proposed protective order after reviewing Defendant’s response and, if included, his revised proposed protective order with modifications in redline.

But what has been missed is this: The protective order the government proposed last Friday is the protective order Judge Carl Nichols, the former Clarence Thomas clerk appointed by Trump, issued for the Steve Bannon contempt case.

Here’s that order, which Chutkan has ordered Trump to modify.

Here’s the order Trump appointee Carl Nichols adopted in 2021 for a similarly situated defendant. They’re not identical: the one the government proposed includes more detail about what should be treated as sensitive. But otherwise, they’re the same.

What this boils down to is that Trump — after issuing threats targeting prosecutors and judges — thinks he’s more special than Steve Bannon.

And Judge Chutkan isn’t buying that bullshit.

Update: In Trump’s response, he didn’t include the protective order he wants. He included a great deal of other shit, including the docket from SDFL. But this is a protective order adopted in DC District that separates out sensitive material; it’s from the Russian troll farm case.

Protective Order: Who Is the Victim of Trump’s 18 USC 241 Charge?

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Yesterday, one day after Magistrate Judge Moxila Upadhyaya warned Trump not to engage in witness tampering, he posted first a video claiming that the prosecutors who are prosecuting him — none of whom Joe Biden appointed — were Biden’s accomplices in an attempt to win the election. He followed that with a tweet threatening, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

Shortly thereafter, two prosecutors who were career prosecutors in the Trump Administration before they came to report to Merrick Garland, Molly Gaston and Thomas Windom, filed a motion for a protective order. While the ostensible goal of the motion was to accelerate the process of sharing discovery in a way that won’t end up in a tweet somewhere, they did use it to alert Judge Tanya Chutkan of Trump’s tweet.

The Government’s proposed order is consistent with other such orders commonly used in this District and is not overly restrictive. It allows the defendant prompt and effective use of discovery materials in connection with his defense, including by showing discovery materials to witnesses who also agree to abide by the order’s terms. All the proposed order seeks to prevent is the improper dissemination or use of discovery materials, including to the public. Such a restriction is particularly important in this case because the defendant has previously issued public statements on social media regarding witnesses, judges, attorneys, and others associated with legal matters pending against him. And in recent days, regarding this case, the defendant has issued multiple posts—either specifically or by implication—including the following, which the defendant posted just hours ago:

If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1070 (1991) (“The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial . . . obviously threaten to undermine this basic tenet.”). [my emphasis]

As I predicted, Trump quickly claimed the threat was about RINOs — even the Koch Brothers! — not the prosecutors prosecuting him.

Contrary to the claims of Trump and dozens of lawyers who haven’t read the indictment, it’s really not about his First Amendment right to lie, which is undoubtedly why he’s staging an early attempt to make this about his ongoing First Amendment right to lie.

Whatever. As I’m writing this I keep thinking about the line from the indictment describing that Trump tweeted his implicit threat against Mike Pence during the riot at a moment his advisors left him alone in his Dining Room: “after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification.”

The actual substance of the debate over the protective order will be genuinely interesting. Trump is running for office and he is entitled to attack Biden — albeit not physically. The motion described that prosecutors had proposed a recent protective order issued by Carl Nichols, a Trump appointee.

It’s likely that Judge Chutkan will call a hearing to deal with extrajudicial statements, while the lawyers fight about the protective order.

The whole predictable attack made me think, though, about Joe Biden’s role in all this. While the implicit threat against Jack Smith certainly threatens, “the fair administration of justice in this case,” the other prosecutors are not parties here. And there were no known witnesses included in Trump’s attack. Contrary to what Trump said, Biden has had no role in all this (in fact he should enjoin Trump from claiming prosecutors he didn’t appoint are his “accomplices”).

Depending on how DOJ conceives the 18 USC 241 charges, he could be Trump’s victim.

DOJ didn’t really lay that out in the indictment — whose votes Trump attempted to leave uncounted. Probably, as a Michigan mail-in voter (and in the county where Trump actually lost the election!), I’m among those people. I assume Rayne and bmaz are too.

But is Biden the victim here, too?

It won’t affect the resolution of this particular spat. But it does raise interesting questions about the structure of any gag going forward.

Update: Chutkan is not ordering Trump to explain his tweet.

MINUTE ORDER as to DONALD J. TRUMP: It is hereby ORDERED that by 5:00 PM on August 7, 2023, Defendant shall file a response to the government’s [10] Motion for Protective Order, stating Defendant’s position on the Motion. If Defendant disagrees with any portion of the government’s proposed Protective Order, ECF No. 10-1, his response shall include a revised version of that Protective Order with any modifications in redline. 

Trump’s Family Is Not in His Prosecution

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Chris Hayes made a salient observation yesterday: None of Trump’s family members have accompanied him to attend one after another arraignment.

It’s notable that he’s alone. There’s no posse and there’s no retinue and there’s no family. I would hope if I were to go through the ordeal that this man is currently facing, in my darkest hours, my wife and my kids, my loved ones and my friends, that I would have a crew, people that were standing with me. There’s — his wife is not there, I can’t see any of his kids, his daughter, who worked for him. No one! The guy is alone!

With two of those arraignments book-ending a persistent campaign from the far right, boosted by an A1 story in the NYT, politicizing Joe Biden’s decision to not to recognize Hunter’s illegitimate child until after the contentious paternity suit was settled, Hayes may be the first person in the press to note that Trump’s family has failed to attend his court hearings.

Sure, Eric and Don Jr are making speeches to rile up the base.

But why won’t Melania support her spouse as he faces three — and soon to be four — criminal prosecutions?

Are Ivanka and Jared too busy gulping down Saudi blood money to support their former boss?

Has Boris Epshteyn, who attended at least two of three arraignments and who is one of two likely candidates to be co-conspirator 6 in the January 6 indictment, become Trump’s symbolic son?

The failure of a single family member to accompany Trump to an arraignment — and the general silence on it — matches another detail of this latest prosecution.

A female Trump family member makes a cameo appearance in his stolen documents indictment, instructing Walt Nauta that there’s no space in the plane headed to Bedminster for all of Trump’s boxes.

On May 30, 2022, at 12:33 p.m., a Trump family member texted NAUTA:

Good afternoon Walt,

Happy Memorial Day!

I saw you put boxes to Potus room. Just FYI and I will tell him as well:

Not sure how many he wants to take on Friday on the plane. We will NOT have a room for them. Plane will be full with luggage. Thank you!

NAUTA replied:

Good Afternoon Ma’am [Smiley Face Emoji]

Thank you so much.

I think he wanted to pick from them. I don’t imagine him wanting to take the boxes.

He told me to put them in the room and that he was going to talk to you about them.

Whichever female family member this was will not have to testify. Nauta’s own words will be admissible at trial. And they’re in the indictment primarily to situate where the documents were: in “Potus room.”

But, unless I’m missing it, the January 6 indictment doesn’t include references to family members — not Don Jr or Eric, who both gave speeches, not Jared, who was involved in some campaign-related events.

And especially not Ivanka.

There are two key parts of the indictment where Ivanka should show up.

First, the indictment describes the call Trump made to Pence the morning of January 6, while hanging around the Oval Office with his family, Eric Herschmann, and Keith Kellogg, this way.

102. At 11: 15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be removed.

The January 6 Committee spent a great deal of investigative focus obtaining witnesses who heard Trump’s side of the call. Keith Kellogg and Eric Herschmann (the latter of whose presence in the “family” meeting raises such interesting questions) both told part of the story. One of the most useful, it turns out, was Ivanka’s Chief of Staff, Julie Radford, who told the committee how Ivanka returned from that meeting deeply upset because Trump had called Mike Pence something like a “pussy.”

In fact, in their referrals section, the J6C Report specifically noted that Ivanka’s version of this story was so much less credible than Radford’s.

But in this telling, the indictment relies — appropriately, from an evidentiary standpoint — solely on Mike Pence, the only person, besides Trump, involved in both sides of the conversation.

There’s another passage where Ivanka was far more directly involved: in the efforts to get Trump to call off the rioters.

This passage describes that “his most senior advisors,” including Pat Cipollone, Pat Philbin, Mark Meadows, probably Dan Scavino, and almost certainly Eric Herschmann, tried to get Trump to write a tweet directing the mob to vacate the building.

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful, including:

a. At 2:38 p.m., “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”

b. At 3:13 p.m., “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” [my emphasis]

These statements are another thing on which J6C focused a lot of attention, particularly the first. And they obtained a good deal of evidence about how Herschmann had come to Ivanka’s office and brought her to the Dining Room to get her help in convincing Trump to release the 2:38PM tweet.

Indeed, Sarah Matthews was quite certain that the language about “staying peaceful” — the language the indictment includes among Trump’s many false claims — came from Ivanka.

Yet even though Ivanka was, in the Trump White House, every bit as important an advisor to Trump as Pat Cipollone, Pat Philbin, Mark Meadows, Dan Scavino, and Eric Herschmann, she’s not mentioned, neither as “his daughter,” nor as “Assistant to the President,” her formal title.

Just 15 minutes after the “stay peaceful” tweet, Don Jr also attempted to get Dad to call off the mob, but there’s no mention of that in this indictment either.

But the silence about Ivanka’s even more central role in all this is really telling given the recent NYT report — posted just over two weeks before the grand jury voted out this indictment — that she had never been asked to testify to the grand jury (technically this does not exclude an interview).

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Trump is alone at the defendant’s table, with none of his family members.

But even more striking, Trump is alone in his indictment, without any of the key roles played, including by his daughter and most trusted advisor, laid out in the overt acts.

Trump’s People: The Prettyman Pardons

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As we wait for Trump to be arraigned in Prettyman Courthouse, I thought it worthwhile to list the 16 men who were prosecuted in Prettyman Courthouse that Trump pardoned, and their crimes:

  1. Scooter Libby: Obstruction of justice and perjury
  2. David Safavian: Obstruction of justice and false statements
  3. Mike Flynn: False statements
  4. Alex Van Der Zwaan: False statements
  5. George Papadopoulos: False statements
  6. Paul Slough, Manslaughter (Blackwater Nisour Square)
  7. Nicholas Slatten: Murder (Blackwater Nisour Square)
  8. Evan Liberty: Manslaughter (Blackwater Nisour Square)
  9. Dustin Laurent Heard: Manslaughter (Blackwater Nisour Square)
  10. Roger Stone: Obstruction of a proceeding, false statements, witness tampering
  11. Paul Manafort: Conspiracy to defraud the US (money laundering and FARA), conspiracy to obstruct (witness tampering)
  12. Robert Coughlin: Conflict of interest
  13. Todd Boulanger: Wire fraud
  14. Elliot Broidy: Conspiracy to violate FARA
  15. Douglas Jemal, Wire fraud
  16. Aviem Sella, Espionage

Four of these men lied to cover up Trump’s own Russian ties; a fifth, the son-in-law of Alfa Bank oligarch German Khan, Alex Van Der Zwaan, lied to cover up Manafort’s past Ukraine graft. A sixth, Elliot Broidy, did fundraising for Trump.

These are Trump’s people.

A lot of Republicans are wailing that Trump shouldn’t be prosecuted in DC. Marsha Blackburn is arguing that Trump should be treated differently than her constituents Lisa Eisenhart and Eric Munchel, who were prosecuted for conspiracy to obstruct the vote count, just like Trump is facing. Tim Scott is arguing that Trump should be treated differently than his constituent George Tenney, who was prosecuted for obstructing the vote count, just like Trump is facing.

But if anything, it is more appropriate to prosecute Trump in DC than Munchel (Zip Tie Guy) and Tenney (who opened the East Door of the Capitol). After all, he was a resident of DC when his alleged crimes were committed.

More importantly, even just the list of those he pardoned make it clear that Prettyman felons are his kind of people. Donald Trump is precisely where he belongs today.

The Elements of Offense in the Trump January 6 Indictment

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In the last day, Maggie and Mike and Devlin and Dawsey came out with twin pieces that purport to assess the legal strength of the indictment against Trump, but instead simply say, “well, Trump believes his bullshit and so do we and so the charged conduct may be First Amendment protected.”

Neither of these articles even mention that 18 USC 371, conspiracy to defraud the US, is about lying to the US, even though one of the lawyers cited by WaPo attempted to explain that to them.

Here’s why all those claims that Trump knew he was lying are in the indictment: because his false claims were the means Trump used to carry out the conspiracy to defraud.

The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:

This indictment will be measured not by what Maggie and Mike and Devlin and Dawsey claim about legal statutes they haven’t bothered to explain.

It will be measured by whether the government presents evidence to prove the elements of offense for each charge beyond a reasonable doubt.

Here, in abbreviated form, is what the elements of the offense are for the four charged crimes, which is what the jury will be given to judge the former President’s crimes. DOJ will need to prove that Trump entered into three parallel conspiracies with his alleged co-conspirators, then show that they attempted to:

  • Use deceit to undermine the Electoral College Act
  • Prevent the certification of the Electoral votes on January 6
  • Prevent the Biden voters votes in swing states from being counted

Conspiracy

Trump is charged with conspiring with six people: Rudy Giuliani (CC1), John Eastman (CC2), Sidney Powell (CC3), Jeffrey Clark (CC4), Kenneth Chesebro (CC5), and either Boris Epshteyn or Mike Roman (CC6). DOJ did this because to prove the case against Trump, it plans to introduce the words and actions of each of these six people as co-conspirators. To admit that as evidence, DOJ will need to convince Judge Tanya Chutkan that Trump entered into an agreement with each of them to carry out the goal of each of three conspiracies, which are:

  • 18 USC 371: The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified. The government function Trump is accused of seeking to thwart with all his lying is the Electoral Count Act, the means by which the government ascertains the winners of each state’s electoral college votes.
  • 18 USC 1512(k): The purpose of the conspiracy was to corruptly obstruct the vote certification on January 6.
  • 18 USC 241: The purpose of the conspiracy was to prevent people’s votes from being counted, probably best defined as the Biden voters whose votes made him the winner of swing states, with Georgia, Michigan, Nevada, Pennsylvania, and Arizona mentioned explicitly.

The government doesn’t have to prove that all seven of these people sat in a room and made an agreement on November 14, the day after Trump’s campaign conceded Arizona, which is when the alleged conspiracies began. Nor does it have to prove they entered into an explicit agreement. They just need to prove that each of these people agreed to pursue the goal of each conspiracy.

The kinds of things the government will use to prove the co-conspirators joined this conspiracy are:

Rudy: The government will show that on November 14, Rudy took over Trump’s efforts to contest the vote (remember that DOJ subpoenaed whatever legal arrangement he had with Trump, but note that Special Master Barbara Jones appears to have found none of Rudy’s post-election plotting to be privileged). It will show that, acting on Trump’s instructions, Rudy repeatedly contacted both state officials and members of Congress to assert fraud that even he admitted he had no evidence for. “We don’t have the evidence, but we have lots of theories.” It will show that Trump repeatedly publicly ratified Rudy’s lies, often by Tweeting the claims Rudy made, and often by pushing them both with state officials he was personally trying to pressure, but also with US government officials, including DOJ.

John Eastman: The government will show that as Trump tried to find some justification for stealing the election, he turned to Eastman to give it legal cover. It will point to things like the Georgia lawsuit certification Trump signed on December 31 that Eastman acknowledged included false data. It will show Eastman’s calls in support of fake electors. It will rely heavily on the meetings Eastman personally attended in the days leading up to January 6. It will show that Trump decided, after being told repeatedly that Mike Pence wouldn’t throw out the votes, to have Eastman (as well as Rudy) speak at the Ellipse rally.

Sidney Powell: As I noted in this post, the role of Powell as alleged in the conspiracy is actually quite narrow. The indictment shows that on November 16, Trump asked Powell and others to use the Dominion voting machine allegations in lawsuits, and starting on November 25, she did so. Trump ratified her actions, even though Rudy had publicly split from her, on Twitter. One of the lies the indictment claims Trump knowingly told — in addition to very specific lies about swing states he repeated in his Ellipse speech — pertains to the voting machines, and to prove that lie, the government will show Trump knew Powell was batshit crazy but didn’t care.

Jeffrey Clark: The government will show that, starting on December 22, after Bill Barr, Jeffrey Rosen, and Richard Donoghue all debunked Trump’s false claims, Clark had secret communications with Trump that violated DOJ’s contact policy. As a result of those secret communications, Clark drafted a letter he attempted to coerce Rosen and others to sign, endorsing the fake elector scheme. Trump endorsed his actions by attempting to (and briefly at least, in fact replacing) Rosen with Clark so Clark could, “use the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.”

Kenneth Chesebro: The government will show that, acting at the direction of people acting for Trump, Chesebro wrote a series of increasingly radical memos laying out how each swing state ascertained electors and describing how fake electors could attempt to comply with those laws, even while acknowledging that in several states they couldn’t meet the legal requirements. (Here’s the J6C Report on the memos.) The government will show that Chesebro entered into the conspiracy via communications with Rudy and, later, Eastman, not directly with Trump.

Co-Conspirator 6: It’s not yet certain whether CC6 is Boris Epshteyn or Mike Roman. Whoever it is, DOJ will show that CC6 played a key role in recruiting people to implement the fake elector scheme and then was involved in Rudy’s attempts to persuade members of Congress to reject the swing state electoral certificates.

Conspiracy to Defraud the United States

Assuming DOJ can convince Judge Chutkan that each of these people entered into a conspiracy with Trump, it will then use his own actions and theirs to prove the elements of offense for each of the charged conspiracies.

For 18 USC 371, the government needs to prove that Trump and his co-conspirators attempted to use deceit to pretend that Trump had won 306 electoral college votes, rather than Joe Biden. This statute is why the discussion of all the lying is in there.

Notably, assuming Chutkan agrees these are all co-conspirators, DOJ won’t have to rely entirely on Trump’s lies. They’ll also rely on:

  • Rudy’s admission to Rusty Bowers they had no evidence to back their claims
  • Eastman’s admission to Mike Pence his claims about ECA were untested, and his admission to Greg Jacob that SCOTUS would reject them
  • Trump’s description of Sidney Powell’s claims as crazy
  • Jeffrey Clark’s attempts to deceive his bosses about what he was doing with Trump
  • Kenneth Chesebro’s admission that the fake electors in several states could not comply with the law

As I have laid out, DOJ has set up 5 specific lies that Trump recycled in his Ellipse speech after having them repeatedly debunked by Republicans, along with the voting machine lies Sidney Powell told. They have also laid out that Trump lied about what Pence had just told him (and there are contemporary witnesses that it happened before Trump made his false claims about Pence).

Even if jurors believed Trump believed his own bullshit about some or all of the claims about fraudulent votes, DOJ would still have Trump’s lies about Dominion voting machines and Pence to prove that he knowingly defrauded the US.

Obstruction of the Vote Certification

As I have repeatedly noted, for both obstruction counts (charged as a conspiracy and against Trump alone), dozens of other January 6 defendants have already tried the defense that Maggie and Mike and Devlin and Dawsey present (and not for the first time by Maggie and Mike) as if Trump would be making it for the first time.

It didn’t work. I will link, once again, Royce Lamberth’s recent findings of fact in the Alan Hostetter case in the futile hope that Maggie and Mike and Devlin and Dawsey might decide to learn how this statute has already been applied in hundreds of January 6 cases.

To prove that Trump (and his co-conspirators for the 1512(k) charge) obstructed the vote certification, DOJ will need to:

  • Prove that Trump knew the significance of the vote certification (possibly both the December 14 and January 6 ones). DOJ will point to both the effort to get fake elector certificates created on December 14, and Trump’s publicity of January 6 and his repeated public claims that unless Pence intervened, he wouldn’t be President anymore.
  • Prove that Trump took steps to obstruct the certification of the votes. DOJ will point to the pressure on Mike Pence, both covertly in meetings leading up to January 6 and overtly after Pence told Trump he would not reject the certifications. DOJ will also point to things Trump did to ensure that a mob of bodies physically occupied the Capitol, and after they had ,refuse to take steps in response to requests from people like Kevin McCarthy and Pat Cipollone to get them out of there.
  • Prove that Trump had a corrupt purpose in doing all this. As I keep saying, what the standard for corrupt purpose will be is being decided as we speak by the DC Circuit (and yesterday, the effective solicitor general for the mobsters filed for cert at SCOTUS in an attempt to preempt the DC Circuit). It will be some combination of the following:
    • Otherwise illegal acts: DOJ would prove that Trump violated the law to obstruct the vote certification by looking at the fake elector plot and the knowingly illegal order to Pence.
    • Corrupt personal benefit: Among the hundreds of people charged with obstruction, this definition of corrupt purpose is probably easiest to prove for Trump, because he was attempting to remain President after being fired by voters. This is one area where Trump’s awareness that he lost might matter, but ultimately, the Lamberth decision would lay out that even if Trump really believed he won, the means he used to prevent Biden’s vote from being certified were corrupt.

Conspiracy to Prevent Biden’s Voters Votes from Being Counted

After laying out the elements of offense for joining a conspiracy, the jury instructions in the Douglass Mackey case used the following language for the objective of the conspiracy.

The indictment alleges that the objective of the charged conspiracy was to injure, oppress, threaten or intimidate one or more persons in the free exercise and enjoyment of their right to vote. The government must therefore prove beyond a reasonable doubt that the defendant knowingly and intentionally joined the conspiracy with the intent to further that objective. In this case, the government has alleged that the object of the conspiracy was specifically to “injure” one or more persons in the free exercise and enjoyment of their right to vote. I instruct you that the statute covers conduct intended to “obstruct,” “hinder,” “prevent,” “frustrate,” “make difficult or impossible,” “or indirectly rather than directly assault” free exercise of the right. For example, “hinder” is defined as “to make slow or difficult the progress of, to hamper, to hold back, to prevent, to check.”

It does not require the possibility of physical force or physical harm. Thus, conduct that makes the right to vote more difficult, or in some way prevents voters from exercising their right to vote can constitute an “injury” within the meaning of the law.

Here, the object of the conspiracy was twofold: to prevent people from voting, but also to prevent their votes from being counted.

Curiously, the timeline on this conspiracy only starts at November 14, after all the votes were cast.

The indictment notes several instances where Trump intimidated people counting the vote, mentioning the death threats that he caused Al Schmidt and Ruby Freeman and Shaye Moss to suffer. It explicitly states that Trump, “attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.” It describes how the lies (as well of those from Eastman and Rudy) in his Ellipse speech:

gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification

It describes how, after being told of the riot, Trump further inflamed the crowd with a tweet targeting Pence the minute before Pence was evacuated for his safety (thereby shutting down the vote count). It describes how Trump refused the requests of Pat Cipollone, Pat Philbin, Mark Meadows, a Deputy Chief of Staff (possibly Tony Ornato), and Eric Herschmann to tell the rioters to leave. It describes how Trump refused Cipollone’s request that he withdraw his objections to the vote certification.

The comments and actions of both Rudy and John Eastman also nakedly show that the intent was to prevent Joe Biden’s votes from being counted.

The “Crazy” Kraken Conspirator

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Sidney Powell is undoubtedly co-conspirator 3 in Trump’s January 6 indictment.

Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation.

But her role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

What a remarkable structure, then, for including Sidney Powell in this indictment.

From the description of Powell at the beginning, it makes it sound like she is in there as proof that Trump knew his claims were false: In November, he declared her crazy. But he nevertheless kept magnifying her craziness.

That would almost help prove that Trump knew she was a liar when he used her propaganda.

But paragraph 20 says something different: It says that on November 16, on a date she was still ostensibly on Rudy’s team, Trump fed her the Dominion voting machine false claims and told her — Trump told Powell, not vice versa — to include the Dominion claims.

The false claims about Dominion, according to this, came from Trump.

And then, after Rudy and Jenna Ellis publicly separated themselves from her, Powell submitted the first of a number of lawsuits that would rely on the Dominion claim.

And when called on her crazy, Sidney Powell claimed that, “no reasonable person would conclude that [her] statements were truly statements of fact.”

It’s not just Trump who thinks she’s crazy, she thinks she’s crazy.

But once she filed that lawsuit, on November 25, Trump boosted it.

That’s all pretty interesting timing given something else that was occurring at the very same time. At a time when they were both together in South Carolina plotting how to steal the election for Trump, Trump pardoned Mike Flynn.

The same crazy that went into Sidney Powell’s election disinformation went into her claims about Flynn. If Trump thought she was crazy, he should never have pardoned Flynn.

It gets still more interesting from there — including to where Powell funded at least some of the Oath Keepers’ defense — including, possibly, Kelly Meggs’ attorney, Stan Woodward.

You get the idea.

Even without her plan to seize the voting machines on December 18, even without Flynn’s call for martial law in the days leading up to it, the timeline laid out in the indictment — where Trump gave Powell the Dominion claims, then decided she was crazy, then pardoned her client based off her crazy claims — sure piles up some interesting implications in what are just two paragraphs of a 130-paragraph indictment.

Three of Stan Woodward’s Eight Current and Former Clients Prepare to Testify against Each Other

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It turns out that Stan Woodward has or still is representing enough witnesses in the stolen document case to field an ultimate frisbee team (seven people).

He would have even had a sub before Yuscil Taveras got a new lawyer on July 5.

Those are the details DOJ included in a motion for a Garcia hearing in the stolen documents case, asking Judge Cannon to conduct a colloquy with Walt Nauta and two witnesses the government may call to testify against Nauta, to make sure they’re all cool with the conflicts that representing clients with adverse interests may pose.

According to the filing, DOJ first told Woodward about the potential conflict that representing both Taveras and Nauta might pose in February, then again in March.

In February and March 2023, the Government informed Mr. Woodward, orally and in writing, that his concurrent representation of Trump Employee 4 and Nauta raised a potential conflict of interest. The Government specifically informed Mr. Woodward that the Government believed Trump Employee 4 had information that would incriminate Nauta. Mr. Woodward informed the Government that he was unaware of any testimony that Trump Employee 4 would give that would incriminate Nauta and had advised Trump Employee 4 and Nauta of the Government’s position about a possible conflict. According to Mr. Woodward, he did not have reason to believe his concurrent representation of Trump Employee 4 and Nauta raised a conflict of interest.

Taveras’ testimony that he told Carlos De Oliveira to call the guys who could give him permissions to start deleting things provides critical context for the text that Nauta sent Matthew Calamari Sr. around the same time.

For his part, Taveras is okay with Woodward staying on the case so long has he doesn’t use any confidences he shared to cross-examine him.

The Government has conferred with Trump Employee 4’s new counsel, and Trump Employee 4 does not intend to waive his rights to confidentiality, loyalty, and conflict-free representation with respect to his earlier representation by Mr. Woodward.

[snip]

Trump Employee 4’s presence at the hearing is not required. As set forth above, Trump Employee 4 has informed the Government, through his new counsel, that he takes no position as to Mr. Woodward’s continuing representation of Nauta (or anyone else) but does not consent to the use or disclosure of his client confidences and expects Mr. Woodward to comport with the ethical rules regarding maintenance of client confidences.

That would mean that Woodward may not be able to defend Nauta as vigorously as he otherwise might, because he might pull his punches against Taveras.

That’s part of the reason prosecutors want Cannon to make sure Nauta understands the limitations this may put on Woodward’s representation of him.

But that’s not all. Of the eight total witnesses in this investigation that Woodward has represented, two other people he still represents may also testify against Nauta, and their interests may conflict as well.

Nauta is represented by Stanley Woodward, Jr., who has represented at least seven other individuals who have been questioned in connection with the investigation. Those individuals include the director of information technology for Mar-a-Lago (identified in the superseding indictment as Trump Employee 4) and two individuals who worked for Trump during his presidency and afterwards (hereafter Witness 1 and Witness 2).

[snip]

Witness 1 worked in the White House during Trump’s presidency and then subsequently worked for Trump’s post-presidential office in Florida. Mr. Woodward has represented Witness 1 in connection with this case and, to the Government’s knowledge, continues to do so.

Witness 2 worked for Trump’s reelection campaign and worked for Trump’s political action committee after Trump’s presidency ended. Mr. Woodward has represented Witness 2 in connection with this case and, to the Government’s knowledge, continues to do so.

I told you I was missing some of the people he represents on the list I included in this post!

So on top of being paid by the PAC that’s under criminal investigation as part of a fraud scheme, Woodward is now representing an ultimate frisbee team’s worth of witnesses who may have to testify against each other.

This is the problem with omertàs: when they start to fail, they can collapse quickly.

I have argued that Woodward has done several things in this case — most recently, in demanding that Nauta get access to the classified documents he doesn’t have a need to know — designed to test how much Judge Cannon will let get the defense away with.

This one is a pretty big test of Judge Cannon, however.

Trump Lied and Mike Pence Almost Died

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In the wake of yesterday’s indictment, apologists for Donald Trump are out there claiming that he will be able to prove that he really believed he won the election, and therefore sponsoring fraudulent documents and launching an insurrection is totally cool.

It is for this moment that I have been linking so often to the Findings of Fact that Reagan-appointed Judge Royce Lamberth wrote in the Alan Hostetter case. As he wrote, on the same headline charge with which Trump has been charged, 18 USC 1512(c)(2), obstruction, it didn’t matter that Hostetter believed Trump really won the election, because the means Hostetter used to vindicate an election he believed was stolen was unlawful.

Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former policy chief, he still must have known that it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And with Trump, it will be still easier to prove corrupt purpose since his goal had the most lucrative and corrupt personal benefit imaginable, remaining President after being fired by voters.

More importantly, Trump didn’t just lie about the election results. He also lied about Mike Pence.

Trump told two kinds of lies about Pence: first, that Pence had the authority to reject the votes.

96. That same day, the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant’s favor, including issuing the following Tweets:

a. At 11:06 a.m., “The Vice President has the power to reject fraudulently chosen electors.” This was within 40 minutes of the Defendant’s earlier reminder, “See you in D.C.”

[snip]

100. On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the Vice President might do so:

a. At 1:00 a.m., the Defendant issued a Tweet that falsely claimed, “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”

b. At 8:17 a.m., the Defendant issued a Tweet that falsely stated, “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. AH Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage.

Trump may well claim he believed this to be true — though Pence and two other witnesses have testified that Eastman admitted in a meeting with all of them that this was not lawful.

92. On January 4, the Defendant held a meeting with Co-Conspirator 2, the Vice President, the Vice President’s Chief of Staff, and the Vice President’s Counsel for the purpose of convincing the Vice President, based on the Defendant’s knowingly false claims of election fraud, that the Vice President should reject or send to the states Biden’s legitimate electoral votes, rather than count them. The Defendant deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on the Defendant’s false claims of election fraud.

93. During the meeting, as reflected in the Vice President’s contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?” The Defendant and Co Conspirator 2 then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states’ legislatures. When the Vice President challenged Co-Conspirator 2 on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 responded, “Well, nobody’s tested it before.” The Vice President then told the Defendant, “Did you hear that? Even your own counsel is not saying I have that authority.” The Defendant responded, “That’s okay, I prefer the other suggestion” of the Vice President rejecting the electors unilaterally. [my emphasis]

Certainly Eastman knew this was false (and we know there is documentary evidence to back this). He not only admitted this to Greg Jacob, but Jacob also explicitly told Eastman making this false claim would lead to violence.

94. Also on January 4, when Co-Conspirator 2 acknowledged to the Defendant’s Senior Advisor that no court would support his proposal, the Senior Advisor told Co-Conspirator 2, “[Y]ou’re going to cause riots in the streets.” [Eastman] responded that there had previously been points in the nation’s history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was “not going to work.”

95. On the morning of January 5, at the Defendant’s direction, the Vice President’s Chief of Staff and the Vice President’s Counsel met again with Co-Conspirator 2. Co-Conspirator 2 now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states. During this meeting, Co-Conspirator 2 privately acknowledged to the Vice President’s Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court. The Vice President’s Counsel expressed to Co-Conspirator 2 that following through with the proposal would result in a “disastrous situation” where the election might “have to be decided in the streets.”

But that’s not the only lie Trump told about Pence. Trump also falsely claimed that Pence was willing to reject the lawful votes.

7. Also on January 5, the Defendant met alone with the Vice President. When the Vice President refused to agree to the Defendant’s request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him. Upon learning of this, the Vice President’s Chief of Staff was concerned for the Vice President’s safety and alerted the head of the Vice President’s Secret Service detail.

98. As crowds began to gather in Washington and were audible from the Oval Office, the Defendant remarked to advisors that the crowd the following day on January 6 was going to be “angry.”

99. That night, the Defendant approved and caused the Defendant’s Campaign to issue a public statement that the Defendant knew, from his meeting with the Vice President only hours earlier, was false: “The Vice President and I are in total agreement that the Vice President has the power to act.”

[snip]

102. At 11:15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be remove. [my emphasis]

Pence told Trump he wouldn’t reject the votes. Then Trump went out to his mob and claimed Pence had agreed he would.

And there are witnesses. Jack Smith has Pence on the record telling this story. He also has Marc Short learning about it in real time and taking action in response — so Pence’s Secret Service detail will also be able to testify they were alerted to what turned out to be a very real risk to Pence’s life.

And ultimately, this lie, about Pence, was easily one of the most dangerous.

DOJ has statements from dozens — possibly hundreds — of January 6 defendants (including Hostetter) describing that they responded to this lie by targeting the Capitol. This is what led rioters to threaten to hang Pence. It’s what led Jacob Chansley to leave a written threat for Pence on the dais.

This is the lie that almost got Mike Pence, his wife, and daughter killed.

And it’s not a matter of some interpretation of the numbers of mail-in ballots that were counted late on November 3. It’s a matter of his Vice President, repeatedly, telling Trump he refused take this unlawful act.

Jack Smith spent a lot of time in the indictment emphasizing that Trump knowingly lied, including proving that Trump had been told he didn’t win. That will undoubtedly help prove his case. But what he’s doing is showing that the great con man knew how to use lies to achieve a particular result.

And that particular result involved threatening the life of his own Vice President in an attempt to force him to steal the election.

“Conspiracy Shit Beamed Down from the Mothership:” The Prehistory of Trump’s Ellipse Lies

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In Jack Smith’s statement announcing the Trump indictment yesterday, he emphasized how Trump’s lies “fueled” the attack on the Capitol.

The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.

The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.

For each sub-section in the section of the indictment that lays out Trump’s pressure on states, the indictment shows how Trump repeated false claims on January 6 that he had been told were false. While the indictment doesn’t cite the actual language that would appear in Trump’s Ellipse speech, it invokes these five lies (it doesn’t include the lies he told about Nevada):

In the state of Arizona, over 36,000 ballots were illegally cast by non-citizens. Two thousand ballots were returned with no address. [cited here]

[snip]

Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election. [cited here]

[snip]

That’s Detroit. One hundred and seventy-four thousand ballots were counted without being tied to an actual registered voter. Nobody knows where they came from. [cited here]

[snip]

There were over 205,000 more ballots counted in Pennsylvania. Think of this, you had 205,000 more ballots than you had voters. That means you had two. Where did they come from? You know where they came from? Somebody’s imagination, whatever they needed. [cited here; also cited in January 4 meeting with Pence]

[snip]

In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes. [cited here]

With each of these lies, the indictment shows when he was told these claims were false (Arizona, Georgia, Michigan, Pennsylvania, Wisconsin). In several cases, the indictment also shows DOJ officials telling Trump those lies were false (Georgia, Michigan, Pennsylvania, Wisconsin).

The actual citations from Trump’s Ellipse speech, which appears in the section on his pressuring of Mike Pence, focus on that — his false claims about what Pence could do (and the indictment describes Rudy Giuliani and John Eastman’s speeches as further effort to pressure Pence).

But before that, the indictment tracks the lies in the speech that Trump used to mobilize the mob.

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