As Ali Alexander Returns to DC in Wake of Grand Jury Appearance, Alex Jones’ Associates Owen Shroyer and Joe Biggs Share a Lawyer

In an attempt to quash rumors that he was the surprise witness before the January 6 Committee today (he’s not; former Mark Meadows assistant Cassidy Hutchinson is), Ali Alexander complained that the January 6 Committee didn’t let him testify publicly.

On at least four occasions, my legal counsel asked the Committee to allow my deposition to be taken publicly so that the American public could operate from a shared set of facts. The Committee denied our requests to make my testimony public again and again. Instead, they me behind closed doors for 8 hours, at my own expense, depriving me of meals or making my return flight back home. [emphasis original]

That follows a statement issued last Friday, after his (first?) grand jury appearance complaining that DOJ didn’t just use his transcript from the January 6 Committee.

I provided the documents requested and suggested they obtain my full transcript of my testimony from the January 6 Committee. They responded then that they cannot obtain those transcripts due to separation of powers and thus, they needed me to repeat my testimony here today.

I almost feel a little sorry for Alexander. This Roger Stone mentee has been sent out with the same lawyer, Paul Kamenar, who helped Stone evade real accountability for his Russian operation in 2016 (in that case, by helping Andrew Miller challenge a subpoena for a year before he ultimately joined Stone’s defense team). Perhaps Alexander thought he was going to replay that same Roger Stone script, with him playing the role that Jerome Corsi did, publicly releasing a cover story as a way to get everyone telling the same false story.

To be sure, Alexander was always fucked, because by the time he told his cover story in December, DOJ had already debunked that cover story when Owen Shroyer tried to tell it. So not only was Alexander stuck, Friday, trying to retell the same story that he told in December, but even if he succeeded, he’d be on the hook for a story that Judge Tim Kelly has already ruled to be inaccurate specifically as regards the choices that the Alex Jones retinue made after they arrived at the Capitol on January 6.

In any case, Alexander will be back in DC today talking to “officials” some more about January 6. It’s unclear whether this is a follow-up interview with DOJ, now that they’ve locked Alexander into a story, or whether the GOP will attempt to serve as a clearinghouse for stories, as HPSCI did with the Russian investigation.

But Ali Alexander, a key member of Alex Jones’ retinue, is not done telling his currently operative story yet. Perhaps, if he is interviewed further, Alexander will be asked about Stop the Steal communications first made available by Brandon Straka in spring 2021, and probably bolstered by Baked Alaska earlier this year, communications that also seem to be inconsistent with Alexander’s currently operative story.

Like I said, I almost feel sorry that Alexander agreed to play the role of Roger Stone’s patsy in this go-around, because DOJ is better situated to deal with Stone’s games this time around.

For all the focus on Alexander, that makes two other recent developments rather interesting.

First, in a status hearing on Thursday, prosecutors revealed that they had only recently received the content from Alex Jones sidekick Owen Shroyer’s phone. They were providing it, unscoped, to Shroyer’s attorney, Norm Pattis, so he can have a sense of what’s there in advance of DOJ providing him the “scoped” content (“scoped” content is the stuff that the FBI determines complies with the warrant). In that case, the sides at least claim they’re discussing a plea, with plans for a status or that plea in 45 days.

Which makes the other recent development more interesting. On June 14, Norm Pattis joined Joe Biggs’ defense team.

 

This means that Pattis formally represents two Alex Jones associates — one who currently works for InfoWars and one who worked for Jones until he got “fired” for pushing PizzaGate in 2016 — who converged at the top of the East steps on January 6; Pattis has a longtime affiliation with Jones too.

And unless and until DOJ raises conflict issues with the men (which they’re not likely to do unless and until Jones himself is charged), Pattis will have full access to what are believed to be both sides of conversations that took place in advance of and on January 6 which resulted in an Alex Jones-led mob arriving just as the carefully orchestrated Proud Boy attack on the Capitol needed large numbers of additional, unwitting “normies” to fill the building. That’s a pretty critical set of discovery.

So one member of the retinue is struggling quite obviously with his effort to come up with a consistent story (after telling one that has already been debunked), while the other members of the retinue have arranged to be in a position to share the most important discovery from the day back and forth.

Things have gotten downright interesting with the convergence of once and current Jones flunkies at the East side of the Capitol on January 6.

“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

As noted in the last thread, more than twelve hours later on the same day that federal agents conducted a search on Jeffrey Clark’s home in Virginia, FBI agents seized John Eastman’s phone as he was leaving a restaurant in Santa Fe. He has launched a bozo lawsuit attempting to get the phone back. And as part of that, he released the warrant used to seize his phone.

Orin Kerr has a long thread treating the bozo lawsuit seriously herenoting among other things that Constitutional law professor John Eastman forgot he was in New Mexico and therefore in the Tenth Circuit, not the Ninth. File411 has a post treating it like the bozo suit it is here.

But I’m interested in the warrant itself. As many people have noted (including Eastman himself), the warrant is from DOJ IG’s Cyber Division, not DC USAO. CNN has a helpful explanation for that: at least on the Eastman search, DOJ IG is engaged in fairly unusual coordination with the USAO (which explains all the squirreliness about which Federal agents had searched Clark’s home).

Federal agents from the Justice Department’s Office of Inspector General, which is coordinating with the wider FBI and US attorney investigation into January 6, 2021, last week raided the home of former DOJ official Jeffrey Clark, a source familiar previously told CNN. That search — during which the Justice Department inspector general’s participation had not been previously reported — came the same day as Eastman’s.

The inspector general investigates accusations of legal violations by Justice Department employees and has the ability to conduct searches and seizures. After investigating, the inspector general can refer possible criminal matters to prosecutors.

That makes a reference in the search warrant more interesting. This is just a seizure warrant, not a warrant authorizing the search of the phone. And it states that agents will bring the phone either the DOJ IG forensic lab in Northern Virginia or to some unidentified location in DC; it doesn’t mention the FBI’s Quantico facility, though that is also in NoVA and even experts on DOJ IG aren’t aware of any dedicated forensic lab DOJ IG has.

This warrant would be consistent with use in parallel investigations, the DC (or Main) investigation into Trump and Eastman as well as a DOJ IG investigation into January 6 that Michael Horowitz announced in early 2021. I’ve been wondering whether DOJ IG’s investigation(s), which can be quite slow, have delayed the review of DOJ’s conduct. This may be the solution: coordinated investigations. In his January 2021 announcement, Horowitz addressed that concern.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

In other words, this seizure may actually reflect at least two underlying search warrants, and as such may be an attempt to obscure (like the original Rudy Giuliani warrants would have) the focus of the underlying January 6 investigation. That is, DOJ IG could hand Eastman a warrant for an investigation into Jeffrey Clark, and that would be sufficient to answer his demands for a warrant, even if there were a more substantive warrant for the DCUSAO investigation.

That’s why the timing is of interest. As File411 notes, it was authorized on June 17, so after the Big Lie January 6 Committee hearing, but five days before it was executed on June 22. If this warrant was a response to the January 6 Committee hearings, it wasn’t a response to the hearing focused on Jeffrey Clark, but rather on one focused on Eastman.

In the days ahead, you will hear wailing about how poor Constitutional attorney John Eastman had his privacy abridged — that’s the point of the bozo lawsuit, just like Russian oligarchs do. But the very same people who’ll be whining were huge fans of DOJ IG’s best known cyber worka 2018 report explaining why the FBI’s text archiving system hadn’t captured 19,000 texts between Peter Strzok and Lisa Page.

Trump Strzok Text

That investigation, like this one, appears to be focused on a DOJ employee who has already resigned (though the earlier report was started when Strzok and Page were still at FBI). And given the seizure of devices, it may be focused on inappropriate politicization of DOJ — the allegation at the core of investigations into Strzok and Page, yet for which DOJ IG never substantiated proof.

Both Rudy and Trump are on the record supporting such DOJ IG investigations into phones for evidence of improper politicization. Chances are they’re going to be less enthusiastic now that the subjects of the investigation are John Eastman and Jeffrey Clark.

Jeffrey Clark: Physics Takes Over the Investigation Now

Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

Indeed, one reason Clark may have been raided is because he makes an easier target, for now, than Meadows or the Members of Congress who were involved. All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

To obtain Signal conversations that haven’t been saved to the cloud, one needs at least one of the phones that was involved in the conversation. That assumes the texts were not deleted. In the James Wolfe investigation, the FBI demonstrated some ability to recover deleted Signal texts, but in the Oath Keeper investigation, their Signal deletions forced investigators to seize a whole bunch of phones to reconstruct all parts of the communications.

By law, the government should have some of these Signal texts accessible. Under the Presidential Records Act, Mark Meadows had a legal obligation to share any such texts with the Archives. But because he replaced his phone in the months after the insurrection, at a time he knew of the criminal investigation, he may not have been able to comply. If DOJ can prove that he deleted Signal texts, he might be on the hook for obstructing the DOJ investigation.

So one thing DOJ may have been trying to do, by seizing the phones of at least four players in the fake electors plot on the same day, was to obtain phones sufficient to reconstruct any Signal threads about the plot. Those served subpoenas, both in this and an earlier round of subpoenas, will have to turn over Signal texts too, if they meet the terms of the subpoena. If DOJ were trying to reach the far higher bar of obtaining a warrant against someone protected by Speech and Debate or other privileges — like Perry — they likely would need to use such threads to meet that higher bar.

So back to the physics.

The table below shows how the investigations into a number of high profile investigative subjects have proceeded. While there are exceptions (investigations where the FBI has some excuse or urgency to conduct an interview, as with Mike Flynn and George Papadopoulos, are different), investigators often first obtain readily accessible cloud content with a gag order, then use the information from a person’s cloud content to obtain probable cause for a warrant to seize phones. Under that pattern, the phone seizure will alert a subject of an investigation to that investigation. In most cases (the first round of January 6 arrests and Roger Stone are exceptions, each for different reasons), the search of phones precedes any arrest by months if not years.

Whereas, during the Mueller investigation, the FBI could exploit phones in four months time, of late, it has been taking closer to six months to exploit cell phones, even without any kind of special review. Part of this delay is physics: if a person uses any kind of secure password, it takes the FBI time to crack that password (and still more time if someone uses additional security features, as Enrique Tarrio did). In many cases, the DOJ will have to use a filter team to exclude data that is somehow privileged; in all cases, DOJ will then do a scope review, ensuring that the investigative team only gets material responsive to the warrant. When a special review is required, such as the attorney-client privilege review for Rudy or the “journalistic” review for Project Veritas, that process can take much longer. Because DOJ will have to conduct a fairly exhaustive filter review for an attorney like Clark, it might take closer to nine months to exploit the devices seized last week.

This pattern suggests several things about the investigation into Jeffrey Clark (and the fake electors). First, DOJ likely obtained their first probable cause warrants against Clark and the fake electors months ago, probably pretty close to the time (though hopefully before) Lisa Monaco confirmed the investigation into the fake electors in January. In Clark’s case, an investigation may have come from a referral from DOJ IG. So contrary to what many outlets have reported, such as this example from James Risen at the Intercept, the searches of Clark and others are not proof that an investigation is beginning or that DOJ only recently established probable cause. Rather, they suggest DOJ has been investigating covertly for months, at least long enough to obtain probable cause that even more evidence exists on these phones.

But it’s also likely that it will take DOJ some months — until Christmas at least — to exploit Clark’s phone. This investigation will not move as quickly as you might think or hope that this point, and that’s partly dictated by the constraints of cracking a password — math and physics.

All that said, several prongs of an investigation that could implicate Trump may be much further on. As I’ll show in a follow-up (and as I’ve mentioned in the past), the investigation into Stop the Steal is undoubtedly much further on than people assume given Ali Alexander’s grand jury appearance last week. And the FBI has ways of getting content via the Archives, much as they obtained content from Trump’s transition from GSA, that bypass pattern laid out above.

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

Update: Several people have asked why there would be a privilege review for Clark’s phone, since he would have been a government attorney through January 6. I’m not certain there would be, but if a warrant covered the time since January 6 (which I think likely given what DOJ has done with warrants elsewhere), then any lawyering he has done since he left would be privileged.

Update: As noted in comments, also on Wednesday, the FBI seized John Eastman’s phone. The warrant is from DOJ IG, not DC USAO and bears a 2022 case number. DOJ IG opened an investigation into Clark in 2021, but perhaps something they saw in the Jan6 Committee hearings led to a new prong of the investigation, leading to this search? Given the squirreliness regarding what agency did the search of Eastman, I wonder if both these investigative steps were DOJ IG.

Background material

This annotated file shows the unsealed Mueller warrants, with labels for those warrants that have been identified.

This post shows how the Michael Cohen investigation started with Russian-related warrants in the Mueller investigation then moved to SDNY, including a crucial detail about preservation orders for Cohen’s Trump Organization emails served on Microsoft.

This post shows how the investigation into George Papadopoulos developed; his is the outlier here, in that overt actions took place closer to the beginning of the investigation — but in his case, DOJ used a series of informants against him to obtain information.

This post describes how Trump’s team only discovered Mueller had obtained transition devices three months after Mueller obtained them, via Mike Flynn’s statement of offense.

This post shows that the seizure of Roger Stone’s phones with his January 2019 arrest was just one step in an ongoing investigation.

This post uses the Michael Cohen example to explain how the Rudy investigation might work.

This post shows how the investigation into Project Veritas developed.

This post shows how it took almost an entire year to crack Enrique Tarrio’s password, with a filter team delaying access for another month.

This post describes how the sheer volume of Stewart Rhodes’ Signal texts delayed his arrest.

Bill Barr’s Attempt to Corrupt EDNY May Have Saved the Republic

Almost all of the witnesses the January 6 Committee has relied on are deeply conflicted people. The same Trump attorney, Justin Clark, who allegedly coached Steve Bannon to withhold information from the Committee about communications with Rudy Giuliani and Mike Flynn appeared on video claiming to have qualms about using fake electors in states where the campaign did not have an active legal challenge. Ivanka claimed to believe Bill Barr’s claims that voter fraud couldn’t change the election, but the Committee just obtained video of her saying otherwise. And Bill Barr himself has gotten credit for fighting Trump’s false claims of voter fraud even though he spent months laying the groundwork for those claims by attacking mail-in ballots.

But yesterday’s hearing was something else.

After Liz Cheney invited watchers to imagine what it would be like to have a DOJ that required loyalty oaths from lawyers who work there — a policy that Alberto Gonzales had started to implement in the Bush-Cheney Administration — Adam Kinzinger led former Acting Deputy Attorney General Richard Donoghue through a narrative about the Republican Party and the Department of Justice they might like to belong to.

The whole thing was a flashback. In May 2007, I was tipped off to cover Jim Comey’s dramatic retelling of the first DOJ effort to push back on Presidential — and Vice Presidential, from Liz Cheney’s father — pressure by threatening to quit. Only years later, I learned how little the 2004 Hospital Hero stand-off really achieved. So I’m skeptical of yesterday’s tales of heroism from the likes of Jeff Rosen and Steve Engel.

But that’s also because their record conflicts with some of the things they said.

For example, check out what Engel — someone who played an absolutely central role in Bill Barr’s corruption of the Mueller investigation, and who wrote memos that killed the hush payment investigation into Trump and attempted to kill the whistleblower complaint about Volodymyr Zelenskyy — had to say about politicization of investigations.

Kinzinger: Mr. Engel, from your perspective, why is it important to have a [White House contact] policy like Mr. Rosen just discussed?

Engel: Well, it’s critical that the Department of Justice conducts its criminal investigations free from either the reality or any appearance of political interference. And so, people can get in trouble if people at the White House are speaking with people at the Department and that’s why, the purpose of these policies, is to keep these communications as infrequent and at the highest levels as possible just to make sure that people who are less careful about it, who don’t really understand these implications, such as Mr. Clark, don’t run afoul of those contact policies.

Or consider how Special Counsels were described, as Kinzinger got the witnesses to discuss how wildly inappropriate it would have been to appoint Sidney Powell to investigate vote fraud. Here’s how Engel explained the limited times there’d be a basis to appoint one:

Kinzinger: So during your time at the Department, was there ever any basis to appoint a Special Counsel to investigate President Trump’s election fraud claims?

Engel: Well, Attorney General Barr and [inaudible] Jeffrey Rosen did appoint a Special Counsel. You would appoint a Special Counsel when the Department — when there’s a basis for an investigation, and the Department, essentially, has a conflict of interest.

Engel is presumably referring to John Durham with that initial comment. But Durham fails both of those tests: there was never a basis for an investigation, and for most of the time Durham has been Special Counsel, he’s been investigating people outside the Department that present absolutely no conflict for the Department. [Note: it’s not clear I transcribed this properly. The point remains: Rosen and Barr appointed a Special Counsel that violated this standard.]

In other words, so much of what Engel and Rosen were describing were abuses they themselves were all too happy to engage in, up until the post-election period.

Which is why I’m so interested in the role of Richard Donoghue, who moved from EDNY to Main Justice in July 2020, to be replaced by trusted Bill Barr flunkie Seth DuCharme. It happened at a time when prosecutors were prepared to indict Tom Barrack, charges that didn’t end up getting filed until a year later, after Merrick Garland and Lisa Monaco had been confirmed. The 2020 move by Barr looked just like other efforts — with Jessie Liu in DC and Geoffrey Berman in SDNY — to kill investigations by replacing the US Attorney.

That is, by all appearances, Donoghue was only the one involved in all these events in 2020 and 2021 because Barr was politicizing prosecutions, precisely what Engel claimed that DOJ, during his tenure, attempted to avoid.

That’s interesting for several reasons. First, in the context of explaining the January 3 stand-off in the White House, Donoghue described why environmental lawyer Jeffrey Clark was unqualified to be Attorney General.

Donoghue: Mr. President, you’re talking about putting a man in that seat who has never tried a criminal case. Who has never conducted a criminal investigation.

Well, neither had regulatory lawyer Jeffrey Rosen (or, for that matter, Billy Barr). That is, in explaining why Clark should not be Attorney General,  Donoghue expressed what many lawyers have likewise said about Barr, most notably during Barr’s efforts to undermine the Mike Flynn prosecution (the tail end of which Donoghue would have been part of, though DuCharme was likely a far more central player in that).

In the collective description of the showdown at the White House on January 3, it sounds like before that point, Donoghue was the first one who succeeded in beginning to talk Trump out of replacing Rosen, because it was not in Trump’s, or the country’s, interest.

Mr. President, you have a great deal to lose. And I began to explain to him what he had to lose. And what the country had to lose, and what the Department had to lose. And this was not in anyone’s best interest. That conversation went on for some time.

Donoghue also seems to have been the one to explain the impact of resignations in response to a Clark appointment.

Mr. President within 24, 48, 72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What’s that going to say about you?

To be clear: Rosen would have pushed back in any case. As he described,

On the one hand, I wasn’t going to accept being fired by my subordinate, so I wanted to talk to the President directly. With regard to the reason for that, I wanted to try to convince the President not to go down the wrong path that Mr. Clark seemed to be advocating. And it wasn’t about me. There was only 17 days left in the Administration at that point. I would have been perfectly content to have either of the gentlemen on my left or right to replace me if anybody wanted to do that. But I did not want for the Department of Justice to be put in a posture where it would be doing things that were not consistent with the truth, were not consistent with its own appropriate role, or were not consistent with the Constitution.

But Rosen had already presided over capitulations to Trump in the past, including events relating to the first impeachment and setting up a system whereby Rudy Giuliani could introduce Russian-brokered disinformation targeting Joe Biden into DOJ, without exposing Rudy himself to Russian Agent charges. Repeatedly in yesterday’s hearing, I kept asking whether the outcome would have been the same if Donoghue hadn’t been there.

Plus, by all appearances, Donoghue was the one providing critical leadership in the period, including going to the Capitol to ensure it was secured.

Kinzinger: Mr. Donoghue, we know from Mr. Rosen that you helped to reconvene the Joint Session, is that correct?

Donoghue: Yes sir.

Kinzinger: We see here in a video that we’re going to play now you arriving with your security detail, to help secure the Capitol. Mr. Donoghue, thirty minutes after you arrived at the Capitol, did you lead a briefing for the Vice President?

Donoghue: I’m not sure exactly what the time frame was, but I did participate in a call and participate in a briefing with the Vice President as well as the Congressional leadership that night. Yes.

Kinzinger: Where’d you conduct that call at?

Donoghue: I was in an office, I’m not entirely sure where it was. My detail found it, because of the acoustics in the Rotunda were such that it wasn’t really conductive to having a call so they found an office, we went to that office, and I believe I participated in two phone calls, one at 1800 and one at 1900 that night, from that office.

Kinzinger: What time did you actually end up leaving the Capitol?

Donoghue: I waited until the Senate was back in session which I believe they were gaveled in a few minutes after 8PM. And once they were back in session and we were confident that the entire facility was secured and cleared — that there were no individuals hiding in closets, or under desks, that there were no IEDs or other suspicious devices left behind — I left minutes later. I was probably gone by 8:30.

Kinzinger: And Mr. Donoghue, did you ever hear from President Trump that day?

Donoghue: No. Like the AAG, the acting AG, I spoke to Pat Cipollone and Mark Meadows and the Vice President and the Congressional leadership but I never spoke to the President that day.

So it seems possible, certainly, that one of the few things that held DOJ together in this period is Donoghue, seemingly installed there as part of yet another Bill Barr plot to corrupt DOJ.

Congresswoman Cheney, who in her opening statement talked about how outrageous it was for Trump to demand that DOJ make an announcement about an investigation into voter fraud (but who voted against the first impeachment for extorting Volodymyr Zelenskyy for exactly such an announcement), ended the hearing by inviting those who had put their trust into Donald Trump to understand that he had abused that trust.

House January 6 Committee: Public Hearings – Day 5

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 23, 2022 at 3:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: TBD

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?521076-1/hearing-investigation-capitol-attack

C-SPAN’s YouTube page: https://youtu.be/9Vj7FJwF35M

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner) or watch here: https://www.pbs.org/newshour/politics/how-to-watch-the-jan-6-hearings

(I wish Twitter was carrying multiple live streams but they have yet to publish an Event. I guess Twitter has decided this historic series of hearings isn’t worth their time.

4:00 p.m. — Oh, look, Twitter finally got their shit together and just in time for recess. https://twitter.com/i/events/1540059136305397760)

ABC is carrying the hearing live on broadcast; CNN, NBC Now and MSNBC on their cable networks.

(CBS has likewise thrown in the towel like Twitter as I don’t see the hearing listed under their channel.)

Twitter accounts live tweeting the hearing tonight:

Marcy’s Twitter thread: https://twitter.com/emptywheel/status/1540049823365218306

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1540046031462842369

Laura Rozen: https://twitter.com/lrozen/status/1540047956811960328

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1540055344973504515

If you know of any other credible source tweeting the coverage, please share a link in comments.

Today’s scheduled witnesses:

Jeffrey A. Rosen, Former Acting Attorney General

Richard Donoghue, Former Acting Deputy Attorney General

Steven Engel, Former Assistant Attorney General for the Office of Legal Counsel

There may be more not yet shared by the committee in their Twitter feed since the hearings to date have had two panels.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the hearing progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

Yesterday, DOJ took a slew of overt steps in their investigation into the fake electors:

  • WaPo: Law enforcement activity targeting GA lawyer David Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
  • NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
  • CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
  • CNN: Subpoena for Shafer, a warrant for David Carver’s phone, information on a GA Signal chat

Even though some of these reports cite the late January batch of subpoenas DOJ sent to people who had declined to participate in the fake elector scheme, the timing of the action — taking place one day after the hearing on the scheme — has set off the usual set of whinging that DOJ isn’t doing as much as the January 6 Committee.

Yet even the first of these stories — the WaPo one — provides reason to believe that DOJ is not chasing the January 6 Committee on this investigation at all. And as I keep pointing out, in April 2021, DOJ took steps — starting on Lisa Monaco’s first day in office — that will be critical to this investigation.

I’ve laid out how, by seizing Rudy Giuliani’s phones in conjunction with his Ukraine influence peddling investigation on April 28, DOJ has made the content available for the January 6 investigation at whatever time they were able to show probable cause for a warrant. That’s because the privilege review covered all content from the phones that post-dates January 1, 2018 and the privilege review was conducted prior to any review for relevance, so it would cover content whether or not it related to Ukraine.

As this table lays out, the review on half the devices DOJ was able to get into (there were two the passwords for which it had not cracked by April) included content to date of seizure on April 28, 2021.

Special Master Barbara Jones turned over the last of this material on January 21, days before Monaco confirmed that DOJ is investigating the fake elector scheme. In April, purportedly to conduct an interview in advance of an imminent decision on Rudy’s Ukraine influence-peddling, DOJ asked for his help to get into the last several phones (the numbers in this story don’t match Barbara Jones’ reports, but CNN may suggest there were two newly discovered phones; there has been no overt activity in the Special Master docket since then).

All of which is to say that whatever material Rudy, a prolific texter, had on his phones about the fake elector scheme he was central to would have been available to DOJ with a warrant since January, but that’s only true because DOJ started this process on Monaco’s first day on the job.

Even in spite of that (and the timing of Monaco’s announcement of the investigation into the fake electors), like many people, I believed DOJ might have been chasing the January 6 Committee investigation. Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.

For example, I first learned that Boris Epshteyn was involved from this slide in Tuesday’s hearing, which left Epshteyn’s name unredacted whereas the copy docketed in the John Eastman litigation redacts it.

But Kyle Cheney noted that Epshteyn’s name was first made public in a footnote in the associated court filing. That filing was dated May 26.

Before May 26, according to earlier NYT and CNN stories on DOJ’s investigation into the fake electors, prosecutors were already asking about Epshteyn’s role. Here’s CNN:

Former Trump attorney Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark are among the list of names the witness was asked about, the source said.

Yesterday’s WaPo story similarly described prosecutors asking about the involvement of someone — Bernie Kerik — whose role the January 6 Committee has not yet (as far as I’m aware) public disclosed.

Those earlier subpoenas sought all documents since Oct. 1, 2020, related to the electoral college vote, as well as any election-related communications with roughly a dozen people in Trump’s inner circle, including Rudy Giuliani, Bernard Kerik, Boris Epshteyn, Jenna Ellis and John Eastman.

One would-be Trump elector in Georgia, Patrick Gartland, had been appointed to the Cobb County Board of Elections and Registration and believed that post meant serving as an elector would have created a conflict of interest for him. Still, two FBI agents recently came to his home with a subpoena and asked whether he had any contact with Trump advisers around the time of the November election. “They wanted to know if I had talked to Giuliani,” Gartland said.

One possible explanation (though not the only one) is that DOJ has a more Rudy-focused understanding of the elector scheme than the Committee, which would make sense if they had materials from Rudy’s devices that the Committee doesn’t have.

To be clear: I think it likely that DOJ has or will exploit the January 6 investigation into the same topic in at least two ways.

First, I think it likely that DOJ piggybacked on the Committee’s privilege fight with Eastman. They’ve always had the ability to serve a warrant on Chapman University for the same emails the Committee has been receiving covertly, after all, which is the kind of thing DOJ loves to do in an investigation. But by doing so in the wake of Judge David Carter’s privilege decisions, DOJ can get crime-fraud excepted communications without a Special Master process like the one they used with Rudy.

And, because the January 6 Committee is obtaining sworn depositions from some of the people involved, DOJ may get evidence of false statements — from people claiming to have no knowledge of the larger scheme or corrupt intent of the fake electors — that they could use to coerce cooperation down the road.

With the warrants in NV and GA, DOJ is taking the kind of overt acts that sometimes precede arrests. Because DOJ can get email and social media content covertly, it almost always does that before serving subpoenas (to minimize the chance someone will destroy evidence in response). Only after that, usually, do they seize someone’s phone. That kind of stuff takes months. So there’s no way DOJ could have gotten there overnight based entirely off watching the January 6 hearing.

In Tuesday’s hearing, it became clear that the GOP will try to, institutionally, blame Trump for all this. That may not be true. But it may be useful for DOJ investigators.

Update: Fixed the names of the NV GOPers.

Amy Berman Jackson Gets a Two-Page Footnote in for the Appeal of Carl Nichols

DOJ announced its long-awaited appeal of Carl Nichols’ ruling rejecting DOJ’s application of 18 USC 1512(c)(2) to January 6 today (he has granted three motions to dismiss the charge, and DOJ is appealing all three). (Initial ruling; Denial of reconsideration)

Just in time, Amy Berman Jackson joined fifteen of her colleagues in upholding DOJ’s application of obstruction to January 6. Here’s the footnote she included, responding to Nichols’ opinion.

13 One court in this district has come to the opposite conclusion, and it dismissed the 1512(c)(2) count in a January 6 indictment. In United States v. Miller, the court found that “there are two plausible interpretations of [18 U.S.C. § 1512(c)(2)]: either § 1512(c)(1) merely includes examples of conduct that violates § 1512(c)(2), or § 1512(c)(1) limits the scope of § 1512(c)(2).” 2022 WL 823070, at *15. The more plausible interpretation, the court reasoned, is the latter, and therefore it found that the indictment failed to allege a violation of 18 U.S.C. § 1512(c)(2). Id.; see also Fischer, 2022 WL 782413, at *4 (“The Court recently concluded [in Miller] that the word ‘otherwise’ links subsection (c)(1) with subsection (c)(2) in that subsection (c)(2) is best read as a catchall for the prohibitions delineated in subsection (c)(1).”).

The Miller court relied heavily on Begay v. United States, 553 U.S. 137 (2008), abrogated on other grounds by Johnson, 576 U.S. 591 (2015), and Yates v. United States, 574 U.S. 528 (2015) (plurality opinion). In Begay, the Supreme Court considered whether drunk driving was a “violent felony” for the purposes of the sentencing provision imposing a mandatory minimum term on an offender with three prior convictions “for a violent felony,” as that term was defined in 18 U.S.C. § 924(e)(2)(B)(ii) (“the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year . . . that– . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another”). The Court concluded that the examples listed before “otherwise” limited the scope of the residual clause to similar crimes, and that drunk driving fell “outside the scope” of the ACCA. Begay, 553 U.S. at 142–48.

The Miller court reasoned that, because “the Begay majority opinion rejected the government’s argument ‘that the word ‘otherwise’ is sufficient to demonstrate that the examples [preceding ‘otherwise’] do not limit the scope of the clause [following ‘otherwise’],’” Miller, 2022 WL 823070, at *9 (alterations and emphasis in original), section 1512(c)(1) most likely also limits the scope of section 1512(c)(2). Id. at *9–11.

This Court is not basing its determination on a finding that the mere appearance of the word “otherwise” is sufficient to answer the question and establish that the first clause, section 1512(c)(1), was not meant to serve as a limit on the second clause, section 1512(c)(2). Rather, the Court considered the language and structure of the statute, and it agrees with the reasoning in the other decisions in this district denying motions to dismiss section 1512(c)(2) counts and rejecting the Miller court’s application of Begay. See McHugh II, 2022 WL 1302880, at *5–6; Bingert, 2022 WL 1659163, at *8.

For one thing, the structure of section 1512(c)(2) does not parallel the structure of the ACCA, and “otherwise” in section 1512(c)(2) does not immediately follow a list of examples. And sections 1512(c)(1) and (c)(2) – which prohibit different types of conduct – do not overlap in the same way that the ACCA clauses overlapped, rendering a conclusion that what follows the term “otherwise” is an extension of the prior provision less likely. Compare 18 U.S.C. § 1512(c), with 18 U.S.C. § 924(e)(2)(B). Indeed, the Supreme Court noted in Begay that “the word ‘otherwise’ can (we do not say must . . .) refer to a crime that is similar to the listed examples in some respects but different in others . . . .” Begay, 553 U.S. at 144 (emphasis in original). As the court observed in McHugh II, the way Congress drafted the two provisions indicates that they were intended to target different conduct:

Rather than a continuous list with a general term at the end, § 1512(c) contains two separately numbered paragraphs, with a semicolon and a line break separating the “otherwise” clause in paragraph (c)(2) from the preceding terms in paragraph (c)(1). Furthermore, paragraph (c)(2) is grammatically distinct from paragraph (c)(1). Although the two provisions share a subject and adverb (“whoever corruptly”), paragraph (c)(2) contains an independent list of verbs that take a different object (“any official proceeding”) from the verbs in paragraph (c)(1) (which take the object “a document, record, or other object”). . . . In short, rather than “A, B, C, or otherwise D,” section 1512(c) follows the form “(1) A, B, C, or D; or (2) otherwise E, F, or G.”

2022 WL 1302880, at *5.

As for Miller’s finding that “[r]eading § 1512(c)(2) alone is linguistically awkward,” 2022 WL 823070, at *6, this is not the case if “otherwise” is read to “‘signal[] a shift in emphasis’ . . . from actions directed at evidence to actions directed at the official proceeding itself.” Montgomery, 2021 WL 6134591, at *12, quoting Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 520 (2015). This is also not the case if “otherwise” is taken to mean “in a different way.” See McHugh II, 2022 WL 1302880, at *4. Under either interpretation, the meaning of the statute is clear: a person can violate section 1512(c)(2) through means that differ from document destruction, and the term “otherwise” does not limit the prohibition in section 1512(c)(2) to conduct described in section 1512(c)(1).

On a quick read, there’s nothing otherwise exceptional in this opinion. She did address Williams’ complaint that others haven’t been charged with obstruction.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, NordeanMay 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHughMay 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, CostianesMay 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert
  16. Amy Berman Jackson, June 22, Williams

Three Months Later, DOJ Finally Gets Interested in Sidney Powell’s Militia Defense Fund

In the Oath Keepers case, the government just sent out a letter raising concerns about DC’s Rule 1.8(e) that governs the ethical obligations in cases where a third party pays for someone else’s defense. That’s allowed, but there are three necessary conditions: that the defendant make informed consent, that the payor not interfere in case decisions, and that information about the case may not be shared with the payor.

(1) The client gives informed consent after consultation;

(2) There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) Information relating to representation of a client is protected as required by Rule 1.6.

At issue is the scheme that BuzzFeed revealed and Mother Jones later reported that describes that Sidney Powell is paying for some of the Oath Keepers’ defense.

As the government describes, in response to the government’s queries, lawyers for Stewart Rhodes and Jessica Watkins did not respond, the Meggs’ lawyers and that of Kenneth Harrelson say they’re in compliance with the rule, and William Shipley, who is representing Roberto Minuta, said he’d respond to Judge Mehta’s inquiries, but didn’t answer to DOJ.

1. Attorney David Fischer, who represents Thomas Caldwell, stated that he was in compliance with Rule 1.8(e) and that he “has received no funding from, and has no affiliation with, Defending the Republic.”

2. Attorney Scott Weinberg, who represents David Moerschel, stated he was in compliance with Rule 1.8(e) and that he was not receiving any funding from Defending the Republic.

3. Attorney Gene Rossi, on behalf of himself and co-counsel Natalie Napierala and Charles Greene, who represent William Isaacs, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

4. Attorney Tommy Spina, on behalf of himself and co-counsel Edward B. MacMahon, Jr., who represent Jonathan Walden, stated that they were in compliance with Rule 1.8(e) and that they were not receiving any funding from Defending the Republic.

5. Attorneys Julia Haller and Stanley Woodward, who together represent Kelly Meggs and Connie Meggs, stated that they were in compliance with Rule 1.8(e). They did not specifically inform the government whether their fees were being paid by Defending the Republic.

6. Attorney William Shipley, who represents Roberto Minuta, declined to answer, but wrote, “Should Judge Mehta wish for my client or me to explain the arrangement for funding my client’s legal defense in order to confirm that my client’s Sixth Amendment right to conflict-free counsel are being afforded – or waived – we will provide him with whatever information he requests.”

7. Attorney Bradford Geyer, who represents Kenneth Harrelson, stated that he was in compliance with Rule 1.8(e). He declined to inform the government whether his fees were being paid by Defending the Republic.

The other defense counsel whom the government believes to be retained rather than court-appointed – Phillip Linder and James Lee Bright for Stewart Rhodes, and Jonathan Crisp for Jessica Watkins – have not yet responded to the government’s letter.

The letter DOJ sent to the defense attorneys suggested that Powell’s interests may diverge from these defendants.

The Supreme Court has said that “inherent dangers . . . arise when a criminal defendant is represented by a lawyer hired and paid by a third party.” Wood v. Georgia, 450 U.S. 261, 269 (1981). In Wood, the third-party payer was the “operator of the alleged criminal enterprise,” and thus the lawyer had an interest in the clients not testifying against the third-party payer or taking other actions contrary to the payer’s interest.4 Id. Indeed, comment 10 to Rule 1.8 explains that “third-party payers frequently have interests that differ from those of the client.” Here, Defending the Republic may have interests that diverge from these defendants.

4 As Defendant Kelly Meggs’s former counsel Jonathon Moseley told Mother Jones, Defending the Republic’s “financial support has the effect of making plea bargains less likely.” This fact could be against the interest of a particular defendant.

I’m happy DOJ is addressing this. The lawyers who are reported to be on Powell’s dole seem to be pushing conspiracy theories in lieu of a real defense.

What I don’t understand is the timing. BuzzFeed first reported this on March 9. DOJ only sent out its inquiry letter on June 16, over three months later.

And thus far, DOJ is only raising this in the Oath Keepers’ case. At the very least, you’d think DOJ would make similar inquiries in the Ryan Samsel case; he’s represented by the same team, Stanley Woodward and Juli Haller, as is representing the Meggses. And after he was assaulted, Samsel seemed to decide not to cooperate (against what would be Joe Biggs).

Similarly, William Shipley is representing a slew of defendants, including many of the Proud Boys who might most immediately implicate Biggs.

Finally, Jimmy Haffner, one of the Proud Boys accused of helping to open up the East Door of the Capitol, posed with Powell when her fundraising bus came through town in 2020.

Of course, DOJ has been investigating Powell herself since at least September, so maybe they’re learning of new conflicts only now.

So who else is Sidney Powell paying? And why is DOJ only doing something about it now?

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

The L-Word Not Used [UPDATE-1]

[NB: Check the byline, thanks. Update at the bottom of this post. /~Rayne]

I wish MSNBC did a better job of getting their content up on YouTube; I really need a link to Nicolle Wallace’s interview of Morgan State University’s Dr. Jason Johnson and his reaction to testimony by Fulton County GA election worker Shaye Moss. (temporary link: https://youtu.be/fEHkOzfa9Zs)

Before answering Wallace’s request for reaction, Johnson expressed concern about ‘performative Blackness’ — behaving as whites might expect of a Black American — but his fury was absolutely righteous.

Johnson acknowledged Shaye and her family should not have been subjected to the harassment unleashed on them by Donald Trump, but he went a bit further. He could identify with Moss’s grandmother as his own. This assault on the conduct of elections was personal.

Many of us are shocked, angry, dismayed by the harrying intimidation Moss and her mother and grandmother endured simply because Moss and her mother were election workers. Some of us have been moved to tears.

But what we’re missing is what Dr. Johnson avoided saying in his care to avoid offending white Americans with ‘performative Blackness’.

What was described by the testimony today was the mobilization of a lynch mob.

When watching or reading news coverage of today’s hearing, written, produced, and delivered by predominantly white Americans, listen closely for the generalization of terror. Election workers in multiple states were all subjected to harassment by angry protesters incited by Trump.

But Shaye Moss and her family endured another layer of terror — that of recognizing the horror aimed at Black Americans since the Civil War for having the temerity of exercising their rights as citizens, for supporting others’ right to vote.

As Johnson explained it, election officials — all of them white — were able to avail themselves of some security provided by the state due to their governmental roles.

But Moss and her mother and grandmother were only election workers, not officials.

They were on their own to work out how to protect themselves from the threat of mob violence over months’ time.

The white election officials will go on about their lives, perhaps facing the occasional in-your-face annoyance from Trumpers, but they won’t have to worry they’ll continue to be targets of violence.

Moss and her family know how lynch mobs work. Her visually obvious stress today may reflect this deep cultural knowledge unfamiliar to white Americans.

This is not to minimize the experience of officials like Rusty Bowers, whose daughter was not only seriously ill but likely mortally so as she passed away 22 days after January 6. It must have been horrifying to know his wife and daughter were subjected to harassment at such a critical time in their lives.

It must have horrifying to know one’s young teen was alone at home in the case of another election official, unable to predict how the protesters would act as time went on.

Neither, though, were targeted simply for being election workers who were Black in a white-minority county, doing their jobs while not having any authority to change anything about the election.

Hunted down and harassed by a mob because mother Ruby passed her daughter Shaye a mint. Fearful going forward, always looking over their shoulder, because they know these kinds of mobs and how they operate.

White pundits and reporters have and will discuss the terror Trump inflicted on election officials, but they’ve not yet mentioned the specific kind of terror Moss and her family experienced and continue to experience.

~ ~ ~

There’s another facet which surfaced as Moss testified and her mother’s testimony was streamed. Moss explained how she enjoyed serving her community’s exercise of the vote, in keeping with her grandmother’s teaching that the vote was critically important.

This was an expression of secular communion — ministering to the community especially those most in need of aid to participate.

Where Arizona’s Rusty Bowers explained his belief in a spiritual link between the nation’s founders and the drafting of the Constitution as well as his deep respect for that relationship, Moss expressed a link which was similar to that bond between members of faith communities. It is a vital thing which brings the community together regularly and unifies them in the act of perpetuating democracy.

The lynch mob Trump dispatched broke that link, severing Moss from that which her forebear impressed upon her.

This was a psychic and spiritual injury inflicted by Trump, his minions and mob, upon a Black American family and community.

Those of us who have been moved to tears at the loss Moss and her family experienced may not be able to articulate what this damage was because we have not been taught to value this social act of unification. For white Americans in particular this damage may not be perceived as lasting.

But it’s real and it was shredded by that racist entitled monster Trump.

~ ~ ~

This post may disturb community members here, most of whom are white. They may feel discomfort at the idea of a lynch mob incited by an American president when white election officials were also targeted by angry protesters (waiting for the hashtag NotAllElectionOfficials).

Don’t give into this discomfort. Do not be blind to role race plays when the GOP congressional caucus has obstructed voter rights protections, when states with GOP-led legislatures have failed to ensure voter suppression targeting BIPOC voters has ended.

Lynching isn’t always violent physical death or terror which diminishes Black Americans’ lives. Sometimes it’s the slow whittling away of their citizenship, one squelched civil rights bill at a time.

You want to make it up to Moss and her family and her community? Figure out how to fix this and ensure their full civil rights including the right to vote. The filibuster, for example, should never impede civil rights to which all Americans are entitled.

~ ~ ~

UPDATE-1 — 2:50 PM ET 22-JUN-2022 —

Susan A. Kitchens captured the entire segment on MSNBC’s Deadline with Nicolle Wallace, posting it in a Twitter thread. Dr. Jason Johnson’s remarks are a must-watch.


The attempt to overturn the 2020 election for the corrupt benefit of Donald J. Trump wasn’t just seditious conspiracy or obstruction of government proceedings, or conspiracy to defraud the United States.

It was a massive attack on civil rights by intimidation of election workers and officials in an effort to deny Americans their voting rights. This cannot go undeterred and unpunished; failure to do so represents a collapse of American democracy.

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