For Almost a Year, “Jim Jordan” Has Been Saying Hunter Biden Didn’t Need to Testify

I came to the Hunter Biden beat a bit late — only after I read Gary Shapley’s testimony. And so when Democrats mentioned that Abbe Lowell had sent Congress six letters in last week’s circus hearing — only two of which were cited in the contempt referral — I realized I hadn’t read them all.

I posted them all below.

It turns out, the two earliest ones — the ones I hadn’t read, ones which were sent to James Comer but not Jim Jordan — Abbe Lowell cited Jordan to lay out the impropriety of the requests for information from Hunter.

We know, from the Steve Bannon prosecution, that were the House to refer Hunter Biden for contempt, the first thing DOJ would do is ask for paperwork from both sides. On the January 6 Committee side, that all went through senior staffers. On Bannon’s side, Robert Costello claimed to have certain representations from Trump, but when asked, he admitted he didn’t have anything to backup that claim (Peter Navarro had still less since he didn’t lawyer up until after being charged). DOJ went so far as to get Costello’s call records to make sure there weren’t communications they didn’t know about.

Here, the first thing Abbe Lowell would do if Hunter were referred to contempt would be to share the six letters he had sent, documenting the authority on which he was relying for asking for further accommodations. The Oversight contempt referral — and even the letter issued Sunday moving toward setting up a deposition — made no mention of the earlier letters. As I noted, when DOJ asked the staffers in charge of the contempt referral what had happened, that hapless person would have to explain why the Committee withheld relevant documents from its contempt referral.

But as I also noted, even when relying on just the more recent letter, Jordan has said enough about the authority of subpoenas that he risked being a witness in any contempt investigation and then trial, something Bennie Thompson studiously avoided by letting staffers manage the guts of the legal issues.

That may explain why Jordan, whose chief counsel Steve Castor is bad faith but a good lawyer, saw the wisdom of issuing a new subpoena.

There’s still a conflict here. Lowell suggested hybrid accommodation in his letter from last week.

You have not explained why you are not interested in transparency and having the American people witness the full and complete testimony of Mr. Biden at a public hearing. If you issue a new proper subpoena, now that there is a duly authorized impeachment inquiry, Mr. Biden will comply for a hearing or deposition. 33 We will accept such a subpoena on Mr. Biden’s behalf.

33 During the January 10, 2024, Judiciary Committee markup, Representative Glenn Ivey suggested a procedure for a hybrid process—a public deposition/hearing with alternating rounds of questions for Republicans and Democrats, and with similar rules (e.g., role of counsel in questioning), as is done in a closed-door deposition. Four Republicans actually voted in committee in support of this process. Perhaps that could be the basis for our discussion.

In Sunday’s letter, Jordan and Comer rejected that, falsely claiming that the rules prohibit it (and ignoring Comer’s offer of public testimony in the past, something that came up in the contempt hearing).

While we welcome Mr. Biden’s public testimony at the appropriate time, he must appear for a deposition that conforms to the House Rules and the rules and practices of the Committees, just like every other witness before the Committees.26

26 For this reason, the Committees cannot accept the so-called “hybrid process” you propose. See January 12 Letter, supra note 1, at 8 n.33

I would not be surprised if Lowell did what Jim Comey did back in 2018, when House Republicans were conducting a similarly politicized non-public investigation into the Russian investigation. He sued to quash the subpoena, largely in an attempt to get some means of preventing Members from making false claims while hiding the transcript. That ended with an agreement that the House would release the transcript a day after the testimony.

The letter Lowell sent Mike Johnson on November 8 already extensively documented the false claims that Republicans had made about Hunter. There are some interesting false claims in the HJC report on the Hunter investigation that would not only further substantiate the need for transparency, but would also bolster Hunter’s claim — made in a motion to dismiss — that the House is unconstitutionally trying to conduct a prosecution of him.

Plus, there are other details of Jordan’s investigation — most notably the threats, which Becca Balint laid out during the contempt hearing last week. It is absolutely critical to Hunter Biden’s legal case that US Attorneys David Weiss and Martin Estrada as well as FBI Special Agent in Charge Thomas Sobocinski testified that threats were made in conjunction with this investigation, threats that in Delaware’s case preceded a radical reversal on the prosecutorial decision. Yet Jordan is sitting on that testimony.

Most people, myself included, think it’d be insane for someone fighting two indictments to appear before a hostile committee, much less without some means of acquiring his own record. But at the same time, Jordan keeps providing Lowell more evidence that the House, not DOJ, is the branch of government driving that prosecution.


1. February 9, 2023: Re request for documents [Comer]

[T]hen Ranking Member Jim Jordan (who sat next to you at your February 8th hearing) stated that a subpoena of President Trump and his family’s personal records was “an unprecedented abuse of the Committee’s subpoena authority[.]”1 Mr. Jordan described the subpoena for financial and business records as an “irresponsible and gravely dangerous course of conduct in a singular obsession of attacking President Trump and his family for political gain.”2 Mr. Jordan feared that Chairman Cummings would selectively release information gained from the subpoena “in a misleading fashion to create a false narrative for partisan political gain.”3

[snip]

Representative Jordan, citing Watkins, even emphasized that private persons have a limited place in Committee investigations: “[t]he Supreme Court has cautioned that Congress does not have ‘general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.’”4

2. June 14, 2023: Re records from art dealer Georges Bergès [Comer]

I am sure you will remember that it was now Judiciary Chairman Jim Jordan, in his hollering about the subpoena issued to the Presidents’ accounting firm, citing to the same Waikins case, who stated that private persons have a limited place in Committee investigations: “[t]he Supreme Court has cautioned that Congress does not have ‘general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. ™

[snip]

Let me remind you what then-Ranking Member Jim Jordan stated: that a subpoena of President Trump and his family’s personal records was “an unprecedented abuse of the Committee’s subpoena authority[.]”* (emphasis added). Mr. Jordan described the subpoena for financial and business records as an “irresponsible and gravely dangerous course of conduct in a singular obsession of attacking President Trump and his family for political gain.” (emphasis added). 1 explained in February that Mr. Jordan stated he feared that Chairman Elijah Cummings ‘would selectively release information gained from the subpoena “in a misleading fashion to create a false narrative for partisan political gain.”

[snip]

No sooner did You obtain these financial records then, as admitted in you letter, you released them to the public in your “First Bank Records Memorandum.” In so doing, you decided to ignore the warning of your colleague Chairman Jordan, who cautioned that Democrats would selectively release information gained from the subpoena “in a misleading fashion to create a false namative for partisan political gain.” Oh, what a difference a few years and a change in leadership has made.

3. September 13, 2023: Re Newsmax appearance [Comer]

I write on behalf of our client regarding your statement this morning, September 13, on Newsmax, in which you stated, “We’re headed to court, more than likely. We’ve requested bank records from Hunter Biden and Jim Biden early on, and obviously we never got a response back. We will re-request those this week; if they do not comply with our request, then we will subpoena and no doubt, undoubtedly head to court.”1 Your statement was surprising as it ignores our prior exchanges.

[snip]

We ask that you correct what you said, but more importantly, we remain available to have the discussion that I suggested some seven months ago.

4. November 8, 2023, to Mike Johnson: On false claims made by Republicans [Comer, Jordan, and Smith]

Chairman Jordan, for his part, used his airtime on November 1 to spew false, recycled, and debunked claims about Hunter’s time serving on the board of directors of Burisma, wielding it as an excuse to justify his obsession with pursuing an “impeachment inquiry” into President Biden when he declared: “Hunter Biden gets put on the Board of Burisma, fact number one. Fact number two, he’s not qualified to be on the Board of Burisma. Fact number three, the head of Burisma asks Hunter Biden, ‘can you help us relieve the pressure we are under from the Ukrainian prosecutor?’ Fact number four, Joe Biden does just that.” 9

[snip]

As to Chairman Jordan’s made-up, nonsensical claim that “the head of Burisma ask[ed] Hunter Biden, ‘can you help us relieve the pressure we are under from the Ukrainian prosecutor?,’” I simply would ask Chairman Jordan: what evidence do you have and when is it coming? The answer is “none” and “never.” For all the hours, months, and years Chairman Jordan and others (e.g., Senators Grassley and Johnson) have spent trying to invent a scheme in which Hunter assisted Burisma in any illicit or inappropriate way to “relieve the pressure” stemming from a Ukrainian corruption investigation, while his father was Vice President, they have produced an alarmingly scant amount of proof to show for their claims. Opposite evidence abounds.

5. November 28, 2023: In response to Comer’s Newsmax appearance [Comer and Jordan]

Mr. Chairman, we take you up on your offer. Accordingly, our client will get right to it by agreeing to answer any pertinent and relevant question you or your colleagues might have, but— rather than subscribing to your cloaked, one-sided process—he will appear at a public Oversight and Accountability Committee hearing. To quote your November 8, 2023, letter accompanying the subpoena, “Given your client’s willingness to address this investigation publicly up to this point, we would expect him to be willing to testify before Congress.”6 He is, Mr. Chairman. A public proceeding would prevent selective leaks, manipulated transcripts, doctored exhibits, or one-sided press statements.

December 6, 2023: Public testimony [Comer and Jordan]

As indicated in my November 28, 2023, letter, Mr. Biden has offered to appear at a hearing on the December 13, 2023, date you have reserved, or another date this month, to answer any question pertinent and relevant to the subject matter stated in your November 8, 2023, letter. He is making this choice because the Committee has demonstrated time and again it uses closed-door sessions to manipulate, even distort, the facts and misinform the American public—a hearing would ensure transparency and truth in these proceeding

January 12, 2024: After contempt [Comer and Jordan]

And you, Chairman Jordan, during a House Republican leadership press conference immediately after the actual impeachment inquiry resolution vote finally occurred,stated: “I want you all to think about something. This morning, I was in an impeachment deposition, but then had to leave that to come to the floor for a vote on the rules for impeachment. That [] says it all about this entire process. And it is a sad day.” 11

[snip]

You noticed an impeachment deposition a month before an impeachment inquiry vote was held to authorize such a deposition. Astonishingly, the sequence of events was the same as 2019. Almost four years to the day that Speaker Pelosi made her statement authorizing impeachment-based subpoenas before a House resolution authorized them, it was now Speaker Kevin McCarthy who, despite criticizing his predecessor for trying to do the same thing, did the same thing. On September 12, 2023, Speaker McCarthy said: “These are allegations of abuse of power, obstruction, and corruption. And they warrant further investigation by the House of Representatives. That’s why today, I am directing our House committee to open a formal impeachment inquiry into President Joe Biden.” 12 Chairman Jordan, you should be similarly saddened by your own use of pre–impeachment inquiry subpoenas against Mr. Biden.

[snip]

Thus, “Resolution 660’s direction, however, was entirely prospective. . . . Accordingly, the pre-October 31 subpoenas, which had not been authorized by the House, continued to lack compulsory force.”19 As Resolution 660 was ineffective in 2019, so is Resolution 917 now. To quote you, Chairman Jordan, during the first impeachment of former President Trump, “[c]odifying a sham process halfway through doesn’t make it any less of a sham process.”

[snip]

Still further, on December 13, 2023, you issued a joint statement directly tying Mr. Biden’s subpoenasto the still yet-to-be-authorized impeachment inquiry: “Today, the House will vote on an impeachment inquiry resolution to strengthen our legal case in the courts as we face obstruction from the White House and witnesses. Today’s obstruction by Hunter Biden reinforces the need for a formal vote. President Biden and his family must be held accountable for their corruption and obstruction. And we will provide that to the American people.”27

The Non-Visible Networks behind the More Visible Networks of Fascism

There’s an RT posted at the Guccifer 2.0 Twitter account in 2016 that has always puzzled me: a stupid meme, posted on Labor Day, about what unemployed people do on Labor Day.

Virtually all Guccifer 2.0’s other public Tweets served to sustain a cover story about the hack-and-leak operation and its tie to WikiLeaks, disseminate stolen documents, or network with those who might be used to disseminate stolen documents. This RT does not do that — at least not obviously — and it deviates from the BernieBro culture adopted by the Guccifer persona up to that point. It suggests either there was an unseen tie to far right meme culture, or that someone had access to this account who was part of it.

The RT is especially interesting given that three different GRU indictments (DNC, Anti-Doping, Macron Leaks) adopt different approaches in discussing the dissemination of the documents stolen by GRU, which I’ve addressed here and here. In 2016, the Guccifer persona cultivated ties with Roger Stone and Alex Jones and released select files (on Black Lives Matter) to then-Breitbart, future-Sputnik writer Lee Stranahan. By the time of the Macron Leaks in May 2017, Jack Posobiec played an even more central, overt role in the leak part of the operation, via still unidentified Latvian account. But this meme suggests some other tie in real time.

Keep this RT in mind as you read the following discussion, about the extent to which much of what we visibly see in the Republican slide to fascism is just the public manifestation of a far more instrumental and far uglier infrastructure that exists in chat rooms.

Some of what we know about the 2016 state of that infrastructure comes from exhibits introduced at the Douglass Mackey trial. On the very same day Guccifer 2.0 RTed that meme, for example, the trolls in the Madman Twitter DM list were pushing memes to push a narrative, one picked up from Trump, that Hillary Clinton was unwell and might not make the election — a narrative about a Democrat replicated, with far greater success, in this election.

White nationalists plotted in private about how to get minorities to turn on Democrats. They explicitly focused on ways to affect turnout in ways that could swing the election.

As I’ve written here and here, the far right efforts to set a narrative that would (and did) help Trump win the presidency started over a year before the election. Both Andrew “Weev” Auernheimer — the webmaster for Daily Stormer — and Microchip worked hard in early months to professionalize the effort. They planned campaigns that would bridge from reddit, 4Chan, and The Donald onto Twitter, including efforts that started at Daily Stormer. This effort was transnational: the trolls reached back to efforts made during Brexit and looked ahead to EU elections, and planned to build a bigger bot army. They complained about Twitter’s shoddy efforts to moderate and plotted ways to defeat any moderation.

The effort by far right trolls to hijack the virality of Twitter to get mainstream journalists to echo their far right themes had at least two direct ties to Trump’s campaign. Anthime “Baked Alaska” Gionet, whom Microchip alerted when the FBI first came calling, claimed to be part of a Trump campaign Slack, to which he invited others.

More importantly, Don Jr has confessed he was part of this network (curiously, when the Mackey took the stand at trial, he claimed to know nothing about the identities of his unindicted co-conspirators. As I have noted, there’s a troll in that channel who used the moniker P0TUSTrump and whom other trolls called Donald that was pushing hashtags pushing stolen documents on the same days Don Jr was doing so on his eponymous Twitter account. From there, trolls like Microchip made them go viral. If P0TUSTrump is Don Jr, then, it shows that he was a key channel between WikiLeaks through this far right channel to make things go viral.

Between 2016 and 2020, people associated with this far right group orchestrated PizzaGate, may have had a hand in QAnon, and helped disseminated documents stolen by GRU from Emmanuel Macron. PizzaGate and QAnon served as powerful recruiting narratives. I’ve shown how Doug Jensen, the QAnoner who chased Officer Eugene Goodman up the Senate stairs on January 6, went from a lifelong union Democrat to hating Hillary to throwing away his life in QAnon to attacking the Capitol via that process of radicalization. Early prosecutions, at least, suggested that QAnon was actually more successful at getting bodies where they could obstruct the vote certification than the militias.

But even as that cult narrative of QAnon was radicalizing people from all walks of life, the same network was replicating networks of more overtly partisan, paramilitary mobilization.

I suppose I or someone else should draw a network map of this.

But we know that Roger Stone had a Signal list call Friends of Stone, which included among its 47 members Stewart Rhodes, Enrique Tarrio, Ali Alexander, and Owen Shroyer, along with anti-vaxxers, Bundyists, Mike Flynn associate Ivan Raiklin, and longtime aides Jacobs Engels and Tyler Ziolkowski (who, along with Tarrio, were both implicated in the meme targeting Amy Berman Jackson during Stone’s prosecution).

Both Rhodes and Tarrio ran parallel sets of communication leading up to the insurrection — more public, accessible communications, and more select lists (on Signal in Rhodes’ case and on Telegram in Tarrio’s) that planned for the operation. Unlike Twitter, Signal and Telegram would only be accessible to law enforcement after exploiting the phones on which they were used, and only then if the comms hadn’t been successfully deleted.

Tarrio would also be networked into the Latinos for Trump group, along with Bianca Gracia and Oath Keeper Kellye SoRelle, with whom he visited the White House in December 2020 and both of whom were present for the parking garage meeting Tarrio had with Rhodes on January 5, 2021. One court filing submitted in advance of the trial of the cop who allegedly tipped off Tarrio to his arrest shows Tarrio also has a “Christian Nationalist” group that officer Shane Lamond joined on November 9, 2020. Another filing shows how Lamond warned Tarrio about investigations into Harry’s Bar and the Proud Boys organizing on Parler.

Ali Alexander and Brandon Straka provided the January 6 Committee (entirely unreliable) descriptions of the all-important Stop the Steal threads on which Alexander organized — first — early mob scenes at state capitols and then events around January 6 itself (though unlike Alexander, who fully attributed getting the brand from Roger Stone, Straka disclaimed knowledge of all that). Straka did acknowledge that Paul Gosar had ties to the Stop the Steal effort. The sentencing memorandum for Alan Hostetter, a key player in the SoCal anti-vax community with ties to 3Percenters, actually contacted Alexander on December 16, 2020, to suggest Stop the Steal organize a rally for January 6, though it’s not clear via what channel he knew him. While the leaders of the Stop the Steal effort were on Twitter until a late move to Signal (again, if we can believe unreliable J6C testimony), it spawned a massive viral effort on other platforms, including Facebook.

In addition to being the big draw for the donation from Publix heir Julie Fancelli, Alex Jones has his own media infrastructure. Organizers claim some percentage — a fifth or a third — of those at the Capitol were there for Jones, not Trump. Like Alexander, he also mobilized the earlier mobs in the states.

It’s not entire clear how Baked Alaska continues to fit into this network. But in order to avoid felony charges (as Straka had earlier), he reportedly agreed to share the kind of network information that would further elucidate these networks.

And that network of lists and threads maps onto this one, the list of people who, in 2020, were the most effective at spreading disinformation on Twitter.

We just don’t know via what chat rooms and threads they map, who else is in that map, and what international ties they have.

What kind of chat rooms did Don Jr inhabit, four years after he networked with Douglass Mackey, that helped him direct a broader network to make false claims go viral? Today, as Ric Grenell — Trump’s troll turned Ambassador to Germany turned Acting Director of National Intelligence — returns from supporting a coup attempt in Guatemala, what international networks was he mobilizing?

I’m always most fascinated by the role of Mike Roman on this list, punching well above his modest Twitter following of 29,610 people. Roman, a charged co-conspirator in Trump’s Georgia indictment, is claiming Fani Willis has a conflict arising from a personal relationship with one of the prosecutors she brought in for the case. He’s often thought of someone who ferried documents from fake electors around, but before that he was a kind of internal intelligence service for Trump targeting Republicans, and before that, the Kochs. Like Grenell, he has branched out to push far right policies internationally, in Canada. None of those activities, however, explain what chat rooms he was in that allowed him to help spread the Big Lie in 2020. They must exist, and yet they’re not yet visible.

Mike Roman is one of the Trump associates whose phone DOJ seized before Jack Smith was appointed. To the extent he didn’t delete them, that should disclose his networks to prosecutors.

As I noted above, increasingly, these networks have moved to platforms, especially Telegram and Signal, that are harder to investigate, particularly without advance notice. It took years (starting before January 6, with the seizure of Tarrio’s phone, which nevertheless took a full year to exploit) before the government had collected at least three sets of the Friends of Stone list.

That’s true even though some network effect — whether including anyone named here or not — likely explains a swatting campaign that has targeted:

While not all targets are seen as adversaries of Trump, or even Democrats, his top adversaries have been targeted. The swatting campaign is, at a minimum, terrorism (and could be part of a campaign to do real violence).

And there’s a non-zero chance that behind it is the same kind of non-visible infrastructure the far right has been professionalizing for a decade.

My effort to describe how Trump trained the Republican party to hate rule of law will describe the visible aspects of that effort. But behind it all, these non-visible networks form an integral part of the effort.

Update: Took out reference to Pepe.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Scott Perry Explains How Trump, Fox, and Russian Propaganda Made Him Hate Rule of Law

This exchange, between Scott Perry and Dan Goldman, is one of the best depictions of why and how Republicans have come to hate rule of law.

Jared Moskowitz had just called out Republicans for their utter lack of curiosity about Jared Kushner’s $2 billion windfall for monetizing his role overseeing Middle East policy.

Then Scott Perry — who earlier in the hearing had been brutally criticized for his role in a coup attempt — decided to explain what “galls, or troubles us on this side of the aisle.” He claimed that witnesses in the first impeachment lied in their depositions. “Many of us — I was one of them — sat in a SCIF … for an impeachment [calls out Dan Goldman] … knew there were lies being told to compel the impeachment. … abject straight up lies.”

Then Perry turned to the Russian investigation.

Not to mention the fact that, for years, the other side of the aisle pursued the then-duly elected President of the United States based on pure hyperbole about some Russian hoax that has now turned into, you know, it’s the same old thing from the 1930s in Germany and the 1940s. If you tell a lie enough times it becomes the truth. We sat and watched you dismantle the country and the presidency and any agenda that the American people had voted for based on that.

Then he complained that Hillary Clinton sat for a deposition instead of a grand jury appearance.

Look. Secretary Clinton got away with it. She was allowed to be deposed, not under oath, and her deposition on a Saturday, on a holiday weekend. She got to do that. That galls the rest of America who says, when the FBI or the local magistrate or some law enforcement agency comes knocking on my door and says you’re going to appear, you’ve been served.

In response, Dan Goldman spoke about what distinguished the first Trump impeachment from this GOP inquiry: Fact witnesses. But before he got very far into that, Scott Perry had walked out.

It’s tempting to laugh at this, at the hypocrisy of Perry, who blew off a subpoena himself, and then invoked privileges to withhold evidence of an insurrection from prosecutors, to complain that Hillary also got accommodations from prosecutors. It’s even more tempting to laugh that Perry is so stupid he doesn’t realize neither Trump nor his failson — the latter, a private citizen — did even that in the Mueller investigation; he doesn’t realize that Donald Trump couldn’t even manage what Hillary did. It’s even more tempting to guffaw that Perry has forgotten Hillary’s famous 11-hour Congressional appearance during the Benghazi stunt.

It’s tempting to mock Scott Perry for his belief that the Russian investigation was a hoax, even after five top Trump associates were found, via guilty verdict or judge’s ruling, to have lied to cover up Trump’s ties to Russia. Trump’s campaign manager, coffee boy, his National Security Advisor, his personal lawyer, and his rat-fucker — all of them lied to cover up Trump’s ties to Russia in the year before becoming President.

And I have no idea what he’s referring to when he says witnesses in the first Trump impeachment lied. Perhaps it’s a dispute about Alex Vindman’s testimony that Trump’s White House took out a mention of Burisma in Trump’s perfect phone call with Volodymyr Zelenkyy (though ultimately, even Mike Pence aide Jennifer Williams testified the word Burisma had been uttered). Perhaps he’s adopting the renewed Republican belief — based off what Mykola Zlochevsky told an FBI informant around the time that Bill Barr’s DOJ shut down a corruption investigation into him, that he had bribed Joe Biden — that Biden got Viktor Shokin fired to help Burisma, not to reverse corruption.

It’s tempting to dismiss this rank hypocrisy from one of the key figures in an attack on democracy in 2021.

But it’s important to recognize that Scott Perry believes this. Scott Perry actually believes that Hillary Clinton got better treatment than Donald Trump got. Scott Perry actually believes that the Russian investigation revealed no egregious wrong-doing, including strong evidence that both Trump’s campaign manager and his rat-fucker helped the attack by Russian spies, whether wittingly or not. Scott Perry actually believes that Trump didn’t violate Congress’ appropriation authority to try to extort campaign assistance from a foreign leader.

Sure, those beliefs are ridiculous, and easily factually disproven. But as Perry demonstrated by walking out as Goldman spoke, he’s not going to stick around to be exposed to any facts.

One reason Scott Perry believes all these ridiculous things are because he lives in a right wing media bubble, and the default position for those who live in that media bubble is to believe these false claims. If you consume Fox News, you would have no way of learning that these are all false beliefs. None.

Another reason that Scott Perry believes these things is because he was easily, gleefully manipulated by one of the best con mans of all time, Donald Trump. Scott Perry is so gullible he even believed some of the most whack election conspiracy claims in 2020.

He’s an easy mark, Scott Perry is.

And finally, Scott Perry believes these things because he has become susceptible to Russian propaganda, propaganda designed to make easy marks like Scott Perry hate rule of law, prefer his party, “his guy,” over the Constitution.

Scott Perry attacked his country and he did so — he told us at length on Wednesday — because he came to believe a series of false claims, believe them so deeply that rule of law galls him.

It’s tempting to laugh that someone can be so easily manipulated as Scott Perry has been. But Scott Perry succinctly explained why he attacked the country, why he helped Donald Trump attack democracy. And until we come to grips with the series of things that came to make Scott Perry believe absurd things, we will never convince Trump’s believers to adhere to rule of law.

Update: In a recent post on Elise Stefanik, in which I argued that she adopts Trump’s fascism out of naked ambition, I included a rubric I’ve increasingly used to try to understand why Republicans adopt Trump’s fascism. Because folks in comments are discussing similar ideas, I thought I’d include it.

  1. Cowards afraid of his retaliation
  2. People conned by his grift
  3. Utilitarians who believe he’s the only way GOP wins
  4. Adherents of fascism
  5. Christian nationalists

This post argues that Perry believes a bunch of obviously false things, which would put him into the con category. But he has definitely parroted ideologies that would put him into one of the latter two categories.

Refusing to Take Yes for an Answer: Remember the Pardons in the Desk Drawer

One notable aspect of yesterday’s hearing on Trump’s absolute immunity claims is the fact that James Pearce — and through him, Jack Smith — refused to take yes for an answer.

They refused to accept what Judge Florence Pan, at least, seemed to suggest would be the quickest way to get to trial.

Throughout the hearing, Judges Michelle Childs and Pan seemed persuaded by American Oversight’s amicus argument that Midland Asphalt prohibits this appeal. While Childs never seemed to fully concede that point, after Pearce responded to a Childs’ argument by stating that because this involves a President, the immunity analysis is different, Pan asked Pearce why he wasn’t adopting the American Oversight argument. Pearce responded, first, by emphasizing the goal of “doing justice” and so getting the law right, and only secondarily getting to trial quickly.

Judge Pan: Why aren’t you taking the position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?

Pearce: Our interests are two-fold. One, as in United States versus Nixon, it is in doing justice. And the second is to move promptly to satisfy the public’s and the defendant’s interest in a prompt resolution of this trial. But doing justice means getting the law right, and our view is even if a dismissal on jurisdiction might move this case faster — actually, empirically, that’s hard to know — we just don’t think that’s the right analysis here, on either immunity or the second claim.

So Pan set about figuring out how they could use the hypothetical statutory jurisdiction to reach the merits even if she and, especially, Childs still had doubts they were allowed to do that.

Pan: If we have discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent which which suggests that this appeal is interlocutory and does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction, about whether or not we should reach the merits?

Pearce: So I think in the American Hospitals decision, the 2020 decision, the court said, the formulation was something like, we’re doubtful as to our jurisdiction but nonetheless, invoking the line of cases you’ve just described, went on to decide the merits. We would urge the court to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the merits.

At least some of the panelists on this worthwhile Lawfare Podcast about the hearing took that “doing justice” line to be fluff, and took the “empirical” questions about whether rejecting this appeal on jurisdictional grounds would really speed things up.

But I’m not so sure.

Granted, later in the hearing, Pearce provided some explanation for why a rejection on jurisdictional grounds might not help move things along. It came as part of a discussion of two questions: Childs’ question about whether the panel should rule on the broad question of presidential immunity, as Judge Chutkan had, or whether — as Judge Henderson at least entertained — they should assess whether a president was immune from prosecution for the crimes, as charged in the indictment, as most Motions to Dismiss are treated. In the same discussion, Henderson asked twice about how to apply the Blassingame decision in this context. Both these questions are about whether Trump can be prosecuted only because of the nature of the charges in the indictment, or whether as an ex-President he can be charged, regardless of what the charges are.

But as the discussion proceeded, Pearce voiced some of the concerns about what a more narrow ruling would do to the prosecution.

Childs: Are we to look at the broader question that was dealt with by Judge Chutkan with respect to Presidential immunity, no, absolutely immunity for no criminal prosecution of official acts, versus looking at this indictment and accepting as true the allegations that are brought there. Or both?

James Pearce: So we have a strong preference that the court adopts the former view, and looks at the question — in the way, as the District Court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, Is there, in fact, immunity for a former President?

We think the answer to that is no, for of course all the reasons we put in the brief and I’m happy to sort of address here. Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a President orders his Seal team to assassinate his political rival and resigns, for example, before an impeachment? Not a criminal act.

President sells a pardon. Resigns, or is not impeached? Not a crime.

I think that is [an] extraordinarily frightening future, and that is the kind — if we’re talking about a balancing and a weighing of the interests — I think that should weigh extraordinarily heavily in the court’s consideration.

Henderson: Let me ask you about the effect of Blassingame. How does it either bind us. How is it persuasive to us.

Pearce: So, I think it, formally, has no application at all, because of course very early on in the opinion, the court says, “we’re not dealing with any questions of immunity in the criminal context.” I tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the Fitzgerald standard outer perimeter standard. It says, you don’t look at intent, or you don’t look at purpose. Context plays a more important role than — often — the content of communications. I think the significant change of course is the acknowledgement of looking at a President — whether that President is acting in his or her role as office-seeker or office-holder.

But, again, to go back to my response to Judge Childs’ question, although that would change the nature of whether — it may change the nature of whether certain things are or are not official acts in the indictment, we just think that’s entirely the wrong paradigm to use. We think that under Fitzgerald — in fact, that would be inconsistent with Fitzgerald’s reasoning — and it’s also just irreconcilable with the nature of how criminal law works. I mean, to say that we’re not going to take account of motive or intent? There are plenty of acts that, everyday, I mean, for example, if I were going to encourage someone not to testify at trial because I wanted to go on a hike with that person, it’s not a crime. If I were to encourage someone not to go on a hike because their testimony a trial — sorry, encourage them to skip their trial testimony because their testimony was going to incriminate me?

It’s the same underlying act.

And now, when you map that onto the criminal–onto the Presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic, or a business rival? That would seem to then, be exempt, potentially, from criminal prosecution, we certainly wouldn’t concede that. If that’s the world we need to live in. I think we would advance plenty of arguments below, but we really — but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.

Childs: But looking, and thinking about your answer about potentially not looking at, your argument about motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally.

Pearce: Yes. Precisely. And that’s why it wouldn’t make sense to use this non-motive — as I understand how Fitzgerald outer perimeter standard might work, it could say, “those types of official acts, official conduct, that is something from which a President is immune.” You don’t ever get to that second question of, well, did that person act with mens rea, can we prove it beyond a reasonable doubt, because at least under a theory where it’s not available at trial, then there’s no way to reach that conduct.

Childs: When we’re looking at this indictment, though — back to Judge Henderon’s question about the use of Blassingame. Some of the acts are the same or similar, and there was direct discussion of that in that opinion as determining whether it was office-seeker versus office-holder. So do we use Blassingame, at least for that?

Pearce: So if this court decides the case the way the district court does — did, pardon me — then I don’t think Blassingame has any role to play at all. Because there is no question of whether, you know, is this act official, or were these sets of allegations official? The question is, based on a Fitzgerald analysis and history, precedent, et cetera, is there any quantum of immunity for a former President. We think the answer to that question is no. There’s no reason, as the district court also found, to turn to the indictment and consider the outer perimeter, this civil outer perimeter standard.

Henderson: How about if you don’t decide it? On the Blassingame. [inaudible]

Pearce: If you don’t, [inaudible, cross talk] so there are a lot of different ways this court could not decide it that way. I think, to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter, and that, I think, is enough to affirm, I think either party is encouraging the court at that point to send the case back to the District Court. I think that would then create a series of challenging questions that I mentioned earlier: What are the evidentiary theories under which that evidence could potentially come in? And, but it would be our strong view and we would want, if the court followed that route, which we would urge the court not to, to make clear that immunity is an on-off switch. Right? This is the immunity appeal. If the court says, we affirm, we send it back, there’s no immunity. Then other things become evidentiary questions, or questions of jury instructions, which any appeal is then an appeal from a final judgment, if any final judgment.

Childs: And the immunity defense is never lost?

Pearce: Um, well, I don’t think it’s immunity at that point. I think this court, in what I’ve just described, will have said there is no immunity. There may be some other types of challenges, as evidence comes in at trial, but again, I think that would lead to this extraordinarily complicated litigation that is, not the topline reason, but certainly among the reasons why the court should not go down that path. [emphasis added]

As Childs and Pearce laid out, one problem with defining immunity in the criminal context with regards to official (in Blassingame, actions taken as an office-holder) and non-official (in Blassingame, actions taken as an office-seeker) acts is that criminal law, including the laws charged here, pivot on mens rea. Trump can’t be convicted of obstructing the vote certification, for example (assuming SCOTUS sustains its adoption with January 6), unless prosecutors can prove he had “corrupt purpose” in doing so, however that ends up being defined.

But also, if you’re going to split presidential immunity based on a categorization about official and unofficial acts, the evidentiary disputes become impossible. It would draw out that phase of litigation, probably requiring several hearings, but also would create expansive basis for appeal.

One argument John Sauer made yesterday, for example, is that because in Knight, the Second Circuit held that Trump’s Twitter account was a public forum on which he could not conduct viewpoint discrimination, it made his Tweets official acts. If the DC Circuit rules on an official/unofficial split, Trump would undoubtedly argue that under Knight none of his Tweets could come in as evidence, at least three of which are among the most critical pieces of evidence in the case.

But, as Pearce said, the difficulties such a split would create was not the topline concern here. They want DC Circuit to reach the merits, and they want DC Circuit to rule broadly, as Chutkan did.

I don’t think that “doing justice” comment is fluff. Immediately after Pearce presented his not-topline concern about how a categorical ruling would affect the prosecution, he and Pan returned to the theme of the hearing: The Seal Team Six assassination.

And also, selling pardons.

Immediately after that exchange — which was close to the end of Pearce’s time — Pan came back to what, as this really accessible George Conway column lays out, she had stripped things down to be the key issue.

Pan: Since President Trump concedes that a President can be criminally prosecuted under some circumstances — he says that is true only if he is first impeached and convicted by Congress, do you agree that this appeal largely boils down to whether he’s correct in his interpretation of the Impeachment Judgment Clause? That is, if he’s correct, that the Impeachment Judgment Clause includes this impeachment-first rule, then he wins, and if he’s wrong, if we think the Impeachment Judgement Clause does not contain an impeachment-first rule, then he loses?

Pearce: So I think that’s basically right. I mean, the defendant’s theory over the course of this litigation has evolved a bit, and I think, now, before this court, I understand the argument to be the principle submission to be as you’ve just described — what we call in our brief the conditioned precedent argument. That there is only liability — criminal liability for a former president — if that President has been impeached and convicted.

And that is wrong for textual, structural, historical reasons, and a host of practical ones, one of which I’ll start with again, to just amplify the point. It would mean that if a former President engages in assassination, selling pardons, these kinds of things, and then isn’t impeached and convicted? There is no accountability for that, for that individual. And that is frightening. [my emphasis]

While Pearce addressed Sauer’s historical argument briefly, this was close to the end of Pearce’s argument, and really the key point of the hearing. Pan had (as Conway laid out) stripped the issues down to whether Trump’s view on impeachment is correct, and then Pan had demonstrated, using hypotheticals, how impossibly absurd that outcome would be.

James Pearce and Florence Pan don’t want to give Joe Biden an easy way to legally assassinate Trump, only Trump is asking for that.

Pan’s laser focus on those hypotheticals provided Pearce opportunity to repeatedly do what he did far more subtly starting in October. As I argued then, the five hypotheticals that Pearce floated in October were all near analogues for Trump’s known actions.

  • Trading pardons to dissuade criminal associates from testifying against someone
  • Ordering the National Guard to murder his critics
  • Ordering an FBI agent to plant evidence on his political enemy
  • Taking a bribe in exchange for a family member getting a lucrative contract
  • Selling nuclear secrets to America’s adversaries

Todd Blanche (one of the lawyers representing Trump in both the stolen election and stolen documents cases, and so someone who is intimately familiar what kind of paperwork DOJ discovered, along with hundreds of classified documents, that Trump took with him when he left office) responded to this line of argument by calling the hypotheticals treason and suggesting they might be private acts, but arguing, as Sauer did yesterday that there would still be a remedy: impeachment.

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

As Pan had laid out, though, one part of Trump’s argument for immunity is actually bigger than that, arguing for immunity regardless. Indeed, that’s how Pearce presented this very same argument in his appellate response. He took Trump’s claims of absolute immunity at his word, describing that these scenarios — but not the pardon one — would be flat-out legal.

The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern. That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully. See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s delivery of the State of the Union address is an official act). Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability. [my emphasis]

An analogue for Pan’s (more vivid) Seal Team Six hypothetical was in there: the National Guard order. And an analogue for her military secrets was in there: selling nuclear secrets.

But pardons aren’t in that brief. The only discussion of pardons in it pertained to the Nixon pardon.

Indeed, it was Sauer who briefed pardons, not Pearce. In an attempt to “prove” that presidents had committed crimes that had not been charged before, he cited the Marc Rich pardon — or rather an Andy McCarthy paywalled column about it — to imply that Bill Clinton committed a crime that had not been prosecuted.

The government argues that the absence of any prior criminal prosecution of a President in American history merely “reflects … the fact that most presidents have done nothing criminal.” Resp.Br.37 (citation omitted). This claim is untenable. App.Br.17 (citing examples of Presidents accused of crimes in official acts, from John Quincy Adams to Barack Obama). American history contains many such examples—President Reagan’s alleged involvement in Iran-Contra, President Clinton’s pardon of Marc Rich, President Bush’s claims of “weapons of mass destruction,” President Nixon’s firing of Archibald Cox, etc. 5 None of the above conduct was prosecuted. “Perhaps the most telling indication of a severe constitutional problem” with this prosecution “is a lack of historical precedent to support it.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (cleaned up).

5 Tim Arango, Ex-Prosecutor’s Book Accuses Bush of Murder, N.Y. TIMES (July 7, 2008), https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html; Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, NAT’L REVIEW (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wagesof-prosecuting-presidents-over-their-official-acts/; The Editors, Iran-Contra Scandal Begins with Shredded Documents, HISTORY (Nov. 13, 2009), at https://www.history.com/this-day-in-history/oliver-north-starts-feeding-documentsinto-the-shredding-machine.

With regards to Iran-Contra, Pearce noted that “in Chapter 27” of Special Prosecutor Lawrence Walsh’s report, “assumes that President Reagan is subject to prosecution and says, but we didn’t get there evidentiarily.”

In response to Judge Pan’s hypotheticals yesterday, he returned to noted authority, Andy McCarthy’s opinion, about Marc Rich, then said again that pardons had come up historically and not been charged. Pan raised it as a hypothetical, but Sauer wanted to make good and sure that pardons could not be charged because, he said, Andy McCarthy says so.

But then both times Pearce mocked the implications of Sauer’s logic, he did raise selling pardons, even though he left it off his response brief. And he added the scenario of corruptly getting someone not to testify against oneself by inviting them on a hike!

Incidentally, according to Anna Bower, Walt Nauta — the aide who has refused to explain what he knows about what happened to the stolen classified documents that got brought to Bedminster in 2022 — along with his attorney Stan Woodward (and of course Boris Epshteyn), were at yesterday’s hearing.

But the reason — one reason — why I find the way the way pardons have gotten floated repeatedly in this claim of absolute immunity is that, along with hundreds of documents, including nuclear secrets, found at Mar-a-Lago on August 8, 2022, DOJ found documentation about clemency granted by Donald Trump, probably including that of:

Oh, and also, some kind of clemency document — one that has some tie to Emmanuel Macron and therefore possibly a pardon beyond the one we know about — for Roger Stone, the guy who was convicted after refusing to disclose the substance of conversations he had with Donald Trump about advance knowledge of the Russian hack-and-leak. The same guy who, in 2020, was allegedly plotting assassinations with his former NYPD buddy Sal Greco.

It’s certainly possible that James Pearce — and so Jack Smith — want to have a clear decision that presidents can be prosecuted for their official acts simply out of getting the law right.

But both sides in this argument seem to understand there’s something more going on.

Judge Karen Henderson’s Floodgate Concerns

While Judge Florence Pan was asking, over and over, if Trump attorney John Sauer really was saying that a President could assassinate his rival and, if not impeached, avoid any accountability, Judge Karen Henderson expressed her disagreement with Sauer’s argument more circumspectly.

But she did express disagreement.

If I read her comments right, they mean that, at worst, Henderson would support remanding the case to Judge Chutkan to figure out whether the things of which Trump is accused are official acts. Indeed, by the end of a brutal set of questions, that seemed to be what Sauer was begging for, which at least would produce the delay his client seeks.

Henderson’s key lens — something she asked both Sauer and AUSA James Pearce — was, rather than distinguishing between private and official acts, instead distinguishing between discretionary acts and those mandated by law, ministerial acts.

Whether the progeny of Madison v. Marbury has distinguished between discretionary official acts and ministerial, by which they mean, imposed by law, and it’s the latter one by which he can be held liable.

This seemed to be the basis on which she wants to base jurisdiction (where Pan and Michelle Childs seemed inclined to argue they didn’t have jurisdiction). She seemed to be saying that a President could be prosecuted for things that were dictated by law but not for things not dictated by law.

Sauer didn’t get her point. He responded that nothing in the indictment was ministerial.

To which Henderson objected that the Take Care Clause requires the President to follow, “every one of … the laws.”

Why isn’t it ministerial when his constitutional duty, to take care that the laws be faithfully executed, requires him to follow those laws? Every one of them.

Sauer kept digging, arguing the Take Care Clause was entirely discretionary.

Henderson responded, getting to what, I think, is her point. The progeny of Marbury has given Article III courts jurisdiction over ministerial actions, which when yoked with the Take Care Clause requires the President to be subject to individual laws.

I think it’s paradoxical to say that his constitutional duty, to take care that the laws be faithfully executed, allows him to violate criminal law. Now, we’re at the motion to dismiss stage. The government has charged the specific criminal laws. We have to assume they’re true.

[snip]

We’ve gotten beyond Marbury in the sense that official acts have been subdivided into discretionary and duty-bound or ministerial. And in the ministerial or duty-bound, at least with respect even legislators and judges, they have been held criminally liable. And that’s in the face, at least with respect to the legislators, of an explicit privilege.

It’s clear that she was bothered by Sauer’s Take Care Clause arguments, which argued that everything included in the indictment might be covered by the Take Care Clause requiring that the President enforce the law.

Sauer seemed to recognize defeat: as he finished he asked again for a stay so Trump can appeal.

As mentioned, Judge Henderson asked the same question about Marbury of James Pearce, arguing for Jack Smith. He responded this way:

Our interpretation is much closer in line to what I think I heard Judge Pan setting out and similar to yours. It certainly does not erect an unreviewable power for the Presidency. I think the prime example of that is the steel seizure case. The Youngstown case. That was President Truman closing the steel mills. That was the court coming in and reviewing that. We see that all the way through to the present. And so it’s hard to see any world in which the court just says, we can’t intervene here.

I accept the court’s, Judge Henderson, the distinction between ministerial and discretionary acts. Compliance with the law is not some sort of discretionary call, right? It is something that, I fully endorse or agree with the idea of a paradox of a President’s, on the one hand, having the Article II Take Care responsibility, and on the other hand seeing the law, compliance with the law as optional.

That seemed to get Henderson where she wanted to go to decide the case. Then she revealed her worry: That in deciding against Trump, it will unleash a floodgate of similar criminal prosecutions.

Henderson: Let me switch and ask you, how do we write an opinion that would stop the floodgates? Your predecessors in their OLC opinions recognized that criminal liability would be unavoidably political.

Pearce: So, a couple of responses. Of course, that was with respect to a sitting President. I think the analysis is extraordinarily different with respect to a former President, which OLC, I’m sorry —

Henderson: But with respect to being necessarily political.

Pearce: There is a political process, which is impeachment. And we can talk about that. But there is a legal process which is decidedly not political. And that is a process which has the kinds of safeguards that a couple of members of the court here have already referred to. We’re talking about prosecutors who follow strict codes and who are presumed to act with regularity, grand jurors, petit jury eventually, and this court, Article III courts standing above it.

But I also want to push back a little against this idea of floodgates. At least since the Watergate era, fifty years ago, has there been widespread societal recognition including by Presidents and the Executive Branch that a former President is subject to criminal prosecution.

And Nixon was not about private conduct. Nixon was about — among other things — using the CIA to try to interfere with an FBI investigation. He then accepts a pardon, understanding that, after having resigned, so that also undermines this impeachment first argument. After Nixon, we then see a series of independent and special prosecutors investigating a range of different types of conduct.

[snip]

This notion that we’re going to all of a sudden see a floodgate, the careful investigations in the Clinton era didn’t result in any charges. The fact that this investigation did doesn’t reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here. Never before has there been allegations that a sitting President has, with private individuals, and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.

Ultimately, Pearce argued that Trump’s parade of horribles has been disproven by the last fifty years in which it has been presumed that former Presidents could be prosecuted, but none were, until Trump.

Henderson has been sympathetic to Trump’s past claims that he’s being treated differently, politically. So I can understand how it would concern her.

But as noted, once you’re dealing with a former President, that shouldn’t be an issue.

John Sauer Says Joe Biden May Assassinate His Client

In the hearing over whether Trump is entitled to absolute immunity, Trump’s attorney, John Sauer — assisted by some hypotheticals from Judge Florence Pan — backed himself into the corner demanded by his claims.

Joe Biden could order Seal Team Six to assassinate Donald Trump, then quit immediately, before Congress could impeach him, and there would be absolutely no way to hold him accountable for killing his opponent.

Okay then.

James Pearce, in his response, asked “what kind of world are we living in” when Sauer would argue that there would be a way for the President to assassinate his opponent, then resign, or sell pardons, resign, and get away with it.

That’s the world Trump wants, his attorney just argued.

The Tommy Tuberville Gap in the Trump Indictment

The release of details about Dan Scavino’s testimony in Trump’s January 6 case made me realize something: Trump’s call to Tommy Tuberville around 2:26PM on January 6 isn’t in the indictment.

As you’ll recall, Trump attempted to call Tommy Tuberville, but instead got Mike Lee’s phone. Back before he became Based Mike Lee, the Utah Senator told the local UT press what happened next.

With a mob of election protesters laying siege to the U.S. Capitol, Sen. Mike Lee had just ended a prayer with some of his colleagues in the Senate chamber when his cellphone rang.

Caller ID showed the call originated from the White House. Lee thought it might be national security adviser Robert O’Brien, with whom he’d been playing phone tag on an unrelated issue. It wasn’t O’Brien. It was President Donald Trump.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

Tuberville, in real time with impeachment, confirmed the substance of the call.

Sen. Tommy Tuberville revealed late Wednesday that he spoke to Donald Trump on Jan. 6, just as a violent mob closed in on the the Senate, and informed the then-president directly that Vice President Mike Pence had just been evacuated from the chamber.

“I said ‘Mr. President, they just took the vice president out, I’ve got to go,’” Tuberville (R-Ala.) told POLITICO on Capitol Hill on Wednesday night, saying he cut the phone call short amid the chaos.

During impeachment, Lee released call records that (at the time) undercut something Democrats were suggesting about the call: that Trump may have been told by Tuberville about the mob before he sent the Tweet targeting Pence. Lee also tried to get any mention of the call — the call he had revealed — stricken from the Congressional Record.

Back on February 14, 2021 — a good ten months before Liz Cheney and through her the TV lawyers discovered Trump’s exposure on this count — I argued that was compelling evidence that Trump had obstructed the vote certification.

Trump’s indictment does describe efforts he and Rudy Giuliani and Co-Conspirator 6 (who is most likely Boris Epshteyn) made to get Congress to further delay the vote count, later in the day (perhaps hoping the Coffee County caper would provide cause to create more delay). But it places those efforts later, during the evening.

119. On the evening of January 6, the Defendant and Co-Conspirator 1 attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them, based on knowingly false claims of election fraud, to delay the certification, including:

[Per ABC report, Trump showed Nick Luna a draft Tweet here]

a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.

[Tweet released, an hour later Trump cut off Twitter]

b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 placed calls to five United States Senators and one United States Representative.

c. Co-Conspirator 6 attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 to call and attempt to enlist in further delaying the certification.

d. In one of the calls, Co-Conspirator 1 left a voicemail intended for a United States Senator that said, “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow-ideally until the end of tomorrow.”

e. In another message intended for another United States Senator, CoConspirator 1 repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that “illegal immigrants” had voted in substantial numbers in Arizona; and that “Georgia gave you a number in which 65,000 people who were underage voted.” Co-Conspirator 1 also claimed that the Vice President’s actions had been surprising and asked the Senator to “object to every state and kind of spread this out a little bit like a filibuster[.]”

There’s no mention of the call that Trump made at around 2:26.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

[Tommy Tuberville call took place here]

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

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. [my emphasis]

Two people who might be interested in the Scavino testimony released the other day, then, are Senators Lee and Tuberville. They’ve now been told that Scavino testified that he was not in the room when that call was placed (consistent with the indictment’s claim that Trump had been left alone in the dining room), meaning there’s no witness to the call besides Trump and the two Senators, both of whom would be protected from compelled testimony under Speech and Debate.

If Scavino’s testimony ever were to change, if Scavino ever were to recall witnessing that call, it would be among the most damaging evidence available: proof that in the wake of Pence’s evacuation, Trump turned immediately to stalling doubling down on the advantage he had won.

Instead, prosecutors are left with the later calls, which can be introduced under a co-conspirator hearsay exception.

Still, it’s telling: While Trump’s advisors were someplace else squabbling about whether Scavino was responsible for that Tweet that might get Mike Pence killed, Trump was (presumably still alone) seeking more delay.

Ball of Thread: Introduction

In my post on Elise Stefanik’s decline into fascism, I described that I’ve been meaning to lay out how Trump used his legal cases to train Republicans to hate rule of law, which has been a key part of how the Republican party has come to embrace fascism. I’ve been dreading and therefore putting off writing that, in large part because it’ll involve rehashing the Russian investigation, and the counter-propaganda to the Russian investigation has been so effective that even addressing the reality of the Russian investigation at this point is always a real chore.

One other reason I’ve been putting it off is because there are a lot of things I want to have in the background — what I’ll call a Ball of Thread. These are not so much related points. Rather, they’re just things that I want to have in the background so I can pull on one or another thread without distracting from the main argument.

So I’m going to first try to write those up fairly quickly, so they’re out there, my Ball of Thread. Some of these posts will be more observation than detailed collection of facts. Others will not show my proof to the extent I normally do. Some will update things I’ve already said. Still others would not normally merit their own post, but I want to have it out there, as part of my Ball of Thread.

Plus, I’m going to try to do this while continuing to cover two Trump prosecutions, multiple Hunter Biden dick pic sniffing campaigns, 1,200 January 6 cases, and some other things that will come up. You know? My day job. All while learning to walk again, after foot surgery.

Happy New Year!

As of now, I anticipate that my Ball of Thread will include:

These will hopefully be quick; they may be sloppy; they likely will not be in this order. But hopefully I can spin my Ball of Thread then move onto the larger task.

On the image: The featured image for this post comes from the Library of Congress’ Farm Services Administration set. 

The (Il)Logic of Elise Stefanik’s Hostage Video

I read a column recently by someone who argued that DOJ had failed because Trump and his top deputies are not yet in prison.

It was the expression of someone who always had unrealistic expectations about how long white collar investigations take, even ignoring the delays overtly attributable in this case to Executive Privilege claims (which stretched from June 2022 to April 2023), other privilege fights (9 months for Rudy’s devices, longer for John Eastman’s, and still longer for Scott Perry’s, with a total of 25 witnesses invoking some kind of privilege), and litigation that would be inevitable when prosecuting the first former President (three months so far on the immunity claim).

Where the column made a decent point, though, is in the ethical response to Trump’s prosecution. Normally, if a politician were charged with 91 felonies on top of the several personally damning civil suits and two trials involving your eponymous corporation, it would be sheer insanity for any politician to have anything to do with the scoundrel.

Republicans don’t give a fuck anymore.

And until we can solve that problem, we will always be fighting an uphill battle against fascism, because Republicans simply do not give a shit about rule of law anymore.

As I hope to write up one of these days, Trump has spent the last 8 years training Republicans to loathe rule of law. At first, he trained Republicans to adhere to him over rule of law. Now, opposing rule of law is an explicit litmus test for politicians in the Republican Party, who as a result join Donald Trump as he assaults rule of law at every turn.

Which is important background to Elise Stefanik’s appearance on Meet the Press today. Along with refusing to commit to certifying the election, Elise called those prosecuted for their crimes on January 6 “hostages” (much of the transcript is below).

In context, I don’t think Elise was explicitly comparing the Jan6ers to hostages held by Hamas, as many took her comment to be.

Rather, and perhaps more damning, I believe this was defensiveness. I believe she was, instead, defensively responding to the clip Kristen Welker had shown of Trump adopting the term, a term Trump has adopted from the culture of martyrdom that right wing supporters of terrorism adopted (as right wing terrorists always do) long before October 7. Elise was also defensively responding to a clip Welker showed of Elise herself, condemning the violence that Trump has now embraced.

Before I look at what Elise said, let’s talk about why.

In response to a great post on January 6 and fascism the other day, I attempted to write a taxonomy of the reasons why Republicans are waltzing along with Trump towards fascism. This is evolving, but I came up with:

  1. Cowards afraid of his retaliation
  2. People conned by his grift
  3. Utilitarians who believe he’s the only way GOP wins
  4. Adherents of fascism
  5. Christian nationalists

I have no doubt that Elise worries that defending her past statements might elicit retaliation from Trump, item 1. But for her, this is about ambition, utility, item 3.

In a profile that describes friends explaining that Elise wasn’t radicalized to Trump’s radical beliefs, she just sold out to her ambition, Nicholas Confessore described her gradual transformation into one of the most ardent MAGAts. With Elise it’s all about naked ambition, the conviction that by yoking her own destiny to Donald Trump’s she will gain power herself.

But according to current and former friends, she felt increasingly frustrated and lost in the House, horrified by the behavior of her harder-right colleagues and unsure of her place. As Mr. Trump’s presidency unfolded, it was becoming more difficult to play the middle. Some of the high-profile issues on which she had positioned herself as a bipartisan leader — climate action, immigration — had little traction in the Trump era. The president’s base wanted revenge, not high-minded ideas; Mr. Trump set policy by tweet, not white paper. As the 2018 midterms approached, Ms. Stefanik’s campaign took on a grim, joyless air. According to friends and advisers, she seemed brittle and unhappy. No longer a novice candidate, she dictated a hyperlocal campaign, emphasizing her bipartisanship and focus on regional issues. Though Democrats took the House that fall, Ms. Stefanik won the largest margin of any Republican in New York, a seeming validation of her carefully calibrated approach. But it was bittersweet. She was a promising young lawmaker with a seat at no particular table, respected by her party’s fractured establishment but viewed with suspicion by its ascendant Trump wing.

Still, the campaign had given Ms. Stefanik a glimpse of an alternate path. That August, she had appeared with Mr. Trump at Fort Drum, a major military base in her district, to mark the signing of that year’s defense bill. With a Democratic wave approaching, Ms. Stefanik had fretted for weeks over whether and how she wanted him to appear, but ultimately lobbied hard for Mr. Trump’s visit, according to a former White House official involved in the planning. At Fort Drum, Mr. Trump mispronounced her name — calling her “STEF-a-nik,” not for the last time — and offered backhanded praise. “She called me so many times” that he had dodged her calls, Mr. Trump told the audience. Ms. Stefanik gave a brief speech from behind the presidential lectern, lit for television as she cited the bill’s pay increase for soldiers and provisions she had written providing support for military spouses.

The day made a powerful impression, according to people who know or have worked with her. The cheering crowd was “a taste of being Jim Jordan and Mark Meadows for a day,” said the former White House official, referring to two of Mr. Trump’s staunchest House allies. More important, she had successfully maneuvered the power of the presidency — even if it was his presidency — behind a piece of her own agenda. It was a taste of the influence she had always imagined having.

[snip]

Virtually no one who knows her believes she has any genuine attachment to Trump-style populism — unlike Mr. Trump’s earliest supporters, for example, or media figures like the Fox host Tucker Carlson. Indeed, over dozens of interviews, former aides, advisers and friends going back to Ms. Stefanik’s Harvard days struggled to identify any of her deeply held political beliefs at all. Most recalled, instead, her generic loyalty to the Republican Party, her intense competitiveness and her unerring ability to absorb what she thought people around her wanted and to reflect it back at them. Eager to advance, skilled at impressing more powerful figures with her intelligence and work ethic, she has spent years embedding herself wherever the action seems to be at the time.

Today’s appearance was, as everything will be for the next six months, an audition by Elise to be Trump’s running mate.

And that dictated her pitch perfect — from a Trumpian sense — answers to Welker’s questions.

Watch how she did it (I’m paraphrasing the transcript below. Direct quotes are marked. Trump keywords are in pink):

Welker: Do you still stand by your criticism of violence from January 6?

Elise: You cut my defense of “election integrity“! Plus, I also condemned BLM violence. And did you know that [we are claiming without evidence] Joe Biden coordinated with Hunter Biden, who blew off our subpoena, which makes Joe Biden the most corrupt President ever?

Welker: Well, the White House refutes your claim, but Trump lost fair and square. Do you think insurrectionists should be held accountable?

Elise: Hostages! Prisoners! “I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives.” Weaponization. Two sets of rules. “If your last name is Clinton or it’s Biden, you get to live by a different set of rules.” Condemn the violence. Election integrity. “if we don’t have [election integrity], we do not have a democracy.” “[T]he real threat to our democracy is these baseless witch hunt investigations and lawsuits against President Trump.” Witch hunt. Tish James. DC Circuit. Undemocratic. Shredding our Constitution. “[Y]ou know who agrees with me, Kristen? The American people. That’s why President Trump is winning in poll after poll against Joe Biden.”

Welker: But DOJ indicted top-name Democrats, including the president’s son, twice

Elise [Interrupts] “[T]he American people are very smart. They know that they tried to give Hunter Biden a sweetheart deal. We’ve heard from multiple IRS blowers” [sic] [sic]

Welker: “He’s been indicted twice, Congresswoman –”

Elise: “A judge that threw out a sweetheart deal that was negotiated on Joe Biden’s behalf. Joe Biden and the Department of Justice have been withheld from going after the Biden crime family, which Joe Biden sits atop of.”

Welker: “Other top Democrats have been indicted, as well. But we have a lot to get to, so I want to stay on track.”

Elise is as good at this kind of word salad filibuster as Jim Jordan, and she cleans up a lot better.

It wasn’t (just) that Elise adopted the word “hostages” for Jan6ers, adopting the term Trump used to turn Jan6ers into martyrs. Much of the rest of her response consisted of blurting the key words she knows Trump wants to see on TV.

This is not meant to be a rational response. Trump is not in the business of fielding rational responses. This was a brilliant performance of Trump’s own degradation of rational response, with many of the required key words included.

Hunter Biden. Dick Pics. Hunter Biden. Dick Pics.

Elise’s response was an overt rejection of rule of law — excuses made for the terrorists who assaulted her work place. It was a defense of Nazis just weeks after her success at accusing liberals of anti-semitism. But it was also a willful rejection of rational argument, in favor of blurting the key words she knows will win her favor from Trump.

It was, most of all, an assault on rationality and truth itself: a refusal to engage in Welker’s futile attempt to get Stefanik to abide by her own words, much less adhere to rational defense of her, much less Trump’s, actions.

I’m not really sure what to do with these exchanges, short of big outlets like Meet the Press refusing to invite insurrectionists. At the very least, people who chant fascist slogans to please Trump need to pay a price. But where? How?

But the press needs to understand that interviews with Trump’s people are not, for him, designed to be a defense of his beliefs — or lack thereof. They are designed to throw out as many key words as possible to blur matters of truth.

Which task Elise performed spectacularly today.


KRISTEN WELKER:

In terms of what we’re hearing today, former President Trump has referred to January 6th as a, quote, “beautiful day.” Just this weekend, he referred to some of those who are serving time for having stormed the Capitol as, quote, “hostages.” Do you still feel as though that day was tragic and that those who were responsible should be held responsible to the fullest extent of the law?

REP. ELISE STEFANIK:

Well, first of all, Kristen, as typical for NBC and the biased media, you played one excerpt of my speech. I stand by my comments that I made on the House floor. I stood up for election integrity, and I challenged and objected to the certification of the state of Pennsylvania because of the unconstitutional overreach. So, I absolutely stand by my floor speech. I am proud to support President Trump. And I want to correct another statement you made that there is no coordination with Joe Biden and the Department of Justice in prosecutions against President Trump. We just saw Hunter Biden defy a congressional subpoena and the White House admitting it was in coordination with Joe Biden the morning of. That is coordination, and I believe that Joe Biden will be found to be the most corrupt president in our nation’s history. And that’s why all of the investigative work that we’re doing is so, so important, because the American people, they deserve transparency and accountability.

KRISTEN WELKER:

A lot to unpack there. Of course, the White House has said that Hunter Biden is acting unilaterally. On the issue of election integrity, though, as you know, Trump took his case to court more than 60 times that there was fraud. He didn’t win. But I want to get back to this key question. Do you still think it was a tragic day? Do you think that the people who stormed the Capitol should be held responsible to the full extent of the law –

REP. ELISE STEFANIK:

I have concerns about the treatment of January 6th hostages. I have concerns – we have a role in Congress of oversight over our treatments of prisoners. And I believe that we’re seeing the weaponization of the federal government against not just President Trump, but we’re seeing it against conservatives. We’re seeing it against Catholics. And that’s one of the reasons why I’m so proud to serve in the Select Committee on the Weaponization of the Government, because the American people want answers. They want transparency. And they understand that, as you look across this country, there seems to be two sets of rules. If your last name is Clinton or it’s Biden, you get to live by a different set of rules than if you’re an everyday, patriotic American. I’ve been clear, Kristen. If you go back and play the full speech I gave on the House floor, I condemn the violence just like I condemned the violence of the BLM riots. But I also, importantly, stood for election integrity and security of our elections, which, if we don’t have that, we do not have a democracy. So, the real threat to our democracy is these baseless witch hunt investigations and lawsuits against President Trump, whether it’s Tish James or whether we see in the DC Circuit Court. And that is undemocratic, and it’s shredding our Constitution. And you know who agrees with me, Kristen? The American people. That’s why President Trump is winning in poll after poll against Joe Biden.

KRISTEN WELKER:

The Justice Department has indicted a number of top-name Democrats, as well, including the president’s son, twice. So, I mean, a lot of critics would argue that undercuts your argument there are two systems of justice.

REP. ELISE STEFANIK:

If you want to try to –

KRISTEN WELKER:

Let me – can I follow up with you –

REP. ELISE STEFANIK:

I want to answer that. If you want to – if you want to make that case, the American people are very smart. They know that they tried to give Hunter Biden a sweetheart deal. We’ve heard from multiple IRS blowers –

KRISTEN WELKER:

He’s been indicted twice, Congresswoman –

REP. ELISE STEFANIK:

But it was because of a judge that threw out a sweetheart deal that was negotiated on Joe Biden’s behalf. Joe Biden and the Department of Justice have been withheld from going after the Biden crime family, which Joe Biden sits atop of.

KRISTEN WELKER:

Other – other – other top Democrats have been indicted, as well. But we have a lot to get to, so I want to stay on track.

Dan Scavino, Alone with Trump, Had Access to the Attempted Murder Weapon

Since DC District unsealed Jack Smith’s warrant to obtain Trump’s Twitter account, I have described that one of the most important things prosecutors were seeking was attribution: to learn, before conducting an Executive Privilege-waived interview with Dan Scavino, whether Trump or Scavino wielded the murder weapon, Trump’s Twitter account, that almost got Mike Pence killed three years ago.

Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

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.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

ABC News reported details from several of the interviews that took place after Jack Smith got that Twitter warrant, including extensive details about what Scavino told prosecutors. Sure enough, he claimed that he had nothing to do with the Tweet that almost got Pence killed — that instead, he had left Trump alone with the murder weapon. He claimed — as the indictment made it clear he must have — that he wasn’t in the room.

According to what sources said Scavino told Smith’s team, Trump was “very angry” that day — not angry at what his supporters were doing to a pillar of American democracy, but steaming that the election was allegedly stolen from him and his supporters, who were “angry on his behalf.” Scavino described it all as “very unsettling,” sources said.

At times, Trump just sat silently at the head of the table, with his arms folded and his eyes locked on the TV, Scavino recounted, sources said.

After unsuccessfully trying for up to 20 minutes to persuade Trump to release some sort of calming statement, Scavino and others walked out of the dining room, leaving Trump alone, sources said. That’s when, according to sources, Trump posted a message on his Twitter account saying that Pence “didn’t have the courage to do what should have been done.”

Trump’s aides told investigators they were shocked by the post. Aside from Trump, Scavino was the only other person with access to Trump’s Twitter account, and he was often the one actually posting messages to it, so when the message about Pence popped up, Cipollone and another White House attorney raced to find Scavino, demanding to know why he would post that in the midst of such a precarious situation, sources said.

Scavino said he was as blindsided by the post as they were, insisting to them, “I didn’t do it,” according to the sources. [my emphasis]

Why would Pat Cipollone confront Scavino about the Tweet if “Scavino and others walked out of the dining room” — implicitly, walked out together — “leaving Trump alone”? Cipollone would only confront Scavino if he had believed that Scavino were still there with Trump, as his testimony describes he had been until just before Trump sent the Tweet.

The warrant on Twitter, which would have shown whether it is really true that Scavino was the only other person with access to Trump’s Twitter account, is not the only way Jack Smith tested this claim, knew the answer to this claim before interviewing Scavino.

As an expert witness notice revealed last month, Smith will call a witness at Trump’s trial to describe what they found on Trump’s White House phone and that of one other person — which might be Scavino, Nick Luna (whose testimony is also described in detail in the ABC piece), or one of several other people. That witness will explain when Trump’s phone was unlocked and using Twitter on January 6.

Expert 3 has knowledge, skill, experience, training, and education beyond the ordinary lay person regarding the analysis of cellular phone data, including the use of Twitter and other applications on cell phones. The Government expects that Expert 3 will testify that he/she: (1) extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1); (2) reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited; (3) determined the usage of these phones throughout the post-election period, including on and around January 6, 2021; and (4) specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.

So whether it is true that Scavino was blindsided by the Tweet, as he told Jack Smith he told Cipollone, Jack Smith has Scavino’s testimony that he wasn’t present (again, as I said he must), Cipollone’s testimony that Scavino said he wasn’t present, and metadata consistent with Trump sending the Tweet himself.

As you read the rest of the ABC piece, keep two things in mind. This leaked testimony concentrates on other aspects of the claims made to Jack Smith about how Twitter was used that day, such as this description of Luna’s testimony, describing that he warned Trump before the then-President sent a Tweet making him look “culpable” the day of the attack.

According to the sources, shortly before 6 p.m. on Jan. 6, Trump showed Luna a draft of a Twitter message he was thinking about posting: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots. … Remember this day for forever!” it read.

The message echoed what Trump had allegedly been saying privately all day.

Sources said Luna told Trump that it made him sound “culpable” for the violence, perhaps even as if he may have somehow been involved in “directing” it, sources said.

Still, at 6:01 p.m., Trump posted the message anyway.

That testimony — that Luna warned Trump the Tweet would make him look like he was responsible for the violence — will only strengthen the extent to which this Tweet was already going to be used to prove that Trump ratified the violence, effectively showing that Trump remained in a conspiracy with those who violently attacked the Capitol even after watching them do so.

Which brings me to the second point. Multiple people who gave this testimony — and probably the person or persons who shared it with ABC — claim to believe that they witnessed that Trump almost murdered his Vice President, someone who had been just as (or in Scavino’s case, almost as) loyal as they had been.

Again, there has to be a bunch of metadata that is consistent with the stories told to Jack Smith, so it’s not so much I doubt Scavino’s claim that he was not in the room when that Tweet was sent out. It’s that this testimony came from people who chose to stick around — some of whom, including Scavino, continue to stick around — knowing that if Trump ever turns on them he wouldn’t stop short of using his mob to get them killed.

image_print