Mike Lee Provides Key Evidence Implicating Trump in the Existing Criminal Conspiracy

Because Donald Trump’s Personal Injury lawyer, Michael Van der Veen, made a specious argument about the First Amendment to successfully give 43 Republicans cover to vote to acquit the Former President in his impeachment trial, the discussion about Trump’s potential criminal exposure for January 6 (which according to CNN he is concerned about) has largely focused on incitement charges.

That’s true even though the trial led Mike Lee to offer up evidence implicating Trump in the same conspiracy charges already charged against 10 defendants: conspiring to delay Congress’ official proceeding to certify the electoral college vote. As I have noted, DOJ has started mapping out conspiracy charges against both the Oath Keepers and the Proud Boys:

While there are differences in the scope of the conspiracy and overt acts involved, all three charging documents charge defendants with conspiring “to stop, delay, and hinder Congress’ certification of the Electoral College vote,” effectively conspiring to commit 18 USC 1512, tampering with the official procedure of certifying the electoral college vote, an official procedure laid out in the Constitution.

And in spite of their votes to acquit the Former President last night, both Tommy Tuberville and Mike Lee provided evidence that the FBI might use to investigate Trump in that conspiracy. As I noted days after the attack, during the attack, Trump twice attempted to reach out to Tuberville to ask him to delay the count. The second time, Rudy Giuliani even left a message specifically asking for a delay as such, precisely the object of the already charged conspiracy charges.

I know they’re reconvening at 8 tonight, but it … 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.

I know McConnell is doing everything he can to rush it, which is kind of a kick in the head because it’s one thing to oppose us, it’s another thing not to give us a fair opportunity to contest it. And he wants to try to get it down to only three states that we contest. But there are 10 states that we contest, not three. So if you could object to every state and, along with a congressman, get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote, particularly after what McConnell did today. [snip]

Over the last few days, both Tuberville and Lee offered up more details on the earlier call. Tuberville confirmed the content of the call, including that he told the President that his Vice President had been evacuated.

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.

And Lee — who twice demanded that references to this call be removed from the Congressional record — ultimately provided phone records showing that even after Pence had been publicly rushed to safety, Trump was still working on delaying the vote rather than addressing the danger. Trump tweeted about Pence at 2:24, specifically complaining that Pence hadn’t given states a chance to “correct” facts, effectively a complaint that Pence had not disrupted the orderly counting of the vote.

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!

And then, two minutes later, Trump attempted to call Tuberville and, after Lee turned over his phone to the former coach, spoke to him for four minutes. It matters that Tuberville told Trump about the evacuations, though it is highly unlikely he had not been informed both informally and formally at that point. But it matters just as much that even after the insurrectionists had breached the building, Trump took two overt acts to attempt to delay the vote.

A Trump defense might argue — as his Personal Injury Lawyer did this week — that he was just trying to count the votes, but Trump had already made an unconstitutional request of Mike Pence, something Trump’s team provided no defense for. And that’s before you consider the evidence that Rudy, at least, was in direct contact with James Sullivan, who is affiliated with the group, the Proud Boys, that has already been accused of conspiring to breach the Capitol (indeed, another conspiracy case, against Proud Boys Dominic Pezzola and William Pepe, charges that they conspired to interfere with cops trying to keep protestors out of the Capitol, and the Chrestman indictment also includes that as a separate conspiracy).

I’m not saying this will definitely happen. The bar to charging a Former President remains high.

But DOJ has already charged ten people for doing what Trump was also demonstrably doing that day. And, partly because of Mike Lee’s desperate effort to avoid having the record of him implicating Trump in the congressional record, Lee ended up making the timeline of the events public without the FBI having to breach speech and debate concerns to obtain it. By doing so, Lee made it easier for the FBI to make a case against Trump if they ever attempt to do so.

Mike Lee may have helped prevent Trump from being barred from running for President again. But Mike Lee also made it easier to prosecute Trump for those very same acts.

Update: NYT just posted a story showing that six of the Oath Keepers Roger Stone was palling around with leading up to the attack entered the Capitol on January 6.

166 replies
  1. SaltinWound says:

    I know you think he did a good job but if Van der Veen hadn’t started disputing facts I’m not sure any of this would have happened.

  2. klynn says:

    Thank you! Thank you so much for writing this piece! I posted yesterday that Lee actually opened doors for investigators by challenging the timeline and providing evidence the call to his phone happened later. I do not think Lee understood that he just confirmed Trump crimes.

    • Mart says:

      Long been thinking at the end of this we’ll find it’s the Proud Boys hanging with Stone, Rudy, Flynn, Bannon – the usual suspects.

  3. FloriDuh says:

    I truly believe that most elected officials — based upon defeating opponents for election to office, then enjoying the prestige of being recognized as an important elected official — believe they are smarter and more clever than 99.99% of their constituency.

  4. Dsl says:

    There are no consequences for Republicans and so America appears to remain a failed state. I wish it weren’t the case, but I believe that they will never attempt to convict a former president for fear of ‘looking like’ some common banana republic. Of course, the world already sees what America has become, but Rs are either willfully or unintentionally ignorant of how awful the country looks (and is). So, both sides will argue that this can’t be done because of the optics.

    The one silver lining here is that some of the cultists will eventually come together with the rest of the world to understand that Republicans preach ‘justice for thee, but not for me’. We all see it now, outside those borders. Once they start to see it, things will get very interesting for all those cowardly Rs.

    BTW are we ready now to call Republicans America’s Failsons? Your founding fathers gave them everything and they basically ended up getting busted with a briefcase full of pills and a shitty blues band like some common Irsays and Dolanses.

    • Norskeflamthrower says:

      “…some of the cultists will come together with the rest of the world to understand that Republicans preach ‘justice for me but not for thee’…”

      And that will be the end of what we used to know (before 1974) as the Republican Party. But since the base of the party today is cults like Mormons, evangelical Christians, Scientologists, libertarians and right-wing militias, nothing will change in their institutional behavior until they are irrevocably put out of their misery at the ballot box.

    • timbo says:

      This US is not a failed state at this moment in time.

      Heck, the US still send astronauts into space regularly, a sphere that the US basically still dominates, both politically and economically. All that may change but it hasn’t happened yet. No, we are failing as a Federal Republic, but not as a nation-state per se. We came close to severe trauma when Twitler sent his rioters to cajole the Congress into doing his bidding. That failed. In a failed state, that would have succeeded as a plot AND possible led to civil war. It did not happen. Nor, I have to say, did many observers actually believe that crappy scenario would actually play out, even when the insurrectionists were trashing the Capitol Building. So, not a failed state as yet.

  5. pseudonymous in nc says:

    “A source close to the White House who is in touch with some of the rioters at the Capitol said it’s the goal of those involved to stay inside the Capitol through the night.” — Jim Acosta, 4:13pm, Jan 6.

    I’ve gone back to that a few times, but until today I hadn’t looked closely the timestamp. That was in the murky period after the evacuation but just before the “you’re very special” video.

    It was also before the National Guard reinforcements arrived and the Capitol and surroundings were cleared (after the 6pm curfew) and it was announced that Congress would resume the certification. That’s when Rudy placed his call.

    IIRC, there was some fantasy-island scuttlebutt among the insurrectionists that if the certification was delayed past midnight, then… something something. But the FBI is going to have to talk to people who were the White House about the middle hours.

    • emptywheel says:

      Right. But my suspicion is that the FBI has a really intense investigation on some of these details, and that’s why we’ve not seen more arrests from the Oath Keepers aside from the initial 3 and we haven’t seen James Sullivan arrested yet either.

      • gulageten says:

        There is at least a fourth OK arrest (Jon Schaffer) although he did not appear to be part of the tactical group w Watkins etc.

        • emptywheel says:

          Yeah I think that overstates what is in the affidavit or how different it is from others. It’s not a formal thing, it’s like Q looking for a sign.

        • PeterS says:

          Reminds me of a story about QAnon followers who were waiting for a signal that Trump had called in the National Guard. Not to put down the insurrection but to reinstall Trump as president.

        • P J Evans says:

          Cults do this – when one prediction fails, they find another date for it to happen. (They also find reasons why it failed the previous time.)

      • Norskeflamthrower says:

        Thank you for letting us know that the FBI is on this like stink on bad stuff. Now if the Merit Garland DOJ can just quietly but relentlessly pursue it to charges all the way from the Proud Boys to Trump and everyone in between then we might have a future beyond this.

        • bmaz says:

          Doubt Garland would do that. More likely, if he feels it need be pursued against Trump, and probably several very close to him, the more likely path is appointing a real Special Counsel (i.e. not the Durham sham thing).

        • Norskeflamthrower says:

          Sigh, I’m afraid you’re right about Trump and his immediate enablers but what about the FBI nation wide investigation and potential prosecution of the individual insurrectionists and the major organizations involved in Jan 6th, can that go on until they’re all facing behavior therapy in a federal facility? And how long does the window stay open for a special counsel, realistically?

        • bmaz says:

          Oh, think that is proceeding apace, and they are working away pretty well. New evidence bleeding out all the time. But it is only five weeks in, and it is going to take some time, and folks should be patient. I do think a LOT more could have been done under the cover of impeachment, but alas here we are. Once Garland gets confirmed, then we shall see the bigger contours.

        • TooLoose LeTruck says:

          Don’t know if you ever come back into these threads and see comments written later, but if you do and read this, is there any chance I can persuade you to explain in more detail what you mean when you say ‘a LOT more could have been done under the cover of impeachment’?

          I’ve read multiple comments from you and some of the other more experienced legal minds who are regulars here about how disappointed you are at the way the impeachment process has been handled by the Dems.

          I don’t have the legal background that more than a few people here have and just a very perfunctory manner I am disappointed at the out come and honestly didn’t expect much more to happen given how over the top Republicans had in their condemnation right from the start.

          So I guess I’m curious about what you think could have been done, and also, given what we do now know and are continuing to learn, what we can expect going forward.

          And pls count me in w/ those who believe that if we don’t come down on this bunch now, we can expect to see something similar down the road…

        • timbo says:

          No response, eh? I’ll chime in then.

          A lot more could have been done to bring in witnesses for testimony. That was done during Watergate and was not done here.

          A lot more could have done with other compelling evidentiary subpoenas as well. That was done in Watergate (although was mostly very directed by the the testimony of witnesses as the conspiracy was uncovered).

          Basically, few if any of the enormous power to compel testimony from hostile witnesses and gather evidence has been used by the Congress in the past two impeachment trials. Some of hostile testimony was gotten by traditional respect for Congress in 2019 initially during the impeachment investigation into the Ukraine matter. The Trump hold on the GOP and cabinet loyalty shut down the House’s ability to get the evidence they wanted back then. In 2021, the House, under Pelosi’s leadership again, didn’t even bother with attempting that, which was sort of surprising to many of us, given that with the Georgia election completed on the 4th, the DP was then in a position to control an impeachment trial in the Senate finally. But then the did the same thing the Senate the Senate did when the DP did not control that body—no witnesses again.

          The one conclusion that I draw from that is that both the GOP and DP leadership in the Congress do not want witnesses to appear before the Senate that might rock some sort of agreement within the Senate itself about impeachments of Presidents generally. In this sense, it appears that neither the House or Senate leadership really feel that Trump is that grave a threat to their own power at the moment… (which makes one wonder about whether the two parties are that far apart on how far they are not willing to go to clean up corruption in US society in general.)

        • Tom S. says:

          I wish I had your optimism. I hope this is only anecdotal. It took the FBI, at least a career prosecutor in Tallahassee, a magistrate who signed a warrant, and a judge who read and considered the following, for the arrest and denial of bail of this “perp” to occur. I understand it was set up before January 20, but ….
          https://www.washingtonpost.com/nation/2021/02/14/fbi-arrest-left-wing-violence/ “..Public defender Randolph Murrell argued in court filings and during a Jan. 21 hearing that Baker’s comments were “the product of the heated political dialogue of the day.”…The FBI made note of the footage and of Baker’s online boasts of being a “trained sniper in the YPG,” characterizing the group as linked to the terrorist-designated Kurdistan’s Working Party despite the U.S. backing of the YPG…”

        • Vinnie Gambone says:

          Seemed McConnell was betting big that charges against Trump were justified. Perhaps he knows more than the average bear, and knows more serious trouble for Trump’s team is coming.

        • timbo says:

          He seems to be doing a lot of both-siderism in my book. Much easier for him when backing either side has the same effect of not doing much at all to rein in the obvious corruption and sleaze that Trump’s rise to power represents.

    • RLHall says:

      So, if all this was to gain a few hours overnight, so that ten state legislatures could change their certifications and flip the election to Trump, who was coordinating that? There would have to have been literally hundreds of phone calls from the White House, and many people involved, too. There must be a record somewhere if they were mounting a campaign of that size.

      Otherwise, were Trump and his minions simply in the midst of a delusion, with no actual plan for success?

      • Stephen Calhoun says:

        Delusion. Trump’s fantasy in fact took over his cult. “fantasy-island scuttlebutt” goes to the social psychological point, a point etched in one audio capture “Should we form a government?”

        It is the intentions and goals of the inchoate mob that interest me the most. So, one imagines more concrete and no less delusional possibilities. What if the mob had taken hostages, whether high profile or not. What if they had captured a maintenance person or a police officer?

        The smallest foothold is unspeakable. That anyone could possibly think the capture of the Capitol would lead the next day to a negotiation with hostage takers and occupiers about how the Constitutional process would recommence is smoking better stuff than me.

        The old fashioned term is: magical thinking, although it does not do justice to describe the more complicated processes of cult formation and fusion with the top person’s delusions. On a side note to this it was also fascinating to listen to the impeachment trial and note all the entry ways to psychologizing that could be taken for the sake of unpacking the development of intentions/motives/goals and the sorts of constructs able to address the commonsense question, “What were you/they thinking?”

        Thanks for the great ongoing reporting and commentary here on EW.

    • Mitch Neher says:

      pseudonymous in NC wrote “. . . if the certification was delayed past midnight, then… ”

      . . . the certified Electoral College ballots for Biden/Harris change back into pumpkins . . . (and Rudy didn’t mean maybe).

      • timbo says:

        Unlikely that that would hold much weight in any quarter. But that goes to show how loonie-tune Twitler and his enablers had/have gotten. Basically, the military was not going to start a civil war over Trump. The Electoral College insurrectionist challenge on the 6th would more likely have ended up in a quicker collapse of Trump as a central figure in the US than we are witnessing now in all likelihood. Or so many folks in Congress must believe given what we saw in last weekends weak tea failure to keep Trump out of power permanently under the Constitutional. If out of power legally forever it is almost certain that Trumpism would be quickly fading away right now. As it is, it is now some sort of albatross around the neck of the Republic for a bit longer. It is disheartening to think that Congressional leaders somehow think that the current situation is the best choice for the Republic. Why they like playing longer with the current matches is not clear at all…

        Sadly, my conclusion is that they are either incompetent or corrupt and likely both.

  6. Bruce Fuentes says:

    Here is a question I hear and have not seen a good answer.
    Is Trump vulnerable to civil suits from his arrested supporters or their families?

    • Spencer Dawkins says:

      I’ll let the lawyers answer, but I’d suggest asking if Trump is vulnerable to lawsuits _that are likely to succeed_. :-)

    • earlofhuntingdon says:

      Trump has shown for decades that lawsuits are his metier. He has a deep pocket – for now – and would bury civil plaintiffs in paperwork. That’s assuming he can find more Van der Veens to do his dirty work. But he has so much to hide that he always settles whenever hard discovery is about to be enforced against him, which comes long before trial. What’s needed – this has been said by many – are serious plaintiffs with deep pockets and no interest in settling before trial.

      • Montana Democrat says:

        Unless Putin is inclined to pay attorney fees for criminal defense lawyers Trump is not going to outspend the Justice Department. He was able to bully plenty of folks when he was a mythical millionaire not so much now. The same goes for the big banks he is going to try to stiff. If he comes up with insane amounts of cash to defend himself it will be reflective of campaign finance violations or money laundering. Becoming a politician was a bad decision for Trump’s perceived invulnerability.

        • Norskeflamthrower says:

          “Unless Putin is inclined to pay attorney fees for criminal defense lawyers…”

          Yes indeed, most folks are forgetting that Trump actually doesn’t have any cash of his own and that if it weren’t for Putin neither would the Republican Party of the last 10 or 15 years.

        • timbo says:

          He seems to be able to dip into his campaign and defense fund raising coffers at will with little consequence. Any idea how much money has been raised and is as yet unspent since Twitler had his “the election can only be stolen from me!” revelation in July of last year?

      • Yargelsnogger says:

        I bet that any half-way decent suit could, with a little publicity, be crowdfunded sufficiently to outlast Trump’s mode of legal abuse. I would certainly put in some $$.

        • timbo says:

          And has it already been funded sufficiently for that? How much bag money is already sitting in various PACs and campaign slush funds around the US that are nominally or completely controlled by Trump’s cronies? I’m guessing it’s more than a few millions of dollars… anyone care to venture a guess as to how much money Trump can get on short notice from a GOP political machine he still seems to control?

    • The Old Redneck says:

      The answer is: absolutely yes. A few additional points:

      1. The civil burden of proof is lower than for criminal cases. If the plaintiffs can prove their version of the facts is basically more likely than not, they win. They don’t have to prove their case “beyond a reasonable doubt.”
      2. Trump will claim executive and atty. client privilege for anything discussed while Rudy was involved in the communications. But Trump’s sweeping view of executive privilege has already been shot down, and there is a crime-fraud exception to the attorney client privilege. A/C privilege also may not apply when a bunch of third parties were part of the conversation (this constitutes a waiver, to be specific). Rulings on this will be critical.
      3. Death cases can have big settlement/verdict potential. That will bring out plaintiff’s lawyers who are willing to spend the time and money to really dig into this stuff.

      This could end up being where the action really is in the long run.

      • ThoughtMail says:

        Ha! Champerty and Maintenance could keep Donald and his family in civil court FOREVER. Regardless of whether he gets back to the Whitehouse.

        (Yeah, I know they’re old legal terms but, in essence, they still define what’s been talked about here.)

        • timbo says:

          lol. They are never out of the civil and criminal court cross-hairs. This isn’t something they’re new to. Heck, Twitler came to power with plenty of law-suits pending all over the place. Let me know when these have the effect of shutting Operation Trump Inc down. This is the mistake in assuming that civil suits are going to permanently knock these folks out. It hasn’t so far so why would it know?

  7. yogarhythms says:

    Mexico city culturalist’s refer to “impunity” writing about corrupt charged gov’t officials (Emilio Loyoza) that aren’t successfully prosecuted for their offenses. Admitting you have a corruption problem is a first step to rehabilitation. How do you charge 10 low level gunsels, Proud Boys, Oath Keepers, “to stop, delay, and hinder Congress’ certification of the Electoral College vote,” effectively conspiring to commit 18 USC 1512, tampering with the official procedure of certifying the electoral college vote, an official procedure laid out in the Constitution.” yet fail to indict the Former?

    • PeterS says:

      How? The answer lies in the evidence, as always – assuming we want a legal system based on evidence not politics, and I’m sure we do. Some evidence takes time, some is instantly available.

    • timbo says:

      The fact that it appears our current Congress isn’t capable of bringing forward sufficient evidence and witnesses to rein in the sleaze says a lot about how badly this country is infected with incompetence and corrupt practices up and down the line.

      Basically, our two major political parties have created political machines that are almost always on the take. Politicians in Congress make decisions that help them squeeze money out of us, the shills—that includes “us” as in corporations, special interest groups, not just average Joe citizens—us, who are all caught up in the pinball machine phantasmagorical “battle of ideologies” that both those political machines continually invent and refine to help with their money gathering operations. The only difference between the two parties in these money gathering operations is how much more prone to hyperbolic embellishment the GOP is in their gab and grab squad.

  8. Spencer Dawkins says:

    Jim Wright (no link) posted at Stonekettle that what the insurrectionists could expect was the same thing the “little people” who tortured prisoners at Abu Ghraib got – they took the fall for their commanding officers, who were NOT court-martialed.

    I am waiting with some anticipation to see whether he’s right. For now, I note that the “billionaire” who said he would post bail for his supporters who beat up protesters at his rallies is conspicuously absent when it comes to the people who have been charged so far. Now that the Senate failed to convict him, we’ll see if that changes.

    But more broadly – how far can the backlash (that touches everyone but Trump) go? In my own fever dreams, I’d LOVE for Trump’s crack legal team to be called to account for lying relentlessly to Congress during his trial, but I’d settle for Giuliani to be charged as part of the “delay the certification” conspiracy, along with other speakers at Trump’s January 6th rally. That would roll up a decent number of the Usual Suspects, and if that expanded to a single degree of separation from them (“hi, Lindsay Graham. LOVE to talk with you under oath about some phone calls”), it would be awesome.

    Realistic? Maybe not, but call me a dreamer …

  9. Vinnie Gambone says:

    Just for fun, I’m going to pretend that after, perhaps before, the Michigan kidnap ring got busted, FBI was able to obtain widespread surveillance warrants on suspected conspirators. Do they not worry that the likes of another Stephen Paddock may be active participant in the hallucinations these groups engender?

    • timbo says:

      This is interesting speculation. If anything, I would imagine that the FBI’s taking of that “kidnapping plot” seriously in 2020 must have put a damper on the general lead up to the riot at the Capitol with regard to folks wishing violent intent against other institutional politicians in the country. Trump seems to be the central figure in ginning this stuff up yet the Congress still has not acted sufficiently to stop him from continuing to foment unrest. Basically, open and violent defiance of the law is still a strong possibility coming from Trump and his followers until some other, possibly worse event than Jan 6 in DC, happens; the powder keg still has a fuse and it still seems to be smouldering.

  10. madwand says:

    From the Atlantic’s David Frum titled “It’ll Do”


    And quoting from that article”

    “If you looked to the U.S. Senate for a full measure of accountability, you did not receive it, of course. Donald Trump, the twice-impeached president, is also a twice-acquitted president. He lives in a palace on the sea, supported by unconstitutional emoluments from foreign governments, unethical payments from the U.S. Treasury to his businesses, and gullible donations from the suckers he duped. Almost half a million are dead from the plague he promised would go away by itself, even as he received the benefit of miracle treatments available only to the most favored few.”

    And now lets the courts begin.

  11. joberly says:

    EW—Agreed that the two phone calls, at 2:26 p.m. and at 7:00 p.m. confirm that Trump interfered with the joint session congressional certification. As late as the morning of the 6th, Trump hoped to use his catspaw vice president to delay the EC certification by Congress and gin up rival, rump EC slates from Republican legislature in AZ, GA, and PA. If accepted, the rival slates would have changed the EC tally from 306-232 Biden to a 269-269 tie, resulting in a 12th Amendment solution in the HR, whereby 26 states would vote for Trump. Pence saying no dice that morning did not stop Trump’s plot. Of course, Trump was delighted at the insurrection because it bought him a delay, even as he stuck with the plan in calling Coach T, via Mike Lee at 2:26 p.m. to urge delay and Giuliani’s Insurrection Night call to Coach T, again via Lee, “to slow it down” for 2 more days by objecting to 10 states confirms the details of the plot.

  12. PeterS says:

    I didn’t understand why Lee was so keen to highlight the phone call, it destroyed a perfectly good rejoinder: if things happened as the house managers said then Trump only tweeted about Pence after he knew he’d been taken to safety. 

    Of course, as ew points out, Trump must have known about Pence from secret service communications anyway. The defense team definitely didn’t want to get into details of what Trump knew and when he knew it.

    On the main point, I certainly don’t understand the law on conspiracy well enough to judge this issue, but since the tweets and calls came after Trump knew of the Capitol being stormed then doesn’t that suggest horribly cynical opportunism as much as conspiracy?

    Trump had of course been saying for weeks before 6 January that he wanted senators to object to the certification.

    • Eureka says:

      but since the tweets and calls came after Trump knew of the Capitol being stormed then doesn’t that suggest horribly cynical opportunism as much as conspiracy?

      No, in that case (the way you put it) it would be [?Trump/Rudy/”we”] joining the insurrectionists’/rioters’ conspiracy to obstruct/delay the formalization of the vote (etc.).

      It’s actually worse. And ‘Let’s take advantage of this ongoing crime (while also failing to use one’s solely designated power to stop said crime) to further our common goal’ won’t fly. *Legal acts in furtherance of a conspiracy still = conspiracy.

      See Elizabeth de la Vega on conspiracy law.

      As to Trump’s repetition of his statements over time: (1) see his MO; (2) depending on other facts any (series) of those could be just as inculpatory.

      *I’m now vaguely reminded of your reply to a comment of mine where you had tried to distinguish Trump’s facially legal versus facially not lawful acts ahead of the election. In a conspiracy, those distinctions collapse.

      With exigent and cumbersome justice required of the “endpoint” event — the insurrection at the Capitol — it would be years at best before we might ever learn the true time depth of (any combination of) Trump et al.’s conspiracy to steal the election. Of necessity (variety of practical considerations/ constraints), the events occurred in stages.

      • Eureka says:

        And then there are likely countless ‘accessory’ ideas/plans that never took off or panned out but which might contribute to inform intent. I’m sure the Big Onion’s got quite a list.

        [When we learned the ‘horror’ of Powell, Flynn, Byrne, and that other person marching into the WH to talk “martial law” (sic), Trump’s reaction to those ideas was explicitly noted as not given. However this all went on for hours with incredulously shouting WH staff, and continued into the personal residence, so … ]

        Included in any such list might be a number of incipient abuses of power (that’s what it’s called these days when a/that president does it, as opposed to “crimes”) which could have been ratcheted come election time, such as their efforts to deploy federalized* forces (a trick for which Barr has a deeper history, see Just Security x2 re Hurricane Hugo and the USVI) over the summer to “Democrat” cities. How would it be that the entire world suspected that Trump might use that (etc.) ploy as a steppingstone to try to steal the election, yet no one in Trump’s camp thought of it or circled back to such an idea. He wanted to postpone the election, FFS. It’s pretty much only the quality of who was around to stop** him (and their motives) that it wasn’t all much worse.

        [“lol” remember the 2018 midterms when Trump deployed US armed forces within our country (posse comitatus!) to the border to “meet” the caravan (which was not going to arrive anytime soon — they were near the hard start of the Isthmus of Tehuantepec as I recall) for Fox film at 1,2,3,4,5,…11?]

        In decades of accounts Trump has sought to do a variety of not legal things in the process of getting what Trump wants, it’s merely a matter of what traces remain, who may or may not have done what, degrees of separation between him, any attorney-henchmen (Cohn, Cohen, Rudy et al.) who may have failed on occasion to redirect his aims towards legal loopholes, and the jobbers (who may also be the attorneys).

        *Trump appears to have been most careful with the tweets the more abusive/criminal an act might be, suggesting he was highly advised, quickly reined in. This example included, though there are others incl. re January 6th (for example “only” retweeting the words of others using the Ali Alexander hashtag “JAN6” — a rt of AA is using it is deleted — not tweeting that tag himself “directly” while amply promoting January 6). Kind of like how Stone was not an official part of the (2016) campaign staff. … … …


        • Eureka says:

          ^ (re “martial law” insert): and Rudy on the phone, hanging up to come over in person… (night of December 18th). Point being, the sources protected Trump and must know a lot more than was revealed. Then onto the next (plan)…

    • timbo says:

      Why would the Secret Service communicate the location of the VP to the White House if the VP and his detail were unsure as to whether or not the President was in fact in on the insurrection attempt? Having asked that, I can be pretty sure that the White House was aware that Pence was at the Capitol Building that day… so why would Trump and the White House not issue an immediate condemnation of the rioters? It’ll be interesting if Pelosi’s proposed commission of investigation gets even close to answering questions like that one for the Congress…as Congress certainly didn’t seem much interested on the precise answer to that this past last weekend (as one example).

  13. dadidoc1 says:

    Is it wrong to hope that Josh Hawley, Ted Cruz, Marjorie Taylor Greene, or Markwayne Mullin might end up being charged as co-conspirators in the insurrection? Someone on the inside of the Capitol was providing guidance to the insurgents.

  14. OldTulsaDude says:

    When David Frost asked Nixon about legality, Nixon replied in the context of national security, If the president does it that means that it is not illegal. If Nixon was right, a president is the law. Without consequences he may as well be.

  15. Tom R. says:

    The name /Felicia Konold/ is misspelled “Conold” twice … including in the tags, which is a particularly problematic place.

    • harpie says:

      [I had just posted this below your comment, Jenny, but think it might go well with yours.]

      It doesn’t sound like WaPo has seen this document:

      According to Lee’s office, the log shows […]

      And, wrt this:

      Lee has said that when he realized Trump’s confusion, he handed his phone to Tuberville.

      I also recall reading that LEE said it took him a while to find Tuberville.

      • timbo says:

        It’s interesting that we keep going over this point about this particular phone call. What is surprising is the uncurious acceptance as this narrative by Lee as fact. What if, instead, the call was intended for Lee and involved seditious discussion? Lee certainly could maintain before the Senate that what the House managers were trying to introduce as fact was not fact, while at the same time trying to continue to cloud the issue of the exact content of that conversation and phone call with the then President. “Oh, that call? It wasn’t even for me! The President was most certainly confused about who he was talking to!” seems like a great out if one has possible legal jeopardy and wants to distract from too close an examination of the call.

        On the other side of the coin, it is common for folks in the Trump/Guiliani/Flynn sphere to commonly call someone and then have the phone passed to someone else that the caller happens to know is also in the same proximity to the receiving phone. Does it not seem more and more that this is less and less an accident when it comes to obfuscating possible illegal or immoral behavior?

  16. N.E. Brigand says:

    Anybody else find it weird that, per the the timing in the phone records Mike Lee provided to House impeachment managers, it apparently wasn’t until 2:30 p.m. that Tommy Tuberville ended his four-minute call with Donald Trump by saying, “Mr. President, they just took the vice president out, I’ve got to go”?

    That was 17 minutes after Mike Pence had been evacuated from the chamber.

    • pdaly says:

      Yes, I was thinking the same thing.
      Looking at a timeline on wikipedia and NY Times,

      2:12 p.m. rioters begin entering the Capitol through the window they broke at 2:11p.m., and 2:12 p.m. is also when VP Pence is removed from the Senate chamber and moved to a “nearby office.”

      2:13 p.m. Senate is called into recess (but the House continues on until 2:20 p.m. when it adjourns and starts to evacuate)

      2:24 p.m. Trump tweets, “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!”

      2:26 p.m. Security video shows Secret Service moving VP and family to new secure location.

      AND at 2:26 p.m. Trump calls Senator Mike Lee (R-UT), having misdialed Senator Tommy Tuberville (R-AL). Mike Lee passes his phone to Tuberville, who informs Trump that Pence had just [sic] been evacuated from the Senate chamber. “I said ‘Mr President, they’ve taken the Vice President out. They want me to get off the phone, I gotta go’.

      To summarize: Senator Lee has been in the Senate chamber for 13 minutes after it recessed and almost 15 minutes after VP Pence was whisked to safety.
      Senator Lee’s first thought, when he notices the White House is calling him on his cell phone, is ‘Robert O’Brien is getting back to me about Iran’?!

      Does Senator Lee bother to ask Trump for aid from the insurrection before dutifully handing over his phone to Tuberville, as if nothing unusual is going on?

      I assume Trump would have known VP Pence had been in a “nearby office” but maybe Trump didn’t know where Pence was heading next. Maybe Trump needed eyes on the prize?

      • John Paul Jones says:

        Trump’s 2:24 tweet is in the past tense, so he must be already aware that Pence didn’t do what he asked, and likely also aware that it’s not going to happen, given Pence’s already having left the chamber. So he probably was listening to updates from the Secret Service as they were brought to him. I’d love to get the testimony of those people who read him in on the reports from the team safeguarding the VP.

        • pdaly says:

          VP Pence released a letter at or around 1 p.m. stating that he was going to follow the Constitution and not unilaterally interfere with Electoral College count.

          By 1:03 p.m., a vanguard of rioters have overrun three layers of barricades and have forced police officers to the base of the west Capitol steps

          1:05 p.m. Congress meets in joint session at U.S. Capitol to confirm Joe Biden’s electoral victory

          Between 1:10 p.m. and 1:11 p.m.: President Trump ends his speech by encouraging the crowd to march to the Capitol: “We’re going to try and give them [Republicans] the kind of pride and boldness that they need to take back our country.”

        • pdaly says:

          If VP Pence had not survived to announce the winner of the Electoral College count, who would be the person to do so?

      • Vicks says:

        Is the implication that the secret service moved Pence a second time because of Trump’s tweet?
        Would agents protecting Trump convey Trump’s activity to agents responsible for the safety Pence or anyone else?

    • PeterS says:

      I’m curious, do you have a particular theory in mind about that 17 min delay? People speak clumsily all the time.

      (People usually write more precisely, and when speech is written down it often looks odder to the reader than it sounded to the listener)

      • N.E. Brigand says:

        A particular theory? No. But I don’t believe that Tuberville ended a call at 2:30 by telling Trump that Pence had been removed from the Senate chamber.

        • Eureka says:

          It may have been used as a point of emphasis to get Trump off the phone, Trump only concerned with himself. VP also being a “more important” person than Tuberville or Lee, Trump’s operational supplicants. Southern politesse, cont.: there’s a habitual delay in conversation before asserting what one wants; invoking an authority — “they’ve taken the vice president out. They want me to get off the phone” — facilitates urgency. It apparently worked.

          Maybe there’s something hinkier like you all think, but this as an ending seems plausible to me. I would like to know the bulk of the conversation.

          Also the House Managers’ presentation said Pence was further evacuated 2:25-2:26p; Plaskett describes him being removed (see harpie @nycsouthpaw below) from the Senate in that timeframe. Earlier accounts of the Trump call to Lee-Tuberville described them as being in a holding room prior to further evacuation. Perhaps after all that Tuberville was not even on southern time in saying that they had taken out Pence.

        • timbo says:

          I’m still toying with the possibility that Lee is full of it and the call actually was for Lee. And/or what Trump or the person initiating the call, whomever that was, from the White House, was leading in by asking whomever was on the Congressional end of that phone to do something illegal/un-Constitutional. So, it would be interesting to get whomever was involved with that call to get down to all the specific. For instance, what was there four or five minutes to discuss with Tubberville over during this crisis? That’s an interesting question to answer: were they discussing golf scores while folks were being maimed and killed down the hall? Yeah, so what the F were they talking about for that long a period of time?

  17. harpie says:

    Some tweets from Kaitlan Collins on that day [I think they’re all threaded from this link]:

    1:23 PM Despite suggesting multiple times he was going to march to Capitol Hill after his speech, President Trump just returned to the White House. Many of his supporters are on their way.
    1:29 PM Multiple buildings on the Hill are now being evacuated.
    1:36 PM McConnell says the election was not that close.
    2:06 PM The US Capitol is now on lockdown.
    2:25 PM I’ve asked the White House for a comment from President Trump on the chaos unfolding on Capitol Hill right now by a mob wearing MAGA sweatshirts and waving Trump flags. No response yet.

    nycsouthpaw: https://twitter.com/nycsouthpaw/status/1359633541525602307
    2:26:06 PM PENCE and family [and nuclear football] shown still on the way to finding safety. [House Managers security VIDEO]

    • pdaly says:

      I couldn’t find a time stamp of the Rep. McCarthy/Trump phone call, even from the more recent impeachment manager news from yesterday.

      Rep. Herrera Beutler (R-Wash.) states House Minority Leader Kevin McCarthy (R-CA) mentions to Trump during the call that he had heard shots fired outside House Chambers. So perhaps this is after the 2:44 p.m. shooting of Ashli Rabbitt? I read reports of people hearing shots in the Senate Chamber area, too, but is that an echo from the House side? A different shots fired?

      • Alan Charbonneau says:

        As far as I know, there was only one shooting, so if shots were heard it was the Babbitt shooting. So, Trump KNEW shots had been fired and was still cheering on the mob!

        I want SO MUCH to see him to die in prison, surrounded by his family members (surrounded by them as they will be inmates, too).

        • pdaly says:

          It is strange that McCarthy was publicly talking about his call with Trump in the immediate aftermath of the attack, but the impeachment managers had to use Rep. Herrera Beutler’s memory of McCarthy’s retelling of the call instead of McCarthy’s eye witness account.

          The right-leaning UK tabloid The Daily Mail is the only source I see now that reports McCarthy heard gun shots outside the House chambers and told Trump about it. So perhaps this detail is suspect.

          In the news reports published closer to Jan 6, 2021 McCarthy states he heard the PHRASE ‘shots fired’ on a police radio. Those news reports do not mention that McCarthy told Trump this during their ‘expletive-laden phone call.’ None of the news sources put a time stamp on the call. McCarthy tells Trump the rioters are breaking his office windows, so maybe that is a way to put a time on the call.

        • harpie says:

          Thank you!
          Yeah, so Daily Mail is the only reference to that I could find as well.
          So, for now all we can say is
          Maybe after 2:44 PM McCARTHY speaks to TRUMP
          I wonder WHY this detail is so hard to pin down.

        • pdaly says:

          When I found the link to Rep. Herrera Beutler’s official statement, there is no mention of the ‘shots fired’ in her rendition of the McCarthy/Trump call, so their call could be anytime.

          I assume McCarthy’s office windows were not smashed before the initial window near the entrance is smashed at 2:11 p.m.

          2:20 p.m. The House adjourns and starts to evacuate. Would McCarthy wait until then to make a call to Trump?

          2:26-2:30 p.m. Trump is “busy” speaking with Sen Lee/Sen Tuberville, so we know at least the McCarthy call did not happen in this 4 minute period. ;-)

        • harpie says:

          Trump called [Lee] >>>Tuberville through the WH switchboard.
          Do we know if McCarthy/Trump call went through that as well?

        • pdaly says:

          I haven’t seen any mention of the WH switchboard wrt McCarthy to Trump call.

          This Washington Post article adds to the timeline of the call:
          It occurred before McCarthy got on the TV shows and before he called Kushner who was returning that afternoon to DC from trip to Middle East.

          “McCarthy did eventually reach Trump, but later told allies that he found the president distracted. So McCarthy repeatedly appeared on television to describe the mayhem, an adviser said, in an effort to explain just how dire the situation was.

          McCarthy also called Kushner, who that afternoon was arriving back from a trip to the Middle East. The Secret Service originally warned Kushner that it was unsafe to venture downtown to the White House. McCarthy pleaded with him to persuade Trump to issue a statement for his supporters to leave the Capitol, saying he’d had no luck during his own conversation with Trump, the adviser said. So Kushner headed to the White House.”


          And this article also indicates Sen. Lee got his call from National Security Advisor Robert O’Brien at “around 4 p.m.” asking how he (O’Brien) can help.

          How many WH people called Sen Lee that day?! (Trump, O’Brien, Giuliani) Lee’s number must be on a WH post it note!

        • pdaly says:

          Thanks for the time stamp, harpie.

          One curious thing about the Fox link above. The video is actually a broadcast of WUSA, a CBS affiliate. Is the McCarthy phone interview on Fox, which is streaming the CBS live feed simultaneously?

        • Ginevra diBenci says:

          Does anyone know when Kushner learned of the Capitol breach, whether he communicated with Trump, and what time he arrived at WH? His plausible deniability (returning from overseas) has long struck me as suspiciously convenient.

  18. CD54 says:

    It’s embarrassing that Congressional Democratic leaders have no memory of what a grinding wheel daytime televised testimony under oath used to be, albeit with valid enforcement.

    • Montana Democrat says:

      Any grinding testimony under oath you might remember was not done in an impeachment proceeding. Maybe in a friendly congressional hearing but absolutely not under these circumstances. You are making an apples to oranges comparison.
      The Democrat managers did an amazing job considering the circumstances.

      • bmaz says:

        “Friendly Congressional hearing”. You are, as is often the case, full of it, and are grossly misrepresenting the Watergate hearings.. The “trial” was a joke. Some sweetly edited and narrated videos, which is not evidence per se without the witnesses to provide foundation, but a farce. And it was a complete abdication of the duty to actually tie up Trump, and his campaign’s, participation in the conspiracy.

        • Montana Democrat says:

          More BS from you. I never mentioned Watergate and those hearings were not an impeachment proceeding. You have no idea as to the reality of this proceeding.
          I suppose you turned down the request to participate because it wasn’t “pure” enough for you. You have buffaloed a lot of folks on this site. Abusers Anonymous might be an option for you. You need the help.

        • bmaz says:

          You are dishonest. If by “grinding wheel daytime televised testimony under oath used to be, albeit with valid enforcement” you were not talking about Watergate and/or Iran-Contra, then do pray tell what you “were” talking about in your mocking response to CD54.

          You are also either purposely or intentionally lying about the nature of the Watergate hearings which lasted nearly three months in the Summer of 1974. You see, I watched all those. Many people here did. You are painting a dishonest picture.

          As to “abusive”, what I find “abusive” is when a rando suddenly shows up trying to gaslight the members and readership of this blog. That is you pal. And, by the way, I have not once seen you return to your experience as a “former prosecutor”. You have not evinced one iota of legal acumen to indicate you even have experience on a personal civil traffic ticket trial, in fact, quite the opposite.

        • timbo says:

          Yes, and also the last time the DP managed to get witnesses AND blow it in the long run. The current crop of folks from the House aren’t even willing to risk blowing it a few years later–they’d rather just blow it immediately and then move on without much blinking.

        • ducktree says:

          With all due respect the witnesses who were competent to provide foundation to the House managers’ evidence were right there during the presentation.

          Montana, represent!

        • P J Evans says:

          I remember watching them, and I have a copy of the mass-market edition of the Final Report of the House Judiciary committee.

        • Traveller007 says:

          What I would like to add to this conversation is…my amazement, throughout Mr. Trump’s Administration, at how successful he and his people were in avoiding obeying subpoena’s of all types. .. It is just remarkable, or was to me.
          In my practice over the years, small as it may be, people obeyed subpoena’s and Notices to Produce Documents and Things (though occasionally a Motion to Compel with Sanctions was necessary, but this was routine, easy)….it just seemed to me as I watched issue after issue run up and down the appellate ladder, that were so successful, (at least to my mind), I believe that this caused Mr Mueller to not…fulfill His duties as he should have.
          Very few, if any of the witnesses I wanted to see would have been cooperative….making the task of the Impeachment trial Years long….and a courtroom slog.
          No, in my opinion, the House Managers did a fine job….and did not derail the Biden Presidency. So praise be unto them. Best Wishes for a decent 2021, Traveller

        • bmaz says:

          If you do not ever seek to protect your authority by at least occasionally enforcing your subpoenas, why would anybody ever comply? The House never does.

          As to “derailing the Biden presidency”, that is a fallacious argument as the matter could simply have been referred to a designated committee to seek and receive any and all evidence. This mechanism is right there in Rule XI of the Senate Impeachment Rules. So, the discussion point of not tying up the Senate and derailing the President’s agenda is a patently false one.

          Back to enforcing subpoenas, there is no reason in the world it would need to take “years” of slogging through courts. When an ongoing impeachment case is proceeding, there is no higher authority that the House and Senate will ever have to enforce process, it is straight up Constitutional purpose based as opposed to normal legislative purpose based and it could be expedited in court quite easily. Frankly, multiple courts, including the CJ in DC by my recollection, noted this and wondered exactly how much the Congress really cared if not exercising their best authority.

          If only an effort was made. But it NEVER is, we just get this truncated quickie TV dog and pony show without real evidence and effort. Now you still might be talking a period of a few months, but certainly not years. And, again, only a select committee would be tasked while the full Senate and House go about their daily duties, as would the White House.

          The tools for doing a proper job are right there in black and white in the Rules. But, instead of using them, ferreting out actual admissible evidence, perfecting the record with it, and really establishing the guilt of Trump and his close associates, we were supplied with a tear jerking and emotional couple of days of slickly edited and narrated videos. It was a dereliction of duty and a shallow ruse.

          PS: It appears this is your third comment here, starting on the Super Bowl thread! Things have been hectic, so apologize for being late, but welcome to Emptywheel, and please jump in the discussion more often. Your comment was excellent, and raises great issues. It is important that people understand it all, and your discussion furthers that.

        • jerryy says:

          It would have been interesting to see the House sending the Sergeant At Arms to arrest the folks that ignored the subpoenas.

        • Vinnie Gambone says:

          Bmaz comment on slickly edited videos is dead on. Seems the most violent clips were barely used in hearing and almost never used in the MSM. We get still shots of idiots scaling the walls, not the footage of attempted murder with hockey sticks and banner poles. Why?

        • Traveller007 says:

          Honest people can honestly disagree. Bmaz has a point in that Congressional enforcement of Subpoenas has almost entirely atrophied.
          But I would counter that this would, at this moment in history, make it difficult to start now…kind of from zero to everybody snaps to attention and behaves as they always should…
          I just don’t see that as happening…there would be Executive Privileged/Attorney Client claims to be litigated…etc, etc, and whatever objections could be dreamed up by creative attorney’s.
          As to House Marshal physically doing any enforcement….Yikes, such a spectacle….I have nightmare visions of…just trying to do this on any actual official. A perp walk would be fun, but a bad look to be sure…and I think impossible.
          Also, I believe that everyone behind the scenes knew that Ms. Polesi would bring forth an Independent Commission…so, to some degree, the House managers, (wisely in my opinion), held back…and also realizing that nothing presented would bring 17 Senators on board.
          But as I noted earlier, honest minds can honestly disagree on this. Best Wishes, Traveller

        • Traveller007 says:

          I would like to directly respond to Bmaz’s…if Not Now, When?
          And the question certainly places me on the sharp point of the spear…an uncomfortable place to be….What would be enough for the Republican Party?
          The hanging Mike Pense? Maybe yea, maybe Nay.
          For me, to answer the question, which is an honest and hard question….I don’t know, which is an equally Hard and Honest answer.
          I am also a political person having done some minor political work…but for me personally, as a veteran and an engaged citizen, Donald Trump passed over the line several years ago…for me, he damn near needed to be arrested after the Putin/Helsinki press conference…among other moments of this Presidency.
          In this sense the Bmaz question to me is almost unfair considering how outfront I have been in regards to Mr. Trump. But of course Bmaz does not know this.
          And yet, I will almost plead, (McConnell like…and you cannot imagine the pain it causes me to compare myself to Mtich McConnell!), but be that as it may…I am a political person, and what could be done has been done.
          Now, even more than the Covid Relief Package, I want to see a robust Voting Rights Act passed…soon, now, immediately. This is where I am at. Everything takes second place to this issue in my heart. Best Wishes, Traveller

        • Traveller007 says:

          Not to beat an entirely dead horse, (it is still breathing, fogging a mirror), but if a substantial Federal Voting Rights Act is passed, then Trump, Trumpism, the Trump Acolyte problem…just.simply. goes.away.
          I am particularly concerned seeing that David Perdue has today filed to run in the 2022 Senate race in Georgia against Warnorck.
          A voting Rights Act will cure a whole host of problems….though I concede that any such law will have to run up and down the appellate ladder also.
          Tough love, we’ve gotta do it; we have to do it for America. Best Wishes, Traveller

        • timbo says:

          Yeah, I used to think that I wanted out Republic to risk being embarrassed by such an attempt too. Now I’m pretty sure that the quality of the folks at the Congress is such that it would be lucky if said Sargeant didn’t trip over their own shoelace and end up delaying the fall of the Republic until such time as they got a problematic tooth pulled or something. Ugh.

  19. foggycoast says:

    hard to have faith that the moral arc is bending toward justice at the moment. civil suits will not harm trump. he will delay, bankrupt the plaintiffs with paper work or settle. criminal charges will be delayed, never filed, dropped, lost or reduced to the point that trump will not suffer. the system being what it is the cases could be delayed to the point that trump is already running for president again throwing in another complication. and if he wins…fuggetaboudit. the political system is not the only thing failing in this country.

    • Chris.EL says:

      This thread from Tom Nichols’ Twitter is interesting — Nichols outlines what concerns me about Trump:
      …”people like Trump are the initial bout of a sickness” …


      McFaul had some observations on Trump too:
      “Trump is too self-absorbed and too lazy to play a major role in a political movement in the future. He’s not about collective action or helping others. He’s not motivated by ideas. He cares about money and fame. These are rarely traits of mass movement leaders.” …

        • Valley girl says:

          Thanks bmaz, that is a great idea. And would save me a lot of time.

          Yes. Probably obvious that it didn’t really compute to me. I read the comments last eve, and those prompted me to try and remember the context of what Raskin said. And, evidently my subconscious has been working on the problem too, in overdrive.

          I’m of the Vietnam generation, and from California. And Civil War history is not my forte, by any means. I was going through Raskin’s speeches at C-SPAN (re-watching them) trying to find the larger context I sorta remembered. And suddenly. seemingly out of the blue, the word “Antietam” popped into my mind. I immediately googled and found “The Battle of Antietam” and read about it. Then it all made sense.

          I feel awful for having dropped what I am now sure is wrong/ misinformation at EW, hence my OT note here.

          Jamie Raskin is an incredibly effective speaker, and he varies his cadence quite a bit- tossing off some parts in a stream of words. other times going word by word for emphasis.

          I’d like to listen to that part again, so maybe with pointers from Lauren or Samantha I can find it.

        • bmaz says:

          I have no idea overall. But his comm staff has always been pretty responsive in the past.

          And, yes, he is extremely effective. Don’t sleep on his wife either, she is similarly brilliant. If you get nowhere, am happy to try.

        • skua says:

          Thanks Valley Girl.
          As well as what Raskin said, I’m also looking at how things, somewhat important historical events, seem to disappear.
          Which is an issue when we’re meant to be informed electors.

          Examples of things which I can’t find are:
          ?Colin Powell? saying, after 9/11, of the Bush neocons using troops to soften-up/abuse detainees, “They’ve set the ?army/US military? back 30 years”.
          A doco in which ?Barry Goldwater was said to have originated the GOP idea that politics is social warfare.
          GWB’s first television speech after 9/11 in which he begins by talking about “this crusade” before realising that he was not meant to use the “crusade” word and starting his delivery again from scratch.

          And now we can’t find Raskin giving examples of wars from just a week, or less, ago.
          Looks like there is no profit in search engines for them to be effective in delivering this stuff. Which is leaving us in an ahistorical fog.

        • Valley girl says:

          skua- It was your comment that got me thinking the most, that is, trying to remember the wider context of what Raskin said. But it was not the kind of “list” (my wrong word?)- like: A, B, C, D, rather, interwoven in his narrative. He did not mention Iraq, as far as I know. Certainly not in the part I misheard, and unlikely altogether.

          I called Raskin’s office yesterday and left a voice mail. No response yet. Forgivable, as I’m not a constituent.

          Your broader point is an important one. Now I have a much better idea of what you were getting at. TY. VG

  20. Jenny says:

    OT. Interview with van der Veen. Notice tone and body language. No wonder he made the Trump cut – bombastic and rude. Ugh.

    Trump Attorney Likens Impeachment Trial To Capitol Riot Before Storming Off Camera
    Michael van der Veen also did a crude impersonation of CBSN anchor Lana Zak while accusing her of downplaying his claim that trial evidence against Trump was “doctored.”

    • Ginevra diBenci says:

      Mr. van der Veen looks like a guy who puts his comb in his mouth. (A la Paul Wolfowitz back in the day.) My mouth purses reflexively whenever he’s on screen.

    • Marinela says:

      Did the house managers doctored evidence, those images, etc?
      If so, the media needs to be prepared to discuss it. Lana Zak was grossly unprepared to have this interview.
      If not so, the media should also be prepared to ask him if he is willing to make those assertions under the oath, instead of arguing with him on what he is saying or not saying.
      Make a point that what he is saying in front of her is perhaps not what he would say in a court setting under oath.
      And set up the interview so she can push back if he starts lying, but that requires preparation and good understanding of the facts before the interview.

  21. CD54 says:

    @Montana Democrat at 4:20 pm

    As bmaz noted, reference was to Watergate/Iran-Contra (except for obvious psychopaths like Ehrlichman and North).

  22. Vinnie Gambone says:

    May have missed it, but, did anyone make anything of Marcy’s point that Trump asked/ ordered Pence to take an action that was unconstitutional? Seems that was crux of Trump’s role in the insurrection /effort to over turn the election.

  23. Badger Robert says:

    Thanks again to Ms. Wheeler for her writing.
    I think Jamie Raskin made the decision that impeachment was the wrong forum and the wrong tool to unravel the conspiracy. Biden has to have full control of the Justice Department to proceed in the way that has been effective against organized crime, drug cartels, and the 1870 KKK in South Carolina.
    I think the experienced prosecutors working with Raskin decided that they have to get more authenticated evidence and cooperative witnesses.
    bmaz is probably correct. If the prosecution gets close the top there will be real Special Prosecutor, a fmr appellate judge, or a Republican Senator from a Dem state who wants out of the Senate.

    • Ginevra diBenci says:

      I like how you think, Badger Robert: framing this as a strategic decision premised on the assumption of greater power and control in the future with a more settled Biden DOJ. I think the House impeachment managers were overly defensive during the press conference Saturday; Pelosi could have fielded those questions and upheld their honor without having the exhausted Raskin and Plaskett confronted about a still-disputed choice not to call witnesses. Now the emphasis should be on using McConnell’s speech just the way Lindsay Graham said: against GOP senators running in 2022.

    • bmaz says:

      So the exact process designed by the Founders, and specified in the Constitution to address such conduct, is magically “the wrong forum and the wrong tool to unravel the conspiracy”? Seriously? And you think that was some brilliant strategy?? Seriously?

      And, for the love of all things holy, please understand that these decisions were made by Pelosi and Schumer, (with Coons as a last minute bag man), not Raskin. Also, too, can you please delineate and specify the “experienced prosecutors” working with Raskin? I only saw politicians. Sure they have staff, but who are you talking about?

      Of course the DOJ portion should proceed apace, but why in the world was it some stroke of brilliance to not have Congress use its vastly different, and arguably more powerful powers, to do its job, protect its powers and separation under the Constitution thereof, to complement and enhance what the DOJ “might” do in the future?

      People focus WAY too much on Trump alone, and shine on the greater things at play as to jurisdiction, ability to investigate and separation of powers. It is about FAR more than simply Trump. The Congress just shit and shined on its most powerful tool in an abject failure and dereliction of duty. It is about a lot more than Trump and a couple of very nice video montages. This stuff really counts.

      • dude says:

        Bmaz, can you tell me what the Congress’ power to cite and use “contempt of Congress” is please? I was thinking back over the matter of the Executive or members of his branch delaying investigations as witnesses by fighting subpoenas. At the same time, I thought someone here said contempt of Congress had no real teeth because Congress maintained no real jail or threat of jail. What is the relationship of punishment for contempt and subpoenas when trying to compel testimony in Congress?

      • dude says:

        I do see that in past posts, there was a need in 2019 to have Bill Barr get involved with contempt to make it effective and Bill Barr evidently demurred or ignored. So I assume Congress depends on DOJ to execute their citations. I have not found the comment that suggested if Congress had its own jail, the bailiff could theoretically enforce the contempt citation.

        • bmaz says:

          No, nothing depends on Bill Barr or anybody else. Could DOJ have made it easier? Sure. But did it depend on Barr/DOJ, no, that is laughable. It depended on the Article I branch standing up for itself, and the republican democracy it is sworn to protect.

          No, Congress can use DOJ, but it is absolutely false that such is their only recourse, so, when you assume that, you assume wrongly.

          You think Congress needs its “own jail”, like the old canard about the jail in the basement? Really? Congress has its own contempt powers and, if necessary, could use any local facility. They once used a room at the Watergate temporarily. And it would not be “the bailiff”, it would be the appropriate Sergeant at Arms.

        • dude says:

          Thanks for info. I wasn’t sure about the independent power of Congress enforcing its contempt citations. I agree the jail in the basement is odd, but that is probably why I remember it.

        • bmaz says:

          That is because they never use and enforce such power! Not saying it is easy necessarily, but it is possible. And the Article I branch ought do so occasionally, especially when fueled by full impeachment power.

        • timbo says:

          Whew! I almost let stand a reposte on your behalf above—thankfully my post had not passed the four minute mark and so I was able to delete! Yeh,so, yeh, I need to just read the entire comments section and then go back and comment. Note to self!

  24. Badger Robert says:

    To use a military metaphor, attempting a conviction was charging the enemy’s prepared positions. A Congressional investigation, or ordinary law enforcement, extends the available time, and flanks the enemy.
    In this circumstance, it also keeps the fmr guy out of the news until there is an overwhelming case backed by sworn testimony of the co-conspirators.

    • timbo says:

      lol. Trump has isn’t going to be out of the news for very long for the foreseeable future. At least he won’t be on Twitter… but that could change again at any moment too. I mean, I don’t miss Twitler but many of his pro-fans do so…

  25. Cheryll Brounstein says:

    According to TT he said” they just took the vice president out, I’ve got to go”. NOTEWORTHY, Trump did not use the word “evacuate” when he spoke with Tommy T. What did Trump infer from TT’s statement “they just took the vice president out, I’ve got to go”. I agree with Tom Hartmann hypothesizing that it is possible that the former president did not infer that Pence was evacuated, based on Trump’s next tweet and that the use of the word “they” was never clarified. I believe that Trump wanted harm to come to Pence, so he could declare martial law. It would be interesting to find out what was Trump’s demeanor was following his conversation with Tommy.

    • PeterS says:

      Are you referring to these comments from Hartman:

      “It’s entirely possible Trump thought Tuberville was telling him that the mob had just seized Vice President Pence and was hustling him off to the sturdy gallows they’d built on the Capitol lawn. (snip) What if Trump believed that Pence had been “neutralized” at that point in the process of counting the electoral votes, that the count was stopped, and that Pence would soon be dead?”

      What if “they” simply referred to Pence’s secret service detail (i.e. the people who did escort him out) and what if Trump had anyway been kept informed by the secret service about what was going on, and knew Pence had been taken to safety. I know which explanation I think more likely.

      P.S. If 60% of Trump supporters believe in alien abduction then maybe “they” referred to….

  26. Badger Robert says:

    Getting the fmr guy is not enough. In the Nixon conspiracy, Ehrlichman, Halderman, even John Dean several others did time. Mitchell too, if I remember correctly. In contrast, the current attempt to thwart the election is much bigger.
    Just getting Trump would turn him into some kind of victim. The conspiracy has to be unraveled first.
    Congm Swalwell said all their witnesses went cold. That was probably because there was active witness intimidation.
    The current situation is not like Watergate. It is more like the Confederacy, with active foreign assistance.

    • bmaz says:

      What?? Who said it was just about Trump? That is a canard. It the “current attempt” is “bigger”, then why has the effort against it been so pitifully smaller?

      “Congm Swalwell said all their witnesses went cold. That was probably because there was active witness intimidation.”

      And, yet, you are just groovy with writing it all off. And blaming “active foreign interference” as opposed to absolute cowardice in Congress to act via their priorities and powers. Lol.

      • Norskeflamthrower says:

        OK Bman. there are a whole bunch of us out here NOT willing to write it all off but do we wanna keep beating the poor, dead horse of no witnesses and no guts or do we find a strategy to fight with and keep the pressure on the administration and the congressional leadership to get on with the Covid and budget bills and get us to 2022?

      • Badger Robert says:

        Thanks for response. Per Dan Goldman, the current situation is more dangerous than Watergate.
        I will amend my position to say it is more comparable to the white supremacy terrorist groups that were suppressing reconstruction, which as the real issue lurking behind the Johnson impeachment.
        Grant, Ackerman and Merrill are the relevant precedents. Sorry if I was unclear and emotional.

    • John Colvin says:

      This means that the government intends to share confidential info with the defense (which the defense undertakes – sometimes under court order – not to re-share with third parties). Given that discovery in criminal cases is very limited, this is a way for the government to show at least some of its hand to the defense. If the information is compelling, it will often generate interest on the part of the defense in reaching an early disposition (plea).

      • timbo says:

        And, if that compelling information, if it is strong enough, might get someone to agree to a plea in exchange for testimony (in some form) or possibly physical evidence (of some sort) that might directly implicate others in conspiracy or harboring or aiding and abetting crimes, correct? Of course, it might not be compelling at all in the grander scheme of things outside this defendant’s life, just “run-of-the-mill” plea bargaining inducing to get past this episode in a defendant’s life and on to the next phase ASAP if possible, correct?

  27. Jenny says:

    Aired on PBS Amanpour and Company Feb 12, 2021
    GOP Lawyer Ted Olson: “I Would Vote to Convict [Trump]”
    Former solicitor general Ted Olson, a veteran Republican who worked in the Bush and Reagan administrations, was horrified by the Capitol riots on January 6. Olson tells Walter Isaacson why he believes senators who don’t vote to impeach are complicit in Trump’s wrongdoing.

    • timbo says:

      Ted Olsen you say? Where do I know that name from… j/k

      BTW, what does Ken Starr have to say about Trump these days?

        • timbo says:

          Where does Bob Barr fall on this spectrum in your opinion? In shuffling back through my foggy memories, I seem to recall that he was heavier-weight intellectually than most of the current GOP House rep apologists for Trump… CIA I think, and wouldn’t be surprised if his dad (and mom?) weren’t also CIA/OSS back in the day. With the rise of the Tea Party movement and Trumpism, his star seems to have faded…

  28. pdaly says:

    This opinion piece in The Washington Post by Daniel Goldman is frustrating to read especially after everything bmaz has been pointing out to us about how important witnesses are for this impeachment, the committee option for Impeachment II to make way for other Congressional business, the subpoena power of Congress during a properly declared impeachment, etc.

    Goldman pushes the talking point of the weekend that no witnesses were necessary to shore up the evidence in the impeachment trial. Goldman brings up the House’s subpoena of McGann which is still wending its way through the appeals court, but Goldman neglects to clarify whether that was a run-of-the mill House subpoena sent BEFORE or after the Congress had initiated the Impeachment Inquiry.

    Witness intimidation is an excuse now to do less than necessary to carry out a proper impeachment? Aren’t there laws to punish witness intimidators?

    Makes me want to join twitter and/or The Washington Post commenters group just to tell Goldman to speak with bmaz!


    • harpie says:

      I haven’t yet been able to read Goldman‘s opinion piece [paywall], but he wrote a thread on twitter in that vein on 2/14, which I found because Ted Boutrous retweeted it:

      9:44 AM · Feb 14, 2021

      Short thread on impeachment witnesses: First, let’s remember that this case had unusual and powerful evidence in the public record. If you are prosecuting a bank robbery and you have the surveillance camera footage, you don’t need witnesses to tell you what happened. 1/ […]

      Boutrous says of Goldman’s WaPo piece, that Goldman nails it. https://twitter.com/BoutrousTed/status/1361493216776740864

      And Marcy points out that
      [twitter dot com] emptywheel/status/1361447396790648839
      5:48 PM · Feb 15, 2021

      Not just witness intimidation but jury intimidation.

      Remember: Barr’s DOJ LITERALLY said that threats crafted by the Proud Boys against a Federal Judge were just a technicality not worthy of sentencing enhancement. Likewise, DOJ downplayed threats FBI found credible to Credico.

    • timbo says:

      At least now I can sleep tonight, knowing that at least one other person here does not have a Twitter account (yet?)…

  29. harpie says:

    Michelle Goldberg writes at NYT:

    Impeachment’s Over. Bring On the Criminal Investigations. After Mitch McConnell’s cynical speech, Republicans can’t complain. [To me it does NOT matter if they complain.]
    Feb. 15, 2021

    Elizabeth Delavega responds:
    [twitter dot com] Delavegalaw/status/1361454577728557062
    6:17 PM · Feb 15, 2021

    Absolutely! As cynical as McConnell’s & other GOPers’ statements were, their embrace of criminal investigations of Trump — and calls for criminal accountability– make it even easier for the new DOJ to follow all Trump-related cases wherever they lead.

    To which Marcy adds:

    6:28 PM · Feb 15, 2021

    Lots of people don’t realize this. But thus far, Trump’s hand-picked US Attorney in DC has approved over 200 prosecutions of ardent Trump supporters. So long as Michael Sherwin is in charge, it gives lots of cover from claims of politicization.

  30. harpie says:

    Since Eureka brought this up above, I figured it might be timely to post it again:

    9:07 PM – 28 Feb 2018

    Conspiracy Law – Eight Things You Need to Know.
    One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!
    Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.
    Three: All co-conspirators have to agree on at least one object of the conspiracy.
    Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.
    Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.
    Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.
    Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.
    Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

    *Twitter Bar Exam Conspiracy Law Summary*
    – – Need not succeed
    – – No writing needed
    – – Many goals, agree on 1
    – – Use many means
    – – Don’t have to know everything
    – – If join, on hook for all acts
    – – Can use statements of one v. other
    – – Overt acts to further can be legal &
    – – Quid pro quo is NOT an element!

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