How a Trump Prosecution for January 6 Would Work

Jeffrey Toobin wrote a shitty piece arguing — seemingly based exclusively on Trump’s request to Jeffrey Rosen to delegitimize the election results in Georgia and Trump’s January 6 speech — that Merrick Garland should not prosecute Trump.

Toobin’s piece sucks for the same reason that all the mirror image articles written by TV lawyers, the ones explaining how DOJ might prosecute Trump, also suck: because none exhibit the least familiarity with how DOJ is approaching January 6, much less what allegations it has already made in charging documents. They are, effectively, nothing more than throwing a bunch of laws at the wall to see whether any stick (and in Toobin’s estimation, none do).

Almost none of these TV lawyers engage with how DOJ is applying obstruction as the cornerstone of its January 6 prosecutions. For example, Toobin considers whether Trump obstructed justice, but he only analyzes whether, when, “Trump encouraged the crowd to march to Capitol Hill but he did not explicitly encourage violence,” Trump obstructed the vote certification. Of around 200 January 6 defendants charged with obstruction, I can think of few if any against whom obstruction has been charged based solely on their actions on the day of the riot, and Trump is not going to be the exception to that rule. As with other January 6 defendants, DOJ would rely on Trump’s words and actions leading up to the event to prove his intent.

In this post, I want to lay out how a DOJ prosecution of Trump for January 6 would work. I’m not doing this because I’m sure DOJ will prosecute. I’m doing it to make the commentary on the question less insufferably stupid than it currently is.


The piece makes three assumptions.

First, it assumes that DOJ’s current application of 18 USC 1512(c)(2) to cover the vote certification survives judicial review. It’s not at all clear it will, either because the courts (this will go to SCOTUS) don’t believe Congress intended to include Constitutionally-mandated official proceedings like the vote certification in a law covering official proceedings, because the courts will decide that rioters had no way of knowing that interrupting Constitutionally-mandated official proceedings was illegal, or because courts will decide that rioters (all of them, as opposed to one or another making a compelling case to a jury) did not have the requisite corrupt purpose. There are currently at least nine challenges to the application of the law (at least two more have been raised since Judge Randolph Moss had prosecutors put together this list). If TV lawyers want to argue about something, this might be a more productive use of their time than arguing about whether Trump can be prosecuted more generally, because the question doesn’t require knowing many actual facts from the investigation.

This piece also assumes that DOJ would apply two things they asserted in a filing pertaining to Mo Brooks to Trump as well. That filing said that the scope of federal office holder’s job excludes campaign activity, so any campaign activity a federal office holder engages in does not count as part of that person’s duties.

Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ also said that conspiring to attack your employer would not be included in a federal office holder’s scope of employment.

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c).

These two principles, taken together, would get beyond some of the challenges involved in investigating someone covered by Executive Privilege and making orders as Commander-in-Chief. Importantly, it would make Trump’s activities in conjunction with the January 6 rally subject to investigation, whereas they broadly wouldn’t be if they were done in Trump’s official capacity.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

The other conspiracies

If DOJ would only charge Trump in the context of a conspiracy to obstruct the vote (with whatever other charges added in) that intersects with some or all of the other conspiracies charged, it helps to understand what DOJ has done with those other conspiracies. Here’s what the currently charged conspiracies look like:

DOJ has been treating the multiple Proud Boy conspiracies as one (about which Ethan Nordean is complaining); I think they’re doing that — and excluding other key players who could be in one of the conspiracies, including all the most serious assaults committed by Proud Boy members — as a way to show how the cell structure used on the day worked together to serve a unified purpose, while also managing visibility on different parts of their ongoing investigation. For my purposes here, I’ll focus on the Leadership conspiracy, with the understanding that (notwithstanding Nordean’s complaints) DOJ credibly treats the others as the implementation of the conspiracy the Proud Boy Leaders themselves have laid out.

All of these conspiracies, as well as a disorganized militia conspiracy DOJ has been saying they’ll charge, share the same object: to stop, delay, or hinder Congress’ certification of the Electoral College win. Basically, all these conspiracies, as well as a hypothetical one that DOJ might use against Trump, would involve ensuring that he still had a route to remain in power, that he lived to fight another day. By themselves they did not involve a plan to remain in power (though Trump could be charged in a broader conspiracy attempting to do that, too).

They also all allege common Manners and Means (to be clear, these defendants are all presumed innocent and I’m speaking here of what DOJ claims it will prove). Those include:

  • Agreeing to plan and participate in an effort to obstruct the vote certification
  • Encouraging as many people as possible, including outside their own groups, to attend the operation
  • Funding the operation
  • Preparing to make participants in the operation as effective as possible, in all cases including communication methods and in most cases including some kind of defensive or offensive protections
  • Illegally entering the Capitol or its grounds and occupying that space during the period when Congress would otherwise have been certifying the vote

While all of those conspiracies follow the same model, there are some unique characteristics in four that deserve further mention:

Proud Boy Leaders Conspiracy: Operationally, those charged in the Proud Boy Leaders conspiracy managed to assemble a mob, including Proud Boy members (many organized in sub-cells like the Kansas City cell Billy Chrestman led), fellow travelers who met up and marched with the Proud Boys that morning, and those who knew to show up at 1PM (while Trump was still speaking). With apparent guidance from the charged co-conspirators, the Proud Boys managed to kick off the riot and — in the form of the Proud Boy Front Door co-conspirator Dominic Pezzola wielding a stolen shield — break into the building. Thus far (probably in part because Enrique Tarrio is not currently charged in this or any conspiracy), the government has been coy about what evidence it has of coordination with others, including at a December MAGA March in DC. Key planning steps, however, involve deciding not to show Proud Boy colors the day of the riot and fundraising to buy gear and support travel (Christopher Worrell got to DC on a bus paid for by the Proud Boys but that has not yet been charged in any conspiracy). On top of radios and blow horns, two Telegram channels — the larger of which had 60 members — appear to have played key roles in organizing events the day of the riot. To the extent that Proud Boys came armed, they appear to have done so individually, and thus far, DOJ has not included the worst assaults committed by Proud Boys in any of the conspiracies. Several of the charged co-conspirators started talking about war in the days and weeks after the election and those who gathered with the Proud Boys on the morning of the riot skipped Trump’s rally, making their focus on the vote certification much clearer than many others that day.

Oath Keeper Conspiracy: The indictment alleges this conspiracy started on November 9 with a plan both to use Antifa as a foil to excuse violence and in expectation that that violence would be Trump’s excuse to invoke the Insurrection Act and/or respond to that call. The conspiracy used the promise of serving as security — both at the rally and for Roger Stone and other “dignitaries” — to recruit people to come to DC, and in fact a number of the charged co-conspirators were present with Stone the morning of the riot. In addition to kitting out in various Oath Keeper gear at different events on the day of the event, the militia had a serious stash of weapons at the Ballston Comfort Inn in case things did turn violent. The key thing, operationally, this conspiracy achieved was to provide organized brawn to an effort to open a second front to the attack via the East Door of the Capitol. The nominal head of this conspiracy, Florida State head Kelly Meggs, claimed to have set up an alliance with other militias in Florida (he first made the claim a day after the militia had provided “security” for Stone at an event in Florida). Over the course of the investigation, the government has also gotten closer to alleging that Meggs expressed the desire to and took steps to target Nancy Pelosi personally while inside the Capitol.

3%er Southern California Conspiracy: The men charged in this conspiracy — who occupy the overlap between 3%ers and the anti-mask community in Southern California — organized themselves and others to come armed to the Capitol. As alleged, they started organizing formally in explicit response to Trump’s December 19 advertisement for the event. Both online and in an appearance by Russell Taylor at the rally on January 5, they called for violence. They organized in advance via Telegram chat and on the day with radios. Operationally, these men personally participated in the fighting on the west side of the Capitol (most never went in the building but the government contends they were in restricted space outside). But from a larger standpoint, these men form one intersection between the more formal Trump organization behind the rallies and a group of radicalized Trump supporters from across the country.

Disorganized Conspiracy: You’ve likely never heard of Ronnie Sandlin and Nate DeGrave, nor should you have. Their conspiracy (DOJ has not yet charged it but has been planning to do so since April) started when Sandlin responded to Trump’s calls for people to attend the event on December 23 and started looking online to join up with others. “Who is going to Washington D.C. on the 6th of January? I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” They’re an excellent example of a bunch of guys — along with Josiah Colt, who entered into a cooperation agreement against the other two — who got radicalized via a messy stew of ideologies online, armed themselves for insurrection, raised money and traveled to DC together planning for violence, and allegedly engaged in assaults at two key points inside the Capitol that allowed the occupation of the Senate chamber, and in Colt’s case, Mike Pence’s chair itself. Here’s a video of the two (in orange and all black) fighting to get into the Senate just released today:

Colt has admitted (and may have GoPro video showing) that the three went from learning that Pence had refused Trump’s demand — the government doesn’t say whether they learned this via Trump’s tweet — to forcibly occupying the Senate in response. So while you haven’t heard of them and they’re not members of an organized militia, they still played a tactically critical role in forcibly occupying the Capitol in direct response to Trump’s exhortations.


There are still a slew of questions about Trump’s actions that have — publicly at least — not been answered. Some that would be pertinent to whether he could be charged with conspiracy include:

  • When Trump said, “stand back and stand by” to the Proud Boys on September 29 — after they had already threatened a Federal judge to serve Trump’s interest, and whose threats had been dismissed by Bill Barr as a technicality — did he intend to signal some kind of relationship with the Proud Boys as the Proud Boys in fact took it to be? Was this part of an agreement to enter into a conspiracy?
  • When both the Proud Boys and the Oath Keepers started planning their January 6 operation in the days after the election, speaking already then of being called by the President to commit violence, was that based on any direct communications, or was it based on things like the earlier Proud Boys comment?
  • When Proud Boys and Oath Keepers who would later lead the operation on January 6 formed an alliance to keep Trump in office in December at an event with Roger Stone, was Stone involved?
  • What conversations did Trump and Stone have about his pardon even as these militia plans were being put in place?
  • What evidence does DOJ have about the Proud Boys’ decision — and their communication of that decision to at least 60 people — not to attend the Trump speech but instead to form a mob that would later march on the Capitol and lead the breach of it while Trump was still speaking?
  • Did Trump time the specific lines in his speech to the Proud Boys’ actions, which were already starting at the Capitol?
  • What orders were given to the Park Police about various crowd sizes and planned events that explains their failure to prepare?
  • Trump told Acting Secretary of Defense Christopher Miller to use the National Guard to protect his protestors on January 3. On January 6, some Proud Boys expressed surprise that the Guard was not protecting them. Did the Proud Boys have reason to believe the Guard would not protect the Capitol but instead would protect them? Why was the Guard delayed 4 hours in responding? Why was there a 32 minute delay during a period when the Proud Boys and Oath Keepers were considering a second assault in relaying an order from Miller to the Guard Commander who had the Guard in buses waiting to deploy? Did the militias call off their second assault based on advance information that the Guard was finally being deployed?
  • Both Rudy and Trump made calls to Members of Congress on January 6 making specific asks for delays at a time when the rioters had already breached the building. Did that include a request to Paul Gosar, and did that result in the delay in evacuating the House side that led to Ashli Babbitt’s death, which Gosar (and Trump) have been key figures in celebrating? Would DOJ be able to get either Gosar or Tuberville’s testimony (they already have the voice mail Rudy left for Tuberville, and because Rudy’s phones have otherwise been seized, if they can show probable cause they have access to anything on his phone).
  • Rudy had texts from a Proud Boy affiliate within 9 days after the riot about implementing a plan to blame it all on Antifa. That guy  had, in turn, been in contact with at least six people at the riot. Were they in contact before and during the riot? Again, DOJ has the phones on which Rudy conducted those conversations, and they happen to have his cell location for other purposes, so the question is do they have probable cause to get the same data for the Jan 6 operation?

What a Trump conspiracy might look like

Even without answers to those questions, however, there are a number of things that Trump did that might form part of a conspiracy charge against him (this timeline from Just Security has a bunch more, including magnifying threats from people who would later take part in the insurrection). The Manners and Means would mirror those that appear in all the charged conspiracies:

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

DOJ knows exactly what happened with Trump’s requests that DOJ serve as the civilian agency to lead response on Janaury 6, and some of the witnesses have given transcribed interviews to Congress and probably DOJ IG. Some details about which there remain questions — who delayed the National Guard — would be available to subpoena. The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.

But much of this, including the illegal request of Mike Pence and the specific targeting of him in the aftermath, which directly affected the actions of the disorganized conspiracy, are already public. Both the computer Enrique Tarrio brought to DC and Rudy’s phones have been accessible if DOJ wanted to obtain a warrant for them.

None of this addresses the complexities of whether DOJ would charge a former President. None of this guarantees that DOJ will get key charged defendants to flip, whose cooperation might be necessary to move higher in the conspiracy.

I’m not saying DOJ will charge Trump.

But if they were considering it, it’s most likely this is how they would do so.

Update: Per Quake’s suggestion I’ve added the funding of buses.

Update: Reuters reports that FBI has found “scant” evidence of central coordination in the attack, specifically naming Stone.

85 replies
  1. Quake says:

    Could another aspect of a hypothetical conspiracy involving Trump involve connections between Trump and the people who funded the rallies and the transportation of the rioters?

    • Rayne says:

      Yepper. Rally to Revival, Rally to Save America, Save the Republic Rally, One Nation Under God rally, Silent Majority rally, Wild Protest, Freedom Rally, March to Save America, Stop the Steal rally, Eighty Percent Coalition rally — that’s a lot of rallies each with some overlap but appealing to different audiences so as to draw a large number of Trumpists to DC for January 5+6.

      IMO, we still need to look at the roll the GOP states’ attorneys general played as well.

  2. Rugger9 says:

    This is a good bit of speculation supported by what we know. Since the House returns shortly, Bennie Thompson’s committee should also get this post to start asking some more of the questions. What will be interesting to see is who will squeal first to save their own skins.

    I still think Stone is involved, and GSA Administrator Emily Murphy’s delay in certification meant that there were no Biden transition team members in place to pick up on the planning going on, to which I think not enough attention is being paid.

    As for the ones let out on bail and who have engaged in anti-social activities since (including the appalling LAPD demonstration this week), I wonder why none of them appear to be remanded into custody on violations of the release terms.

  3. Drew says:

    Thanks for this excellent analysis. I’m very skeptical about DOJ going after Trump on this without a lot more explicit and direct evidence involving him emerging. I’m even skeptical as to whether they would target him (& try to flip, say, Rudy in this regard) with the current state of evidence. Trump’s rampant corruption and disregard for law & democracy is manifest, but I think his troubles in New York (& Scotland, etc perhaps) are more likely to unravel his various conspiracies & extract a modicum of justice.

  4. BobCon says:

    Toobin seems to be working from an extremely narrow conception of “available evidence” and treating this as a case before a jury rather than an ongoing investigation.

    Obviously this framing helps his take, but it’s a really dumb framing considering the circumstances. I think at a top level, one of the chronic problems with Jeff Zucker’s CNN has been terrible judgment of whether an issue has legs or not. They don’t even make good choices based on ratings, let alone journalism.

    • earlofhuntingdon says:

      Miller’s comments seem entirely self-serving – unsurprising for a Trump pick who was not qualified to act as SecDef. He describes a fraudulent policy designed to ensure maximum chaos – more than we have now. The deception and strong arming involved would have cost more Afghan and American lives and further damaged the US’s reputation. Best for everyone if he slinks off into retirement and shuts his pie hole.

      Next time, you might delete the data from the question mark to the end. Thanks.

  5. Vinnie Gambone says:

    Sandlin. This guy. He’s a good example of the “messy Stew” radicalization outreach. Was there someone who was in charge of sucking people in, -stirring the pot to mobilize normies to attend, to provide cover and confusion within which the plan for the breach could be executed ? Was there individuals whose assignment was to work as shills for the event. Be there or be sqaure? . Oh wait. Trump was the shill.’ It’ll be wild.”
    That’s why it was so important to get the DOJ, or Georgia election officials to proclaim corruption. They so needed a hanging chad moment. Had it been found, even if fabricated, it could have justified the stop the steal actions. But that part never happened.
    So what were the communications in real time? Were those who never entered or who steped in and out of the building, were they waiting for the arrival of their hero? A message from above? Was there a point where, as they say in their comms, Trump would invoke the insurection act? They were waiting for call when Trump would what? enlist, name, recruit those now charged as his choice to bring order to the chaos? Was that the plan all along? That crap feeds into their “well regulated militia” dreams.

    Ms Wheeler, as usual, nails it.
    “The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.”

    And who is going to flip first on Roger Stone for being the author of it all?

  6. Rugger9 says:

    OT, sort of… It seems Mike Lindell is admitting to hiding the Mesa (CO) County election official in a “safe house” to prevent the FBI from talking to her. I’m pretty sure that concealment is a criminal act (i.e. harboring a fugitive or perhaps a conspiracy rap as well) but I would think we will see more of this kind of thing if Lindell isn’t hammered now. Dodging process servers is a well-used delaying tactic for lawsuits (not everyone gets theirs like Cox did in CA, at the GQP debate), but it’s not clear to me that the FBI has named her formally in a subpoena or similar.

    • P J Evans says:

      AFAIK she hasn’t been officially charged with anything, but she’s certainly being investigated for violations of state law. No sympathy from me for her or for Lindell.

      • Rugger9 says:

        Agreed, but it would be clearer if the FBI and/or CO Sec of State would specifically invite Ms. Peters in for a chat.

        • Drew says:

          I kind of like the idea that the FBI figures out where Lindell is hiding her, (his OPSec can’t be at all good) gets a warrant and comes in to his country hideaway scaring some of the shit out of him.

    • Ginevra diBenci says:

      So glad you brought him up, SL. I’m not sure Kurson is or will be useful to anyone for anything ever. The Times story had to work hard not to sound sarcastic–the guy was pathetic, even as he tried to spy on everyone from his ex to experts. Frankly, I’m betting Jared will pretend he never knew him.

  7. P J Evans says:

    I thought Toobin was out over his skis with that. DOJ would want really solid evidence before indicting the former guy.

    • Rugger9 says:

      It’s something that has been noted several times across many posts here: the need to ensure the case doesn’t fall apart like a MyPillow conspiracy theory. DoJ needs to be sure that any prosecution of DJT sticks hard, because if they whiff we’re back to the so-called “exoneration” nonsense from the impeachments.

      So, Garland will take his time knowing that DJT will not shut up and will doubtless say a few things that will make it into court records somewhere.

      As for the state investigations, I’d be interested to see how Vance, James (in NYS), and the GA investigations are going with updates. While the courtier press is all-too-willing to blame Biden for Kabul falling, the GA legislature just started the process to emasculate the Fulton County board of elections.

  8. Lemoco says:

    By November 3rd, the die was already cast. The origin of the Big Lie occurred months before the election, when Trump began claiming that the use of mail-in ballots was a plot by big city Democrats to rig the election. Trump ramped up that expectation by encouraging his supporters to vote twice – by mail and in-person. He encouraged his supporters to act as poll watchers, and suggested local law enforcement might be needed to stop the steal. Trump spent months cultivating the idea that the election wasn’t going to be secure, but was being rigged instead. It was the carpet-bombing in advance of the invasion, and it is an important part of the conspiracy.

    [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your second user name; your previous comments have published under username “Doug C.” Thanks. /~Rayne]

    • gmoke says:

      From my perspective, the “Big Lie” was planted back in the 2016 campaign when Trmp said, repeatedly, that he’d abide by the 2016 vote ONLY if he won. It’s been his go-to move since the get-go.

  9. Zirc says:

    I keep returning to the letter Dick Cheney and other ex-Secretaries of Defense wrote a couple of days before the insurrection. He and they knew something. Talk was circulating. Planning was taking place. Such planning would seem to me to contribute to the mounting evidence of conspiracy.


    • Peterr says:

      After the debacle involving the military that was the Lafayette Square Photo Op on June 1, 2020, General Milley came out and publicly apologized for appearing alongside Trump and giving the impression that the military takes sides in political events or between legitimate protesters and those against whom they are protesting. He took a lot of heat from military folks (active and retired) when the event took place, and got a lot of plaudits from those same folks later on for admitting it was a mistake and doing so in a big public and timely fashion — especially knowing that it would also piss off Trump, bigly.

      Fast forward to late December, when Trump and others were pointing to a big January 6th rally in DC . . .

      I can easily see these former SecDefs looking at the news around this coming event, then reaching out to each other and saying “we’ve got to signal to Milley and the rest of the brass that we’ve got their backs, so that if the orders come on January 6th, they will not accept them as legitimate.”

      They may have gotten wind of specific plans, but absent any evidence of that, I think avoiding a repeat of the Lafayette Square Photo Op mess is at least as plausible an explanation for why they wrote their letter.

      • Zirc says:

        Peterr that’s a reasonable read. In the absence of any public evidence, it’s a necessary read. Still, given what we do know, I can’t help thinking there’s more to it than that.


  10. CD54 says:

    I still don’t see why Trump’s refusal to act to stop the rioters from obstructing the Vote Certification isn’t a single, discreet conspiracy to obstruct crime — even Kevin McCarthy can testify to that.

  11. Hoping4Better_Times says:

    Jan 3 telcon to Georgia’s SOS Raffensperger is a better bet for prosecution of trump for election interference. The tape is proof of trump’s criminal intent to interfere and/or overturn Georgia’s election results. By turns trump flatters, cajoles and threatens the Georgia SOS and his deputy to “find” 11,780 votes for him. Mark Meadows, trump’s former chief of staff, may also be charged as well.

    • P J Evans says:

      There’s also the multiple calls trying to get hold of the guy in AZ, who refused to answer them.

  12. gmoke says:

    “I’m doing it to make the commentary on the question less insufferably stupid than it currently is.”

    You are a glutton for punishment and a reincarnation of King Canute. Since you’ve been banished from TV for your – uh – “colorful” language, insufferably stupid commentary is once again de rigeur (mortis).

    Still and all, we here appreciate what you do.

  13. Joseph Andrews says:

    What a great, great post. Read and re-read right here on my desktop. Chock-ful-o’details. And nuances. Important nuances. Awesome writing.

    Bookmarked and ‘Favorited’ on my phone, too…will come in handy with a few ‘friends’ in my neighborhood.

    Posts like these and others here on emptywheel (as well as comments…even snarky ones!) often burrow into my brain and reside in places that cause me to ask myself (not a lawyer, mind you) the following two questions:

    (1) What defines illegal behavior?

    (2) What SHOULD define illegal behavior?

    Over and over I get to this place when Jan 6 and 45 are discussed.

    But it seems that these questions come up more-and-more–it is as if the residue of 45 is as bad as 45 himself…with MAGA-types learning from Trump himself as they try to ‘own the libs’.

    For example:

    …the headline here is:

    “Man threatens Springfield Walmart workers, tells them they will be executed for administering vaccines”

    Surely this sort of behavior is illegal and can (should?) be prosecuted, right?

    Of course to me a prosecution of 45 in terms of the Jan 6 mayhem can be prosecuted as well.

    There is a Jan 6 DC grand jury convening as I write this, correct?

    Here I thought all this time that any decent prosecutor could get a grand jury to indict a ham sandwich…

  14. TooLoose LeTruck says:

    Question for the commentariat here…

    If I recall correctly, the Trump Organization is being investigated by the State of NY for, I quote, ‘an alleged 15-year scheme of conspiracy and criminal tax fraud’…

    To be clear, this is a state (of NY) and not federal investigation…

    However, I have helped out on tax returns (I occasionally work as a full-charge bookkeeper, amongst other work) more than once and it seems to me that state returns are based on numbers taken from an organization’s federal return which gets done first.

    So if the State of NY proves conclusively that the Trump Org committed ‘serious criminal tax fraud’, to quote the Brookings Institute, would that not pretty much mean Trump, Inc also committed federal tax fraud?

    And so far, apart from the State of NY, I don’t recall hearing anything about a federal investigation… yet…

    Any experienced accountant-types care to opine?

    • Pete T says:

      Sorry to link CNN: but it looks like the next big event for Trump’s tax returns is November and regardless how the federal judge rules I suppose it can/will be appealed. Of course the House getting its hands on the returns does not mean any near term legal jeopardy for Trump.

      I suppose the IRS (Yellen) could pull a rabbit out of the hat, but I am unsure how that even works wrt to possible civil/criminal charges.

      I think the best bet is with NY State with uncertainty that there is, or will be, any info sharing with Congress.

      I am not holding out hope for a Capone resolution.

      • TooLoose LeTruck says:

        I’m mostly curious on this one and really not expecting a federal indictment…


        If the State of NY proves the Trump Org clearly committed tax fraud at the state level, I don’t see how that also wouldn’t constitute proof of tax fraud at the federal level… srsly… every tax return I ever worked on, the numbers that go into the state return came off the federal return, penny for penny, which got done first.

        Maddeningly, I kind of doubt Trump will ever get charged at the federal level, too… talk about living in a moral hazard, or perhaps better called a fool’s paradise…

        I would gladly settle for seeing multiple people close to him, and the closer the better, go to jail and only if rightfully convicted and he, himself, hobbled to his dying day by civil suits that drain him financially right to the bitter end.

      • Rayne says:

        Trump has a very tenuous argument preserving his privacy wrt tax returns, because Title 26 USC 6103 says “shall” not “may”:

        (f) Disclosure to Committees of Congress

        (1) Committee on Ways and Means, Committee on Finance, and Joint Committee on Taxation

        Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

        The law says Trump’s privacy is protected by a closed session to evaluate the returns, so he has little to stand on. He can’t even claim there isn’t a compelling legislative reason because Congress clearly hasn’t been able to hold Trump accountable for emoluments based on the lack of adequate compulsory legislation. Given the Supreme Court’s ruling against Trump’s attempt to keep Manhattan DA’s office from getting his returns for a grand jury, I don’t see how the Supreme Court could find for Trump if he tries to appeal Congressional oversight under 26 USC 6103(f)(1).

        Trump needs to put on his big boy Pampers and brace himself for accountability for a goddamned change.

        • TooLoose LeTruck says:

          Nicely done, and thank you.

          I started looking around on the intertubes after my previous comment and found the following…

          “I will not be surprised if the President and/or Trump family members are at some point in time federally charged with either Tax Evasion, Tax Fraud, Money Laundering, Mail Fraud, Wire Fraud, or Forfeiture Counts in the many millions. More to come, I’m sure.”

          I continue to doubt he’ll ever be charged related to the events of the 6th but financially? He just might have some serious exposure there…

          I’d be satisfied w/ that…

        • Rayne says:

          Still thinking about your earlier question; though I’m neither an accountant or a tax lawyer, I think the case against Trump would look at first like the one against Weisselberg. Income not reported as such, deliberately masked as an expense, would be the first and easiest line of attack though Weisselberg himself is a partial barrier along with Mazars. Trump will claim Weisselberg and Mazars were the experts on which he relied, but he’s exposed himself in a number of ways making that reliance tissue thin.

          The other line of attack will be false statements, tax and insurance fraud which Michael Cohen testified about before the House. Property values won’t match returns or statements filed with different government agencies and insurers. If there were any claims based on these fraudulent numbers, that’s the exposure to insurance fraud charges.

          If the Trump kids are charged first, they may flip for reduced charges. Mary Trump seems to think the kids will flip on dear old Daddy dearest. Then charges could really take off. ~fingers crossed~

          And of course none of this has much to do with the prosecution Marcy lays out, except that staying in office by hook or by crook was a means to avoid facing any accountability for tax and other fraud as well as a means to extend the financial criming.

        • TooLoose LeTruck says:

          You are correct, Trump’s possible financial crimes have nothing to do w/ the events of Jan 6…

          However, I’m not sure I’ve ever seen a guiltier looking person than Donald Trump in my entire life… no, I’m not a lawyer and yes, I’m speaking in generalities here…

          What’s that old saying… where there’s smoke, there’s fire?

          Geez, all you have to do is glance in Trump’s direction and something just doesn’t start smoking… it bursts into flames…

          I’m truly amazed he hasn’t been nailed for something serious before, and astonished the GQP let him bully his way into their fold and take over so completely…

          He may never pay any price for Jan 6 but I’ll gladly settle for financial crimes.

        • MB says:

          Spend a lifetime living above the law and everybody and his brother gets used to it – it’s “normal”. When he brought that same game and applied it to the U.S. Presidency, well…can’t go much farther than that. Let’s start out with felony jaywalking and go from there.

    • Peterr says:

      Assuming NY proves “serious criminal tax fraud,” it would depend on how — in precise terms — that fraud was carried out. If the Trump Org twisted some NY-specific tax provisions, that apply only to NY tax calculations and had no connection to the federal tax code, then the IRS would not necessarily be involved.

      Silly example: suppose NY had a High Rise Tax on everyone who lives above the 55th floor of a building and on every corporation with an office above the 55th floor. Then suppose the Trump Org creatively counts the floors on their building in order to claim they are exempt. (“There’s a ground level space, then a mezzanine that overlooks the ground level space, then some maintenance spaces that don’t count as real floors, and then you finally get to the first floor . . . which puts us under the 55th floor.”) NY tax authorities rightfully laugh and sent the Trump Org a bill for the High Rise Tax, plus penalties — and the IRS has nothing to do with it.

      • TooLoose LeTruck says:

        Well dang…

        Went back and read the rest of the article I came across at the Brookings Institute…

        Per Norm Eisen…

        “there’s allegations of federal tax fraud in here that could lead to federal charges so let’s not judge yet…”

        I don’t see how you could commit a 15 yr scheme of fraud at the state level w/out crossing some lines at the federal level…

        Just saying…

        This doesn’t mean it’s time to declare Trump guilty!

        It doesn’t even mean he’ll get charged…

        But it does beggar the question, can anything illegal done at the state level swim back upstream to the federal level?

        I suppose it depends on just how sweeping and blatant the scheme was, no?

  15. obsessed says:

    Could the seizure of of Rudy’s phones under the auspices of investigating his foreign entanglements have had the secondary motivation of preserving their contents in anticipation of finding probable cause to use them in the January 6th investigation? I’ve been listening to the audio version of the Rucker/Leonnig book, and they have Rudy frantically inserting himself into everything leading up to the 6th. They’ve obviously made a Faustian access bargain with Barr and Kushner — helping to rehabilitate their images in exchange for accounts that allow them to paint hilariously horrific portraits of Trump & Rudy. (Other image rehab leakers include Azar, Redfield, Esper & Birks). But as pure entertainment, it’s an absolutely riveting page turner and the narrator is a genius, especially in the way she reads Trump’s lines.

  16. Ginevra diBenci says:

    What happened to Jeffrey Toobin? He once had talent; his OJ book was excellent. For that matter, what happened to CNN? It’s like each mistook the other for Faust and made a bargain that sure isn’t worth it for the rest of us. I was particularly stricken by this passage:

    “Notwithstanding the Hatch Act, presidents and their staffs have engaged in partisan political activities since the birth of the Republic. And Trump could argue that he was not ordering Rosen to engage in political activity, but rather to enforce the law. Again, this criminal provision has rarely been invoked, and it seems unfair to raise it in connection with Trump’s dealings with his acting attorney general.”

    UNFAIR, Mr. Toobin? Unfair is what happens when a president bulldozes democracy for his own gain, with every expectation that its gatekeepers (including you) will roll over and play dead.

    • Rayne says:

      Same network pays Cillizza to show up and make goo-goo eyes in Ivanka Trump’s general direction, paying him an ungodly amount to do so. CNN needs a thorough house cleaning.

  17. pdaly says:

    Another possible datapoint on Trump’s mens rea in trying to interfere with the U.S. election:

    The COVID19 pandemic triggering a safer “vote-by-mail” message by Democrats countered by Trump’s Postmaster General DeJoy’s tossing out USPS mail sorting machines in the summer’s run-up to the presidential election with no plans to reinstall them before the November election.

    Then Trump quickly announces on election night his “WIN” despite knowing mail-in ballots (which favored Biden in key states) had yet to be counted.

    Excerpt from NEWSWEEK. House Speaker Nancy Pelosi blasts DeJoy:
    “The Postmaster General frankly admitted that he had no intention of replacing the sorting machines, blue mailboxes and other key mail infrastructure that have been removed and that plans for adequate overtime, which is critical for the timely delivery of mail, are not in the works,” she said in a statement after speaking with DeJoy last week.”

    • pdaly says:

      Plus, Trump encouraged his supporters to go in person on Election Day as opposed to using a mail in ballot.

  18. Tom R. says:

    Yes, prosecutors and jurors need to look at the /totality of the evidence/. So yes, Toobin’s timeline needs to be extended back before Jan. 6th … far, far back. One important date, as gmoke pointed out, is Oct. 20, 2016, when you-know-who said he would accept the results of the election only if he won. I reckon that was the end of democracy right there. Democracy requires all parties to accept the results of the election, whether they win or not. The task before us now is not to protect democracy, but to rebuild it from the ashes.

    Also consider Nov. 1, 2020, when he glorified his supporters who swarmed a Biden campaign bus and tried to run it off the road in Texas, and tweeted out video of the incident. This is just one of many well-documented instances of calling for political violence in general, and praising specific incidents. If this is not evidence of intent, I don’t know what is. His supporters figured out what he wanted; if prosecutors can’t explain this to a jury, the whole system is broken beyond repair.

    • timbo says:

      Yep. Not sure why the DOJ and other investigators aren’t looking at that incident more carefully. On its face, it appears to be an attempt to intimidate a candidate, and the supporters of that candidate, etc, in a federal election.

  19. joel fisher says:

    Reuters today is claiming the JD has “scant” evidence of a big conspiracy. Someone–either Reuters or the JD—hasn’t been watching the news.

      • harpie says:

        And this, from a month ago, also speaks to coordination:
        10:23 PM · Jul 20, 2021

        #SeditionHunters – events in DC required planning. Cindy Chafian organized the fiery Jan 5 rally where Ali Alexander led the crowd in “Victory or Death!”
        Many analysts consider the Dec 12 rally, that Cindy helped organize, a kind of ‘dress rehearsal’ for Jan 6, to practice gathering & moving a crowd in DC (photo). On Jan 6, the rally permit said “Women for America First will not conduct an organized march from the Ellipse…” 19/

        but the rally crowd was led down Pennsylvania and Constitution Aves. to the Capitol, where inciters with bullhorns steered their movements for hours.

        It’s also time to acknowledge that on Jan 6, the crowd was an instrument being used. 20/ […]

      • Charles says:

        It’s very distressing to see an anonymously-sourced claim about an *ongoing investigation*, where the sources include two former officials who should not know the current status of the investigation (and could be, say, Bill Barr and Rod Rosenstein) and two current officials who should not be talking to the press.

        One other point: it was reported by NBC that the site washingtontunnels was getting a lot of hits from groups with militia-sounding names well before Jan. 6.

        An interest in the tunnels below the Capitol would tie in with some militia communications during the attack.

        Consistent with what you and Marcy have suggested and Capitol Hunters have presented, it’s probably a lie designed to get the pressure off Trump and Stone.

      • joel fisher says:

        At the end of the day, Reuters might be more right than wrong as one could get the impression that the JD has no interest in even asking Former questions under oath. Or anyone around him. And, world at large, don’t hand me a bunch of BS about executive privilege: A) Doesn’t apply to criminal behavior; B) Doesn’t apply if no one is asking a fucking question. Nothing starts until a subpoena is served.

        • Tom R. says:

          1) On the one hand, it’s mostly not a question of DoJ being “interested” or “not interested”. It’s against DoJ rules to subpoena somebody if they’re just going to plead the 5th and go home. Not coincidentally, it would be completely pointless. Grand Jury proceedings are secret, so we wouldn’t even know it had happened.

          This stands in contrast to, say, Joe McCarthy, who liked to subpoena people to make them plead the 5th in public, to create a spectacle and score political points. DoJ rules are incomparably stricter than McCarthy rules.

          2) On the other hand, here’s how to get him to testify: Don’t send a grand jury subpoena; instead arrange for a voluntary interview, broadcast on live TV. I reckon he would leap at the opportunity. His lawyers would do everything they could to stop it, even if they had to handcuff him to the buffet table at his resort, but still he would want to do it. It would be like Lt. Kaffee examining Col. Jessup, only more exciting.

          🍿 🍿 🍿 🍿 🍿 🍿 🍿 🍿 🍿 🍿 🍿 🍿

        • joel fisher says:

          I may be wrong, but I seem to remember that from time to time grand juries are impaneled and the public knows about it. What happens in the room is secret, but not the existence–and area of inquiry– of the GJ itself. Witnesses take the 5th; and, if the prosecutor sees fit, immunity can be granted. Non of this can happen until a GJ is impaneled and subpoenas fly.
          Just give the Former an hour of free TV time without an oath? Reminds me of the proscription against mud wrestling with pigs: you both get dirty and the pig likes it.

        • bmaz says:

          Grand juries are impaneled every week. That is a known fact. But what they are considering, i.e. area of inquiry, most certainly is not. Yes, under Rule 6 it is all protected. Witnesses are not banned from discussing their testimony, but others involved are.

          A prosecutor cannot alone grant immunity, but only seek it for a witness through a formal process that involves the court. And it is not worth much until the pertinent state courts also agree, although there may be federal contempt in the meantime. In short, it is harder than you think.

        • joel fisher says:

          Thanks for the solid info. It seems we do see witnesses describe their experiences and, also, reveal the fact that they might be a witness. My sense of Former is that he would have trouble not talking about impending, sworn testimony. Perhaps even more trouble than not perjuring himself. Also, pretty hard to keep formers travels into a courthouse under wraps. Don’t we already know that of the 570 prosecutions, 570 point to the Former as their inspiration? Seems like that would make him a witness. Is there going to be a fight about compelling an ex-President’s testimony? Yes. That fight could have begun 6 months ago and would have been over 6 months sooner. As you say, “harder than [I] think”; and not just harder, impossible, until you start.

    • Leoghann says:

      With what we already know, just from active reading here and from researching actual government sources, that’s clearly not true. They haven’t already tied it together in filings, but that’s because the investigation is still going on and prosecutors are still working hard to get arrestees to flip. This article has “plant” written all over it. It’s truly in the style of Karl Rove, so I’d look at his major disciples for the source.

  20. Opiwan says:

    Random question: what part of the law would any of TFG’s conduct leading to Ashli Babbit’s death actually violate? AFAIK, she was killed by a Capitol police officer who lawfully discharged his weapon while performing his duty to guard and protect the inhabitants of the House chamber on 1/6. Since the act that caused her death was “legal”, it’s not like you can make a case for murder/manslaughter, aiding and abetting, accessory, or conspiracy to commit, right? I can understand how it might open TFG up to a wrongful death civil lawsuit, maybe, but not anything criminal in this specific piece of everything surrounding 1/6.

    Anyone out there in Emptywheel Land care to educate me on this one? I’d appreciate it…

        • TooLoose LeTruck says:


          I trust your opinion…

          Just wondering… I thought you were talking about Ashli Babbitt specifically.

        • bmaz says:

          Oh no, I was only addressing Ashli Babbit issue. And, who knows, facts and things may change on any of the issues, but likely not as to Babbitt.

        • TooLoose LeTruck says:

          So there’s hope?

          Honestly, I still think his seemingly endless financial misdeeds are the most likely source of serious trouble for the man.

        • timbo says:

          Just depends on where the rot is… and whether or not anyone bothers to look under any particular rock. Is that particular rock the one with the most rot underneath it? You have to look under a lot of the obvious rocks to find out.

    • TooLoose LeTruck says:

      I saw something very much like this over at Reuter’s too…

      And had the same reaction…

    • Leoghann says:

      In the first sentence of the Business Insider piece, they credit Reuters. The author tries to make it look more official by calling it a “report,” while Reuters simply credits “four current and former law enforcement officials.” It could be Barr, J. Bossert Clark, and two lackeys. It could be a couple of lower level prosecutors and a couple of North Carolina cops from a red county. The fact that one these sources claims that “90%-95% of them [arrestees] were one-offs is a good indicator that the sources are being disingenuous. Since it goes against the grain of all other reporting, as well as observable filings, it seems to be a planted article, either by a MAGA-supporting editor or a reporter who let themself be taken in by a partisan promising an exclusive story.

  21. Eureka says:

    OT: heck of a well-written piece. The titular reference to victims of an alleged Epstein-like (in scale and connectedness, roughly) predator serves as a through-line touching a baker’s dozen stories of NY (corrupt) personalities, places, institutions, and events spanning the ’80s/’90s to present. Better-known names include Cuomos, Gotti/Gambinos/Scores, Trump… Just when you think the details are wrung, there’s more:

    Brooklyn Boys Sue Old Partner in ‘Cuomo’s Firm’ for Abusing Them
    Using Andrew Cuomo’s Child Victims Act, a group of victims intend to expose a man they say preyed on them—including while he was in business with the Cuomo family.
    Natasha Stoynoff
    Updated Aug. 22, 2021 6:41AM ET / Published Aug. 22, 2021 4:58AM ET

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