Minority Report: Botheration Benefits Bannon

[NB: Check the byline, thanks. /~Rayne]

At the risk of annoying the rest of Team Emptywheel — especially our resident attorney and in part because I’m not a lawyer myself — let me offer a minority report and note we have a serious problem.

You’ll recall one-time Chief Strategist and Senior Counselor to then-President Trump Steve Bannon refused to answer a subpoena issued by the House January 6 committee.

You’ll also recall that the House then debated and voted on a charge of contempt of Congress.

The House then referred the charge once passed to the Department of Justice.

Many Americans are disappointed that Bannon is still out walking around as if U.S. laws don’t apply to him. It doesn’t help matters that Trump pardoned Bannon for conspiracy to commit mail fraud and money laundering, a pardon which has the appearance that it may have been intended as payback and as advance compensation for helping to organize the January 6 insurrection.

And now those Americans are even more disappointed that Bannon has now blown off Congress without any repercussions so far. It’s not obvious to the public why it takes so long to bring the scruffy bucket of excess shirtage, whiskers, and pudge to answer their representatives’ questions.

Bannon is thumbing his nose at the American people and they know it.

~ ~ ~

Persons who’ve worked in federal law enforcement insist the Department of Justice is working on this and the rule of law simply takes time, chiding us not to be like those people, implying behavior like the “deplorables” who chant “Lock him up!”

Except the American people have seen justice work too rapidly and unfairly for those who aren’t privileged. They expect a reasonable effort to effect justice speedily; justice delayed is justice denied. The tick-tock has been annoyingly like water torture — drip, drip, drip wearing on stone:

July 1 — Six months after the insurrection the House January 6 committee was approved and formed.

September 23 — It took two and a half months to subpoena Bannon who had been an advocate if not an organizer for the rally on January 5 and 6.

October 8 — President Biden refused to exert executive privilege over documents requested from the National Archives by the committee.

October 8 — Bannon was supposed to testify October 14 but his lawyer communicated on October 8 to the committee Bannon would not comply with the subpoena because former president Trump exerted a claim of executive privilege.

October 14 — Bannon does not report to the House committee.

October 19 — The committee began the process to hold Bannon in criminal contempt on the date Bannon was supposed to testify; the committee voted unanimously on October 19 to hold Bannon in contempt.

October 21 — Congress approved the charge on October 21 so that the charge could be referred to the Department of Justice.

October 25 — President Biden again refused to exert executive privilege over documents requested from the National Archives by the committee. No privilege has been claimed by Biden with regard to Bannon.

The public has seen no concrete action by DOJ in response to the contempt charge against Congress — a charge which should result in arresting Bannon, taking him into custody, and charging him with contempt until he complies.

23 days later, what the public sees is Bannon still doing whatever he does on any average day besides shave.

And the folks who’ve worked in law enforcement continue to say this simply takes time.

~ ~ ~

Except Congress itself is irritated, if Rep. Connolly’s opinion is more widely shared among his colleagues:

Congress members have good reason to be irritated; if DOJ couldn’t see ahead from Day One of the Biden administration that some Trump administration officials, staffers, and other supporters would resist a Congressional investigation into any allegation of Trump or Trump-adjacent wrongdoing, they had to be naïve or grossly incompetent. The impeachment investigations gave ample examples of what would happen and hinted at worse.

DOJ could at least have made an effort to appear ready to deal with intransigent witnesses. It’s not as if DOJ is unaware the public is bombarded with messaging all day long and in the absence of official messages, poor messaging will embed in the public’s consciousness.

The DOJ also has no good excuse for failing to execute the contempt charge. Congressional Research Service has at least twice in the last decade examined Congress’s ability to execute subpoenas and inherent contempt — the research has been done, it’s all neatly spelled out. Vet it if necessary but it’s pretty straightforward.

The biggest single reason DOJ shouldn’t dally is that it cannot question Congress’s speech or debate. An attack on the Capitol Building while Congress was in session is the most obviously legitimate reason for the House to issue a subpoena. Congress must know as part of its necessary speech and debate what happened leading up to and during the attack in order to:

(2) identify, review, and evaluate the causes of and the lessons learned from the domestic terrorist attack on the Capitol regarding—

(A) the command, control, and communications of the United States Capitol Police, the Armed Forces, the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021;

(B) the structure, coordination, operational plans, policies, and procedures of the Federal Government, including as such relate to State and local governments and nongovernmental entities, and particularly with respect to detecting, preventing, preparing for, and responding to targeted violence and domestic terrorism;

(C) the structure, authorities, training, manpower utilization, equipment, operational planning, and use of force policies of the United States Capitol Police;

(D) the policies, protocols, processes, procedures, and systems for the sharing of intelligence and other information by Federal, State, and local agencies with the United States Capitol Police, the Sergeants at Arms of the House of Representatives and Senate, the Government of the District of Columbia, including the Metropolitan Police Department of the District of Columbia, the National Guard, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021, and the related policies, protocols, processes, procedures, and systems for monitoring, assessing, disseminating, and acting on intelligence and other information, including elevating the security posture of the United States Capitol Complex, derived from instrumentalities of government, open sources, and online platforms; and

(E) the policies, protocols, processes, procedures, and systems for interoperability between the United States Capitol Police and the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021; and

(3) issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures described in subsection (c) as it may deem necessary.

All of which is part of Congress’s legislative purview.

Nor should the DOJ find a way to punt to the judiciary since the court has already repeatedly agreed that under Article I, Section 8, Clause 18, Congress’s implied powers of investigation are essential to its ability to legislate — and subpoenas are part of that power to investigate.

As for the excuse given by Bannon for not complying with the subpoena: executive privilege belongs to the office, not the person. The current executive has so far declined to exert privilege over anything Bannon provided to Trump during the eight months Bannon was a federal employee and adviser to Trump. There’s no executive privilege over any acts Bannon exerted as a private individual on behalf of candidate Trump’s campaign; Bannon can avail himself of his Fifth Amendment rights when questioned by the January 6 committee as he and his attorney feel appropriate.

~ ~ ~

The charge is dirt simple and obvious: Bannon didn’t comply with the subpoena, violating 2 USC 192 – Refusal of witness to testify or produce papers, and 2 USC 194 – Certification of failure to testify or produce; grand jury action. He’s not the executive, nor is Trump the executive, and the current executive has made no claim, making Bannon’s claim of executive privilege at Trump’s request invalid.

The January 6 committee is investigating a domestic terrorist attack upon the United States Capitol Complex, interfering with government operations. Though fewer deaths resulted, it’s a crime on par with 9/11 in that terrorists attacked the United States with intent to disrupt our government — or worse, since it was an attack directly on the people’s representatives with the intent to overthrow the government (through an autogolpe).

Should we really expect the public not to get antsy about the apparent lack of action given the seriousness of the crime and the persistent inability of the House to consistently obtain compliance from witnesses under both the 116th and 117th Congress?

Should we really expect the public not to be itchy when the current Attorney General admits to having been insulated by “the monastery of the judiciary” for years (an approximate paraphrase of an analogy Garland made during during an October 4 interview with Jane Mayer of The New Yorker)?

Should we really expect a majority of the American people not to be concerned about the length of time it takes to arrest and detain a white male investment banker and media executive who was Trump’s adviser, when they elected this administration to both undo the damage of the Trump years AND restore faith in their government?

212 replies
    • bmaz says:

      Crikey, I didn’t realize I was in the batter’s box. I agree! The referral was very clear cut. I have no idea what the old OLC memos could have to do with anything, and do not suspect they really do. Even the vaunted DOJ charging standards (John Durham excepted) do not, this “should” be easy to file on.

      Without talking to anybody, I suspect they are terrified that they will lose. No, that is not how it usually works, but most criminals do not have the voice of Trump and +/- 40% of the country behind them. Beyond that, I don’t know.

      By the way, DOJ has that office, it is called OPA. I have known three different heads of it, and all were pretty decent to deal with, even to a pain in the ass like me. And they all were quite aware of this blog (even had drinks with one once). They can do comms if they want to. I had to go look it up, but the current head is a guy named Anthony Coley. Not sure who he is or what he is doing.

      • hollywood says:

        “Without talking to anybody, I suspect they are terrified that they will lose. No, that is not how it usually works, but most criminals do not have the voice of Trump and +/- 40% of the country behind them.”

        Damn it, you get a couple of good trial lawyers and some researchers and some experts and you try a case or two. Yes, you might lose one or two, but 90% of the facts are on your side. How many Corvair cases did Dave Harney lose before he beat GM? But he ultimately beat them and then they settled like crazy. The same on asbestos cases.
        It’s time to put the petal to the metal.

        • Ravenclaw says:

          Except that there is losing, and then there is losing. I quite agree that a standard under which prosecutions are launched only if the prosecutors are >90% sure of winning is problematic, because any well-heeled criminal type who can mount a spirited defense makes that an impossibly high bar (therefore two separate systems of justice stratified by wealth). But this is higher-stakes than an ordinary criminal prosecution. If any missteps are made, it could lead to (a) supreme court decisions and (b) terrible press, encouraging the right-wing-nuts all the more.

          That said, I’m still 100% with Rayne and grateful for the post. At a bare minimum, folks who made public statements hinting at insurrection and participated in private meetings with other like-minded sorts need to be questioned at length – and when they are caught out in lies, be prosecuted for obstruction of justice.

          • timbo says:

            The problem is when the law only applies to some people and not others and the society doesn’t uncover that and effectively deal with it. Most of the Framers believed in the anti-septic effect of having all these sorts of things known in public, not hidden in star-chambers. Either the law and the Constitution apply in this case or it does not. Waiting to find out if it does or does not while the Republic crumbles is just that… waiting for the Republic to crumble. We can see the symptoms of it in the impeachment trials of Twitler all ready. Too much reticence to bother impeaching and then, when one bothers too, there’s even less political will to actually get to a real trial at all. I say that if they (the Congress and the DOJ, etc, etc) are afraid that the courts will not allow this subpoena to stand then what is really happening is that the reality of how the Republic works is that it no longer works as most law-abiding people expect it to work. And if that’s true, than we need to directly know that to correct course, and not keep guessing about it and being told “we’ll get to this soon” in the hopes that it’ll all go away somehow magically.

            “Why, of course, if I do nothing, they’re realize they’ve made a few mistakes and become nicer people!” Uh, is that the best logic to keeping society civil when the opposite if happening all around? No it isn’t. But it is the logic used by bureaucrats that are trying to please politicians without doing their duties under the law and Constitution, and they should clearly do their duties to uphold the law and respect for the law rather than become doubters themselves. Or worse.

      • Raven Eye says:

        I’m not sure what value there is for DOJ to be on the back side of the power curve. It definitely increases speculation and uncertainty. And that allows others to control the topics and their associated individual narratives, and the overall narrative.

        According to the DOJ OPA web site, they’ve issued 1,163 press releases so far in 2021. You can search through them by different criteria including a list of almost 50 “Topics” and sub-topics. But none of those topics appear to be a wrapper for issues surrounding the Jan 6 Insurrection — which I think would (and should) have much greater interest than the topic of mortgage fraud.

        Or maybe someone is timid about pointing towards the Jan 6 Insurrection as a topic, fearing accusations of politicizing the issues and processes that are in motion as we lurch towards justice?

  1. P J Evans says:

    If DOJ is moving on all these things for 1/6, maybe they should have an official employee who can tell us what’s going on, without going into the stuff that necessarily isn’t public. It’s as important for the public as those press releases about catching people on the “10 Most Wanted” list.

    “Justice must not only be done, it must be *seen* to be done.” – Brunner, “Shockwave Rider”

    • Rayne says:

      DOJ could use a Psaki type comms person to hold a weekly presser. There’s ample news each week but it just falls into a void on the internet; they’re letting commercial media provide the narrative instead of doing it themselves.

      In the mean time people with big soapboxes and the ability to craft narrative are getting really angry.

      • dimmsdale says:

        Rayne, thank you for raising this entire issue: there’s a tension between the contempt powers the 1/6 committee has ceded to the DOJ, versus its own inherent powers of contempt (I have a dim non-lawyer understanding that they’re different types of contempt, I *think*, but I welcome someone to explain e.g. why both can’t be done simultaneously OR which is more efficacious).

        And, not only can the DOJ benefit from a Psaki-like comms spokesperson, so can the darn 1/6 committee itself–the more outreach to our media whores (and hopefully the public as well), the better, and thereby more opportunity to remedy the past messaging failures that Dems have been so skillful at perpetrating. (And the better to explain the reasons and rationale, assuming they exist, behind what appears to be “nothing going on” that’s driving people nuts with frustration.)

        • JohnJ says:

          Psaki-like comms spokesperson? I am shocked there might be anyone out else there that can even fit that loose category. She is my hero.

          Sorry for the interruption.

  2. Badger Robert says:

    Amos Ackerman was a Confederate officer. But when the time came to after the Klan in South Carolina, he backed the US Cavalry with widespread prosecutions and got convictions of the responsible leadership.
    RFK had to deal with the threat of nuclear war and made concessions to Kruschev that made a lot of people angry. The present AG is afraid to prosecute a two bit ring wing media figure who spouts conspiracy theories to provoke stochastic violence.
    Even if they prosecuted now, they have already failed.
    And history shows an example of what leniency gained the fledgling German democracy in the 1920’s.

    • Troutwaxer says:

      Agreed. At the very least, everyone should read the wikipedia article on the Beer Hall Putsch and apply that to our current situation. I’d also suggest printing it out and sending it to our AG… Feh!

  3. Badger Robert says:

    Two things: over rated, And I don’t know why the Republicans bothered to block the confirmation of his nomination to the USSpCt.

    • Lulymay says:

      As an outsider looking in, I can think of 2 things with respect to blocking Garland’s confirmation to USSC: 1) Mitch’s supreme ego and 2} he did it because he could

      • Katherine M Williams says:

        It made Obama and the Democratic party look weak and useless. Blocking Garland was a big help to Trump (fake)winning the 2016 election.

    • Marinela says:

      Unless Biden knows something we don’t, Garland nomination as AG seems at the moment a symbolic gesture rather than getting an AG that could tackle the momentous challenges the US DOJ is facing. Is not like Biden didn’t know the work load ahead of the DOJ at the time he nominated Garland.
      Next time Republicans are in the White House, they are going to nominate another hack as AG.
      Any small “progress” under Garland will be wiped out and more damage compounded at DOJ under the next republican WH.

  4. mvario says:

    My personal take is that the clamoring for expediency is really a manifestation of the loss of faith people have in the DOJ since 2016. Not seeing anything from DOJ tended to precede inaction and people are fearful that it hasn’t change. I don’t think there would be quite as much outcry over Bannon if people trusted the DOJ to eventually do something. And they are really going to have to if they are going to begin to restore trust.

      • Rayne says:

        Some of us have been waiting for generations.

        Let’s ask the families and friends about justice for George Floyd, Breonna Taylor, Sandra Bland, Tamir Rice, Ahmaud Aubrey, Trayvon Martin…the list is endless of those who’ve been extrajudicially executed by police, or whose justice was aborted by the system (as in Aubrey’s case). That Floyd’s murderer was tried and convicted is a rarity but it’s still not justice.

        On top of the unresolved justice of theft arising from slavement and denial of fundamental human rights since this country began.

        We had more than half a year of protests in 2020 on the denial of justice but this administration’s DOJ doesn’t seem to recognize the relationship between the demand for justice and their role in obtaining the smallest fraction of it.

        Meanwhile, Hot Tub of Acid Bannon is still walking around freely because he just doesn’t think he needs to show up and talk to Congress.

        • Leoghann says:

          I have really been impressed with the way the trial of the McMichaels and their video artiste neighbor (Ahmaud Arbery’s killers) has been going. There has particularly been a good deal of straightforward testimony by the various LEOs who were involved in the investigation. And I was particularly gratified by the indictment of the ex-DA who originally “nothing to see here, folks”ed the case. But that’s just one case. And every day it looks more likely that Kyle Rittenhouse will go free.

  5. OldTulsaDude says:

    The delay in the DOJ executing its duty only serves to legitimize the disdain for normal order that is the hallmark of Donald Trump and his allies. That is what makes it so heinous.

  6. Arby says:

    I think the problem with Garland is that Bannon is plainly guilty of contempt. The evidence is plain to everybody. Even so, Bannon is not yet charged. Garland explainers say that the DOJ wants to get everything in line before charging Bannon. That sounds good, except for the fact that Bannon must be charged. Everybody here knows why this must happen. So why hasn’t Garland charged Bannon predicated on the plain evidence, and use the time before trial to carefully prepare the case?

    That’s what’s bugging me. It’s more logical than simply impatience.

    The only thing I can figure in Garland’s defense, that conceivably works for me, is that the DOJ has a handle on heavier charges against Bannon, than contempt. Though it seems to me in that case the DOJ could charge the contempt and develop the heavier stuff for later.

    I don’t know. But a general sense is being allowed to develop that it’s possible to attempt to overthrow the government and nothing will happen to people who try to do that. That, I can see. This sense should not be allowed to settle in. Garland is beginning to look like he is allowing that to happen.

    • Rayne says:

      …the DOJ wants to get everything in line before charging Bannon.

      What’s to get in line? This is, as I said in my post, dirt simple. There was a subpoena, he didn’t show because executive privilege, the executive claims no privilege, Bannon was charged.

      And the Speech or Debate clause means DOJ can’t question the debate generating the subpoena; there’s incredibly flimsy grounds (read: none) on which the courts can adjudicate this because it’s not about the applicability of a law but the inherent powers of Congress and there’s virtually no room to argue that Congress can investigate and apply broad powers to do so. There’s a buttload of precedent already, including United States v. Nixon – no person is above the law, including an ex-president’s henchman, and

      …when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.

      Congress may not be the DOJ but it is investigating a crime against the U.S.

      Congress is a proxy for the people from which all governmental power is derived – the people, in essence, have said Show The Fuck Up to Testify, Motherfucker, and Bannon needs to do so like yesterday. Simple.

      The really stupid part is that Bannon is looking at 1-12 months in jail and a thousand buck fine. The only thing which might satisfy frustrations: an unspoken intent to snag Bannon before the holidays begin and keep him in jail through the holidays.

      • Silly but True says:

        SCOTUS established in US vs. Nixon one of the few principles of the nebulous wild west of “Presidential executive privilege” that:
        “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications.”

        This principle is not necessarily dependent upon time in office; the loophole that only “current Presidents”enjoy the privilege or that it has an expiration date isn’t any precedent, not that many precedents even exist.

        It’s a worthwhile argument whether that wild west needs some new tests and guideposts.

        But I’m of a mind that forcing SCOTUS to reaffirm US v Nixon such that privilege exists for the communications with POTUS at time POTUS was POTUS would arguably yield a far worse outcome overall and especially with a POTUS like Trump than individually fighting scofflaws like Bannon.

      • Ravenclaw says:

        This was even more fun to read than the original post! Or maybe even more maddening. Or maybe both. But thanks.

          • Leoghann says:

            But even after making it clear in your original essay, and then driving home the point (quite well), it only took 3 hours for someone to say there isn’t any legal precedent for the idea that executive privilege is attached to the position, not the person.

            • Boris says:

              If SCOTUS ultimately rules executive privilege is attached to the person, not the position, I expect (eventual) open revolt: What other action is left to the peasants when the entirety of government makes plain that it and its minions can and will do whatever they desire without fear of 𝑎𝑛𝑦 reprisal?

      • blueedredcounty says:

        Rayne, I was watching a YouTube post by Glenn Kirschner, and his take was that the delay was based on the fact that DC did not have a Senate-approved US Attorney until this week. Prior to that, it was an acting US Attorney (not Senate-confirmed). Glenn’s quote, “…often, acting US Attorneys don’t like to make big moves…not do anything controversial as they await the Presidentially-appointed/Senate Confirmed US Attorney.”

        Glenn also makes the point that once we got the Senate-confirmed US Attorney, this was done in five days.

        I don’t know how accurate this, but it’s the first explanation I’ve heard for the delay that makes sense to me. Although I also wonder how much of it is the workload of this office right now with January 6th cases?

  7. obsessed says:

    >”Bannon is thumbing his nose at the American people and they know it.”

    Thank you Rayne. As a white-ish musician, I’ve wanted to be a member of various minorities all my life. I’ve finally succeeded!

  8. hollywood says:

    Blah, blah, blah. Ok, a continuance or two. Ok, time to get new counsel. Ok, some holidays. Ok, time to select a grand jury. No time for “health” issues. In my mind if Bannon is not before a grand jury on a contempt hearing before the end of the year, the DoJ has failed in its responsibilities. Putting Bannon’s feet to the fire should cause some of the other felons in waiting to step forward and make deals. As Al Davis would say, Just do it.

  9. Norskeflamethrower says:

    Merrik Garland is scared to death, the job is too much for him. The Dept of Justice is a secret police operation and the prison system is comprised of concentration camps that create violent criminals and provide cheap labor on inside and outside. Come on Bmaz let us have now.

    • Theodora30 says:

      I think Garland is afraid that if he doesn’t dot every i and cross every t our right wing Supreme Court will throw out any indictments. I heard awhile back that prosecutors in NY were also investigating Bannon for his fraud scheme since it violated NY State laws. That investigation is also going really slowly.

  10. EchoDelta says:

    I’m torn between the Obama “make me do it” role where we are supposed to be clamoring for justice to be done swiftly and the Mueller disappointment of “it’s easier for us to do nothing beyond a gesture” because the evil is what the donors demand and a third of the voters require. How do we make people entrusted with public power do their jobs? How can We the People beat Us the Billionaires?

  11. silcominc says:

    Rayne, thank you for raising this and the other piece about 1/6. There are just too many dots on the events around 1/6 – they were totally organized in their feeble little way with Flynn’s brother (who I reference in comments to your last piece), the group at the Willard hotel led by Guiliani, and Bannon, and the ragtag militia and they almost pulled it off.

    But what worries me now is that its almost a year later and they have serious money behind them and near-total alignment with some very powerful groups, and as you remind us, no word from DOJ. One would think they would be having pressers (but maybe they don’t want to tip their hat) but the longer this silence goes on, it empowers the trump side too much.

    Also, for those of us old enough to remember, it was Watergate’s televised hearings that got the nation’s attention (and action). When is the 1/6 Comm. planing on that or are they not planning to?

    • hollywood says:

      Apparently we were all young and naive during Watergate. Woodward and Bernstein got our attention. The committee was serious and somewhat nonpartisan, even Howard (the Nixon whisperer) Baker. With the current composition of Congress you can’t recreate that relatively respectful bipartisan inquiry. And where is our John Dean? It ain’t Michael Cohen.

      • Fat Freddie's Cat says:

        We watched those hearings from beginning to end.
        I was very impressed with Warren Rudman and Sam Ervin.

    • P J Evans says:

      That was back when “the news” was more important than entertainment, and the three broadcast networks – NET wasn’t really one of the gang – gave up ad dollars for the coverage. It rotated among the three, so they didn’t lose much at all.

      • gmoke says:

        I remember MIT setting up a projection screen TV under the Dome and hundreds of students and hangers-on like me watching the Watergate hearings together. Watergate Summer was the real deal and the spirit abroad in the land made me believe that, finally, maybe USAmerica was ready to take a good long look at itself in the mirror.

        But that soon faded.

        • Leoghann says:

          Well, yeah. About the time Gerald Ford told us we couldn’t handle the truth, and to get over ourselves, it faded right down.

  12. Spencer Dawkins says:

    Rayne, thank you for expressing my irritation and frustration at this situation.

    I see various comments about DOJ needing a Psaki in front of the public.

    Psaki is a gift to the American people, but you don’t have to be Psaki to appear before the press and explain the process at DoJ when a referral for contempt of Congress is received – not for Bannon, but for anyone.

    If that was clearer to the American public, we would be spared at least some of the editorials about why Garland is out of his depth, based on actions he is not personally taking in public on specific cases, without explaining why the Attorney General should be inserting himself publicly into decisions to prosecute.

    Being able to say “we told you the process, and we’re now on Step 4 of 6” would likely be helpful to everyone involved (except Bannon, of course). If we’re on Step 6, and nothing is happening, that would be helpful to know.

    Garland may BE out of his depth, but as a Texan, I’m glad someone at DOJ is filing suit against Texas voter restrictions and someone represented the non-misogyny half of Texas in front of the Supreme Court.

    In my opinion. Your mileage may vary.

  13. joel fisher says:

    I get that I’m an ignorant so and so, but I would really like to know why the instigators of 1/6 have not been in front of a grand jury. Enforcement of Congressional subpoenas has always been a slow process. What do you expect from a Committee? The process thus far: 6 months to have the committee in the first place; 2+ months to issue subpoenas; and now, court proceedings to determine the validity of the subpoenas. There is no sense of urgency and up until now you really can’t blame Bannon.
    If, as seems increasingly likely, the GOP captures the house, end of story.
    Seems like a Grand jury could have been empanelled on 1/21 and issued subpoenas on 1/22. The same BS court challenges would have ensued, but the 2022 election wouldn’t be a threat to continuing the investigation.
    I hope I’m wrong, but I foresee my head exploding when this happens: GOP takes over in 2023; kills the investigation; and proclaims–this is the head exploder–that the “failed” investigation didn’t find out anything and uses the “failure” as a PR move to attack whatever criminal proceedings are underway.
    I’m already mad.

      • Fat Freddie's Cat says:

        Seth Abramson over at ‘Proof’ (paywall) seems to have the goods on the plotters and their movements prior to Jan. 6.
        Very interesting reading.

        • Leoghann says:

          Abramson puts all the facts that are germane, in his opinion, into a blender that’s already half-full of his own confirmation bias. Then he whips it up and serves it. He, and Markos Moulitsas are sort of like Q-Lite, but for liberals. I still remember the day in 2005 that I was breathlessly informed that Dick Cheney had been indicted by a federal grand jury, for war crimes.

  14. RWood says:

    What the DOJ is waiting for is a mystery. In the meantime, I’d like to know what the SDNY, and the various Attorneys General are doing?

    What happened to all the charges that were just waiting for trump to leave office?

    • PJB says:

      Not to dismiss Rayna and others’ concerns about the delay in seeking indictment of Bannon for contempt, but if it takes another week or two (because, for example, the new USAO in DC needs to get up to speed), that’s not a huge deal to me and I will assume Garland is doing the right thing for now. What I cannot understand is why, after all these months, hasn’t DOJ taken action on the 10 counts of obstruction put on a silver platter by the Mueller investigators. I would be interested in the smart views by folks on this site.

      • obsessed says:

        >”What I cannot understand is why, after all these months, hasn’t DOJ taken action on the 10 counts of obstruction put on a silver platter by the Mueller investigators. I would be interested in the smart views by folks on this site.”

        Yes! That’s the most appalling one.

          • madwand says:

            I’m inclined to agree with much of what’s written in this article, however I’m also of the belief that 1/6 was a crime and DOJ should treat it as so. Failure to hold high level participants accountable will further degrade trust in institutions, expose a two level justice system, encourage contempt for law and keep Trump in the game. Trump can’t survive without elite support, that he continues to do so shows that powerful elites want him to escape accountability. Not prosecuting his minions means Trump is protected by one more layer of defense.

            One unintended consequence of this failure will mean the left might possibly have the will to organize in the face of their extermination, certainly marginalization. If that happens then we are once again in uncharted territory like before the Civil War when Southern elites realized their influence over their counterparts in the the North had lost all persuasion.

            If the left fails to respond to the danger, than democracy as we know it now may be a thing of the past. The challenge is there right in the lefts face, the response so far is waning.

            • bmaz says:

              “I’m also of the belief that 1/6 was a crime and DOJ should treat it as so.”

              Maybe that is why they have filed over 650 criminal charges. Oh wait, the figure is now 691 charges.

            • Rayne says:

              Um…perhaps you’d like to read the 205 posts published at this site about the January 6 insurrection, of which more than 90% are written by Marcy covering the DOJ’s investigation and prosecution of the attack on the Capitol Building?

              It’s being treated as a crime; this post I wrote addresses not the DOJ’s investigation which is working its way through the perps who directly attacked the Capitol, but to address the DOJ’s less obvious attention to the contempt charge referred to them by the House. They are related but not the same and shouldn’t be confused.

              • madwand says:

                And to both of you, right and its the people at the top who need to be charged, until that happens, they’re just getting the little guys, so the perception is the little guys get caught charged and convicted and serve their sentence while the big guys get off, so I’m as impatient as Rayne, we are not different in that respect. Lets see the big guys indicted, when that happens then everything here in these pages, which BTW I have been following, will be validated.

                • bmaz says:

                  Listen, have no idea what will happen here. But do know how these kind of conspiracy cases go, and this one is already speeding along. You start at the bottom and work up, and never start at the top.

  15. Thomas says:

    There are seven different garbage piles of felonies that Trump could be charged with, and he can’t be allowed to get away with any of them.
    Those are not all of the felony cases that could be brought, either! And he is a co-conspirator in at least a dozen other people’s crimes, including his children.
    I’m surprised that the folks here do not seem to be aware that Republican Senators, who are connected to several emerging felony cases, are obstructing the appointment of at least nine Justice Department officials, as well as 90% of the US Attorneys. The Republican Party is abusing its political power to shield itself from prosecution.
    We are not talking about partisan fishing expeditions or agit prop false accusations. We are not talking about political grandstanding and pounding the table.
    We are talking about a political party that is currently and openly engaging in wire fraud, racketeering, bribery, blackmail, extortion, and violent assualts.
    They are engaging in criminal activity nationwide, both openly and secretly. They are nominating and electing and appointing crackpots, criminals, terrorists, and frauds to public offices. They are openly engaging in planning racketeering and election theft crimes.
    On top of all of this, they communicate publicly that their criminal activities are constitutionally protected political activities, and they threatening to go to war against the government unless the government recognizes their right to commit felonies.
    Amongst themselves, this criminal gang called the Republican Party asserts that their activities are also expressions of their religious liberties. They believe they are entitled to commit felonies because they have been chosen by God to “fight Satan.”
    So we are not merely dealing with criminals, we are dealing with well funded people who are, objectively, criminally insane.
    None of the people engaged in these crimes or this subversive cult is fit to hold any position of authority. It will take some time to remove them by ordinary means (elections, firing them) but we cannot shrink and shirk our duty to indict, prosecute, convict and jail the leadership of this illegitimate criminal organization that masquerades as a political party.
    My estimate is that it will be necessary to prosecute and convict and jail at least 100 of them, and effectively remove them from society for at least a decade to rid us of their poisonous influence.
    It’s justified and necessary to do so. No one has a right to be a liar. No one has a right to commit fraud. No one is entitled to commit felonies.
    It’s absurd that we have to make such arguments. It should be a given that these statements are true.

    • RWood says:

      “And he is a co-conspirator in at least a dozen other people’s crimes, including his children.”

      Anyone else note that Ivanka was left off the list of emoluments clause violators?

      Why was that?

  16. Benton says:

    Perhaps the Justice Department is moving cautiously based upon Quinn v. United States (1955).

    From the Opinion:

    “But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary. Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination which is in issue here.”

    Ostensibly, the Select Committee is investigating with the purpose of protecting Congressional security in the future. However, it seems clear based upon the subpoenas issued, that they are pursuing the conspiratorial leadership of a coup against the legislative branch.

    The most concerning question to me is why the Justice Department does not appear to be conducting this investigation. All the people subpoenaed by the Select Committee should have already received requests from the Justice Department to give depositions. Some people say that this investigation may be occurring, but I argue that if this were the case, signs would already be appearing through leaks by private attorneys.

    Most disturbing is the question why special counsel has not already been appointed by the Justice Department considering what we know about the actions of former Assistant Attorney General Jeffrey Clark. These actions seem to present a conflict of interest regarding the Justice Department’s role in the events leading up to 1/6.

      • Benton says:

        Please expand upon why it does not have squat to do with Quinn.

        The people currently being subpoenaed could in a just world be facing possible charges of sedition, conspiracy to defraud the US government, and violations of terrorism and election laws.

        And true, nobody has even come close to having to invoke the Fifth because they are throwing sand in the gears with flimsy executive privilege claims.

        • bmaz says:

          No. Until somebody has asserted the Fifth, your talk of Quinn is total bunk. You are quite new, and are pushing a false line.

          • Benton says:

            You are correct. This is my first post. However, I have followed emptywheel for years through all the Trump administration scandals. I value all the work that is being done here.

            I legitimately wondered if Quinn is being used by the Justice Department to move slowly in charging Steve Bannon. I am not “pushing a false line”. I have no agenda other than trying to understand what is happening. It seems to me that the line written by Chief Justice Warren is relevant: “Similarly, the power to investigate must not be confused with any of the powers of law enforcement;”

            I also commented on my concern about the Justice Department not appointing a special counsel as of yet.

        • Benton says:

          I wonder how many questions Steve Bannon could answer that wouldn’t provoke pleading the Fifth. Let’s see, “please state your name” is one I guess.

    • Rayne says:

      You spelled out the reason Quinn doesn’t apply: ““But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose.

      The Capitol Building with a session of Congress in progress was attacked; it is one of the most serious crimes this nation has experienced. This is not an investigation into Trump’s shitty cheating-replete golf game or Bannon’s wretched taste in clothing which are both private affairs. This is an investigation by Congress examining everything which set the attack in motion and sustained it, along with the many governmental failures which allowed this attack to temporarily obstruct governmental operations WHICH I SPELLED OUT IN MY POST BY COPYING THE JANUARY 6 COMMITTEE’S AUTHORIZATION, hardly personal affairs, and directly related to legislative necessity to assure future continuity of government. The crimes being investigated also include the threats to members of Congress AND the Vice Presidents both seated and elect — definitely no private affairs when we’re talking conspiracy to murder federal officials.

      Now take your Quinn and beat it along with what is either your poor reading comprehension or bad faith.

      • Benton says:

        Well put. I certainly hope that the U.S. Attorney for the District of Columbia and the Attorney General are hearing similar words. Their actions so far don’t imply that they are.

  17. harpie says:

    Garland’s “the monastery of the judiciary” quote seems to be from
    Garland defends DOJ against criticisms about charging decisions in Capitol riot cases https://www.cnn.com/2021/10/04/politics/garland-defends-prosecutors-charging-decisions-january-6/index.html Tierney Sneed, CNN, 10/4/21

    […] Asked whether that experience [prosecuting the Oklahoma City bombing] made him less surprised than others about the violence on January 6, Garland recalled how the threat of domestic terrorism had been on the rise in the period before the 1995 bombing.
    “Anybody looking, perhaps, would have seen that it was rising again, in the last decade or so,” Garland said.
    But being insulated in the “monastery of the judiciary,” he added, “I can’t say I met was any better at predicting what would happen on January 6 than anyone else.”

    Garland’s New Yorker interview with Jane Mayer is here:
    https://www.newyorker.com/podcast/political-scene/attorney-general-merrick-garland-interviewed-by-jane-mayer 10/11/21

  18. Tracy Lynn says:

    Good post, Rayne. It speaks to the anxiety those of us nonlawyers feel about the speed of the process. There is a deadline coming up — the midterms — and having this process hanging over Congress’ heads when members have to campaign for re-election doesn’t bode well.

    • Rugger9 says:

      I’m not so sure that having this investigation in the headlines all summer is bad for Team D. There’s a reason that the GQP tried so hard to not let anything be looked at, because they know what will be found ought to finish them with everyone except the MAGA cult. Whether the courtier press reports it even in flyover country (where the RWNM reigns supreme) remains to be seen. However, the GQP has a lot more to fear than Team D as facts come out.

      Recall that a favorite tactic of Individual-1 is to drag things out past any viable consequences. That plan can work until one runs into an adversary with more lawyers (i.e. NY State, Congress and the DoJ) or is as relentless (Summer Zervos, E. Jean Carroll, etc.) which is why DJT is lashing out as hard as he has. The GQP needs to spend next summer complaining about inflation and gas prices, and if they had taken the blue-ribbon idea (ending ~ December 31) that Pelosi had offered they would have had their wish. But, McCarthy is an idiot surrounded by lunatics and painted himself in the corner with the Select Committee (with no end date). It’s a bit of karmic vengeance for the unrelenting Benghazi investigation that resulted in zero indictments much less any guilty pleas.

      I think the recent ruling about the records will be where the dam breaks for Garland. I see that Individual-1 has filed a Notice of Appeal which (though IANAL) doesn’t sound like he actually filed a real appeal, just threatened to file one. Also, some of the chatterers on the internet are saying that instead of filing the Notice with the district court, the lawyers jumped to the CA level but I’m not sure how important of a procedural faux pas that is. If that ruling is upheld even Laurence Tribe says there is no reason for Garland to hold off much longer if the records show what we think they do. DJT wants his pet SCOTUS to rule in his favor as quickly as possible before anything is turned over so perhaps that is why he’s trying with the CA first.

      If the rule of law prevails (and there is a lot of clear and convincing black letter law, case law as well as the notes above that says “no privilege”) than it will be interesting to see how quickly the minions race to cut deals while they can, because Individual-1 won’t be able to protect them any longer. Might be worth a pool for a suitable EW swag prize.

  19. OldTulsaDude says:

    My question is just how fractured is the DOJ post Trump, and could it be a holdover sympathizer slowing down the processes?

    • Rugger9 says:

      That’s part of my concerns as well, not only the MAGA but Bushie burrowers remain in the government. However, something like this can force the burrowers to show their cards in the light of day and expose them to scrutiny, like Emily Murphy backed down (eventually) from her stance.

  20. Epicurus says:

    Trumpians and their Barr DOJ operated under a different philosophy than do the Bidenistas and their Garland DOJ. Garland’s DOJ believes in the rule of law and the process of law equally and believes that will get them to justice. Barr’s DOJ believed in the Mike Tyson philosophy: everyone has a plan until you punch her or him in the mouth. For them the rule of law depended upon how it suited the person in charge. McConnell has been trying to put this concept in place for years.

    The country has been punched in the mouth and who knows what Garland’s regrouped plans are as a result. I think he has forgotten a critical lesson. When justice is denied by the rule of law sometimes it requires breaking that unjust rule of law to get back justice. Or to paraphrase a certain movie character, there are times when you need to take a gun to a knife fight. I would say that is a foreign concept to Garland and, consequently, we will diddle along much as General McClellan diddled along with his process of preparation and non-engagement.

    • Juddnotthefamousones says:

      ALICE: While you talk he’s gone!
      MORE: And do he should, if he was the devil himself, until he broke the law!
      ROPER: So now you’d give the devil the benefit of the law!
      MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
      ROPER: I’d cut down every law in England to do that!
      MORE: (roused and excited) Oh? (Advances on ROPER) And when the last law was cut down, and the Devil turned round on you – where would you hide, Roper, the laws all being cut flat? (He leaves him.) This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
      A Man for all Seasons by Robert Bolt

      Not so accurate about the historical More but good advice about the law.

  21. Franktoo says:

    As I understand it, the DoJ’s OLC has been insisting that presidential advisors have complete immunity from compelled testimony for a half-century. McGahn, Bolton, Pompeo and others have successfully avoided testifying in front of Congress; why not Bannon. District courts have twice ruled against this position, but the OLC has claimed those rulings were wrong and both cases became moot before they reached the Supreme Court.

    This idiocy has persisted (IMO) for a half-century because the OLC sees itself as the attorneys for the institution of the presidency. If the Republicans take control of the House in 2020, President Biden will not want the House to be able to compel testimony about Hunter Biden, for example. Memos written by the OLC could be probably be used in Bannon’s defense.

    The current system is positively insane. The DoJ can compel testimony, but has ruled it can’t indict a president. Congress can impeach, but has failed to compel testimony from Trump officials. And if Trump were still president or returns to being president, he could pardon Bannon for contempt of Congress.

    If Congress as an institution were interested in reining in the power of the presidency as a institution, they’d draft a resolution charging Garland with contempt of Congress, demand that he testify about this subject, and make it clear that impeachment will follow inaction. Our constitutional system of checks and balances only works if each branch jealously guards it power. Congress today doesn’t exercise its power, it “performs” for their voters at hearings, on cable news, and social media. As in a parliamentary system, it sees itself only as the president’s party or the opposition party. They want all initiative to appear to reside with the President, so they can’t be held responsible for their lack of action by the voters. In all likelihood, they aren’t seriously interested in a Jan 6 investigation, they merely want an appearance by Bannon so they can perform on TV.

    • Rayne says:

      Wow, that’s a lot of hornswoggle. OLC’s opinion about compelled testimony by presidential advisers doesn’t apply universally. It especially doesn’t apply to someone who 1) wasn’t a presidential adviser during the events under investigation, 2) if an informal adviser, only to a campaign and not to the president, and 3) not to an investigation of criminal wrongdoing even if Congress is not the DOJ.

      Going to point once again to United States v. Nixon: no person is above the law. Not even Trump’s ex-advisers.

      • Franktoo says:

        Rayne wrote: “Going to point once again to United States v. Nixon: no person is above the law. Not even Trump’s ex-advisers.”

        Exactly. However, without a Supreme Court ruling, there is now no established power for Congress to compel testimony from presidential advisors. (Nixon resisted and was required to surrender his TAPES, but AFAIK he never tried to prevent his advisors from testifying.) Based on US v Nixon, I assume the even the current Court would reject the OLC position on absolute immunity from compelled testimony, which is why the DoJ has settled cases rather than tried to definitively establish the executive privilege they assert exists. IMO this reeks of the OLC acting as the “president’s attorneys” rather than the nation’s DoJ.

        Since impeachment requires high crimes and misdemeanors, every impeachment investigation is a “criminal investigation”. Attempted extortion of a foreign leader is a crime. Nevertheless, the OLC appears to have supported Pompeo, Bolton, and Mulvaney not testifying at Trump’s first impeachment.

        Many presidents rely on informal “kitchen cabinets” for advice as well as the officials who work for the government. As I understand it, executive privilege is allegedly justified because it provides the privacy that allows an advisor to give a president his most candid advice without worrying about public disclosure of that advice. (I’m not sure I approve of this rational, even in theory.) If so, executive privilege rationally should apply to a president’s “kitchen cabinet” as well as administration officials. This means that, if Bannon advised Trump to carry out a coup, executive privilege would protect him from being forced to testify about it. Of course, so would the Fifth Amendment.

        If I had my way, executive privilege would allow (but not require) an official advisor to decline to answer questions about what he advised the president, but not protect: the factual information he provided to the president, the decisions that were reached, or anything the president told his advisor.

    • vvv says:

      “If Congress as an institution were interested in reining in the power of the presidency as a institution, they’d draft a resolution charging Garland with contempt of Congress, demand that he testify about this subject, and make it clear that impeachment will follow inaction.”

      Yep, that’ll happen. /smh

  22. Alan S NY says:

    The DOJ should have been anticipating a request for subpoena enforcement from the time of the creation of the 1/6 Committee. A well run law office would then assigned junior attorneys and paralegals to analyzing the law and draft near final documents for enforcement and submission to courts. The documents should just had blanks for the name of the witness. There should have been very little delay in getting to court. So, what is going on?? These requests were no surprise. The Bannon request is a soft-ball – no conceivable privileges. Simple papers.

    • Rayne says:

      That, exactly, spot on. I have to wonder if Trumpist moles occupied DOJ so deeply that efficient investigation and prosecution has been damaged, especially since we’ve seen too few other Trump-related investigations from USA offices breaking through of late.

      But the DOJ wasn’t the only less-than-efficient operation. Why was the House itself not better prepared? Was this simply a case of internecine factional friction which failed to allow representatives with experience as prosecutors to organize the resources *ahead* of the first full month after the 117th Congress was sworn in? Could not a raft of junior staffers have been assigned to pull as much public material together as possible to ensure it wouldn’t take months before the first subpoena?

      • timbo says:

        Clearly there’s something wrong somewhere when it comes to expediency and the DOJ enforcement of Congressional subpoenas under the current circumstances. Thanks for a great article to get to the bottom of the mystery here!

      • joel fisher says:

        Makes one wonder if these questions ought not to be posed to the Justice Department lawyers who are working–and by that I mean not working–on these issues. Be interesting to see if there’s a correlation between GOP moles and the non-movement of the investigation. Why are Bushies and Trumpsters not doing condemnation cases for the national parks?

      • JKO says:

        I also wonder how understaffed the DOJ still is post-Trump, as he purposefully left positions unfilled. I saw the appointment of Garland as someone who needed to rebuild a battered organization.

  23. Outcountry says:

    I understand that the DOJ keeps its preliminary activities secret to prevent political interference, but a couple of things still stick in my craw related to the Muller investigation. Muller and the DOJ made two critical decisions that had decisive impact on the outcome. They 1) ruled out any possibility of indicting the president and 2) decided not to press wide-ranging investigation of financial motives. I will bet that the White House was fully informed of both decisions as soon as they were made. Rosenstein indeed may have used this as a way to talk Trump out of firing Muller (and himself). Neither the public nor the press were aware of these calls until the report came out (except through speculation), which led media and many pundits to unwittingly set unreasonable expectations for the results of the investigation, not to mention misleading anyone who hoped it would lead to some type of real action.
    I’m not sure what can be done about that kind of thing, but it sure doesn’t make me confident that the wheels are turning appropriately in DOJ now.

  24. Stephen Calhoun says:

    Like most citizens IANAL yet my perspective is informed inasmuch as I’m able to consider what I’ve learned and can observe in the open (or public) source. So, the sketch of the possible crimes committed by TFG and his advisors (etc.) is blurry but not hard to fathom. Even the keystone cops feel of the known narrative doesn’t prevent it from (someday) sorting out very serious crimes.

    Much more opaque (for me!) are the workings of the Federal legal system. Here comes guesswork because it must not be the case like it often is in the business sector that some momentous and timely decision follows from a bunch of requisite tasks being expediently fulfilled, a few debate-filled meetings, and a judgment of ‘managers’ and a final decision. Which is to wonder out loud, ‘what are the specifics of the process which seem to the naive observer to be slowing things down?’ Actually, I have no guesses, it is a black box.

    Meanwhile, time is an enemy to public perception, especially when counter-narratives largely have taken hold of the GOP. Today a good example of how this works are what is still hand waved away as the Russian ‘collusion’ or, hand waved away as a legitimate election of a President. Obviously, tens of millions of citizens believe both: there was a Russian hoax foisted upon the public and there was a stolen election. Both were anti-American operations of the Democrats in partnership with the deep state and globalist funders.

    The notable social structure is: division. How divided? Living-in-different worlds divided. How divided: one side’s extremists contemplate civil war. The rule of law stands in various relations with these social contexts. Are the democrats counting on political advantages which may accrue once some of the bad guys spill the beans or the 1/6 Capital invaders start going to trial? Count me as someone who thinks the sweep of bad acting from the time Trump telescoped “the only way I lose is if it is rigged” to all the very public ‘quiet parts out loud’ that came out before and after (!) 1/6 is thoroughly shocking, yet not for everybody is it so.

    Is the Constitutional order really at stake? “We’ll have enough time to get to the bottom.” Or: how remotely possible is it that key players can simply run out the clock?

    (Thanks Rayne.)

  25. Hug h says:

    (Thanks Rayne)
    I’ll own being the Debbie Downer in this discussion. This feels horribly apropos to our historical moment.

    “Turning and turning in the widening gyre
    The falcon cannot hear the falconer;
    Things fall apart; the centre cannot hold;
    Mere anarchy is loosed upon the world,
    The blood-dimmed tide is loosed, and everywhere
    The ceremony of innocence is drowned;
    The best lack all conviction, while the worst
    Are full of passionate intensity.”
    -W. B. Yeats

    • 90’s Country says:

      The last couple lines, which seem to wander from the falconer theme and which I’ve never paid much attention to – always thinking about the falcon and the falconer – it’s those last two lines that seem to describe this world today and probably always. The aggression always seems to come from the intellectually incurious. They’re right, God told them, they’re going to pound that righteous assurance into the minds of the intellectually curious. It isn’t until the intellectually curious are convinced of an overwhelming danger that they finally get in touch with their own aggression that they take action against the righteous. Think Abraham Lincoln, for whom it took the actual secession of the slave states.
      It might be because the North is about to defeat the South in the memoirs of Robert E Lee that I’m reading, but that’s my $.02.

      • Hug h says:

        Eric Hoffer had much to say about this-

        “Faith in a holy cause is to a considerable extent a substitute for the lost faith in ourselves. […] The less justified a man is in claiming excellence for his own self, the more ready is he to claim all excellence for his nation, his religion, his race or his holy cause.”
        ― Eric Hoffer, The True Believer: Thoughts on the Nature of Mass Movements

        • notjonathon says:

          Exactly. A narrow viewpoint always has the edge over a wide one. The thinking person says, “I may be wrong,” while the fanatic cries, “I am always right!”

  26. harpie says:

    Via Justin Hendrix:
    1:01 PM · Nov 10, 2021

    NEW: We obtained top Justice Department officials’ call logs from Jan. 6, the day of the deadly insurrection at the U.S. Capitol. The logs show frequent calls throughout the day, including calls with the White House, the Defense Department, and Congress. [LINK]

    Read the call logs of acting Attorney General Jeffrey Rosen, Principal Associate Deputy Attorney General Richard Donoghue, and Chief of Staff John Moran — as well as what appears to be a handwritten call log from Rosen — here: [link]

    • skua says:

      Here is a collation of each person’s call frequencies and length (however Rosen’s calls on pdf pgs 7 & 8 are excluded):
      ROSEN pgs 3 & 4 only.
      51 calls. Incoming = 28 calls. Outgoing = 21 calls. Direction redacted = 2.

      (B)(6) blank = 8 Minutes = 25
      Eric Herschmann = 1 Minutes = 2
      Pat Cipollone = 9 Minutes = 22
      Christopher Michel = 1 Minutes = 11
      Michael Sherwin = 11 Minutes = 43
      John Moran = 1 Minutes = 3
      Richard Donoghue = 11 Minutes = 31
      (B)(7)( C) per FBI = 3 Minutes = 8
      Steven Engel =1 Minutes = 8
      White House = 1 Minutes = 7
      Marc Raimondi = 3 Minutes = 6
      (B)(6) per DOD = 1 minutes = 3

      DONOGHUE pgs 5 & 6.
      Calls = 54 Incoming = 32 Out = 17 Direction redacted = 5

      (b)(6) blank = 4 Minutes = 29
      John Durham = 1 Minutes = 1
      0 = 1 Minutes = 2
      Acting Chief, CTS (NSD) = 10 Minutes = 24
      Christopher Michel = 1 Minutes = 2
      Jeffrey Rosen = 10 Minutes = 34
      Jeffrey Moran = 1 Minutes = 1
      (b)(6), (b)(7)(C) per FBI = 5 Minutes = 9
      (b)(6), (b)(7)(C), (b)(7)(E) per FBI = 1 Minutes = 1
      John Washington = 1 Minutes = 2
      Pat Cipollone = 6 Minutes = 12
      Timothy Shea = 1 Minutes = 4
      Regina Lombardo = 1 Minutes = 4
      White House = 2 Minutes = 44
      Eric Herschmann = 4 Minutes = 10
      Steven Engel = 1 Minutes = 3
      Michael Sherwin = 2 Minutes = 4
      Christopher Tomney = 2 Minutes = 6

      MORAN pg 7.
      Calls = 12 Incoming = 5 Outgoing = 7 Direction redacted = 0

      877-465-7975 (Department of Labor toll free) = 1 Minutes = 37
      Marc Raimondi = 1 Minutes = 4
      Jarad Hodes = 1 Minutes = 2
      Christopher Grieco = 1 Minutes = 1
      Gene Hamilton = 1 Minutes = 11
      Christopher Michel = 2 Minutes = 6
      Jeffrey Rosen = 1 Minutes = 3
      Richard Donoghue = 1 Minutes = 1
      Lee Lofthus = 1 Minutes = 1
      (b)(6) blank = 1 Minutes = 1
      Kira Antell = 1 Minutes = 4

    • skua says:

      The named callers totalling over 20 minutes are:
      Donaoghue/White House 44 min.
      Rosen/Sherwin 43 min.
      Moran/DOL 37 min.
      Rosen/Donoghue 34 min.
      Donoghue/Acting Chief,CTS(NSD) 24 min.
      Rosen/Cipollone 22 min.
      (Rosen pgs 3 & 4 only)

    • skua says:

      The redacted partiess totalling over 20 minutes are:
      Rosen/(b)(6) blank = 25 min.
      Donoghue/(b)(6) blank = 29 min.

      With enough resources a video timeline of known government phone calls could be made.

  27. matt fischer says:

    Isn’t one wrinkle the likelihood of an advice-of-counsel defense?: Bannon is acting on the advice (albeit bad) of his lawyer, so that can’t be criming.

  28. RWood says:

    After seeing a barrage of headlines like these, and the daily “Be outraged!!” articles on the front pages and throughout FaceBook over the past ten months, what are the people supposed to expect?

    Former President Trump faces serious criminal, civil investigations after White House – CNBC Feb 2021

    Once Out Of Office, Trump Faces Significant Legal Jeopardy – NPR Nov 20, 2020

    Donald Trump faces an array of legal trouble when he leaves office. – The Economist Jan 17, 2021

    After the White House, Trump faces uncertain future and legal threats – Reuters Dec 15, 2020

    Yes, Trump Could Be Indicted If He Leaves Office in 2021, But Is That Likely? – Just Security

    After Presidential Immunity Ends, Trump Faces Legal Battles – Time Nov 12, 2020

    Legal experts say Trump could face prosecution now that he’s no longer president. – CBS Feb 11, 2021

    The Legal Threats Trump Will Face If He Loses the Election – Bloomberg Oct 23, 2020

    Couple this with a weak effort by the justice system and I’m wondering when the left will start planning their own riot?

    • Silly but True says:

      Of those, the Just Security headline is pretty moderate, and the article itself probably has the least exciting but most practically accurate estimate: “chance of Trump being prosecuted out of office is slim.”

  29. WilliamOckham says:

    There’s something else that bothers me a lot more than the DoJ response time here. Why did the committee subpoena Bannon at the beginning of the investigation? Bannon’s response was completely foreseeable. And the consequences of his response were as well. It’s created a traffic jam of witnesses. No pro-Trump witness is going to give testimony until after the Bannon issue is settled. The only thing achieved by issuing a subpoena to Bannon before obtaining testimony from anyone else in Trump World was to delay the possibility of getting to the bottom of the planning of the attack.

    I think this is strong evidence in favor of the theory that the purpose of the Jan6 Committee is to have the appearance of an investigation rather than an actual investigation.

    • bmaz says:

      And DOJ say, “this is clear, not going to tolerate from either party, subpoenas mean something”. Do they win? No, not necessarily, but leave the mark.

    • matt fischer says:

      I think Democrats’ fecklessness is merely strong evidence of the theory that Democrats are often feckless.

      • joel fisher says:

        The choice seems to be incompetence vs evil; I always go with incompetence, but it does leave one open to criticism.

    • Geoguy says:

      “I think this is strong evidence in favor of the theory that the purpose of the Jan6 Committee is to have the appearance of an investigation rather than an actual investigation.” I’ve had the same thought. I apologize if I misunderestimate my memory but I think eoh once said that committees are where investigations go to die.

    • Benton says:

      I think that is an interesting point. We probably all agree that there needs to be new legislation to prevent what occurred from happening again. Also, the planners and instigators need to be held to account. Right now, I am having a hard time seeing how the current arrangement is going bring about the second outcome. Even if the Select Committee gathers all the incriminating evidence, how will charging those crimes play out? Further investigations by the Justice Department based upon criminal referrals? The clock is ticking on the Select Committee and the current Justice Department. Unfortunately, we’ve seen how this goes.

    • RWood says:

      Knowing that Bannon/Trump would respond with their usual delay tactics maybe the Bannon subpoena was done simply to get that process started now rather than later?

      If that was indeed the end goal, why not Bannon? May as well go big and force their hand.

      Or am I missing something?

    • PJB says:

      Is it possible that given the over 30 years since a congressional subpoena contempt was successfully prosecuted, and knowing Bannon was never going to provide any useful information, having Bannon go first made sense since his executive privilege claims are most laughable (he wasn’t a federal employee at any relevant time). This way the committee could suss out whether DOJ would back up the committee by prosecution or not?

  30. I Never Lie and am Always Right says:

    I’m late to the party, and feel the frustration felt by all of you. There are people actively working to destroy our existing system of government, and the perception, whether or not real, is that there is an insufficient sense of urgency on the part of many of those who have the greatest ability to put a stop to this attempt to destroy our system. Such a perception can be incredibly counterproductive. People need to feel like there is forward momentum, which will generate further forward momentum.

    I pose the following possibility as a potential counter to the suggestion that the AG is dithering out of some sort of fear, real or imagined. If Bannon is a subject or target of a separate criminal investigation, it would be prudent for DOJ to act in a way that does not mess up the separate investigation. I don’t know if any such separate investigation exists. But that could be one possible explanation for the delay.

    • Rayne says:

      It’s been a conjecture by others in this thread that another DOJ investigation could be at risk by arresting Bannon and prosecuting him under 2 USC 192 and 194 as referred by the House January 6 committee.

      Tell me how that works. Seriously, I just don’t see it — a perp isn’t going to be picked up on a misdemeanor because there *might* be felony charges waiting out there, somewhere…and then…??

    • subtropolis says:

      That’s been my take all along. If it turns out that DoJ never bothered to begin building a case against him then, sure, I’ll be pissed. But, for now, I remain patient. I don’t see the delay as being evidence of weakness or coverup.

  31. Vinnie Gambone says:

    Terrified to lose ? What pusilaniomity!. Trump world is eating it up. They’re laughing. Garlands DOJ -SNOWFLAKES ?

  32. joel fisher says:

    Like I wasn’t pissed off enough: Andrew Cuomo was deposed for 12 hours today. I’m not minimizing his conduct, simply pointing out that aggressive prosecution of lawsuits is a thing.

  33. fm says:

    Maybe Garland is waiting to see how Trumps claim of executive privilege regarding keeping NARA from releasing all documentation requested by committee turns out.

    • earlofhuntingdon says:

      That would be a remarkably timid approach from the country’s chief lawyer, at a time of nearly unprecedented law breaking by elites.

      • fm says:

        Trump’s claiming executive privilege and has directed Bannon not to speak to committee. Bannon says until Court rules he will not testify. Stage one, Trump lost with Judge Chutkan. So naturally Trump is appealing. Once he has exhausted appeals, if he loses, it essentially will say either he has not executive privilege or has limited ep. That will be set the parameters for Bannon indictment as a minimum if he still refuses to testify. But may not even need it once document, phone calls, etc is released by NARA. That information may be damning enough. Garland has a lot on his plate with the 600 or 700 Jan. 6th crimes. He also (Im assuming) has a lot of information on the insurrectionists and planners, which could include Bannon.

  34. MissyDC says:

    Thank you Rayne for your post. I’m so frustrated with Garland. I just found out I can send him letters, so I did. It was respectful but clear that I think he should be doing more. Will it help? He’s a 68 year old institutionalist, so probably not. But it felt good to be able to take action.
    Here is the link in case anyone else wants to write: https://www.justice.gov/doj/webform/your-message-department-justice

    I hope I remembered my user name correctly, I don’t post often.

  35. Marinela says:

    OT, WTF is going on with the judge in K. Rittenhouse?
    I hope the jury does the right thing in this trial.
    Don’t understand why the judge was so upset with the prosecutor?
    All that exchange seemed staged to me.

    • bmaz says:

      No, the prosecutor was doing completely unethical and inappropriate things that any common law student would know were wrong, and the judge was quite appropriately incensed. Nothing was staged that I could see.

      • earlofhuntingdon says:

        WTF would the prosecutor do this? It’s not as if he hasn’t the facts and law to merit conviction. It’s not as if he hasn’t access, if he wants it, to better minds to guide his prosecution. Is he incompetent or taking a dive?

          • Leoghann says:

            For those of us who don’t understand, but have been appalled daily, would you please explain the issues with the prosecutor’s questioning. I understand the part about asking why he chose to remain silent being out of line. But asking him about conversations he had a few days before the crimes? Seems like that would go to frame of mind, as well as to call out his claims that he never wanted to shoot or hurt anybody.

            • bmaz says:

              There is simply no way to get beyond the inappropriate comment on the right to silence. But, even beyond that, there are clearly evidentiary issues decided ahead of trial that the prosecutor violated. There are a lot of parameters decided ahead of trial and the jury.

              That is completely common, and the lawyers involved not only know, they are so bound. If you think any door has been opened, you tread lightly and then discuss with the court at a side bar or in chambers. Binger is either trying for a non-disqualifying mistrial, or he is an idiot. Neither is a good look.

              • Silly but True says:

                The “pass around the IPad to the jury and let them each individually see different images, some of them which don’t actually even exist beyond AI interpolation” set off a crapstorm in tech world.

                Imagine if courts accepted Schrodinger’s evidence to the jury: when prosecution shows the evidence through Apple’s “half-dead AI interpolation althorighm” it shows The dead cat and defense pinch-zooms with Window’s “Half alive AI interpolation codec” showing the cat alive when you pinch zoom.

                Or Microsoft release its new enhanced viewer with “new reality enhancement” algorithms which can enhance images to reinforce different truths such as adding or erase guns from videos, and change the angles of barrel, when low res images are taken from far away and need to be “cleaned up.”

  36. RWood says:

    Great post and great discussion, but I think there is one major question that is going unasked.

    Why is there an assumption that a win in the courtroom will result in a win over the radical right?

    I would argue that we have two battles here, one involving the system, and the other a war of propaganda. It doesn’t matter if we win the first if we lose the second. Jailing trump is not a vaccine against authoritarianism, there still needs to be a counter-campaign against the propaganda machine that feeds the cult.

    Let the justice system go after the bandits, someone else needs to take over the lefts messaging and counter the right toe-to-toe.

  37. Jenny says:

    Thank you Rayne.

    “I’m a Leninist. Lenin wanted to destroy the state, and that’s my goal, too.”
    Steve Bannon

    • earlofhuntingdon says:

      …because the state is a power center. It claims a monopoly on governance and the use of force, and is in opposition to the party. Lenin’s description fits today’s GOP.

    • Rayne says:

      Bannon is anarchic in his methods using capitalist tools while spouting bullshit like “I’m a Leninist!” but he’s just a plain old fashioned grifter with a background in investment banking. He knows damned well as the oligarchs do that they make money when volatility is increased — so they’re shorting everything and whipping up polarity to play the rides down to increase the income inequality gap.

      • harpie says:

        Seems like a good place to mention that on 12/30/20 BANNON called TRUMP at Mara-Lago from his townhouse on CAPITOL HILL.

        [From Woodward/Costa book, my numbers]
        “We’re going to bury Biden on January 6th, fucking bury him.”
        If Republicans could cast enough of a shadow on Biden’s victory on January 6, Bannon said,
        1] it would be hard for Biden to govern.
        2] Millions of Americans would consider him illegitimate.
        3] They would ignore him.
        4] They would dismiss him and wait for Trump to run again.
        “We are going to kill the Biden Presidency in the crib,” he said.

      • Hug h says:

        Indeed Bannon is a grifter and just like Trump a master at PROJECTION.

        Bannon claims that seeing his father lose large sums of money in 2008 is a key motivating factor in his Politics. “The only net worth my father had beside his tiny little house was that AT&T stock. And nobody is held accountable? Everything since then has come from there. All of it.”- Steve Bannon, WSJ. (Bannon Sr. worked for decades at AT&T and purchased Company Stock. He apparently sold in panic near the bottom in 2008)

        I worked for 3+ decades in Investment Management, Bannon worked for 2 yrs at Goldman and then as an Executive Producer in Hollywood for 25 years. I have assisted my parents and other friends and family with financial counsel throughout my life. A very basic piece of advice in that counsel?- “Don’t have all your eggs in one basket”. Another top piece of advice?- “Never let emotions drive your investment decisions.” Bannon’s Father made both mistakes. Where was Steve Bannon to help his father avoid those unforced errors?
        Heck no, Steve’s pissed off at “the system”. What a joke.

        MANY people should have gone to jail after the Financial Crisis but that wouldn’t have saved Bannon Sr. a penny, but Steve Bannon certainly could have.

        • Silly but True says:

          Bannon makes an entire middle-class family’s salary, $50,000-$100,000 each year from his Seinfeld residuals. At low end, $50,000 puts him ahead of 2/3 of American family’s incomes. If he makes the higher end $100,000, he’s in top 20%, for having done nothing but participate in sale of Westinghouse over two decades ago.

          He can devote an entire career each year to dirty trickery as a hobby, without any regard to its cost.

          • Hug h says:

            Yeah, he won the lottery with that one didn’t he? Ironic that Bannon’s scruffy, sweaty, unkempt, quiet “loudmouth” shtick would easily fit as a character on the show. Now he’s a key player in our Reality TV Drumpf/gopq nightmare.

  38. The Old Redneck says:

    In civil law world, you don’t get to thumb your nose at a subpoena entirely. You still have to show up and answer the non-privileged questions. You have to claim privilege on a question by question basis (assuming there’s a valid privilege, which is a whole different issue worth discussing). So that brazen refusal to even show up is an easy one.
    You can’t just hide behind someone else telling you not to cooperate either. You have to use your own judgment about whether that advice is justified. Furthermore, the person telling you not to cooperate can be guilty of obstruction if they’re wrong.

    • Rayne says:

      This part reeks of bullshit:

      … But critically, the question for a prosecutor deciding whether or not to charge Bannon with a crime is not whether Bannon’s interpretation of the law is correct or not. It is whether the department can prove to a unanimous jury beyond a reasonable doubt that Bannon did not believe his assertion of privilege to be credible. After all, it is not inappropriately stubborn conduct to refuse to testify in the presence of a valid assertion of privilege. The burden is thus on the prosecution to prove that Bannon could not in good faith believe his assertion of privilege to be valid. …

      Since when is belief part of the equation? If Bannon believed Trump had executive privilege, he could have answered the subpoena and then testified under oath that he believed Trump still had privilege and he therefore couldn’t answer any questions which were under the reach of whatever executive privilege Bannon believed an ex-president had. He could have answered questions the January 6 committee had about Bannon’s own personal behavior (like his remarks made to a listening/viewing audience the week of the rallies+attack on Capitol).

      But Bannon chose not to answer **any** questions which is just plain bullshit bad faith. Fuck that and Lawfare’s offered apologia.

      EDIT: Let me point out that Bannon’s refusal to answer **any** questions in his refusal to comply with the subpoena only makes it look like every action he took — including his remarks which appear to both incite and acknowledge an expected violent outcome — were with Trump’s express approval and/or order.

      • The Old Redneck says:

        Not to mention Bannon wasn’t even on the payroll. Executive privilege could reasonably apply to the President’s inner circle of advisors, but the privilege is waived if you talk to others. No attorney would ever have a conversation with a client in the presence of a third party, because that third party’s presence would waive the privilege.
        Again, this seems like pretty easy stuff. But I just heard the DC Circuit is going to give Trump a stay on handing over the presidential archive material pending a decision on that issue. So that panel of judges is handing Trump “let’s just run out the clock” as a viable legal strategy.

        • matt fischer says:

          Shaub has pointed out that, in 2007, W’s Solicitor General and Acting Attorney General Paul Clement wrote a still-operative opinion concluding that EP can apply to all advisors to the president, within the executive branch and without. And the Supreme Court, in Nixon v. Administrator of General Services, has already recognized the right of a former president to “assert” EP.

          While it’s obvious Bannon is using EP as a fig leaf to avoid accountability for blatantly bad behavior, I worry there may be just enough legal ambiguity surrounding EP for his ploy to work.

          • Rayne says:

            All the claims of executive privilege fall apart on criminal behavior being investigated which United States v. Nixon pointed out.

            EDIT: so angry I accidentally clicked Update when I meant to add the January 6 committee may be looking at the possibility of conspiracy to commit murder, potentially ordered by then-president Trump. If there was only a hint of this before this week’s reporting (as a goddamned excerpt from another goddamned journalist’s book) when it was revealed Pence’s key pad access had been revoked, any claim of executive privilege by the EX-president should be viewed with the greatest skepticism. The future security of Congress and the next in succession to the chief executive’s seat along with the continuity of government rely on obtaining all the facts as quickly as possible.

    • Silly but True says:

      Millet has already ruled against Trump in Mazars and then was overuled by SCOTUS, 7-2.

      It was certainly not the same executive privilege issue, and Trump’s status is significantly different but easy way out for SCOTUS is uphold US v Nixon, interpreting that the privilege lies with the POTUS who received the privileged communications. I would not be surprised by that outcome.

      • matt fischer says:

        Did you mean Nixon v. Administrator of General Services? US v. Nixon was decided while Nixon was still president, and required that he turn over his tape recordings and other subpoenaed materials, which were ruled “demonstrably relevant in a criminal trial.” Nixon resigned shortly thereafter.

        • Silly but True says:

          No. US v Nixon. Among various things SCOTUS held, it held in essentially minting the basics of executive privilege concept that: “ “Presidential executive privilege” that:
          “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications.”

          For any of their argument to hold water, privilege vests with that President to which the privileged communication was given, because otherwise the whole point is defeated if it gets revealed when administration ends.

          • matt fischer says:

            Executive privilege has been invoked since 1796, in practice if not in name. US v. Nixon simply affirmed it.

            And while the Supreme Court agreed, in Nixon V. Administrator of General Services, that privilege survives an individual President’s tenure, it also ruled that

            … it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.

            As Judge Chutkan noted:

            … Presidents are not kings, and Plaintiff is not President. [Trump] retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion.

          • matt fischer says:

            Fun fact: Nixon took contradictory positions in US v. Nixon and Nixon v. Administrator of General Services:

            Unlike United States v. Nixon, in which appellant [Nixon] asserted a claim of absolute Presidential privilege against inquiry by the coordinate Judicial Branch, this case [Nixon v. AGS] initially involves appellant’s [Nixon’s] assertion of a privilege against the very Executive Branch in whose name the privilege is invoked.

            • Silly but True says:

              AGS was in wrong; there is only one top elected official of the Executive Branch, and it’s who AGS reports to, not other way around.

  39. Leoghann says:

    While we’re all getting exercised over Steve Bannon and his obviously-political shenanigans, he’s not the only offender. Remember that, although Jeffrey Bossert Clark did show up on his appointed day, he refused to answer any questions, and the only document he produced was a 12-page treatise from his lawyer, Harry MacDougald, who also brought one of the lawsuits against the State of Georgia attempting to overturn their election. In it, MacDougald claimed 45’s executive privilege, but also, at one point, brought up the bizarre idea that Clark’s discussions with 45 were covered by attorney-client privilege. Clark appears to me to be a regular grunt who suddenly was offered the opportunity to be a star in Trumpworld, and peed on himself like a puppy in his excitement to get in line. His loyalty may break long before Bannon’s.

  40. RWood says:

    And Mark Meadows has now joined Bannon in defying a House subpoena.

    Unfortunately, my Inherent Contempt is down in the basement next to my child-safe plutonium.

  41. The Old Redneck says:

    My worry at this point is that this privilege issue – and the stay on production of the records – will go to the Supremes. Certainly Trump will take an appeal to them if he loses in the DC Circuit.
    If the Supremes take the case, I don’t know what the schedule for the case will be. But we do know the midterms are a year away. If the Trumpites regain a majority, they will shut this investigation down faster than you can say “insurrection.” There’s no guarantee the Supremes will have ruled by then.
    Maybe this is an unduly pessimistic view. I’d love to hear otherwise from someone who better understands the federal appellate process.

  42. graham firchlis says:

    Bannon indicted, arrest warrant to be issued.

    Was unfounded maligning of a good man’s character as well as the whole of the justice system really worthwhile?

    I think not.

    More focus on the enemies of progress, please, less castigation of our allies.

    • Rayne says:

      Graham, fuck off. Seriously, all the way off, past 11.

      No good man was maligned in my post. The justice system which has systematically abused those most marginalized and at-risk while letting rich white men off on the regular has yet to feel the real wrath of the public.

      Take your privilege elsewhere.

      • Benton says:

        Here’s an example. This week we learned that Travis Scott was previously arrested for inciting a riot at an Arkansas concert in 2017 which injured several people. Was arrested for a similar deal in 2015. Could face charges for the Astroworld music festival tragedy.

        Yet, somehow the ringleaders and inciters of 1/6 haven’t even been charged for inciting a riot that killed people, endangered a Constitutional process, and desecrated our Capital. Yeah, there’s something wrong.

        • P J Evans says:

          Travis Scott was also reportedly warned about that stuff before this concert. And still blew it off. 9 dead, because he wouldn’t stop long enough to tell people “we have a problem, and we need you to back up”.

          • Benton says:

            Makes me think of the three plus hours before Trump told the insurrectionists searching for Pence, “I know how you feel, but go home…”

  43. harpie says:

    Connecting with my comment and SKUA’s contribution here:

    Call logs of:
    1] Acting Attorney General Jeffrey ROSEN [including hand-written notes]
    2] Principal Associate Deputy Attorney General Richard DONOGHUE
    3] DOJ Chief of Staff John MORAN

    Calls with [not a complete list]:
    White House Counsel Pat CIPOLLONE
    Acting US Attorney for DC Michael SHERWIN
    White House lawyer Eric HERSCHMANN
    Assistant Attorney General for OLC Steven ENGEL
    Acting DOJ Deputy Director of Public Affairs Marc RAIMONDI
    [Acting Chief of DOJ National Security Division’s Counterterrorism Section]
    US Attorney John DURHAM
    US Marshals Service Director Donald WASHINGTON
    Acting DEA Administrator Timothy SHEA
    Acting ATF Director Regina LOMBARDO
    DHS official Christopher TOMNEY
    DOJ official Gene HAMILTON

    • harpie says:

      Acting Attorney General Jeffrey ROSEN

      [h-w] = ROSEN’s handwritten notes which are NOT reflected in the logs [Italicized]
      I have only noted redactions OTHER than (b)(6), which all entries have.

      8:44 AM ROSEN calls [blank] [9m]
      “9:58 AM” [h-w] (b)(6)
      10:46 AM ROSEN calls HERSCHMANN [2m]
      10:55 AM ROSEN calls CIPOLLONE [1m]
      11:01 AM ROSEN call from CIPOLLONE [1m]
      11:15 AM ROSEN calls Christopher MICHEL [11m]
      “11:29 AM” ROSEN [h-w] “Jeffrey Wall” [Acting Solicitor General]
      “11:59 AM” ROSEN [h-w] “Jeffrey Wall”
      12:03 PM ROSEN call from CIPOLLONE [1m]
      12:13 PM ROSEN calls [blank] [Morristown, NJ] [2m]
      12:17 PM ROSEN call from [blank] [2m]
      12:40 PM ROSEN [h-w] “Tried SHERWIN at ellipse”
      “12:56 PM” ROSEN [h-w] “Citizen” [redacted] (b)(6)
      1:09 PM ROSEN [h-w] “Tried SHERWIN at ellipse”
      1:17 PM ROSEN call from SHERWIN [7m]
      “2:01 PM” ROSEN [h-w] “DOD/SecDef” [Acting-Christopher MILLER]
      2:29 PM ROSEN calls [blank] [1m]
      2:30 PM ROSEN call from SHERWIN [Vm Deposit] [1m]
      2:33 PM ROSEN call from SHERWIN [3m]
      2:39 PM ROSEN call from MORAN [3m] [h-w] “re Sherwin (2 min)”
      2:43 PM ROSEN calls DONOGHUE [h-w] “at 510C” [2m]
      “2:44 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      2:57 PM ROSEN call from CIPOLLONE [h-w] “+ Meadows” [4m]
      3:01 PM ROSEN calls DONOGHUE [5m]
      3:07 PM ROSEN call from SHERWIN [Vm Deposit] [1m]
      3:08 PM ROSEN calls SHERWIN [3m]
      3:10 PM ROSEN call from [blank] [h-w] “([scribbled out])” [1m]
      3:11 PM ROSEN call from CIPOLLONE [4m]
      3:15 PM ROSEN call from [blank] [3m]
      3:18 PM ROSEN [h-w] “3:18pm Bowdich – no answer” [FBI Deputy Director]
      “3:18 PM” ROSEN [h-w] “JCC”
      3:20 PM ROSEN call from SHERWIN [1m]
      3:22 PM ROSEN call from [blank] [2m]
      “3:22 PM” ROSEN [h-w] “Winnie Brinkley”
      3:24 PM ROSEN call from [blank] [6m]
      3:30 PM ROSEN (b)(6), (b)(7)(C) per FBI [h-w] “Bowdich” [5m]
      3:35 PM ROSEN calls DONOGHUE [1m]
      3:36 PM ROSEN call from DONOGHUE [h-w] “Donoghue at Capitol?” [3m]
      “3:37 PM” ROSEN [h-w] [redacted] (b)(6) “(Eric Herschmann)”
      3:38 PM ROSEN calls (b)(6), (b)(7)(C) per FBI [h-w] “Bowdich” [2m]
      3:38 PM ROSEN call from (b)(6), (b)(7)(C) per FBI [h-w] “Bowdich” [1m]
      “3:39 PM” ROSEN [h-w] “Citizen” [redacted] (b)(6)
      “3:45 PM” ROSEN [h-w] “Citizen” [redacted] (b)(6)
      “3:57 PM” ROSEN [h-w] “JCC”
      3:58 PM ROSEN call from DONOGHUE [6m]
      4:13 PM ROSEN call from ENGEL [h-w] “(7 min) (OLC)” [8m]
      4:31 PM ROSEN call from DONOGHUE [3m]
      4:34 PM ROSEN call from WHITE HOUSE Phone Number [7m]
      4:41 PM ROSEN calls RAIMONDI [h-w] “[numbers?] 4:42 Raimondi (2min)]” [3m]
      4:53 PM ROSEN call from RAIMONDI [2m]
      “4:53 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “5:00 PM” ROSEN [h-w] “5:00pm DOD/SecDef”
      “5:01 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      5:08 PM ROSEN call from RAIMONDI [1m]
      5:16 PM ROSEN calls DONOGHUE [1m]
      5:30 PM ROSEN calls DONOGHUE [2m]
      5:31 PM ROSEN call from CIPOLLONE [1m]
      5:32 PM ROSEN calls CIPOLLONE [2m]
      5:39 PM ROSEN calls SHERWIN [4m]
      5:46 PM ROSEN calls DONOGHUE [4m]
      5:51 PM ROSEN call from SHERWIN [1m]
      5:51 PM ROSEN calls SHERWIN [2m]
      “5:53 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “6:00 PM” ROSEN [h-w] “6:00pm DOD et al”
      6:33 PM ROSEN calls SHERWIN [9m]
      “6:44 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “6:45 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      6:54 PM ROSEN call from DONOGHUE [2m]
      “6:59 PM” ROSEN [h-w] [redacted](b)(6) per DOD
      “7:00 PM” ROSEN [h-w] “7:00pm DOD, House/Sen/VP call”
      7:38 PM ROSEN call from SHERWIN [11m]
      8:37 PM ROSEN call from DONOGHUE [6m]
      9:06 PM ROSEN call from (b)(6) per DOD [Alexandria VA] [3m]
      9:09 PM ROSEN call from CIPOLLONE [2m]
      10:39 PM ROSEN call from CIPOLLONE [Arlington VA] [6m]

      ROSEN [h-w]

      Other calls from memory:
      SecDef et al multiple
      Speaker Pelosi, Leader McCarthy
      Sen Schumer, McConnell staff; McConnell
      VP Pence (2x) [? One is at 7pm, when is the other?]

    • harpie says:

      DOJ Chief of Staff John MORAN

      I have only noted redactions OTHER than (b)(6), which all entries have.

      8:54 AM MORAN calls [toll-free] 877-465-7975 [37m]
      10:20 AM MORAN call from RAIMONDI [4m]
      11:04 AM MORAN call from Jarad HODES [2m]
      11:51 AM MORAN call from Christopher GREICO [1m]
      12:53 PM MORAN calls Gene HAMILTON [11m]
      2:36 PM MORAN call from MICHEL [2m]
      2:39 PM MORAN calls ROSEN [3m]
      2:44 PM MORAN call from MICHEL [4m]
      2:47 PM MORAN calls DONOGHUE [1m]
      2:55 PM MORAN call from Lee LOFTHUS [1m]
      3:16 PM MORAN calls [blank] [1m]
      4:36 PM MORAN calls Kira ANTELL [4m]

      • harpie says:

        re: that 4:36 MORAN call:
        ANTELL is mentioned in this article:

        Trump DOJ chose not to brief Congress on “expected” Jan. 6 “unrest”
        https://www.citizensforethics.org/reports-investigations/crew-investigations/trump-doj-chose-not-to-brief-congress-on-expected-jan-6-unrest/ November 9, 2021

        […] The heavily-redacted documents, obtained in an ongoing Freedom of Information Act lawsuit, show Trump DOJ officials weighing “potential briefings” and a “DOJ statement” in the days preceding the deadly attack on the Capitol. In one email sent on January 4, Office of Legislative Affairs (OLA) employee Kira Antell laid out three options for possible DOJ briefings and statements. Each option is redacted in the email released to CREW.
        “Given the risks associated wit[h] [redacted], OLA’s strong recommendation [redacted],” Antell concluded. […]

        • harpie says:


          […] On the evening of January 4, DOJ’s Acting Director of Public Affairs Marc Raimondi emailed Donoghue a draft of the statement, writing “[redacted] said you wanted a statement drafted for DOJ that should go out tomorrow….Please let me know if you have any edits.” Raimondi’s draft statement is redacted. […]

          Later emails suggest there was a discussion about the draft statement between Raimondi, Donoghue, Acting Attorney General Jeffrey Rosen, and Donoghue’s chief of staff John Moran, though the discussion is redacted. A separate email, sent from Raimondi to Moran on the morning of January 5, lists “DOJ demonstration prep statement” as a “thing[] for today we will need to deal with.”

          Ultimately, DOJ did not release any press statement on January 5 about expected unrest on January 6. And there is no indication DOJ led or coordinated any inter-agency congressional briefing on January 5. […]

  44. harpie says:

    When my comment with DONOGHUE’s call log gets out of moderation this will make sense:

    Correction, ADD emphasis:
    5:46 PM from ROSEN [4m]
    5:56 PM from WHITE HOUSE [33m]

    • harpie says:

      Principal Associate Deputy Attorney General Richard DONOGHUE

      I have only noted redactions OTHER than (b)(6), which all entries have.

      9:02 AM DONOGHUE call from [blank] [1m]
      10:47 AM DONOGHUE call from John DURHAM [Vm Deposit] [1m]
      10:48 AM DONOGHUE call from [blank] 0 [2m]
      2:29 PM DONOGHUE call from Acting Chief, CTS (NSD) [2m]
      2:38 PM DONOGHUE call from Christopher Michel [2m]
      2:38 PM DONOGHUE call from Acting Chief, CTS (NSD) [1m]
      2:43 PM DONOGHUE call from ROSEN [2m]
      2:47 PM DONOGHUE call from MORAN [1m]
      2:53 PM DONOGHUE call from (b)(6), (b)(7)(C) per FBI [1m]
      2:55 PM DONOGHUE call from (b)(6), (b)(7)(C), (b)(7)(E) per FBI [1m]
      2:59 PM DONOGHUE calls Donald WASHINGTON [Alexandria VA] [2m]
      3:01 PM DONOGHUE call from ROSEN [5m]
      3:11 PM DONOGHUE call from Acting Chief, CTS (NSD) [1m]
      3:15 PM DONOGHUE call from CIPOLLONE [2m]
      3:24 PM DONOGHUE calls Timothy SHEA [4m]
      3:28 PM DONOGHUE calls Regina LOMBARDO [4min]
      3:34 PM DONOGHUE calls ROSEN [1m]
      3:35 PM DONOGHUE call from Acting Chief, CTS (NSD) [1m]
      3:36 PM DONOGHUE calls ROSEN [3m]
      3:44 PM DONOGHUE call from WHITE HOUSE Phone Number [11m]
      3:55 PM DONOGHUE call from [blank] [2m]
      3:55 PM DONOGHUE call from Acting Chief, CTS (NSD) [1m]
      3:57 PM DONOGHUE calls HERSCHMANN [1m]
      3:58 PM DONOGHUE calls ROSEN [6m]

      • harpie says:

        DONOGHUE continued:

        4:06 PM DONOGHUE calls Acting Chief, CTS (NSD) [4m]
        4:27 PM DONOGHUE call from CIPOLLONE [3m]
        4:31 PM DONOGHUE calls ROSEN [3m]
        4:52 PM DONOGHUE call from ENGEL [3m]
        5:05 PM DONOGHUE call from CIPOLLONE [2m]
        5:16 PM DONOGHUE call from CIPOLLONE [3m]
        5:30 PM DONOGHUE call from ROSEN [2m]
        5:30 PM DONOGHUE call from CIPOLLONE [1m]
        5:38 PM DONOGHUE call from HERSCHMANN [1m]
        5:46 PM DONOGHUE call from ROSEN [4m]
        5:49 PM DONOGHUE calls Acting Chief, CTS (NSD) [1m]
        5:56 PM DONOGHUE call from WHITE HOUSE Phone Number [33m]
        6:29 PM DONOGHUE call from Acting Chief, CTS (NSD) [1m]
        6:54 PM DONOGHUE calls ROSEN [2m]
        6:59 PM DONOGHUE call from [blank] [25m]
        7:46 PM DONOGHUE call from Acting Chief, CTS (NSD) [4m]
        7:56 PM DONOGHUE call from HERSCHMANN [2m]
        8:03 PM DONOGHUE calls TOMNEY [5m]
        8:37 PM DONOGHUE calls ROSEN [6m]
        9:26 PM DONOGHUE calls Acting Chief, CTS (NSD) [8m]
        9:52 PM DONOGHUE calls CIPOLLONE [1m]
        9:52 PM DONOGHUE call from (b)(6), (b)(7)(C) per FBI [1m]
        9:55 PM DONOGHUE calls (b)(6), (b)(7)(C) per FBI [5m]
        10:28 PM DONOHUE call from SHERWIN [Vm Deposit] [1m]
        10:30 PM DONOGHUE call from SHERWIN [3m]
        10:36 PM DONOGHUE calls (b)(6), (b)(7)(C) per FBI [1m]
        10:37 PM DONOGHUE call from TOMNEY [1m]
        11:11 PM DONOGHUE call from HERSCHMANN [6m]

      • harpie says:

        Donohue’s first three listed calls:

        9:02 AM DONOGHUE call from [blank] [1m]
        10:47 AM DONOGHUE call from John DURHAM [Vm] [1m]
        10:48 AM DONOGHUE call from [blank] 0 [2m]

        Next call is at 2:29 PM from Acting Chief, CTS (NSD) [2m]

        From the TL around that time:

        2:28 PM Attacking the House Chamber doors
        2:28 PM West Plaza fully breached
        2:28 PM Yet another police officer is assaulted with a flagpole
        2:29 PM Visitor Center security doors adjacent Crypt blocked & breached
        2:29 PM PB REHL to the same “four other contacts”: “Civil war started.”

  45. harpie says:

    DOJ calls until TRUMP starts speech:

    8:44 AM ROSEN calls [blank] [Washington DC] [9m]
    8:54 AM MORAN calls [toll-free] 877-465-7975 [37m]
    9:02 AM DONOGHUE call from [blank] [1m]
    10:20 AM MORAN call from RAIMONDI [4m]
    10:46 AM ROSEN calls HERSCHMANN [2m]
    10:47 AM DONOGHUE call from John DURHAM [Vm Deposit] [1m]
    10:48 AM DONOGHUE call from [blank] 0 [2m]
    10:55 AM ROSEN calls CIPOLLONE [1m]
    11:01 AM ROSEN call from CIPOLLONE [1m]
    11:04 AM MORAN call from Jarad HODES [2m]
    11:15 AM ROSEN calls Christopher MICHEL [11m]
    11:51 AM MORAN call from Christopher GREICO GRIECO [1m]
    12:03 PM ROSEN call from CIPOLLONE [1m]

    Titles [I THINK]:
    MORAN is Donohue’s COS
    RAIMONDI is Acting DOJ Deputy Director of Public Affairs
    Jarad HODES Counsel to the Deputy Attorney General DONOGHUE
    [I don’t know who Christopher MICHEL is]
    Christopher GRIECO is Associate Deputy Attorney General in the Office of the Deputy Attorney General-DONNOHUE

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