All the Scheming at the Willard Only Matters because of the Bodies Occupying the Capitol and Threatening Pence

In a post wondering whether DOJ hasn’t opened an investigation into Donald Trump for his role in obstructing the vote count, Ben Wittes provides this description of Judge David Carter’s opinion ruling that John Eastman and Trump had likely conspired to obstruct the vote certification.

The opinion’s first section—entitled “A. Facts”—begins on page three of Judge Carter’s opinion and runs through the middle of page 12. In a footnote attached to the word “Facts” in the subhead leading the section, Judge Carter notes in a fashion characteristic of the section’s understatement, “In this discussion, the Court relies solely on facts provided by Dr. Eastman and the Select Committee in their briefing and attached exhibits.”

He is not exaggerating. The section contains no judgments, no legal interpretations, no conclusions. It contains virtually no rhetoric at all. What’s more, the section does not contain a whole lot of new facts. The story of Eastman and Trump’s efforts to overturn the 2020 election, the relationship between that effort and Trump’s concurrent plot to decapitate the Justice Department, and ultimately to the insurrectionary activity of January 6, 2021, has dribbled out bit by bit over the months already. And to the extent the current litigation has revealed new material, that mostly emerged in the committee’s briefing and the accompanying exhibits a few weeks ago.

What makes Judge Carter’s account so powerful is that it is linked tightly to record evidence, that it tells the story in an end-to-end fashion crisply and efficiently, and that it thus assembles the evidence into a coherent account of the big picture. I cannot do Judge Carter’s account justice; please do read it. For present purposes, let me just say that it leaves the fair-minded reader in no doubt that the events that took place between Joe Biden’s defeat of Trump at the polls and congressional certification of Biden’s victory on Jan. 6 were an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government.

As Ben tells it, Carter’s description of the conspiracy to obstruct the vote certification focuses on attempts to overturn the election, his attempt to “decapitate” DOJ, and only then to the “insurrectionary activity” on January 6 that included using “violence directed against a coordinate branch of government.”

Mike Pence’s name not only doesn’t appear in this passage, it appears nowhere in Ben’s piece. Pence is named 24 times in those nine pages of Carter’s narrative. I think the difference in emphasis is instructive.

It’s not that the things Ben focuses on — lawsuits attempting to discredit the electoral outcome and the attempt to install Jeffrey Clark to pursue more efforts to discredit the electoral outcome — didn’t appear in Carter’s narrative. It’s that they serve a different function than Ben accords them, not as independent criminal behavior, but as actions in the first of a three-part plot all of which ends up in an attack on the Capitol.

  1. Election fraud claims
  2. Plan to disrupt electoral count
  3. Attack on the Capitol

As noted, in Carter’s description of the attack on the Capitol, the pressure on, followed by the verbal attacks on and physical threats to Mike Pence are central.

President Trump returned to the White House after his speech. At 2:02 pm, Mark Meadows, the White House Chief of Staff, was informed about the violence unfolding at the Capitol.50 Mr. Meadows immediately went to relay that message to President Trump.51 Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”52

During the riot, Vice President Pence, Members of Congress, and workers across the Capitol were forced to flee for safety.53 Seeking shelter during the attack, Vice President Pence’s counsel Greg Jacob emailed Dr. Eastman that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day.”54 Mr. Jacob continued, “[a]nd thanks to your bullshit, we are now under siege.”55

I point this out because I think it is the easiest way to point out what I think is problematic with Ben’s search for an investigation — a separate investigation just for Trump, with leaks about grand jury subpoenas — like so many others. Even in portraying a document of which Ben claims, “the history of the United States has never seen an account of a president’s conduct quite so devastating,” Ben appears to misread the subject described, though later in his piece, he fully recognizes the question of Trump’s criminal liability discussed here is just about obstructing the vote certification.

Carter’s is not a story of an attempt to overturn the election. Judge Carter tells the story of an attempt to obstruct a vote certification. All the lawsuits matter because (on top of proving mens rea) the election fraud claims are what Eastman used to pressure Pence to throw out the vote and what Trump used to incite his mob. In fact that’s what, in my opinion, Carter laid out far better in his opinion than the Committee did in their brief, which argued that had Pence taken the steps Eastman wanted, the vote count would have been obstructed, and not that the false claims of fraud themselves led to a “siege” that in fact did obstruct the vote count.

There are, surely, other crimes that Trump might be investigated for — most notably his attempt to pressure Brad Raffensperger. But the way DOJ has been conceiving of the crime of January 6 from the start was as that successful (but temporary) obstruction of the vote count. All the people who seem to think an investigation into Trump would be somehow separate from that seem to be conceiving all that other corruption as separate from the dual effort to pressure Mike Pence with literal death threats and to occupy the Capitol and prevent the vote certification from taking place. This is why the people who claim you’ll never get to Trump through Alex Jones and Roger Stone are so mistaken: because it’s the actions Jones took leading the mob to add bodies to the attack and Stone took coordinating with the militias that most directly tie Trump to the actual effect on the official proceeding.

I am certain, and have been since well before August, that DOJ is investigating the ways that Donald Trump played a central role in getting bodies to the Capitol that had the effect of threatening the life of his Vice President (and Nancy Pelosi and even Mitch McConnell) and temporarily obstructing the vote certification. The overt signs of that investigation are not, as Ben has been looking for, subpoenas to witnesses in the Willard (in part because Roger Stone would never be subpoenaed). Rather, it is in getting sworn testimony that after Donald Trump sent out tweets about the riot in December, people took that as an order from Trump, and set themselves to buying plane tickets and buying body armor. It is in getting cooperating witnesses about the ways that militias that gave structure to the mob were working in tandem with Trump’s rat-fucker. It is in developing evidence that Trump’s false claim that he would join them at the Capitol — repeated by his Pied Piper Alex Jones — convinced people who otherwise would never have gone to the Capitol to do so. It is in getting sworn testimony that after Trump attacked Pence in his speech, people responded by decrying Pence while still at the rally and then continued to threaten Pence once they had moved to the Capitol.

I’m less certain DOJ is investigating Eastman but if they are, it would be for the reasons that Greg Jacob laid out: that Eastman’s lies played a part in getting bodies to the Capitol to threaten Pence’s life and that Eastman and Trump had the intent of using such threats to convince Pence to throw out the legal votes. It’s not his bad faith legal arguments that are illegal, it’s the way those bad faith legal arguments served to get bodies to the Capitol on January 6.

As Greg Jacob described it in real time, “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.” That is the crime under investigation. And because it involves mobilizing a mob, the investigation necessarily focuses on the means by which Trump orchestrated the mob.

Most of that evidence is not in the Willard Hotel, but in actions members of the mob took in direct response to Trump’s actions.

The rest of the commentariat has finally caught up to the point I made in August, that DOJ is investigating the obstruction of the vote certification. But I’m not sure they understand that everything, therefore, works backward from the bodies at the Capitol.

84 replies
  1. celeste descoteaux says:

    Probably already caught: “It’s that they serve a different function *then* Ben…” than.

    • obsessed says:

      Another typo (“investigating”)

      the point I made in August, that DOJ is investigation the obstruction of the vote certification.

  2. Makeitso says:

    Nicely said. Query: how do you see the missing log of calls fitting into this narrative? It is clear Trump made calls during the missing log period. We now know that there were certainly some republican congress people involved at some level with all this. And there were local state republicans as well. And well-connected republicans also. The silence from republicans about the missing logs is telling.

  3. Leu2500 says:

    “ What makes Judge Carter’s account so powerful is that it is linked tightly to record evidence, that it tells the story in an end-to-end fashion crisply and efficiently, and that it thus assembles the evidence into a coherent account of the big picture.”

    So Judge Carter did what journalists could have (“record evidence” is available to them in PACER) but didn’t do.

  4. PieIsDamnGood says:

    >Roger Stone would never be subpoenaed

    Why is this? Is it because Stone would be a worthless witness at trial, or because his testimony is not needed? I had assumed people like Stone and Bannon would be interviewed last, after DOJ had testimony from many others. With the intent of boxing Stone/Bannon in and maybe getting cooperation.

    Have to say, I’m enjoying the victory laps you’re taking lately!

    • emptywheel says:

      It is because he’s a target of the investigation. There are at least four witnesses cooperating against him already.

      • bmaz says:

        Yes. Too many folks focus on the hot button names they perceive, and not how this kind of investigation (and this one is fairly much bigger than even previous complex conspiracy ones) really work.

      • Leoghann says:

        Looking at it another way–perhaps more complicated–if he were to be called to testify, Stone would probably lie or invoke his 5th Amendment rights on every question. Then those cooperating witnesses would have to testify in order to determine the truth. Since they’d be necessary anyway, why not just avoid the ordeal of serving Stone?

        • PJB says:

          I have a related (somewhat) question. Do we know of anyone to whom the 1/6. Committee has granted immunity in exchange for information? If not, does that speak to a very active, if very buttoned up, DOJ investigation of Trump-related persons? Presumably, the 1/6 committee works to deconflict w DOJ and would be very wary about screwing up potential prosecutions. Or maybe I’m smoking something.

          • bmaz says:

            To get real immunity, it cannot be any “committee” nor even Congress. That has to be done also by DOJ and the Court. So, no.

            • PJB says:

              I guess I misspoke. I was thinking about how Ollie North was given limited immunity so he could testify before Congress and it ended up causing his subsequent criminal conviction to be overturned. I just assume that because nobody has testified to the 1/6 committee under grant of immunity is yet another indication the DOJ investigation and potential indictment of senior Trump folks is extant and closely guarded from that kind of untoward possibility. But, maybe I’m not thinking about this correctly.

              • gmoke says:

                I believe the January 6 Committee is well aware of how “limited immunity” bollixed the Iran-Contra cases and is avoiding a recurrence as if it were the plague.

  5. viget says:

    So, Marcy (or bmaz) , is conspiracy to commit 18 USC 2383 off the table then?

    Because from where I stand, Trump’s conspiracy to obstruct the vote certification and possibly kidnap and/or murder Pence certainly seems like “…incite[ment]….[of] a rebellion or insurrection against the authority of the United States or the laws thereof…”.

    The nice thing about 2383 is that it disqualifies Trump from future office too.

    • Ravenclaw says:

      From everything Marcy has written over the months, it isn’t off the table, no. But it isn’t invoked readily because of the extreme difficulty of obtaining a conviction combined with the fact that the penalties for the obstruction charges (which are much easier to prove) are almost as severe. As witness the changes in the Oath Keepers conspiracy case, though, DOJ is willing to make the switch once they are reasonably sure they have sufficient evidence to hold up in court. Again, this is just my reiteration of what I’ve read here, and if I have something wrong I’m sure it’ll be pointed out – pointedly (rueful laugh).

  6. Pegleg55 says:

    I feel sheepish that my first comment here is the written equivalent of sending coals to Newcastle. That said, I so appreciate the effort, intellect and integrity that Dr. Wheeler provides her readers. The combination of meticulous attention to detail while keeping the broader context in sight is just so fucking impressive.

  7. Peterr says:

    This post puts a new twist on “habeus corpus” as it puts all the corpuses (corpii?) at the Capitol front and center.

    Meanwhile, Trump & Co would rather not talk about the corpuses (corpii) at all.

  8. Pete T says:

    Re: @Makeitso comments on missing phone logs.

    Wouldn’t common carrier telco(s) have records of calls in/out of the WH switchboard?

    • bmaz says:

      Yes, and they fork them over for specific numbers if you subpoena them. But you have to have the specific numbers. And they only keep them so long.

      • Sylvia Henry says:

        Follow up question.
        Would the WH switchboard have a record of numbers from incoming calls?

      • Duke says:

        I suspect there are individuals in the TFG’s circle who still don’t comprehend all of the traceable identifiers involved digital communications.

        Given the nature of the events on January 6 and the national security implications, I hope there was a collection of information preserved en masse.

        • Stacey says:

          I have begun using Zello, the walkie talkie app, for work, which is the/one of the apps insurrectionists used for comms in and around the capitol.

          Funny story: you can literally see an exact trail of movements inside a building for someone using Zello–better outside buildings honestly, but it’s like watching a video of mouse urine in black lighting to see where the little critters went that day.

          Note to future criminals: maybe not the best choice?

          • Chuck M. says:

            Court documents suggest the FBI has been using controversial geofence search warrants at a scale not publicly seen before, collecting account information and location data on hundreds of devices inside the US Capitol during a deadly invasion by a right-wing mob on January 6.

            While Google receives over 10,000 geofence warrants for location data in the US a year, those covering the Capitol breach appear to have been particularly productive, apparently enabling the FBI to build a large, searchable database in its hunt for the rioters. etc….

            It seems to me they can identify phones within the fence. I don’t think “burner” phones are excluded. But perhaps too much time has elapsed to retrieve relevant data from the telcos.
            I put it out there because we know it’s been used just for the purpose of identifying phones within it.

            • Leoghann says:

              The question of who was within the White House and surrounding property on the sixth isn’t an issue. If a geofence also gives outgoing and incoming call data, I’ve not heard of it. Now, as far as meetings in the White House from 30 Dec 20 through 05 Jan 21 is concerned, that data would indicate whether certain evildoers were there when they and WH staff deny there was any contact.

            • HW3 says:

              afaik geofencing is about device location, not device use. I guess you could try to subpoena call records for all devices known to be within a particular area. That would be a serious haystack to have to sort through.

            • Anne says:

              To identify cell phones in a particular place, the phone company can do a “tower dump” but it has to be in real time: the phone company knows where every phone is right now but doesn’t know or care where it was 30 seconds ago. Call data (including SMS) are Call Detail Records and are kept for months.
              The definition of a “burner phone” is that the phone company doesn’t know who it belongs to. Some countries have outlawed them.

  9. Hoping4Better_Times says:

    My understanding of the events of January 6 (and all efforts leading up to the Jan 6 attack) is that of a grand conspiracy involving many people. I am not a lawyer, but I think I understand conspiracy. It is a plan to do something illegal by two or more people. Members of the conspiracy need not understand the entire scope of the conspiracy; they need only to do one activity to further the conspiracy. Judge Carter’s ruling implicated Eastman and trump in a conspiracy to obstruct an official proceeding of congress. There are many, many others who also participated in some fashion in the conspiracy, too. Wittes’ opinion (citing Jack Goldsmith) is that DOJ may(?) be conflicted about bringing charges against trump because he was president. That does not stop DOJ from charging others in the conspiracy like Eastman, Giuliani, Meadows et al.

    • Leoghann says:

      But in working to further the conspiracy to obstruct the vote count, Trump was not acting as President; he was acting as an individual who was campaigning for the office.

  10. earlofhuntingdon says:

    Wittes, a non-lawyer writer currently a fellow at Harvard’s law school – seems a little long on rhetoric and short on context. His point, though, is to publicize Judge Carter’s conclusions, which I applaud.

    Carter’s language is rare and straightforward: TFG more likely than not committed crimes against the United States, intended illegally to keep him in office. (A holding necessary for his conclusion that certain evidence before him was not subject to privilege.) Carter’s careful framing merits repetition, in part because so much of the media wants to ignore it or get it wrong.

    Wittes sets this up, though, as if he were grading a freshman essay. He seems surprised, for example, that a federal judge sticks to the facts – no conclusions, interpretations and virtually no rhetoric. Perhaps he’s been reading too many opinions by Trump appointees. He seems surprised, too, that the version of the facts Carter uses is that supplied by the party against whom he is ruling. That’s routine in, say, motion practice, where the record has not been fully contested in an adversarial proceeding. I like his conclusion, that Trump and his cohort were engaged in,

    an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government.

    But as EW points out, Judge Carter tells a different story, one about, “an attempt to obstruct a vote certification.”

    • Savage Librarian says:

      “But as EW points out, Judge Carter tells a different story, one about, “an attempt to obstruct a vote certification.” “

      Take your pick: God, the devil, angels, governing, the truth…It’s all in the details. And it makes a big difference in outcomes because of how the narrative
      flow can be manipulated.

      It’s really important for all responsible media to get this right. So, all you media lurkers, pay attention. What’s most important here? Maybe give it a 2nd read.

      I speak from the heart here. In my own experience the media got the central, critical issue wrong. They engaged with the more swashbuckling aspects. Not that these weren’t interesting and concerning. But they led to a situation where the bad actors were able to manipulate and control the narrative. And I believe it ended up adversely impacting what could have been a much healthier result. So, take heed.

      • Obansgirl says:

        NPR On Point had an interesting show this morning on how far right disinformation has become the narrative. Guest speakers Natalia Antelava and others quite informative.

  11. Lucky aka John says:

    Fascinating stuff. I think it is so important to call out the ‘hot take’ punditry for their lack of ‘effort’.

  12. WilliamOckham says:

    This paragraph (that Marcy quoted above) is exactly why the missing pages from the WH call log are key:

    President Trump returned to the White House after his speech. At 2:02 pm, Mark Meadows, the White House Chief of Staff, was informed about the violence unfolding at the Capitol.50 Mr. Meadows immediately went to relay that message to President Trump.51 Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”52

    During the riot, Vice President Pence, Members of Congress, and workers across the Capitol were forced to flee for safety.53 Seeking shelter during the attack, Vice President Pence’s counsel Greg Jacob emailed Dr. Eastman that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day.”54 Mr. Jacob continued, “[a]nd thanks to your bullshit, we are now under siege.”55

    Literally all of the actions described are during the call log gaps. It’s highly likely that the reason that those pages are missing from the call logs is that they show Trump communicating with someone involved in the attack.

    And I’ll remind folks that the WH call logs are created by specific people employed as WH switchboard operators. The folks who were working that day are quite likely to remember who called Trump and who Trump called. And the FBI probably has the call detail records of any cell phones that were involved.

    • emptywheel says:

      The other equally likely possibility is that they include comms with people who knew of Pence’s whereabouts. Probably too with Paul Gosar. And possibly with Stone, who was in contact with the militias. Possibly, too, with Alex Jones.

      • WilliamOckham says:

        Well, Stone and Jones fall within my definition of “involved in the attack”. I not sure they would have hidden communications with Gosar (they didn’t with Hawley, granted that was in the morning). I’m intrigued by “people who knew of Pence’s whereabouts”. That one hadn’t occurred to me.

      • pdaly says:

        Or what about a call to the office/person(s) who could revoke/interrupt the keycard pass access inside the U.S. Capitol for VP Pence and his security detail as they were running for cover?

    • civil says:

      This CNN article ( says that “White House landlines, White House cell phones and personal cell phones … do not go through the switchboard.” If it’s correct, that accounts for J6 calls that didn’t appear on the Switchboard call logs despite having been made from a WH phone.

      I was mistaken in a previous comment (, where I assumed that the call log was supposed to be manually updated with calls that aren’t automatically logged. Rather, the Switchboard call log doesn’t get updated manually. It’s the Presidential Daily Diary that’s supposed to identify the full set of calls, whether or not they were captured automatically in the Switchboard call log.

      The bigger issue is that p. 3 of the Jan. 6 PDD — — is missing so much information, including calls that should have been added per the PRA. This article has some useful info about who else would normally be involved in the production of the PDD:

    • harpie says:

      NEW today:

      Trump’s presidential diarist tells Jan. 6 committee White House officials provided less detail about his activities days before riot Updated 8:56 AM ET, Sat April 2, 2022

      Just days before the US Capitol riot, White House officials started providing fewer details about then-President Donald Trump’s calls and visits, the person in charge of compiling those activities for the official record told the House select committee investigating January 6, 2021, according to two sources with knowledge of the probe.

      The committee interviewed Trump’s presidential diarist roughly two weeks ago. That interview has not been previously reported, nor has the testimony describing a noticeable drop-off in information provided by Oval Office staff leading up to January 6. […]

      • P J Evans says:

        ISTR this was about the time when his daily schedule changed to “he will have many important meetings and many important phone calls”.

        • harpie says:

          You’re RIGHT, PJ! Thanks for thinking of that!
          That made me FINALLY decide to trace that back.
          That schedule was posted in the evening of 1/3/21 for 1/4/21:

          8:20 PM · Jan 3, 2021

          This is a new addition to the President’s daily schedule

          “President Trump will work from early in the morning until late in the evening. He will make many calls and have many meetings. “ [screenshot]

          The final [and only other] sentence of the schedule:

          “The President will depart the White House at 6:10PM for a victory rally in Dalton, GA.”

          “victory rally” LOL! at the propaganda.

          • harpie says:

            1/3/21 was the day WaPo published
            the RAFFENSPERGER call from 1/2/21.

            It was also this day:
            1/3/21 After telling [Jeffrey] Clark he will not be fired by his subordinate, Acting AG Rosen calls Meadows to say that he needed to speak with Trump that day, which Meadows arranges for that evening.

  13. massappeal says:

    Another excellent post, thank-you.

    DOG’s legal work is important and impressive, but the lack of public understanding about the Jan. 6 insurrection (and the events/conspiracies leading up to it, and continuing after it) is due in large part (imho) to the failure of politicians to do their job. In particular, the House Select Committee needs to hold public hearings. Lots of them. Several hours a day. For 2-3 weeks at a time. And then do it again a few weeks later.

    This is a political fight as much as (or more than?) it is a legal fight. And part of the political fight is doing public work publicly so that the citizenry can develop a sense of what’s going on.

    The Senate Judiciary Committee hearings are an example: Republican senators went after Judge Jackson with everything they had…and at the end of the week, according to recent polling, she enjoyed *more* public support than she did before the hearings.

    • Leoghann says:

      I disagree about hearings held now or in the near future. For DOJ, it is essential that investigations be done behind the scenes and out of the public eye. In that Jan 6 Select Committee are coordinating to some (maybe considerable) degree with DOJ investigations, I fear that airing lots of the information the Committee has learned in public hearings would serve to blow the whistle on DOJ’s criminal investigations before they’re ready to indict or arrest.

    • earthworm says:

      MSM is an out and out propaganda machine. It looks to me that Democrats could do a lot more to call out and counter GOP disinformation, in a methodical, consistent, unhysterical way. We need more than SNL and a handful of comedians on the task of de-legitimizing the rightwing characterizations of J6 events.

      • Rayne says:

        Offer suggestions on how to do that. As far as I can tell, most people can’t even be bothered to follow elected Democrats’ feeds on Twitter or other social media, let alone state and national party feeds.

        • Sue 'em Queequeg says:

          It would be nice to see a coordinated Dem effort aimed head-on at reframing the conversation and letting them play offense for a change. A worthy opponent for MAGA, which, from the standpoint of communications strategy and engineering, is a grand slam in the ninth of game seven.

          Would a campaign based on an idea like “The Big Truth” work? Maybe, I have no idea. But the science-informed art of creating and assessing political campaign themes that is used today was perfected at least 50 years ago. There’s a process, you reverse-engineer from how the target audience(s) think, it’s hard and disciplined work, and until you’ve done that process you can’t really have much idea what looks like the most promising strategy and what its most effective seven-or-fewer word distillation will be.

          The process is not foolproof. You can go through it and still get things badly wrong. And sure, you might skip the process and get lucky with some spur-of-the-moment inspiration. (Would be fun to know the story of MAGA in this respect.) The process is like any tool: depends on how good you are at using it.

          To be honest, at this point it seems as if the larger problem is persuading the right people that they need to do this exercise — or for that matter, identifying the right people. So far nobody seems to think it’s their job.

  14. john paul jones says:

    As I understand it, the J6 cttee will hold hearings before the summer, but they want to make sure prior to doing so that they will be presenting a coherent narrative for the public (and for the media, who will be relaying this to the public). Given the reporting so far, I would say their caution – if that’s what it is – is justified.

    • viget says:

      Agree 100%. They only get one shot to get this messaging on point and as cogent as possible, such that the disinformation machine (and increasingly I’m including major network media in that) cannot possibly twist it into some partisan narrative. Well timed speaking indictments from DOJ would be helpful too…

      • bmaz says:

        People seriously need to stop hoping that criminal process will salve the political problems. That is not how criminal law functions. Nor should it be.

      • Leoghann says:

        The major network media seems to be working diligently to become more a part of the disinformation machine. Just think, CBS could make their new hire, Mick Mulvaney, their special correspondent on the hearings.

      • massappeal says:

        Thanks for your comment. With respect, I disagree.

        With a trial, the prosecution gets only one shot. With politics, both sides/all parties get multiple shots. To take an extreme example, recall how many different hearings Republicans held on Benghazi. Why? Because they benefited politically by hammering home variations on the same theme.

        Just as committees working on legislation sometimes hold different hearings with different panels of witnesses (in different parts of the country even), there’s nothing stopping the Select Committee from holding a week of hearings in April with one set of witnesses, then another week of hearings in May with a different set of witnesses, then two weeks of hearings in June on another aspect of the insurrection. They can show videotape. They can interview participants. They can interview police officers. They can hear from constitutional experts.

        By engaging publicly in public business, they can change the narrative, demonstrate that nobody—not even an ex-president—is above the law, and do what can only be done by means of politics: take away Trump’s political power.

        • bmaz says:

          They can “interview police officers”? Under what authority? “They can show videotape”? With what foundation? Seriously, people have their heads up their asses as to how things work.

          • blueedredcounty says:

            I can understand how “interviewing police officers” and “showing videotape” would be problematic in court, and your comment about people having heads up their asses would follow…if that was what massappeal had been talking about.

            They were saying exactly what you said in your previous comment about not using the criminal justice system. They weren’t talking about using the courts or DOJ, they explicitly stated Congressional hearings. I may not be a lawyer, but I’ve seen enough Congressional hearings to know that nothing described was out-of-place.

            We’ve already had a Congressional hearing this year that interviewed Capitol police. And Congressional hearings call all kinds of people for testimony all the time. Personal example (my company had just been purchased by HP the year this happened):

        • civil says:

          The J6 Committee did have four USCP and MPD officers on duty that day — Fanone, Hodges, Gunn, and Gonell — testify at their first public hearing, and they showed video at that hearing:
          The hearing is worth watching. When I debate conservatives elsewhere, I sometimes quote some of that testimony.

  15. Jim O'Neill says:

    Thank you for this most coherent explanation, Dr. Wheeler. I’m finally learning *how* to learn here, and fully grasping your points in this post has raised my spirits a great deal.

  16. Molly Pitcher says:

    Caroline Wren is being interviewed by Ari Melber on MSNBC regarding the organizing and funding of J6.

  17. John Herbison says:

    The events of January 4-6, 2021 are a seamless web. An attempt to corruptly obstruct, influence or impede an official proceeding is just as criminal as a successful endeavor to do so. It seems to me that Trump and Eastman made at least an attempt to influence the electoral count when they met with Pence on January 4 and importuned him to reject electors. The die was cast by then, and the subsequent events flowed from that unlawful entreaty.

    Trump’s further entreaties to Pence directly (January 6 prior to Congress convening) and his ginning up the crowd to intimidate Pence, strongly corroborate the corrupt nature of the unlawful scheme.

    IMO it would be desirable, but not essential to Trump’s pre-existing criminal liability, to impute the actions of those who breached the Capitol to Trump.

  18. punaise says:

    TPM’s taxonomy: Is The Justice Department Finally Going After The Insurrection’s Big Fish?:

    Team “Where’s DOJ?” vs. Team “Trust The Process”

    One side has criticized the Justice Department for not investigating Donald Trump and his inner circle for subverting the 2020 election. The lack of any public signs of a broader, more aggressive investigation for over a year, they say, shows a troubling lack of urgency.

    On the other hand, a vocal group of institutionalists has urged some perspective: Complex federal investigations take years, not months, and prosecutors are probably slowly working their way up from the rioters to bigger fish, following the facts where they lead. The relative lack of leaks from Attorney General Merrick Garland’s Justice Department, they contend, may actually be a sign of a serious, vigorous prosecutorial effort.

    • Fran of the North says:

      So I guess this site and many of it’s commenters could be construed as ‘vocal institutionalists’?

      Sounds about right!

  19. Charles Wolf says:

    What were TFG and Stephen Miller chatting about for 27 minutes at around 10 AM on the morning of Jan 6?

    • harpie says:

      Since he was supposedly one of TRUMP’s rally-speech writers, he might say that’s what they were discussing. Maybe that was when they finalized what TRUMP would say about PENCE.

      • Charles Wolf says:

        Could be.
        But then I’d ask if that’s when they planned the bit about TFG announcing he would be leading the march to the Capitol.

  20. Cosmo Le Cat says:

    Another brilliant article by Dr. Wheeler and a great discussion by the commenters.

    Having seen Ford pardon Nixon, the Iran-Contra justice debacle, the phony Mueller investigation, the Trump pardons and the slow pace of the Garland investigation, I am no longer under the illusion that there will be justice. Appeals will take decades and I don’t trust the Thomas Court. Our society is headed over a cliff if a large number of Republican voters can’t be convinced that preservation of democratic institutions is more important than party affiliation. That means our future rides on the success of the upcoming hearings.

    If the hearings succeed, it will be in large part due to the worst political blunder of all time – – the failure to appoint Trump loyalists to the House Select Committee to muck up the works and hog the cameras during the upcoming hearings.

    • bmaz says:

      “Having seen Ford pardon Nixon, the Iran-Contra justice debacle, the phony Mueller investigation, the Trump pardons and the slow pace of the Garland investigation, I am no longer under the illusion that there will be justice. Appeals will take decades and I don’t trust the Thomas Court.”

      Seriously? Get a grip.

  21. Randy Baker says:

    It is very encouraging that DOJ indeed may be doing its job, including investigating Trump. One matter that causes me to doubt, however, is DOJ’s failure to prosecute Trump for the same felonious campaign violation on which it convicted his bagman Cohen– and also, manifestly, the separate offense of conspiring to commit that violation. Regardless of whether prison time would result — although that couldn’t be ruled out– his convictions for those offenses [I don’t think he has much of a defense], particularly the conspiracy, would very likely be admissible against him to show intent, absence of mistake etc. were DOJ pursuing charges related to 1/6, not to mention most of the other crimes he committed in public. So, if DOJ is gathering evidence, why not take the opportunity to avail itself of this potential evidence?

  22. harpie says:

    The 2:02 PM MEADOWS was informed info is new to me.

    2:00 PM PHOTO of WEST FRONT of CAPITOL at this time:

    1:54 PM [WEST side of CAPITOL] [VIDEO]
    [Woman in crowd] Love you Alex Jones!
    [JONES] History is happening! I salute you! Tell everyone you know to go to the other side of the Capitol! That’s where Trump’s going to be!
    1:59 PM [Walking from NW Path to NORTH Lawn] [VIDEO]
    [Man]: Hey Alex, any updates on what our Vice President is doing?
    JONES: He uh, he floundered and was neutral. He passed the ball.
    [In crowd]: Big surprise.

    [Shortly before] 2:00 PM [OATHKEEPER “DC OP: Jan 6 21” Signal chat]

    a participant posted a video titled “live stream of patriots storming capital.” Another participant asked, “Are they actually Patriots – not those who were going to go in disguise as Patriots and cause trouble[?]”
    [SIMMONS] “[T]here [sic] patriots.”
    RHODES: “Actual Patriots. Pissed off patriots[.] Like the Sons of Liberty were pissed off patriots[.]”
    JAMES: “Were coming to Capitol ETA 30 MIN[.]”

    1:59 PM PERSON TEN [SIMMONS] to JAMES Call :30
    2:00 PM JAMES to [SIMMONS] Call 1:12
    [JAMES is at the WILLARD with STONE during this entire time]

    2:00 PM – Alex JONES on North Lawn of CAPITOL [VIDEO]

    JONES [to Police officer]: [We didn’t breach anything.] We just showed up. TRUMP said come down here and try to help.

    – Time of overheard threat to “storm the FBI”
    – Mob reaches police line at the Central EAST Steps
    – [approx.] (crowd chattering) [Video of gallows] (people laughing)

    2:01 PM [SIMMONS] to RHODES Call 1:41
    2:02 PM MEADOWS is informed about the violence at the CAPITOL, and immediately relays the message to TRUMP
    2:03 PM [SIMMONS] to JAMES Call :39

    2:03 PM
    – Upper NW Steps breached
    – rioters try to flank the police by climbing scaffolding. PEZZOLA takes part in the charge. [crowd: Fuck you! Fuck you!]

    2:04 PM JAMES to [SIMMONS] Call 3:36
    2:06 PM CALDWELL to WATKINS Text “Pence has punked out”
    2:06 PM RHODES sends another message to the Leadership Signal Chat asking for [SIMMONS] location before stating, “I’m trying to get to you.”

    2:06 PM
    – The US Capitol is now on lockdown
    – Central EAST Steps breached

    2:07 PM JAMES to [SIMMONS] Call :30
    2:10 PM JAMES to [SIMMONS] Call :55

    2:10 PM BIGGS, CROWD breaches scaffolding [WEST Side] and ascends stairs [Go, go go; This is war, baby!]

  23. Whinger says:

    If the DOJ gets a Trump conviction for the Insurrection, but not for the other things he did to try to overturn the election, that is probably actually a loss in the long run for the country. Those other kinds of actions are what other Republicans are going to try again. Sending fake electors, pressuring secretaries of state to falsify results, etc. are the bigger threat.

  24. Leoghann says:

    Besides all the folks who are despairing because “Garland is doing nothing” and “he’s going to let the organizers get away with it,” I’m now seeing people who are aghast about the missing seven hours of the call logs. Some seem to think that the entire case DOJ is trying to build depended on what was in those logs.

    Not only am I not aghast (maybe irritated) at the paucity of information in those phone logs, I’m not surprised–at all. Part of trusting the process is that I have faith there are some savvy investigators who, like me, expected there to be missing records, cell phones that mysteriously disappeared or self-destructed, and deliberate misinformation. And I trust that those investigators had figured out ways around the 45 administration’s obstruction.

    Those missing or vacant logs may cause the congressional committee some inconvenience, but I’m very, very sure DOJ is on it;

  25. harpie says:

    NEW TEXT from J6 Committee:
    1:48 PM · Apr 1, 2022

    A January 3 [1/3/21] text to Mark Meadows: “I have details on the call that Navarro helped convene… to delay certification… including that the president participated…”

    Peter Navarro must speak to the Select Committee about his role in the attempt to overturn the election. [screenshot]


    [TEXT MESSAGE January 3, 2021]

    Mark – – I am reaching out because I have details on the call that Navarro helped convene yesterday with legislators as part of his effort to get Pence to delay certification of the election for 10 days, including that the president participated. Were you on the call when the president spoke?

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