If You Need to Panic about DOJ’s Investigation into January 6, Panic First about Doug Mastriano

Yesterday, Rachel Maddow reported the exciting news that Merrick Garland released the same memo that Attorneys General always do during election years.

“As in prior election cycles, I am issuing this memorandum to remind you of the Department’s existing policies with respect to political activities.” Rachel was really upset that Garland integrated the requirement for prior approval that was already the norm, but which Barr put into writing (which arose, in part, out of Michael Horowitz’s IG Report on Carter Page, which showed that not everyone had learned of the investigation into Trump’s flunkies in timely fashion). After months and months of inflammatory commentary suggesting that the decision on whether or not to investigate Trump rested exclusively with Garland (and not, as is the reality, a hierarchy of DOJ personnel, starting with a team of career AUSAs), Rachel wailed that the memo requires Garland to do what everyone has long assumed was true: that Garland would have to approve any investigation into Trump.

In response to her irresponsible sensationalism, people immediately concluded that by releasing the memo, Garland had nixed any further indictments before the election.

One reason I’m certain that’s not true is because after Garland released this memo, DOJ arrested declared candidate for Governor of Michigan, Ryan Kelley. Kelley never entered the Capitol on January 6. But in addition to charging him with entering restricted grounds (that is, entering inside the barricades set up around the Capitol), DOJ also charged him with vandalizing the scaffolding set up in advance of the Inauguration. The charging documents also cited some of his other efforts to undermine democracy in the lead-up and aftermath of the 2020 election.

In October of 2020, KELLEY attended the “American Patriot Council Nationwide Freedom March” in Allendale, Michigan. During that event, KELLEY wore a blue shirt, a black coat, a watch with a red watch band, and aviator sunglasses. Parts of this attire were also worn by KELLEY in photos and videos from the U.S. Capitol grounds on January 6, 2021. KELLEY appears at this event in the image below.

In November of 2020, KELLEY was a featured speaker and introduced by name at a “Stop the Steal” rally at the Michigan Capitol in Lansing. During that event, KELLEY indicated that those attending the rally should stand and fight, with the goal of preventing Democrats from stealing the election.

He gave a speech while wearing a name tag and stated “Covid-19 was made so that they can use the propaganda to control your minds so that you think, if you watch the media, that Joe Biden won this election. We’re not going to buy it. We’re going to stand and fight for America, for Donald Trump. We’re not going to let the Democrats steal this election”.

Kelley was arrested on June 9, technically within the 60 day window in advance of the August 2 primary. But DOJ did arrest the gubernatorial candidate in time for voters to learn of his actions during the insurrection (it even was an issue at a recent debate), without creating last minute news before an election like Jim Comey did against Hillary Clinton in 2016.

Kelley’s not the only one against whom DOJ has taken overt investigative steps in the wake of the memo, either. DOJ seized the phones of a number of high ranking subjects in the fake electors plot, including the Chair of Nevada’s Republican Party, Michael McDonald. Indeed, the likelihood a number of subjects of the fake elector plot would be covered by the DOJ policy may be why the January 6 Committee is finally making an exception regarding their refusal to share interview transcripts for that part of DOJ’s investigation: while they’ve been refusing, the window on pre-election indictments for fake elector plotters is closing.

Besides, all this panic-mongering seems really, really badly targeted.

I’m impatient to have some accountability for Trump and his flunkies, just like everyone else (even if, because I’ve followed the investigation, I know that DOJ is investigating Trump’s flunkies). I think, for the reasons I laid out here, a hypothetical Trump indictment wouldn’t come for some time yet, but I’m also confident that if the investigation isn’t open now or soon, Trump’s campaign roll-out would do nothing to thwart opening an investigation. It would require the same Garland approval that would be obtained in any case. Trump wouldn’t even be affected by the DOJ policy on pre-election actions, because he’s not on the ballot this year.

But there is a key player in January 6, someone known to have been under investigation, for whom the window to prosecute is closing as the election draws near, someone who presents a far more immediate threat to democracy than Trump: Doug Mastriano, the GOP candidate for Governor of Pennsylvania.

Mastriano technically could be charged, just for his actions on January 6. Like some other political figures — in addition to Kelley, Couy Griffin, and key influencers like Owen Shroyer and Brandon Straka (though Straka’s original complaint included civil disorder) — Mastriano appears to have been at the Capitol, inside the barriers, but did not enter the building.

The images, shared with NBC News, appear to show Mastriano holding up his cellphone as rioters in the front of the mob face off with police at the Capitol steps. Reconstructed timelines and other videos filmed nearby show rioters would breach this police line within minutes, ripping away a crowd control rope line and rushing past officers up the stairs. The timelines and videos, including unedited versions, that show Mastriano in the crowd were reviewed by NBC News.

A man who appears to be Doug Mastriano takes photos or video with his cell phone on the steps of the U.S. Capitol on Jan. 6, 2021.
 A man who appears to be Doug Mastriano takes photos or video with his cellphone near the steps of the U.S. Capitol on Jan. 6, 2021.@MichaelCoudrey via Twitter

Online sleuths also identified a video posted by “Stop the Steal” organizer Mike Coudrey on Jan. 6 that appears to show Mastriano taking photos or video with his cellphone as rioters face off with police on the steps of the U.S. Capitol. Coudrey’s tweet celebrated the mob, which he said “broke through 4 layers of security at the Capitol building.

Mastriano’s campaign did not respond to NBC News’ request for comment. Mastriano previously said that he “respected all police lines as I came upon them” and that he never stepped foot on the Capitol stairs. One of his campaign aides, Grant Clarkson, was near the front of the mob, NBC previously reported. There has been no evidence that Clarkson entered the Capitol that day and he has insisted he did not.

Mastriano has had ties with a number of the people charged for more serious roles in the insurrection, most notably Sam Lazar, who was arrested a year ago on charges of civil disorder and assaulting cops.

And perhaps to an even greater extent than some other influencers who were arrested for their presence inside the barricades at the Capitol, Mastriano spent the months leading up to the insurrection laying the foundation for it, actions that might make him susceptible to an obstruction charge. This article describes his key role in sowing The Big Lie, most notably arranging for the quasi-official hearing at which Rudy could spread false claims. Mastriano also spoke at the “Jericho March” on December 12, 2020, which was a key networking event in advance of the insurrection.

As laid out in the SJC Report on the topic, Mastriano also pressured DOJ to intervene to overturn the election. When Trump complained to DOJ that they were ignoring fraud claims on December 27, for example, Mastriano was — along with Jim Jordan and Scott Perry — one of the people whose complaints he directed Jeffrey Rosen to attend to.

Trump twice calls Rosen. During the second call, Rosen conferences in Donoghue, who takes extensive notes on Trump’s claims that the “election has been stolen out from under the American people” and that DOJ is failing to respond. Trump mentions efforts made by Pennsylvania Representative Scott Perry, Ohio Representative Jim Jordan, and Pennsylvania State Senator Doug Mastriano, and asks Rosen and Donoghue to “just say the election was corrupt and leave the rest to me and the Republican Congressmen.” Trump also references Jeffrey Clark and potentially replacing DOJ’s leadership.

Mastriano also paid $3,000 to bus people into the event.

On paper, then, Mastriano is the kind of influencer-organizer that DOJ has been investigating for some time, but he has not yet been charged.

The FBI have carried out investigative steps with regards to Mastriano. A CNN report from last month says he was interviewed last summer (and sat for an interview with the January 6 Committee).

The FBI has been conducting an expansive investigation into the January 6 riot and questioned Mastriano last summer after photos emerged of him on Capitol grounds that day, according to the source familiar with the interview, which has not been previously reported.

Mastriano has not been accused of committing any crimes and cooperated fully with the FBI, according to the source. Asked about Mastriano’s interview, an FBI spokesperson told CNN that the bureau “cannot confirm the existence of an investigation or comment on details.”

The lapsed time since his FBI interview doesn’t mean he won’t be charged; such delays, even longer ones, are common for those arrested for January 6. Plus, Mastriano is someone whose communications, including with Rudy and probably John Eastman and Ali Alexander, have likely shown up in materials seized or subpoenaed by DOJ.

But if DOJ is going to charge Mastriano, they have slightly more than 50 days to do so in order to comply with the DOJ guidelines.

And when I say he poses a more urgent threat to democracy right now than Trump, that’s not just about the impending election. In addition to regressive policies that are typical of the GOP these days, such as a no-exception ban on abortion, he poses an immediate threat to democracy itself. He has publicly committed to attacking democracy itself.

Those concerns are made especially acute in Pennsylvania by the fact that the governor has the unusual authority to directly appoint the secretary of state, who serves as chief elections officer and must sign off on results. If he or she refuses, chaos could follow.

“The biggest risk is a secretary of state just saying, ‘I’m not going to certify the election, despite what the court says and despite what the evidence shows, because I’m concerned about suspicions,’” said Clifford Levine, a Democratic election lawyer in Pennsylvania. “You would start to have a breakdown in the legal system and the whole process.”

Mastriano’s backers appear well aware of the stakes. A video posted to Telegram by election denial activist Ivan Raiklin from Mastriano’s victory party on Tuesday showed the candidate smiling as Raiklin congratulated him on his win and added, with a thumb’s up, “20 electoral votes as well,” a reference to the state’s clout in the electoral college.

“Oh yeahhhh,” Mastriano responded.

Mastriano did not respond to a voice mail or an email sent to a campaign account for media.

But Mastriano told Stephen K. Bannon, a former adviser to Trump who now hosts a podcast popular on the right, that he had already selected the person he would appoint as secretary of state if elected.

“As far as cleaning up the election, I mean, I’m in a good position as governor,” he said in the April 23 appearance on Bannon’s “War Room” podcast. “I have a voting-reform-minded individual who’s been traveling the nation and knows voting reform extremely well. That individual has agreed to be my secretary of state.”

Mastriano has been buying followers from the far-right social media site, Gab. And he has ties to Russian-backed far-right propagandists.

A number of people have said, with no exaggeration, that a Mastriano win would virtually guarantee no Democratic candidate could win the state’s presidential votes in 2024.

If DOJ is going to expand its prosecutions to those who laid the groundwork for January 6, they are going to be charging people like Doug Mastriano. There’s little doubt that Mastriano, as much as anyone who went inside the building on January 6, as much as Trump, was trying to prevent the lawful transfer of power.

Yet DOJ only has seven weeks left to charge Mastriano before DOJ’s election guidelines would prevent that from happening.

If you want to panic, panic first about Mastriano. Because the threat he poses to democracy is far more imminent than the very real threat Trump poses.

Update: Politico has a piece on Mastriano talking about how close it is in PA, and NYT has a piece using Mastriano as illustration of the increasing embrace of conspiracism on the far-right.

Update: This thread from an online researcher tracks Mastriano’s movements around the Capitol on January 6.

113 replies
  1. JohnForde says:

    Based on the video I’ve seen Mastriano is the creepiest candidate in America. Invokes Jesus, smiles fraudulently and publicly proclaims he is going to overrule the electorate.

    • emptywheel says:

      He is an unabashed fascist. And he’s networked into all the fascists who helped Trump with The Big Lie.

      • Rugger9 says:

        Indeed, and even Mastriano knows he’s got fascism issues because he scrubbed some inconvenient rants from his social media records. However, Doug, the Wayback Machine is forever.

        However, the current kid glove treatment is curious now that the primary is done, and even if he did not enter the Capitol (which I think he probably did even if we don’t have the tape yet because none of these jamokes do things by halves) his bus business makes him an accessory all by itself.

        Once Fetterman stomps Oz into the dust it would help if Fetterman takes a whack or two at Mastriano.

          • matt fischer says:

            I’m not sure it’s quite that simple. As I understood the ruling, records from the Wayback Machine are not necessarily admissible as evidence, but could potentially be. They were ruled as not being “self-authenticating,” but I believe that “testimony to authenticate the archived webpage” from a qualified party could have made it admissible.

            • Robert says:

              Its is easy to authenticate Wayback Machine webpages using the same service that keeps and creates them. They are also generally admissible in federal court, but not necessarily for the truth of the matters asserted. United States v. Gasperini, 894 F.3d 482, 489-490 (2d Cir. 2018) (screenshots of the defendant’s website from the Internet Archive identified by a witness with knowledge of the Wayback Machine were admissible over the defendant’s objections); United States v. Bansal, 663 F.3d 634, 667-668 (3d Cir. 2011) (same). In fact, courts “routinely take judicial notice … of the Internet Archive’s Wayback Machine as reliable evidence of how a particular website appeared on a particular date.” Munn v. Hotchkiss School, 165 A.3d 1167, 1203 (Conn. 2017) (citing Perera v. Attorney General, 536 F. Appx. 240, 242 n.3 (3d Cir. 2013); Pond Guy, Inc. v. Aquascape Designs, Inc., No. 2:13cv13229, 2014 WL 2863871, *4 (E.D. Mich. June 24, 2014).

              [Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Robert” or “Rob” or “Bob.” This is your second username as well; though it’s been a while, you last commented as “Beretania.” Please stick to a single username so community members get to know you. Thanks. /~Rayne]

      • Civil Discourse says:

        Ty, yet again.

        I laughed, I cried, and yes, ‘fist bumped’ the air reading this cogent, timely piece. (I’m having a fairly rough week and it’s only Tuesday).

        Yet again, Marcy Wheeler proves she is a peerless purveyor of truth when it comes to national security, civil liberties, wit, and the well placed use of emphatic profanity.

        With gratitude,
        Civil Discourse

      • gmoke says:

        An unabashed fascist who taught at the Army War College for about 5 years. What did he teach his students, where are all his prize pupils, and what are they doing?

        We have to follow all the links of the chain if he want to root out the anti-democratic evil.

        • Greg Hunter says:

          Interesting…I will have to look when he served as Wyoming has a ring knocker running for US House against Cheney that has that on his resume. Colonel Denton Knapp.

          • Alan Charbonneau says:

            Mastriano’s resume shows
            2009-2010 U.S. Army War College, Carlisle, Pennsylvania.
            (I assume he was a student)

            2012-2017 Professor Army War College (PAWC), Carlisle, Pennsylvania

            Knapp wrote an article on cybersecurity and he’s listed on the author page as “Army War College Class of 2012”.

            At the war college, half the students are on-campus for ten months and half are on a two-year distance learning program. I’m not sure if this was the case back then. I will assume Knapp was on-campus.

            Assuming the 10-month class takes place in the same calendar year and not a fall-to-spring semester system, then Knapp would have been enrolled when Mastriano began teaching there. If the college program is across two calendar years, Knapp might’ve graduated just prior to Mastriano’s appointment to the college, but I’ve got a feeling the former is more likely-they knew each other.

            • Alan Charbonneau says:

              A bit more info…
              The Army War College Class of 2012 began Aug. 5, 2011 and ended the summer of 2012

              I can’t find Mastriano’s start date. If he began teaching in 2012, he may have missed Knapp.
              BTW, there is a Facebook group page for the class of 2012.

        • Alan Charbonneau says:

          And he’s a historian credibly accused of fabricating parts of his research into Sgt. York.

    • bmaz says:

      Have you met Trump and Theil’s boy here, Blake Masters? Better gas up the machine and come on down.

      • earlofhuntingdon says:

        I hear Pete Thiel has cornered the market on brown twill shirts. He’s also a big backer – $15 million and counting – of GOP Senate candidate J.D. Vance, in Ohio, as well as Masters in Arizona.

        A polite rendition of Thiel’s opinions is that democracy is incompatible with “freedom.” His freedom, that is, to pillage, while refusing to support the society that makes his profit-taking possible. Why is it that these fascist billionaires all sound like a Lord of the Flies campfire reading of Ayn Rand?

        • Rugger9 says:

          Is there anyone that Thiel has backed in the political arena that isn’t a mouth-breathing antediluvian troll?

              • Civil Discourse says:

                Sadly, this is why I don’t trust Ro Khanna…who has never explained Thiel’s political contribution to his campaign (that I am aware of).

                I am on Trojan Horse alert.

                • Rugger9 says:

                  Ro’s my representative and I disliked him ever since the hatchet job he did on Mike Honda. However, the GQP keeps running nut cases against him and no one on the D side has the cajones to challenge him either. It’s not like he’s set the Congress on fire with his work effort. I’d rate him as useful as Carole Maloney.

                  So, I vote against Khanna in the primary.

                  • Civil Discourse says:

                    TY for your insight, RUGGER9.
                    He’s not my Rep, here in my part of The Bay.
                    I like my Rep who, oddly, is a former Republican, and def votes as a progressive.

                    I watch Khanna’s ambitions with a side eye.

                • Tracy Lynn says:

                  I’m not in Ro’s district, but I do live in an adjacent one. It has always been my impression that he is a Silicon Valley Bro, which might help explain Peter Thiel’s donation. Although Khanna calls himself a “progressive” (he might very well be), he doesn’t seem to move the needle much wrt legislation. He might be Thiel’s tame pony.

            • Molly Pitcher says:

              As an alum, I fully admit to my Cal bias, but note that Thiel and Masters are both Stanford grads. It is an institution which has produced an inordinate number of brilliant, narcissistic, up and coming fascists. The campus reeks of the entitlement of the smartest kid in high school.

              I posted this before, but it is really worth reading to understand the full evil impact of Thiel and Masters.


              • Rugger9 says:

                Indeed, the Farm is a bubble. I have a phrase: ‘Stanford Liberals’ which refer to their habit of proclaiming progressive values (they kicked ROTC off campus during Vietnam) until it affects them or they have to pay something for it.

                All one really needs to know is that the unapologetic Condie Rice is still Provost there.

  2. ernesto1581 says:

    interesting: per Pennsylvania Administrative Code of 1929,
    Secretary of the Commonwealth is filled via appointment by governor & with consent of the legislature. Sec. 68a/Title 71 of Penn. statutes indicates the secretary does not have a defined term length and serves at the pleasure of the governor. There are no specified qualifications for the office.
    Do you have any idea who Mastriano is conjuring, this “voting-reform-minded individual?”

    • WilliamOckham says:

      My money would be on Jenna Ellis. She recently joined his campaign as his senior legal advisor.

        • Rugger9 says:

          Probably for stuff like this and later to challenge election results. However, as noted before on an earlier thread Ellis has her own legal skeletons from CO which might become more important later.

          Jenna also has exposure to the J6 plot investigation since she’s a key part of Team Kraken.

        • Peterr says:

          To show that he is Someone Who Matters.

          “I don’t just have a legal advisor – I have a SENIOR legal advisor. Probably some regular legal advisors, too, but I don’t concern myself too much with The Help.”

      • earlofhuntingdon says:

        If Ellis is the senior adviser, I’d hate to see the talent hired as junior legal adviser.

            • Nick Caraway says:

              She is up to no good (ling), and is seemingly receiving wingnut welfare. Per wikipedia
              “Monica Goodling married Michael Krempasky, co-founder of RedState.com. She is currently employed under her married name, Monica Krempasky, at Corallo Media Strategies, a Virginia public relations firm run by former John Ashcroft spokesman Mark Corallo.”

  3. Hoping4Better_Times says:

    Mastriano’s democratic opponent is Josh Shapiro, who is currently the Pennsylvania AG.
    Shapiro is not barred from using all the negative information on Mastriano in his campaign up to the day of the November election. No doubt Shapiro will try to tie Mastriano to trump and the Big Lie. Mastriano was endorsed by trump. The November election will be a test of trump’s strength in Pennsylvania.

    • bmaz says:

      Yes, Josh Shapiro, the jackass that tried to lock up Dana Bazelon. That guy is the great hope for PA.

      • HorsewomaninPA says:

        Actually, that is not true. Bazelon was arrested by Philadelphia Police and then charged with child endangerment within the city. Due to her being an employee, it was referred to the PA AG. PA AG office determined that she should do some counseling and when she did that, the charges were withdrawn. And yes, Josh is the great hope for PA.

        [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your third user name; let us know by reply if you intend to stick with this username. Thanks. /~Rayne]

      • tinao says:

        Wait a minute bmaz, how is the State Attorney General involved in something like this:

        You really think the arresting officers had time to consult him or his aides? It sounds more like Philly infighting to me. I’m not being snarky, your comment actually informed me of something I wasn’t aware of.
        Anyway, I just went to a meet and greet with Shapiro and found him to be authentic and concerned with the some of the same things I am, elections,education, and the environment.
        Thinking people in PA are horrified about mastriano, but being from trump country I am well aware of the numbers of those who prefer to let liars and bloviators pump up their emotions and make their choices for them.

        • tinao says:

          Oh yeah, I did thank him personally for prosecuting the priests. It took long enough for someone to have the balls to do that!

        • bmaz says:

          Because he insinuated himself into it. Shapiro is better than the alternative for Governor, but he is still an ass.

          • gmoke says:

            Everybody has an ass and thus everybody IS an ass according to synecdoche.

            This is part of one of my impolite aphorisms but I won’t repeat the entirety as women tend to get angry at the impolite colloquial term used for their genitalia.

      • Eureka says:

        Yeah well he’s our only hope — OUR ONLY HOPE right now. Not only for Pennsylvanians immediately but possibly for the whole country in 2024 depending on how the EC shakes out (besides consequences from whoever in power might follow a Gov. Mastriano through the Overton window in the interim).

        According to Krasner/DAO, it’s factually inaccurate to say that Shapiro insinuated himself into it.

        I don’t even know what to say here with all of the rights — life itself for many — at stake. To call him merely better than the alternative is an understatement.

        You are very influential, bmaz, and a lot of folks (including susceptible lefties) read here or your words elsewhere. We don’t need an undervote or anyone abstaining. I’ve not seen a single poll where Shapiro is beyond the margin of error. Consider applying the screws after he’s — I HOPE — inaugurated (yep, that’s right — we are all hostages and notions of leverage change). Please.

  4. Charles R. Conway says:

    No matter complaints regarding Josh Shapiro, I will cast my ballot for him, not Mastriano.
    See today’s Inquirer for the story of Mastriano calling “fake news” on the Inquirer’s earlier report of his selective scrubbing of his Facebook account.
    Today, his incredible claims that it was a “default” scrubbing are exposed.

  5. J R in WV says:

    These guys are amazing self-confessed fascists, yet somehow they manage to win primary elections in the Repub… wait, I’ll come back in again!!

  6. viget says:

    Why does Raiklin’s name just keep on coming up so much recently?

    If you want to save democracy, he’s the one who absolutely needs to be indicted.

  7. Ginevra diBenci says:

    Here’s hoping that Fetterman drives enough turnout that Shapiro can ride his wake to defeat Mastriano, a true Christo-fascist who does indeed pose an imminent threat as long as he remains on the national stage.

  8. WilliamOckham says:

    Something’s been bugging me ever since we learned that Trump planned in advance (and tried really hard) to go to the Capitol on January 6. “Went to the Capitol on Jan 6, but didn’t go inside the building” has been seen as signifying a lower level of culpability. That assumption is dangerously wrong. Rather, for folks like Mastriano and Jones, not going into the building seems to indicate that they were in on the plan and waiting on Trump to show up to lead them inside.

    • Rugger9 says:

      There are a couple of possibilities. One is that being politicos Mastriano, et al would understand the future damage to their careers. However, these are all-in types and I don’t think once the rioters got in that they’d be OK with missing out. The second is that they are really daring the investigators to catch them on the videotapes and blow their story, and FWIW there were a couple of those examples but not Mastriano…yet.

      Veering OT into USSS claims, I find it hard to believe that the NSA / FBI or both don’t have the texts already copied since these are just wireless transmissions. Remember that part of the reason for the seditionists to be there was to go up against ‘ANTIFA’ types engaged in ‘stealing’ the election, so there is no question in my mind that the FBI at least was there to spy. Whether the feebs look out for their USSS brethren on shared interest grounds remains to be seen. However, I think there are tapes somewhere.

    • emptywheel says:

      Some of them were speakers. But … yeah, that’s a really good point. Especially the ones who took golf carts to get there.

      • emptywheel says:

        Adding, that Hutchinson’s testimony made it clear that Perry and Meadows were planning a role for Trump at the Capitol. Which makes it virtually certain Mastriano knew of it.

    • earlofhuntingdon says:

      Agree. Generals – and retired army colonels, like Mastriano – might remain on the hillside, directing their troops, but they are principals in the battle as much as any soldier with a bayonet in the middle of the fray.

      I’m still stuck on how an armed federal agency can have a telecomms plan that does not preserve all data when servers, devices, and/or s/w is changed out or upgraded.

      • earlofhuntingdon says:

        The USSS has a data retention process that relies on individual, non-tech employees to voluntarily upload to agency servers comms data on their devices, and it is not independently and automatically backed up?

        If true, it’s a splendid recipe for keeping secrets and data loss. If true, the CIO of the USSS and DHS need to find another line of work. Hard to imagine that process has ever been ISO compliant; it probably has not been a valid protocol for thirty years, if ever.


        • P J Evans says:

          I can’t imagine a business of any size being able to get away with that – their lawyers would be screaming at them. (We were run through short courses on retention every year, even though most of us didn’t handle anything that would be covered. And the systems got backed up nightly/weekly.)

        • WilliamOckham says:

          The Secret Service is admitting they broke the law. That’s why the National Archives is demanding answers. You can read the applicable regs in this pdf:
          (Skip down to the “litigation hold” rules).
          Thanks to the inimitable Jason Leopold, the SS had a legal requirement to preserve those text messages on 11-Jan-2021 when Leopold FOIA’ed them. Their FOIA office acknowledged that they had responsive records on 19-Jan-2021.

          As a side note, the design of the IT modernization effort violated the rules, irrespective of any legal retention requirements.

          • Theodora30 says:

            If my understanding is correct FOIA requires that records be kept even when no one has requested them. The Secret Service is covered by that law so even if they hadn’t been told to keep records they were legally bound to do so.

            • tinao says:

              America Come Home
              First I planted roses for my family
              Now I’m planting lilies for our children.
              How little distance between now
              and a civil war
              as the world starts to BURN.
              Can humanity have some humanity?

      • gmoke says:

        If I read his Wikipedia page correctly, Mastriano was stuck at Lt. Col, the rank where you stop if you will never rise higher, and “relegated” to the War College for the last years of his service. He went full bird Colonel only on the day he retired.

        As I’ve said, I worry about what he taught and who he taught while at the War College. Many dragon eggs may be buried there.

        • Theodora30 says:

          I am more disturbed by the fact that Michael Flynn rose to the level of General then became director of the Defense Intelligence Agency before Trump appointed him to be his National Security director. That last appointment is inexcusable but needs no explanation — the rest do.
          I recently read that retired officers are required to continue to live by the oath they took they and can be held accountable by the military if they break it. The military, not just DOJ, should be going after all those retired military guys who participated in 1/6.
          The military is far too tolerant of right wing anti-democracy authoritarians in their ranks. I personally know a young man who is a graduate of West Point and is an active duty member of the Marines who constantly posts extremist anti-democracy ideas on his Facebook page for all to see. He has refused to get vaccinated, promotes Q conspiracies, etc. He is so extreme that he even gets pushback from some of his fellow soldiers yet he has faced no consequences from the military.

          • bmaz says:

            Except there is currently a case that says you can’t do that unless it is for a crime committed before retirement. This comes up relentlessly, and it is still not true.

            • Rugger9 says:

              It might actually be harder to find something on Mastriano than Flynn that dates to his time in service. Unless Dougie was under orders in the reserves, there is no nexus.

              With that said, I also have no doubt that Mastriano will prove the value of the First Law of Dirtballs: they will always give you another chance for discipline.

              • earlofhuntingdon says:

                All military service personnel are subject to the UCMJ, but its application varies according to their status.

                You’re citing a general advice column that is not legally binding. Bmaz is referring to a current legal precedent. Only one of them counts.

              • earlofhuntingdon says:

                Your comment might have more weight if you had cited text beyond the first paragraph:

                “Though it does not occur often, military retirees of all ages can be recalled to active duty to face court-martial charges. Generally, the civilian justice system processes military retirees acting with misconduct.”

                Jurisdiction varies depending on the kind of misconduct at issue, as well as when it occurred.

              • bmaz says:

                I’m sorry , did you even try to find the case? No? Because Larrabee is a problem. This has been discussed here ad infinitum, apparently to close to zero effect, because we relentlessly get this question. Frankly, give it a rest, the UCMJ jurisdiction is NEVER going to do this. Pipe dreams of internet voices do not cases make.

          • Rugger9 says:

            I’m sure it’s an oversight, but West Point is Army and Marines are trained at Annapolis, or ‘Canoe U’ according to us NROTC grads.

        • MMVA says:

          I think you misread his Wikipedia page, or the page is wrong. Congress.gov records indicate that he was promoted to colonel around 2009 and not in 2017, his retirement year. (See below.)
          I do not know Mastriano and only heard his name recently. His military career history web appears to be designed to be a balancing act to best serve his image/career. He may be trying to establish his “warrior” bona fides without specifying exactly what his duties were or where he actually spent most of his time that might detract from that image. (Military Intelligence Officer vs “Academy Professor.”) The best supplemental info available seems to be in Congress.gov where his name appears in Presidential Nomination (PN) lists submitted to the Senate when he entered the Army as a second lieutenant and for promotion to major, lieutenant colonel, colonel. (This is routine stuff.)
          Looking at these PN records and assuming his bio here Biography – Senator Doug Mastriano (senatormastriano.com) is true, he probably had a very successful 31-year career, and he appears to have hit all promotion points on time. No doubt he is a smart guy, which makes him scarier. He spent an above average amount of time getting degrees: four-master’s level degrees and a Ph.D. plus other military training he has not listed. I’m not trying to build the guy up here. I’m just trying to provide the best info I can find when something doesn’t look or smell right.
          The dates listed below are the dates the Senate confirmed the PN list. He would have been promoted sometime within a year or so after the Senate vote. If anyone wants the details let me know. I’m trying to keep this short.
          –Initial appointment as a second lieutenant in Regular Army: Feb. 1988. I can’t tell why there is a gap between his college graduation in 1986 and this date. His first unit assignment is in 1988. (Promotion to first lieutenant and captain is handled within the Army and won’t appear in PNs.)
          –Selected for promotion to major: Sep. 1997.
          –Selected for promotion to lieutenant colonel: Sep. 2003.
          –Selected for promotion to colonel: Dec. 2008.
          His bio says he attended the Army War College as a student from 2009-2010 (likely an academic year) and was assigned there as a professor from 2012 to his retirement in 2017.
          I’ll try to be more concise in the future.

      • notjonathon says:

        Seems to me that such a question is superfluous, because it’s pretty clear that someone decided that the crime is worse than the coverup. There’s always the chance that one could be prosecuted for destroying evidence, but that’s a lesser crime than sedition.

        • Theodora30 says:

          People should be prosecuted for both even if one is a lesser crime. Obstructing investigations is not trivial.

    • Eureka says:

      Will add that either way they would have wanted to avoid getting hurt in the violence that they knew would be required to take over the Capitol in the first place, leaving all that ‘beforehand’ to the riled-up “normies” and others (generally lower-level militia+) who wanted a taste.

      IOW they are cowardly zealots per usual, thirsty for the victory lap.

    • grennan says:

      Probably had the equivalent of VIP passes or were directed to a special entrance for “preferred guests”..

      Only being half-facetious.

  9. Badger Robert says:

    As Ms. Wheeler has explained, there are some matters, such as this issue in Pennsylvania, in which time is of the essence. People like Congm Schiff might know of some other prosecutions which have to move forward now. Trump is not the only issue, or even the main issue, right now.

    • bmaz says:

      Exactly why should Schiff decide anything about any prosecution??

      And why exactly is it you think he knows anything special? Should prosecutions move just because some over inflated Congress person thinks they should? Will you think that when Jim Jordan is back in the majority?

      Prosecutions should never “move forward” because politicians and the public think they should. That is so much a very wrong thing.

      • Badger Robert says:

        Senator Ron Johnson. Congm and Congw who attended a planning meeting at the WH. Should they be treated just the same as everyone who didn’t try to overthrow the election? Schiff may know of several active candidates who are exposed. I think the committee named several of them.
        What would you do, if the facts warrant an indictment?

      • Theodora30 says:

        So those Congressional politicians who heard and saw all the Watergate testimony couldn’t make a judgement that Nixon had broken he laws? As for Schiff he is a former US Attorney who is more than qualified to make that judgement after hearing the testimony under oath of more than a 1000 witnesses, seeing untold number off documents and seeing videos. They have solid evidence of crimes committed by Trump and some of his associates.

        • bmaz says:

          Oh, yes, everybody should just glom on to the preening camera seeking jerk, Schiff. Good plan.

        • earlofhuntingdon says:

          Schiff is not now a USA or member of the DoJ. He’s a congresscritter with an ambitious agenda. While his committee may have records of a thousand interviews, I’ll bet a dinner at Taco Surf he was not present at all of them and has not read all the transcripts of them. Nor has a jury. And those witnesses have not been subject to challenge under cross examination.

          If his committee has voluminous substantial proof of crimes, it would behoove it to cooperate more fully with the DoJ. Not much public evidence of that.

          As bmaz keeps saying, there’s a world of difference between what you might conclude as an informed citizen, and what you can prove beyond a reasonable doubt in a court of law. The former might rightfully lead to social consequences, only the latter should lead to criminal liability.

          • timbo says:

            Would you read them all if you had access to all of them? Seems doubtful that anyone would, particularly when you have word search, likely person of interest indexes, etc, plus staff synopsis of interviews that indicate which ones are important, might be important, which ones may have new leads or information, and which ones contain zero useful information, etc.

            • earlofhuntingdon says:

              The argument was that Schiff, “is a former [Assistant] US Attorney who is more than qualified to make that judgement after hearing the testimony under oath of more than a 1000 witnesses, [and] seeing untold number off documents and seeing videos.”

              A lot of arguments look great when you hear only one side of the story. Call me when a case proceeds to indictment and is put to a jury, where the defense has an opportunity to cross-examine the claimed facts.

  10. Eureka says:

    There seems to be two additional Mastriano contacts to Donoghue which — esp. in light of Trump’s ‘leave it to me and the R congressmen’ — might be important towards coordination (in follow-up to Trump’s Dec. 27th efforts) and one of which (apparently) loops in former EDPA USA Bill McSwain which (it would seem) ties to his separate efforts that Donoghue had to shut down. [We have reporting _that_ Donoghue shut down McSwain, but not _when_ that occurred).

    (pre-) Dec. 27: per the Senate report as excerpted by EW in the post.

    In addition:

    Dec. 28: per reporting on House Oversight selected docs released, Mastriano wrote to Donoghue:

    AND cc’d McSwain per:

    Problem is, I cannot find this letter in the House Oversight release cited:

    Hopefully someone else can.

    Dec. 29th: Mastriano email letter to Donogue per Senate report (linked in post): email starts on pdf 259 (Key Document N):

    NOTE: this Dec 29th email does NOT (visibly) cc Bill McSwain, so I take it to be a separate letter than the one referred to as from Dec 28th (rather than any reference to a comm from the 28th being, say, a date-typo reporting error).

    • Eureka says:

      re the McSwain effort (date unknown) which would have weaponized DOJ by another axis [a la ‘I tried to do you a favor, though’ / cf. perfect phone call], and which Donoghue also shut down at some unknown point:

      We know about this from reporting* by the Philadelphia Inquirer (Chris Brennan, others) and Washington Post (MattZap) on the July 2021 Trump-McSwain-Barr kerfuffle.

      McSwain was then running against Mastriano for the GOP PA gov nom and — seeking Trump’s endorsement — sent Trump an obsequious letter in June 2021 claiming that McSwain has tried to **publicize** [unsubstantiated#] claims of (implied) Philadelphia area election fraud but that *Bill Barr* had shut it down (and yada yada AG Josh Shapiro — then-hopeful McSwain’s future PA gov opponent — would have been charged with the “investigation”).

      Barr emerged to wipe the floor with McSwain and we learned that it was Donoghue, not Barr himself, who refused to allow McSwain to “flap his gums”, as Barr put it.

      We found out about McSwain’s letter in the first place because Trump, in true extortionate fashion while promulgating the big lie, brought it up at a rally, then at CPAC, before eventually releasing it.

      *I’ve linked previously.

      # immediately debunked re suburb Delco IIRC what emerged from the reporting, though this is not differentiated from GOP bugbear “Philadelphia” in McSwain’s carefully-written letter wherein he repeatedly evokes “Philadelphia-ness” (referring also to an older case, the partial resolution of which he apparently selectively publicized for the 2020 primaries, tho un-so marked)

    • Eureka says:

      I found the discrepancy re the 28th vs 29th: one comm with two dates perhaps sent two ways.

      A ‘physical’ (or letterhead) letter was dated December 28, and was attached in an email on the 29th. The attached letter states cc: McSwain at the end, while the email as addressed does not show any cc.

      That still leaves the question of when, exactly, during the post-election / pre-J6 season McSwain was trying to publicize spurious claims of voter fraud which Donoghue shut down.

      • Eureka says:

        The comm does appear to have been sent two ways. Finally found the Dec. 28-dated letter in the House Oversight docs (starts at pdf 153 of 232). It’s not prefaced by an email from Mastriano — but from Moran to Rosen, to which it is attached — and bears a date-timestamp of 12/30/20 9:35 AM in the upper right corner, suggesting it was received as a physical letter in the mail.

        • Eureka says:

          The Moran to Rosen email to which it is attached is 12/30/20 10:49 AM; the Moran to Rosen email is a forward of Kurt Olsen 12/30 at 10:20 AM asking Moran to forward to Rosen “this copy of the 12/28/20 letter” from Mastriano to Donoghue.

          I don’t know who inserted that date-timestamp on the Mastriano letter of 12/30/20 9:35 AM — along with a descriptive text header which seems to be part of it / via the same source. There’s also darker, large-font pagination indicating “page 2” through 5 (but which shows up in screwy places along the document on the left). So should not assume that means something about physical mailing, correction to above after taking a closer look.

          So we can settle on the letter being sent at least two ways electronically from multiple sources (and perhaps other ways/ instances in addition).

          • Ginevra diBenci says:

            Eureka, there may be a connection to the Peters/Mastriano/Pennsylvania bad actors via our newest pinup boy, Garrett Ziegler (the Navarro aide who let the coup plotters in December 18, 2020) too. Ziegler wants Google to foreground his brave quest to spill the Hunter Biden laptop secrets, but digging a bit I found he was a Fall 2018 John Jay Institute Fellow. The JJI is an explicitly Christian organization located in Philadelphia suburbs (Bucks County, of course) that wants you to know how highly placed their alums are in positions of influence.

            Among other things these young people learn during their four-month fellowships? Table manners and “the art of conversation.” Seems like Ziegler had that last one in his pocket.

            He’s from Effingham, IL. John Jay seemed to be his stepping-stone into the administration. Now he runs something called the Marco Polo organization but mainly does a lot of podcast spots yelling “Bolsheviks” and “laptop.” Not a great mind, but very possibly the kind of ideologically rabid middleman that Trump, Navarro, Mastriano et. al. were using during that fevered time.

            • Eureka says:

              Prompts a reminder to send money and other support to Ashley Ehasz
              @ashley_ehasz: flip that district. Q2s came out and she is an order of magnitude below her incumbent opponent in fundraising.

  11. greenbird says:

    let me fuel myself with food, since these comments appear to be running the gamut, and i don’t want to run out of energy before i finish reading them.

  12. Scott says:

    Trump will never be indicted, nor will anyone at Mastriano’s level. Prison is for the chumps that were stupid enough to fail at the insurrection and record themselves doing it. In 2024 it will be a different story.

    Rule of law nation my ass.

  13. MT Reedør says:

    I don’t understand. Are the J6 investigation(s), especially involving government employees, treated like a law enforcement investigation or a counter-intelligence investigation? Both? Why are all records not seized right away and preserved for future evidence? What prevents this happening or prevents these records from being shared/accessed later? Does this need a fix?

      • MT Reedør says:

        Well yea. I was referring to DOJ or other government bodies that monitor and capture comms.

        • bmaz says:

          Fair enough. I do hope they are capturing legally. You have been around here long enough to know that constant issue. And it sucks that it is still an issue.

    • Rayne says:

      The U.S. House Select Committee on the January 6 Attack is a special purpose oversight body. Because it is composed of House members, it is a function of the legislative branch and NOT federal law enforcement which is a function of the executive branch.

      Records can’t be seized by a legislative branch; they are requested, and subpoenaed when a request is insufficient. Federal law requires compliance with Congressional subpoenas. Failure to comply can result in referral to the Department of Justice (federal law enforcement) for investigation and prosecution (Ex. Steve Bannon’s failure to comply with House J6 subpoena).

      The House J6 Committee will ultimately issue a report of its findings along with recommendations for legislative measures to repair damage to government and prevent future attacks like January 6. Fixes needed may include more teeth in existing laws like Presidential Records Act and the Hatch Act.

      Counterintelligence does not enter into the House J6 Committee’s purview at all; CI is a function of both DOJ when domestic and State Department when foreign, and both are subsets of the executive branch.

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