On Trump’s Subpoena and Marc Short’s Testimony

The January 6 Committee conducted what may be the last of their hearings (barring new disclosures from witnesses they intend to recall, including, implicitly, Tony Ornato and Robert Engel) by voting to subpoena Trump, for both documents and testimony. The subpoena was proposed by Liz Cheney, who learned a thing or two about bureaucratic genius from her father.

I think the most likely outcome of that will be the expiration of the subpoena with the next Congress. With the likelihood Republicans will take the House, it will not be renewed. It will, however, give the Committee opportunity to package up their findings against Trump in something that’s not a referral.

And the full House may have to vote on the subpoena before the expiration of this Congress.

The subpoena is more interesting, in my opinion, for the way it might intersect with other investigations. For example, a subpoena to Trump for January 6 documents might cover some of the documents initially seized on August 8. As I have noted, there appear to be documents in both the materials already returned to Trump and those currently under dispute before Raymond Dearie that pertain to Trump’s big lies pertaining to Georgia.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

A subpoena for these documents may change the legal status of them — and Trump’s hoarding of them at his beach resort. It may also make them easier for others to obtain.

As it happens, though, the subpoena news also came on the same day that Marc Short testified to a grand jury about topics he (and his Executive Authority maximalist lawyer Emmet Flood) originally declined to answer.

A former top aide to Vice President Mike Pence returned before a grand jury Thursday to testify in a criminal probe of efforts to overturn the 2020 election after federal courts overruled President Donald Trump’s objections to the testimony, according to people familiar with the matter.

In a sealed decision that could clear the way for other top Trump White House officials to answer questions before a grand jury, Chief U.S. District Judge Beryl A. Howell ruled that former Pence chief of staff Marc Short probably possessed information important to the Justice Department’s criminal investigation of the Jan. 6, 2021, attack on the Capitol that was not available from other sources, one of those people said.


According to people familiar with the matter, Short had appeared before a grand jury in downtown Washington in July, but declined to answer certain questions after Flood argued the communications of top White House advisers are protected — and presented written documentation from Trump’s lawyers that they were asserting executive privilege.

The Justice Department asked the court to intervene, urging Howell to override Trump’s claim and to compel Short to answer questions about his communications with Trump, one person said. After arguments Sept. 22, Howell granted the government’s motion, the people said, but because the investigation and an appeal are ongoing, it is unclear if or when a redacted opinion will become public.

Short and Windom were spotted at court again on Thursday, as was former Trump national security and defense aide Kash Patel.

SCOTUS has already ruled against Trump’s Executive Privilege claims before the January 6 Committee. If they were able to obtain his testimony — or if DOJ took his 14-page conspiratorial rant authored by former OAN hostess as a false statement to Congress — then it would create interesting tension between these two investigations.

As DOJ gets testimony from Short and, after him, others who invoked Executive Privilege, this subpoena to Trump will be in the background, a (very distant) possibility that Trump would be required to testify — as a witness, as opposed to the subject Trump is in the DOJ investigation — to the very same topics that his top aides are now testifying to.

It’s one more moving part that may get increasingly difficult to juggle.

131 replies
  1. Rugger9 says:

    There are some interesting updates tied to the committee. Apparently Individual-1 whined in addition to a 14-page letter to the committee that he hadn’t been asked to testify. Apparently he wants to do so in a public setting. I think the committee should indulge him and call the bluff. No deals, no pre-listed questions or any other ‘accommodation’ demanded, because Individual-1 wants special treatment. Both Clinton (on Whitewater) and Ford (on Nixon’s pardon) testified in public to Congress so the precedent is established that POTUS does talk to Congress under oath.

    There is also tape released from the committee about Pelosi calling the NG (DC and VA) and other useful information. Note that Steve Scalise has been one of the loudest ones claiming that Pelosi cowered during the insurrection, even though he was in the room (cowering) watching Pelosi take charge. It was normal for Scalise but would it kill the courtier press to actually call out these bozos instead of giving them a platform in complete thrall to bothsidesism? I wouldn’t see any improvement as real until Chuckles Todd hangs some of the GQP types on his show.

      • Rugger9 says:

        Nope. Joe Scarborough was a GOP rep who is no fan of MAGA and has been critical of GQP types in the past.

        Now, if CNN devotes serious segment time, that might also be a sign. However, corporate types don’t like anything that would endanger their access. This in addition to the fact that the leadership making these types of calls are not going to cross one of their own.

        • Thomas Paine says:

          Anderson Cooper showed the Pelosi Ft. McNair clips tonite on CNN. Scalise and McCarthy look like hypocrites and cowards while Pelosi, Schumer and Pence were showing real leadership in getting the Congress back at the job of certifying Biden’s Electoral College results. Amazing footage. I, for one, did not know that Ft. McNair is the backup Capitol because it is both highly secure AND within the District of Columbia.

    • Just Some Guy says:

      “I wouldn’t see any improvement as real until Chuckles Todd hangs some of the GQP types on his show.”

      This is never going to happen.

  2. Paulka says:

    Just to give you an idea of the type of information Trump is using to justify his “the election was stolen” BS.

    He states the following: “Matt DePerno found voting machines were subverted and accessed remotely. In Antrim County, 7,048 votes were changed in favor of Joe Biden.”

    A Michigan Bureau of Elections hand recount of Antrim County ballots that was open to the public and streamed online showed a total of 9,759 votes for Trump and 5,959 for Biden, a net change of 12 votes from the previously tabulated results.

    So, according to Trump, 7.058 votes were switched to Biden, who only received 5,959 votes.

      • was_Alan K says:

        Aha! you have hit on the true aim of the 32 GOP state legislators! Negative votes!

        [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  3. Alan Charbonneau says:

    That 14-page document is really something. It looks fine until the subject line “THE PRESIDENTIAL ELECTION OF 2020 WAS RIGGED AND STOLEN!”, and then spirals ever downward. The first sentence is 93 words long. Someone needs to explain the use of periods to Donny.

    • Scott_in_MI says:

      Directly transcribed from an off-the-cuff rant, or generated by an algorithm trained on his rally speeches? Difficult to say….

      [Mods: new username to conform to 8-character minimum.]

      [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

      • YancyFaith says:

        Yes, but it didn’t prevent me from dozing off twice before I got to page 3. Talk about SOS/DD. That guy is finally and truly boring.

    • joel fisher says:

      His 8th grade English teacher never told him, “Shut the fuck up Donny, you’re out of your element.”

    • -PeterS- says:

      My favourite bit is this complete sentence:

      All in all, millions of ballots were stuffed.

      Pure poetry.

    • Danny Boychik says:

      Dr Wheeler indicated that it is a reprint of “a former OAN hostess”. This says mouthfuls. My first encounter with OAN was on a short stopoff in Queens during my drive from Manhattan to E Hampton (I know, I know). The bartender got talking and explained that he had been watching OAN exclusively and it had opened his eyes. A few drinks later, I received similar comments from my new friends at the bar (I use the word “friends” loosely, as I remember paying for some rounds}. THAT DAY I began commenting on some right-wing sites. There I found myself in dialogue with neo-nazis and fascists. That was many years ago. It’s been brewing.

      • Danny Boychik says:

        And I thought it was my Covid getting the better of me. Dr Wheeler, you are doing a great service by outing what’s going on. Right under our noses. As if we don’t matter and have no say. But you have say. Thank you for speaking up. Stay safe!

      • SMF88011 says:

        As far as I am concerned, I don’t care if you misspell things. As long as we get the gist, all is good. Ey caan’t speel tuday.

        • rbba says:

          Please, let’s try to keep up standards in these trying times. A writer has spell check, a writer can read what he/she wrote and get the words correct. So easy, so important in the quest for a return to standards and norms.

          • bmaz says:

            Common spelling scolds are the absolute wurst. Go run your own damn blog, we will take care of ourz. Get lost.

                • bmaz says:

                  There is actually a funny story about the pipe thing. One day as a teenager, I was out at my friend’s ranch where we had made a private motocross practice track to prepare for races. I had a pretty bad wipeout and was pretty skinned up, but nothing broken. Also had what is now clearly known as a concussion. Got on the back of my friend’s bike and he took me back to their house.

                  I got laid down on his bed in his bedroom and they cleaned me up a bit until my mother could get out there to pick me up. At any rate there was some kind of pipe next to the bed and that song came on, so we both knocked on it twice every time. Can’t remember how or why I wiped out, because we had been flying for several laps, but it was nasty. What I do remember is the stupid Tony Orlando and Dawn thing.

  4. Doug R says:

    It’s not guaranteed that the R’s will take Congress.
    That being said, it’s good to have a contingency plan.

  5. Silly but True says:

    The full House should vote, otherwise the lack of proper composition of the Cmte. is likely to be exploited by Trump, an issue that has not yet been fully adjudicated.

    That is, the issue of the current membership of Jan. 6 Cmte. not meeting Section 2(a) of its House Authorizing Resolution which requires appointment of 13 committee members, five of whom are to be appointed following “consultation with the minority leader.”

    The problem being after Pelosi rejected two of Minority Leader McCarthy’s recommendations, McCarthy pulled all of his nominees to the committee and the speaker declined to appoint additional Democratic members in their stead. As a result, only nine members currently sit on the Jan. 6 committee, arguably in defiance of its composition requirements.

    That is something that would be used to delay and ultimately might not stand up in federal court, although a specific resolution by the full House would not have such a problem.

    • Purple Martin says:

      In some of the frothier comment strings, that’s been a popular position for months—but one that has been demonstrated to have no basis in fact or law.

      House Resolution 503 laid out the practices used to form the committee. It was passed by the Rules Committee and approved by the full House. That Minority Leader McCarthy declined to exercise the full range of his options doesn’t invalidate that Speaker Pelosi did, hers.

      Your exact issue was put forward by pretty much every Trumpist challenging a subpoena and, citing unambiguous precedent stating Congressional rules are the Article 1 business of the House and Senate—and specifically not of the Article 3 judiciary—they’ve all quickly lost on what was viewed as a nearly frivolous argument.

      I agree with EW: “I think the most likely outcome of that will be the expiration of the subpoena with the next Congress.” But it won’t be because of anything related to your argument.

    • BruceF says:

      The debate over such a motion would be worth watching! What will Scalise and Banks argue? Let’s get them on record (and on video) on this matter!

  6. ExRacerX says:

    Very interesting. IANAL, so please help me parse whether this post suggests the J6 hearings—and this subpoena—have potential to become something more than political theater?

    Thanks in advance, EW legal eagles!

    • massappeal says:

      Thanks for your question; I look forward to responses from the legal eagles here.

      Just a word in defense of political theater: removing Trump from power is fundamentally a political act. That’s what the two impeachments were, and—although it’s called a trial—that’s what Trump’s two acquittals before the Senate were.

      Congressional hearings are inherently and appropriately “theatrical”. There are characters, narratives, tensions, drama, expected and unexpected “plot twists”…all in the service of the citizenry/body politic. They’re a way to inform the public, to test and change public opinion, to weigh evidence, to investigate wrongdoing (not necessarily the same as law-breaking), to formulate legislation, etc.

      Although it would have been nice to have this summer’s hearings last summer (or at least, last winter), they have been (imho) highly effective political theater—shifting public narrative and opinion, persuading additional witnesses to come forward, building a powerful case that Trump was at the center of a multi-pronged attempt to overthrow the government.

      • ExRacerX says:

        Thanks for your reply. Yes, there are plenty of ceremonies and events at all levels of government that have an element of theater to them—including many of our (now tenuously) accepted political norms. And while there’s nothing wrong with a little pomp and ceremony, it’s not always where the real legal rubber hits the road.

        I probably should have been more specific and asked whether we should expect to smell some burning rubber in terms of legal consequences to tfg, his cronies & enablers, or other parties.

          • ExRacerX says:

            Thanks; I was in 5th/6th grade during Nixon’s downfall, and it was my first big reality check on government, politics & power. I wasn’t old enough to understand the finer points, but it seriously altered my worldview.

            • bmaz says:

              By the same token, political grandstanding should not interfere with actual criminal investigations, refuse to appropriately liaise with law enforcement and then bogusly claim they are the only ones driving the bus.

              • Danny Boychik says:

                “interfere with actual criminal investigations, refuse to appropriately liaise with law enforcement and then bogusly claim they are the only ones driving the bus.”

                Wait, wait!!!!!!!!!!!!!!!!!

                Who did that?

                [FYI – This is not Twitter where a stream of chatter may be the norm. You have now attempted to publish more than 40 comments inside a 24-hour time frame, far exceeding usual volume of our average community member. This can be construed as a form of Denial of Service, by pushing others’ comments farther apart and deeper in a thread, frustrating both commenters and readers. In short, it’s trolling. Take a back seat and read for a while. /~Rayne]

        • Danny Boychik says:

          Justice will be metted, just not by Justice. If you look at this period through the narrow window of the law, you miss most of what is happening. The larger window sees Trump foreground and right-wingers background. Now how do met (is that a verb?) both” The Justice Department will come for Trump, for sure. It’s all out there. But MORE IMPORTENTLY Congress will discredit his entire base. Just write them off (I know that they are Americans too, but weren’t those German Nazis just good Germans?). The State Attorney Generals will finish this whole Trump Organization. Have you heard how DeSantis and Abbott hate us, well the gesture is mutual. And we got the goods.

      • SMF88011 says:

        Trey Gowdy even admitted that the Benghazi Investigation was nothing but a political attack. SOURCE: https://nymag.com/intelligencer/2017/10/trey-gowdy-stops-pretending-admits-this-is-politics.html

        The biggest thing about the subpoena of Trump is not getting him on the stand but removing the GQP talking point of Trump not being given the opportunity for his side of the story. The next time he or the GQP state that it was a witch hunt the Democrats can turn it back on them and say “well, you can always testify under the subpoena and stop it from happening.” We all know that Trump will NEVER get on the stand and testify under oath. The guy cannot help himself – he WILL lie.

        • Tom-1812 says:

          Trump isn’t any more eager to testify in person to the J6 Committee than he was to answer Robert Mueller’s questions face-to-face. And as I recall, he even lied in the written take home test he was given by the Mueller team.

  7. J R in WV says:

    I refuse to believe that the Russo-Republicans will win very many seats in next month’s elections at all. The Dobbs decision has infuriated a whole lot of women, and the men that support those women. Plus these hearings the Congressional Committee has held appear to me to have had an impact on the community opinions.

    Plus, I’m old, and don’t want to believe my country can fall so rapidly as this !!! i find it so hard to believe all those Republicans can take an oath to preserve and protect the constitution, and throw their honor into the sewer that is Trump. I took that oath in a draft center in 1970 a thousand years ago, and it still sticks with me all these years later on. But not to congress members and members of the executive branch? So strange.

    • rosalind says:

      hi J R – i don’t mean to bring you down, just to note that yes the abortion decision has enraged and energized women and men across the country who will be storming the polls, but this alone will not ensure Dem success. the dark money Republican billionaires have been raining cash on races all across America, and pounding home “inflation” and “zomg crime!” which unfortunately is showing real impact in close races. there is no room for an ounce of complacency in any part of the country, and Dem leadership and candidates have GOT to come up with effective counter-messaging and flood the zone.

    • NorskieFlamthrower says:

      I took mine in 1966 and after a three year world “tour” that included Southeast Asia I didn’t expect we would last this long. After 76 years of a war economy and military what do you expect?

      [Norske: FOURTH REQUEST: please check your username and email address for typos next time you comment. You have multiple identities here based on typo-ridden username and email addresses which cause nearly all of your comments to be moderated. It’s chewing up a lot of our time and fraying my patience in particular. I’ve edited your username here to match the one you’ve used with +200 comments.

      Norskeflamthrower = 239 approved comments
      Norskieflamethrower = 438 approved comments

      Which of these two do you want to use? PICK ONE OF THEM or you’re going to be perma-modded. /~Rayne]

    • Danny Boychik says:

      I agree, in part because I too was in my local draft center in 1970 and now can see much more clearly how things work There is always periods of chaos where lots of people cash in. That changes once the easy money has been had. Trump et al should have stopped while they were ahead.

      • Fran of the North says:

        The hackneyed phrase is “Pigs get fat, hogs get slaughtered.” This group of grifters are hogs. Here’s to them getting what they deserve.

        • Ginevra diBenci says:

          That phrase sounds like it would only be “hackneyed” among the Manson Family circa 1969.

          I have never been a hog farmer, however, for the record.

        • Alan Charbonneau says:

          One of my friends was a tax attorney and was fond of saying “pigs get fatter and hogs get slaughtered”. He said being a pig meant taking a good chunk, but being a hog was trying to take it all.

          He laughed when he read of cases in which some stupid, greedy SOB wanted to be a hog with the IRS. Not a good strategy.

  8. Badger Robert says:

    Rep Cheney’s siren song offers Trump a chance to testify on national TV. They are going to have to tie him to the mast to keep him from taking her up on the offer. Nothing may come from it other than Trump’s pouting about his attorneys depriving him of his day of glory.
    Trump and MAGA can win primary contests. That’s obvious, But can they win general elections? Does Ms. Cheney think the 2018 and 2020 results point to a negative answer, regardless of any poll?

    • Rugger9 says:

      FWIW, as noted above I think the J6SC should call Individual-1’s bluff without any conditions outside of live TV. TFG didn’t ask for anything else yet, although once the J6SC accepts his offer the fine-print stuff will be demanded or there will be ‘scheduling problems’. Kayfabe all the way, but IF Individual-1 testifies he can’t stop himself from being loose-lipped and letting inconvenient details out. Those details will scare voters, although I can’t see the spectacle happening before the election.

      Several of the committee members have prosecutorial experience and will know how to push the right buttons.

        • Rugger_9 says:

          Mods – if OK, I’ll update the handle to this.

          For bmaz, Individual-1 said he wanted to testify to the committee, whining that they hadn’t invited him (which I doubt). That’s the bluff, so the committee subpoenaed him instead even though it doesn’t stop Individual-1 from testifying like Clinton and Ford did, in public as he wants. I think Individual-1 will not testify as you point out.

          What we’ll get will be the usual litany of excuses and attempts to shape the interview we’ve seen many times before (i.e the release of his taxes and full medical records have been teased for years). However IMHO delays will only serve to keep the story alive about how crooked Individual-1 has been, is now and will be forever.

          [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

          • LesNoyes says:

            (UPDATED HANDLE) Trump: “I can’t come testify because the dog ate my brains.”

            [Thanks for updating your username to meet the 8 letter minimum. Your username was fine before, but thanks for the head’s up. /~Rayne]

            • bmaz says:

              Thank you. You would have been grandfathered in irrespective. Think I told you this once, but I knew and practiced in front of a judge named Noyes both in trial court, and later the court of appeals, for a number of years. Seeing your name always reminds me of him, good guy and excellent judge.

      • skua says:

        ” … he can’t stop himself from being loose-lipped and letting inconvenient details out …”
        An account of DJT’s behavior in a pretrial meeting has him acting and speaking very differently to his public persona – as a coherent capable person.
        Could be that DJT is more dangerous than he appears on stage. Which fits with recent US history.

        • JonRamDo says:

          “They misunderestimated me.” – George W. Bush.

          Ronald Regan played his being underestimated to his advantage.

          “There is no greater danger than underestimating your opponent.” – Lao Tzu, The Art of War.

          • Rayne says:

            I meant to come back to this, sorry I’m so late.

            Lao Tzu is associated with Taoism. See https://en.wikipedia.org/wiki/Laozi

            Sun Tzu is the person to which The Art of War is attributed. https://en.wikipedia.org/wiki/Sun_Tzu

            You might want to check your quote’s origin because I can’t find it in two different translations of The Art of War. There is discussion in Chapter X. Terrain about a general’s inability/ability to estimate an opponent’s strengths as key to a general’s success, however.

  9. TVSawyer says:

    If tfg testifies, the content will closely follow the style and content of his latest rant. Without a judge to impose instant contempt remedies, he will reply to the substance of exactly none of the questions put to him. If forced, he will be unable to recall. We can predict this because he has done it again and again in the past.
    I can’t imagine the process will be useful.

    [Welcome back to emptywheel. In the future, please leave the URL empty. Your comment went into moderation because of the content entered in that field. Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

    • bmaz says:

      He will not testify in front of the J6 Committee. People even pondering this are beyond silly. Stop with this nonsense. Even Trump is not that stupid.

      • Danny Boychik says:

        Your assessment is correct.

        Here’s how he operates: In the 1990’s development in nyc was cheap. He knew how to make money, leveraging his previous properties to develop new one. We were his primary lenders at The Bankers Trust Company. As conditions changed, Trump defaulted on loans where we were the Prime Creditor. Our Committee invited him in. His attempts to renegotiate by replacing real estate collateral properties fell on dead ears. Out of spite we did offer a loan term extension, with a kicker. We’d take his collateral, but needed one more chattel. We took the yacht. He bitched and squeeled like a stuck pig, probably because he figured that he wasn’t gonna’ get laid too easy without it. Our Loan Committee offerred that he could come by on occasion to look out the conference room window to check that the yacht was being kept up properly. He never fucked with Wall Street. Then Deutche Bank came in.

        • was_Alan K says:

          @Danny Bankers Trust, there’s a name from the past! Good people. Do you think that Deutsche Bank connection is how he linked up with the Russian mafia? Or was that just inevitable given the flood of money into real estate in London and NYC?

  10. Clare Kelly says:

    “It’s one more moving part that may get increasingly difficult to juggle.”


    Thanks again, Dr Wheeler, for keeping track of them so eloquently.

      • posaune says:

        Yes, this. I just read this piece to mr posaune. his comment: 12-dimensional, as usual for EW, plus “who else can think like this?”

    • Danny Boychik says:

      Dr Wheeler,

      I think that if I had your brainpower that I’d be rich today.

      Thanks for putting it to better use.

  11. newbroom says:

    Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God? Is that the first question they’ll ask?

      • ExRacerX says:

        I don’t relish poking the resident bear here, but with all due respect, it’s both. A complete sentence beginning with “Is” and ending in a question mark is a technically a question, whether it’s part of an oath or not. That said, I really don’t envision tfg answering that question/taking that oath before the J6 Committee.

        That’s my 2 cents, and yes, I realize that and $5 will buy me a fancy coffee.

      • 90’s Country says:

        I don’t know, bmaz. That question mark at the end sure makes it look like a question, and one that the former might have a difficult time answering honestly, honestly.
        Also, I really enjoy these prolonged discussions that allow me to miss all the comments that don’t fit on my phone!

        • bmaz says:

          Listen, it is a formality. That’s it. If people want to call it a “question”, whatever. You have to affirm the oath, so, fine. After far over a hundred jury trials, I think I know what the oath is. This is a silly discussion.

  12. Cosmo Le Cat says:

    I agree with Bmaz – of course he won’t testify. Three things are presently uncertain:
    1. Will the J6 SC issue the indictment or will the full House do so to avoid the legal issue of the Committee’s legitimacy?
    2. Will Trump fail to show up or will he move to quash the subpoena in court (thus running out the clock legally)?
    3. If Trump fails to file a motion to quash, will the House make a criminal referral?

    Question for a lawyer: Assuming Trump fails to respond, can the DOJ combine the documents case with the failure to comply with the subpoena, both in a single indictment, to ensure the proper venue is the DC circuit, rather than Florida?

  13. Paulka says:

    I do enjoy putting Trump’s assertions in perspective. He made the following claim: “Since 1888, no incumbent President has gained votes and lost reelection. I received many millions more votes in 2020 than I did in 2016, unheard of in our political History.”

    Well, Mr. Trump that does sound suspicious…

    Well, let’s look at the facts, unless I am mistaken the following incumbents lost re-election:

    Benjamin Harrison 1892
    William Taft 1912-But you must consider that Teddy Roosevelt was in election as bull moose party and took a great many Republican votes from Mr. Taft.
    Carter 1980-but you must consider that John Anderson ran as Independent, though in fairness, Anderson was a former republican and likely split the conservative vote, showing that Reagan’s victory was truly a huge conservative win
    Bush Sr 1992-but you must consider that Ross Perot was in the race.

    Trump’s fact looks a little different in that light.

    • TimB says:

      Mr. Trump also had more votes against him in 2020 than any major-party candidate, eclipsing his own record from 2016. He also holds the career record for votes against a major party candidate.

      But in MAGA world, the only people who count (or exist?) are Trump supporters.

      • Ginevra diBenci says:

        And the key word of his entire missive: “feel”–as in millions *feel* the election was stolen. It is not an argument about facts, but feelings, feelings he generated by lying about facts.

        And they are exploiting those feelings today.

  14. Lit_eray says:

    I hope moderation finds this on topic. Otherwise delete it. Also note new 8 character name; I hope I can remember it.

    Since there has been so much discussion of Trump’s subpoena I vaguely remembered something about Congress’ authority to imprison someone who does not comply with a subpoena.

    A very brief search finds this: Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (https[break]://www.everycrsreport.com/reports/RL34097.html) from the Congressional Research Service. I have read up to the Appendix (which lists congressional contempt resolutions from 1980 to 2008), whereupon I could not continue. The document was last revised in 2017.

    Excerpted from the Summary: “First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands.”

    Through various court decisions it appears, from my reading, the authority extends to congressional committees, although best instituted by a vote of the entire House to avoid judicial tampering. And the detention facility could be District of Columbia’s municipal jail. Because it would stem from the House of Representatives, the imprisonment would end at the end of this congress. Maybe the next congress could re-institute it.

    Applying the inherent contempt power to Trump would be sweet karma. Should he refuse to appear or answer questions, in theory he could be put in jail at least for a few days or weeks. Even the 5th amendment may not be invokable. The judicial challenges would be fascinating.

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

    • bmaz says:

      Yeah, that is never going to happen. The last person “jailed” under inherent contempt, by my recollection was held in a nice room at the Watergate Hotel. It is technically feasible to do what you report, but it will never be done.

      • Patrick Carty says:

        Never? Imagine the instance of Benghazi happening and then discovering Hillary Clinton had actually planned the whole thing, and then defied a Congressional subpoena to appear at the subsequent Committee. January 6 was that and more. There’d be quite the perp walk.

        • bmaz says:

          Yeah, never. Not by Congress under inherent content. Never. And pining for “perp walks” is gross. And has nothing whatsoever to do with Clinton. People are out of their minds.

    • timbo says:

      Re: Inherent Contempt power of Congress

      An attempt to use this power might happen if there was a Congressional plurality that felt it necessary to handle a perceived crisis. The thing to remember here is that, and if there is one thing recent Congresses seem to fear, it is the assertion of too much Congressional power, particularly when exercising that power distracts from the regular business of Congress. The current leadership in the Congress have not perceived Trump as warranting such measures yet, that much is clear enough. There are arguments to be made for or against Congress making such arrests based on Inherent Contempt. Certainly the Inherent Contempt power of Congress (if it even still exists at all in enforceable law) should not be used for petty political connivance. Congress has enacted laws that allow for the Executive Branch to bring such cases of contempt that may arise before the Judicial Branch. Hence, Congress, having created a more “checks and balances” approach to handling possible contempt situations, has wisely shied away for using Inherent Contempt proceedings for many many decades now.

      • Lit_eray says:

        Some further thoughts on inherent contempt and your comment:
        The reason for Congress is to legislate. It has been determined and accepted since prerevolution times that inherent to that purpose is accurate information.

        When necessary information is refused or withheld, the early Congresses used a process that involved imprisonment to compel sharing of that information, and/or punishment for withholding such information. The process is justified under Article I of the constitution because Congress is an equal power of legitimate government arising from the people governed. It could be argued that Congress serves as the only branch bringing the voices of the people to the enterprise on an on-going basis.

        Contrary to your impression, I do not believe that Congress fears its assertion of too much power. If anything modern trends seem to me to be a shifting of power from Congress to both the Article II and Article III branches. We could argue endlessly about the direction thereof and reasons for the shifting, I suggest that timidity, along with political considerations focused on personal regards rather than what is best for most, of the current leadership plays a large role.

        As our body of law developed Congress ceded some of its inherent power to the other branches by legislating civil and criminal procedures to enforce its needs to coerce information. Inherent contempt is not a matter of enforceable law, rather it is the logical continuance of establishing a government in the form of ours.

        Congress never ceded its power to bring recalcitrant persons before the bar of Congress to try them for not complying with a subpoena for information necessary for legislative purposes. Historically it has done so, but not recently.

        I am inclined to think that Congress needs to reassert its equality with the other branches. And, an effective way to do that is to assert its inherent power in a matter of enormous importance to, and for, the interests of the people.

        I do not pretend that assertion of inherent contempt would be a simple process unsullied by numerous attempts to divert, misinform, and/or misdirect the purpose. The basic underlying elements of the matter are indeed fairly simple. No doubt the executive and judicial branches, and elements of the public, would insert themselves into the process, rightly or wrongly.

        I for one would love to see Representative Pelosi, after a vote of the full House, direct the Sargent at Arms to deputize (or whatever robust process that would stand up to judicial scrutiny) whomever needed to bring an unresponsive Trump to jail, even if the Secret Service intervenes. Think of it as grandstanding for a good reason that also has teeth without fear of what different Congresses will do with the same power.

          • Lit_eray says:

            Perhaps. In order to provide you with continuing humor, keep in mind that Johnny Appleseed was not only a shrewd real estate developer, he is also credited with saving many apple varieties from extinction.

        • timbo says:

          The Executive branch has gained power over time within the federal institutional system as both US society and national economy has become more and more complex. Because of this increasing complexity, the law and regulation of commercial activities, the tax codes, etc, etc, have become more and more difficult to both write and implement by the Congress itself. Congress has therefore been relying more and more upon the Executive departments to define the boundaries of various problems in closer to real time, and has empowered that with more generalized laws on how things should work to deal with those problems and issues as they might arise. Some of these laws are also to accomplish generalized perceived goods for society, again in as much as Congress, much like the Framers of our Constitution and its many Amendments, might not foresee all instances in which a particular problem might specifically and directly be gamed out in minute detail given no true ability to know the minutae of the future. Hence, the amount of federal regulatory functions and surrounding regulations have grown, often exponentially, over time. ;/

          Interestingly, the idea of overly zealous delegation of authority to the Executive branch by Congress is one of so-called conservative legal theories making the rounds (most often when there’s some sort of Executive agencies regulations that the “conservative” du jour is unhappy with said regulations). Congress has however done a seemingly thorough job of spelling out in law precisely how Contempt of Congress proceedings shall work inclusive of each within the Article I-III framework, each in turn being complaint requestor (Congress), prosecutorial investigator (DOJ), and adjudicator (Federal courts) for the entire process. Thus, it would not be hard to imagine that the Article III branch concluding that it was mostly fine with that method under a Constitutional framework for Contempt of Congress proceedings following that route, rather than being done via the older Inherent Contempt method (which the Article III branch approved of decades ago but has not been tested thoroughly in the federal courts since Congress decided to delegate the Contempt of Congress legal process ‘magnanimously’ away from itself).

          • Lit_eray says:

            Yes there are reasons for the drift of power to the executive branch. Many are appropriate and good reasons as you have laid out.

            Whew! Associating me with “conservative” theories set me back. I will have to contemplate on that for a while.

            Asserting Article I authority unilaterally is not necessarily a bad thing. Who knows how it would work out in the long run. Deferring to the other branches’ procedures does not reinforce your independence. My inclination is to tell the other branches to pound sand and proceed in the old ways.

            Thanks for your considered response to my musings.

  15. ExpatR&RDino-sour says:

    I mentioned to my daughter when Trump was elected that guys like him always flame out at some point. There have been so many flame out points over the past five years and more that I now doubt my words. I will be pilloried for saying this I’m sure, but Trump might not be stupid enough to testify (I think he might be exactly that stupid), but he might be just shrewd enough to do it purely for the spectacle and the fund raising. The man cannot help himself, and he could be setting up his next career. The maga crowd would love him even more no matter what the outcome.

    • posaune says:

      Whatever, DJT’s psychological profile — the guy is wired for survival at any cost. His is a raw, native instinct that is actually remarkable.

      • ExRacerX says:

        heh. Yep—it’s kinda like that “nothing fazes the Honey Badger” meme, with added pissing, moaning, & aiding/abetting ratf*ckers.

      • ExpatR&RDino-sour says:

        Remarkable indeed. He’s got away this crap for decades, all his life. Are his Wharton grade so secret because they were so incredibly good? Taxes not released because they were so scrupulously honest? He was probably a schoolyard bully as a cadet and he still is, just on a grand scale.

        Chickens do come home to roost though, and some bullies never learn to stop until they are out-bullied… if that is a word. Trump is a man that has always got his way through force of will and was taught how to do so by his father and by Roy Cohn. That will is remarkable and I still believe it will be his downfall one way or another, and it won’t be pretty. It’s a matter of who and what goes down with him.

        • bmaz says:

          If he were really smart, he would have never put himself under the microscope of running for and being President.

          • swmarks53 says:

            Absolutely! I told my wife after he was elected that he was not playing AAA ball anymore. This was the majors, with major league pitching and major league fielding.

            New user name to fit the new guidelines.

            [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

            • timbo says:

              To belabor this analogy…

              The problem is that “the majors” have seen waaaay better players in the past. From time to time, the farm system has been better too. Nowadays you’re lucky if you see anyone batting above .150 basically. Spit on the balls and near-sighted umpires are likely contributing to the daily spin…

          • ExpatR&RDino-sour says:

            Absolutely agree with that. I, personally, don’t think he ran to become President. I think he ran to boost his profile and get more money from TV.

          • Ginevra diBenci says:

            He never expected to win, just to exploit the run for an extension of his Apprentice cred (which was fading) and a social media war against the “illegitimate” Clinton victory. He would have mined this for megabucks with Fox News synergy, likely setting up a 2020 run–which, if Clinton had handled the pandemic or not–he might have won.

  16. klynn says:

    “For example, a subpoena to Trump for January 6 documents might cover some of the documents initially seized on August 8. As I have noted, there appear to be documents in both the materials already returned to Trump and those currently under dispute before Raymond Dearie that pertain to Trump’s big lies pertaining to Georgia.”

    Thank you for this insight. As I watched the hearing and the vote to subpoena, it was not the call for testimony that caught my attention, it was the request for documents. After the doc requests to NARA and the, I think, 8 batches provided to the committee (in Jan, April, June and July), it is my understanding NARA has been creating a list of missing documents per an LA Times article from September:

    So is the subpoena for documents a “second layer” in the effort to retrieve docs for NARA? IANAL.

    An additional but OT question. I’ve been on the road for a month often out of service area. I think I missed a post about updating usernames to 8 characters but have seen long timers like myself (since TLH days) maintaining their “under 8 characters” usernames.

    So I’m confused as to whether I am grandfathered in or need to change my username?

    [If your email used here in this comment is active, check it momentarily for a note wrt username. You’ll recognize it when it arrives. Thanks. /~Rayne]

  17. Savage Librarian says:

    Pickpocket Dip

    Cipher or a hill of beans,
    Short a Pence for what it means,
    The tottering mobster born in Queens,
    Has more than trouble reading greens.

    Nothing, naught, bupkis, zip,
    He couldn’t hack his own pink slip,
    So being a wily pickpocket dip,
    He corkscrewed MAGAs on his ego trip.

    Nada, nil, zero, scratch,
    So focused on what he could snatch,
    He’s the only one to so detach
    from help he was begged to dispatch.

    Zot, zilch, diddlysquat,
    Mr. Big Lie’s big jackpot
    forever cemented by a demented plot:
    His fury came 1st, goodwill did not.

  18. harpie says:

    THREAD Via Helen Kennedy:

    8:20 AM · Oct 16, 2022

    NEW: How Hill leaders saved the Capitol on Jan. 6.

    New details abt how Rs & Ds got stonewalled by the Pentagon — then joined forces at Fort McNair to hurry the National Guard.

    An adapted excerpt in [The Atlantic] from [Karoun Demirjian] and my new book UNCHECKED [Link]

    When they arrived at Fort McNair, Rs & Ds were taken to separate rooms as they frantically tried to figure out what was happening, an odd setup given the ongoing national emergency [THREAD]

    Links to:
    What Republicans Really Thought on January 6 The president turned his back on seemingly everyone. https://www.theatlantic.com/politics/archive/2022/10/january-6-republican-gop-response-trump-capitol/671752/ OCTOBER 16, 2022, 6 AM

    • harpie says:

      Re: timing of MCCARTHY/TRUMP call, which pdaly and I are talking about here: https://www.emptywheel.net/2022/10/13/house-january-6-committee-public-hearings-day-9-2/#comment-966441

      “Get Kevin McCarthy on the phone,” Pence [in the parking garage] instructed. Short pulled up his cell and pressed the call button.

      McCarthy, for his part, was on the phone with Trump. He screamed into the receiver at the president as his detail spirited him away from the Capitol, where protesters had overrun his office. […]

      • pdaly says:

        Thanks, harpie.
        So it seems the Kevin McCarthy to Trump call occurred before 3:05pm for sure.
        I learned via links in Aaron Rupar’s twitter feed that Kevin McCarthy called Scavino’s phone line in the WH, and Molly Michael, the then Assistant to the President, forwarded McCarthy’s call to Trump who was in the dining room.

        Timeline I have is this so far:
        1:12 PM Trump finishes his speech at the Ellipse and is taken back (against his wishes) to the WH arriving there around 1:19 PM. Trump reportedly remains in the dining room adjacent to the Oval Office watching the riot unfold on TV for the next few hours

        2:11 pm The first window of U.S. Capitol is smashed by Proud Boys member Pezzola
        2:12 pm The first rioter enters Capitol building through that smashed window and opens door from the inside for other rioters to enter.

        2:16 pm House & Senate being locked down

        2:26 pm security footage shows VP Pence and family with their Secret Service detail escaping down a back staircase from the Senate chamber area. They are in the process of relocating to a new safe place (which will be the loading dock in the Capitol parking garage)

        2:28 PM rioters enter Speaker Pelosi’s office suite

        xx:xx pm Kevin McCarthy’s own House of Rep office suite is being ransacked by rioters inside the Capitol. McCarthy’s staff are taking cover. I cannot find a timestamp for this. McCarthy apparently is taken by his security detail out of the Capitol. I cannot find a timestamp for this either.

        2:44 PM rioter Ashley Babbitt shot while trying to climb through the smashed glass portion of the door that is in the Speaker’s Lobby of Capitol.

        xx: xx PM Kevin McCarthy dials Scavino’s WH phone number and is transferred to Trump who is in the WH dining room off the Oval Office. McCarthy and Trump have their expletive laden conversation in which McCarthy tells Trump to order ‘his people’ to leave the Capitol, that McCarthy’s own office staff are hiding/taking cover from Trump-supporting rioters inside the Capitol and smashing windows in McCarthy’s office.
        It is unclear (except for one UK news outlet which reports this as true) whether McCarthy tells Trump about the shooting of Babbitt (which occurs at 2:44 PM)

        xx:xx PM Kevin McCarthy calls Trump’s son-in-law Kushner who ‘was taking a shower and saw on his phone a call coming in from McCarthy.’ Kushner flew back from Saudi Arabia and landed in DC on Jan 6, so was Kushner taking a shower while in the plane when McCarthy called him? Or had Kushner already landed and was home taking this shower?

        xx:xx PM (after 2:26 pm and before 3:05 PM) VP Pence calls Kevin McCarthy, who had completed his phone call with Trump and with Kushner.

        3:05 PM Kevin McCarthy begins his on-air live phone call with WUSA telling everyone he had already spoken with Trump.

        Here’s link to Aaron Rupar’s twitter thread that includes details of the McCarthy to Scavino to Trump phone call routing in one of the videos and Kushner’s recollection of taking a shower when he noticed McCarthy calling him on his phone.

  19. klynn says:

    harpie, thanks for the links. I was following this as well as everyone on Twitter posting on the Pelosi-Pence timeline. Honestly, a way to crush DT’s attempts to have media “megaphone” his racist/antisemitic comments as a power grab is not only to break them up, as Marcy suggests, but to focus on the video moments presented of Pence-Pelosi call on J6. That whole timeline is damning in terms of the layers of national security failures DT was intentionally creating and furthering. Just walking out the timeline and how others’ conflict resolution efforts brought most of the order, creates blows to his power dynamic. It telegraphs he’s unfit to lead – which serves as a counter message. That damning timeline needs to go viral.

  20. harpie says:

    8:37 AM · Oct 17, 2022

    JUST IN: DOJ recommends a six month jail sentence and $200,000 fine for Steve BANNON for defying a Jan. 6 select committee subpoena [screenshot]
    DOJ says one factor in Bannon’s sentencing should be his last ditch effort to pressure DOJ to drop the case, and cites an *Oct. 7, 2022* interview with a select committee staffer describing newly revealed contact w Bannon’s lawyer, Evan Corcoran (also Trump’s lawyer)

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