Trial by Combat: Rudy Giuliani and John Eastman Speeches Included in Ed Badalian Exhibit List

In a pre-trial filing in the case of Ed Badalian — who is charged with conspiring with Michael Fanone’s now admitted assailant, Danny Rodriguez, to obstruct the vote certification — the government identified at least six exhibits pertaining to the events at the Ellipse on January 6 it may introduce at trial.

That includes not just video and a transcript of Trump’s speech, but also of John Eastman and Rudy Giuliani’s speeches.

Exhibit 311 likely references the documentary clip showing Rodriguez, seemingly responding to Trump’s call-out of Pence in his speech, turning to the camera, stating “Joe Biden,” and making a throat-slitting movement several times (See 25:43 in this video).

Focusing on what happened at the Trump rally is unusual in January 6 trials.

Not even with some of the defendants who seemed most enraged by Trump — such as Kyle Fitzsimons — did the government rely on more than a still picture of the Ellipse event. In the Dustin Thompson case, where Thompson had affirmatively claimed that Trump’s speech had authorized him to storm the Capitol (and where Thompson had falsely testified Rudy’s speech had done so too), the government included just a YouTube of Rudy’s speech that had been sent to Thompson. They had Trump’s speech available as an exhibit, but relied, instead, on Thompson’s Uber and GPS records to prove he hadn’t seen Rudy’s speech.

The government has more often than not tried to keep the Ellipse rally out of January 6 trials than include it.

But in this case, the government may be in a position to do something else: to tie Trump, Rudy, and Eastman directly to the violence at the Capitol, to tie Trump directly to the attack that almost killed Michael Fanone.

As DOJ has done with other charged conspiracies, the indictment, Rodriguez’ statement of offense, as well as that of co-conspirator Gina Bisignano trace how the co-conspirators — here, a group of anti-maskers from Southern California — responded to Trump’s call by arming themselves, traveling together to DC, getting riled up at Trump’s speech, then going to the Capitol to engage in some of the most important violence and destruction during the attack.

In response to Trump’s December 19 tweet, for example, someone in the group described that, “Trump is calling on everyone to go to DC Jan 6th.” Two days later, Badalian announced, “we need to violently remove traitors and if they are in key positions rapidly replace them with able bodied Patriots.” On December 29, Rodriguez boasted, “Congress can hang. I’ll do it. Please let us get these people dear God.” Sometime before leaving for DC, Rodriguez told someone else, he would “assassinate Joe Biden” if he got the chance. On January 5, Badalian said, “we don’t want to fight antifa lol we want to arrest traitors.” Also on January 5, Rodriguez promised, “There will be blood. Welcome to the revolution.”

In this case, they also have a remarkable confession. DOJ has Rodriguez explaining to the FBI that he didn’t plan on murdering anyone like Fanone, he just thought there might be casualties because, he believed, he was fighting a civil war.

I kept thinking that we were going to go to, like, a civil war and it’s going to go hot and we’re just — it’s all going to — you know? I don’t know. I didn’t know — we didn’t — nobody knew, so we just thought that it was going to — we were preparing for the — we’re trying to save the country. We thought we were saving the country. I thought I was helping to save the country.


A. I didn’t go planning to murder anybody.

Q. I’m not saying that.

A. But I knew that it was a possibility that —

BY AGENT ELIAS: Q. There could be causalities and —

A. There could be causalities. That, like, if this was another civil war, this was another 1776, another 4th of July or something, that that could be a possibility and —

But what they also have are the immediate reactions to Trump’s speech (and perhaps Eastman and Rudy’s, too), that turn to a camera and the show of slitting Biden’s throat. Rodriguez is not the only one who responded to Trump’s incitement by voicing plans to attack the Capitol. Bisignano (who may yet live to regret her nine month effort to renege on her plea deal) also responded directly to Trump’s incitement. “I hope Mike Pence is going to do the right thing,” Trump called out. “I hope so too,” Bisignano responded, “he’s deep state.” And as she marched to the Capitol, Bisignano filmed herself describing that “we are marching to the Capitol to put some pressure on Mike Pence.” Once there, she described, “we are storming the Capitol,” before she, Rodriguez, and Badalian did just that together.

One of the key pieces of evidence Jack Smith’s prosecutors have tying Donald Trump and John Eastman and Rudy Giuliani to the attack on the Capitol are Greg Jacob’s retorts to Eastman that day. “The knowing amplification of [Eastman’s] theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law,” Jacob told Eastman at 3:05 PM on January 6, as he sheltered with the Vice President from Danny Rodriguez and Gina Bisignano and thousands of other attackers, “has led us to where we are.” At 2:14PM, just as attackers broke through a window of the Capitol, Jacob was more succinct: “[T]hanks to your bullshit, we are now under siege.”

An hour after that initial breach, Danny Rodriguez would grab Fanone and, using a taser he was handed inside the Tunnel, tase the officer twice in the neck, leading to a heart attack and other injuries that remain redacted in Rodriguez’ statement of offense. In the morning, Rudy Giuliani called for “trial by combat.” John Eastman told listeners, “We no longer live in a self governing republic” if they couldn’t get Pence to let Republicans investigate further. Trump told his followers that if they didn’t fight, they wouldn’t have a country anymore.

In the morning, Trump’s speech led Rodriguez to imagine knifing Joe Biden, and in the afternoon, Danny Rodriguez almost killed Michael Fanone.

I don’t know if DOJ intends to do this (and as noted in the exhibit list, Badalian wants these exhibits excluded from trial on relevance grounds), but Amit Mehta certainly believed Trump might bear Aid and Abet liability for assaults like the one Rodriguez committed on Michael Fanone.

And in the case where you can draw the clearest line between things that Trump and Rudy and Eastman said at the rally to an assault and other violence at the Capitol, DOJ has laid the ground work to make that case.

Update: Here’s the updated exhibit list for the trial with specific times for the video of Trump and Giuliani’s speeches. The times from the latter are from when Rudy spoke, not John Eastman; it appears to include his “trial by combat” line.

35 replies
  1. Yogarhythms says:

    311 and more if presented corrals the Ellipse speakers so even novice team or jury could rope head and heals for first time rodeo take down.

  2. Peterr says:

    Exhibit 311 likely references the documentary clip showing Rodriguez, seemingly responding to Trump’s call-out of Pence in his speech, turning to the camera, stating “Joe Biden,” and making a throat-slitting movement several times (See 25:43 in this video).

    Lawyer’s Prayer: “Lordy, I hope there are tapes.”

    The Almighty, after checking The Wayback Machine: “Ask, and ye shall receive. . . .”

  3. harpie says:

    This is what TRUMP was saying just as the Joint Session was beginning:

    approx. 1:00 PM:

    [The weak Republicans] want to play so straight. They want to play so, sir, yes, the United States. The Constitution doesn’t allow me to send them back to the States.

    Well, I say, yes it does, because the Constitution says you have to protect our country and you have to protect our Constitution, and you can’t vote on fraud. And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules.

    So I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to. […]

    I did a TL of the Rally with some speech excerpts here:

  4. harpie says:

    2:13 PM PEZZOLA uses the riot shield he had taken from a Capitol Police officer to break a window of the Capitol. The first members of the mob enter the Capitol through this broken window, and PEZZOLA does as well. Other members of the mob enter the building and forced open an adjacent door from the inside.

    2:13 PM BIGGS [walking toward NW doorway breach]: Holy fucking shit, it’s going down!

    2:14 PM JACOB to EASTMAN:

    […] I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.
    “[T]hanks to your bullshit, we are now under siege.”

    2:24 PM TRUMP tweets:

    Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth! [Twitter: This claim about election fraud is disputed]

    2:25 PM EASTMAN to JACOB:

    My “bullshit” – seriously? You think you can’t adjourn the session because the ECA says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming. The “siege” is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.

    2:26 PM PENCE and family, and JACOB [and the nuclear football] are evacuated from Ceremonial Office, down the nearby “Member Stairs” to first floor near Carriage Entrance, to loading dock area. They stay there for nearly 5 hours.

    • harpie says:

      3:04 PM Nancy COOK to MEADOWS: Are you with potus right now? Hearing he is in the dining room watching this on TV… [] Is he going to say anything to de-escalate apart from that Tweet?

      3:05 PM JACOB to EASTMAN:

      I do apologize for that particular language, which was unbecoming of me, and reflective of a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people-“mostly peaceful” as CNN might say, who believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that.

      But the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are. […]

      For the record, it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided he case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led to where we are. […]

      3:19 PM [approx] Danny RODRIQUEZ grabs FANONE and, using a taser he was handed inside the Tunnel, tase the officer twice in the neck, leading to a heart attack and other injuries that remain redacted in Rodriguez’ statement of offense.

    • harpie says:

      4:09 PM EASTMAN to JACOB:

      […] With all due respect, the VP’s statement today claimed the most aggressive position that had been discussed and rejected. “Some believe that as Vice President, I should be able to accept or reject electoral votes unilaterally.” But we had given a much more limited option, merely to adjourn to allow state legislatures to continue their work. I remain of the view not only would that have been the most prudent course as it would have allowed for the opportunity for this thing to be heard out, but also had a fair chance of being approved (or at least not enjoined) by the Courts. // Alas.

      4:13 PM Jim ACOSTA [CNN] tweets:

      “A source close to the White House who is in touch with some of the rioters at the Capitol said it’s the goal of those involved to stay inside the Capitol through the night.”

      4:17 PM TRUMP tweets VIDEO: [An aide present for the recording said, “Trump had to tape the message several times before they thought he got it right.” // In earlier versions he neglected to tell his supporters to leave the Capitol, according to Jonathan Karl.]

      TRUMP: I know your pain. I know you’re hurt. We had an election that was stolen from us. It was a landslide election, and everyone knows it, especially the other side, but you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order. We don’t want anybody hurt. It’s a very tough period of time. There’s never been a time like this where such a thing happened, where they could take it away from all of us, from me, from you, from our country. This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. So go home. We love you. You’re very special. You’ve seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel. But go home and go home at peace.

      4:29 PM JACOB to EASTMAN:

      Did you advise the President that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally? Because that was pushed publicly, repeatedly, by the President and by his surrogates this week. And without apparent legal correction.

      I acknowledge that the final proposal as to actual actions to be taken by the Vice President in violation of the ECA that was retreated to last night was more modest. But the legal theory is not. And it does not appear that the President ever got the memo.

    • harpie says:

      6:00 PM [a little before] EASTMAN to BANNON
      [on War Room] [At Willard?]:

      [PENCE was] “exaggerating what the request was” [ and had ignored his] “constitutional obligation not to allow our Constitution to be shredded by allowing illegally cast electoral votes to decide the election.” [] [Violence at the Capitol happened] “because we have failed in every one of our formal institutions” [] “some of the people think they’ve got no other option.” [] “These are the kind of things that have people angry and by God, they ought to be angry.” [] “And if people don’t have faith in the ballot box, as the way to control the government, we no longer have a self-governing republic. Those are the stakes here.”

      6:01 PM TRUMP tweets:

      These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever! [TWITTER: ! This claim of election fraud is disputed, and this tweet can’t be replied to, Retweeted, or liked due to a risk of violence.] [Deleted after 1 hour at 7:15 PM on 06 Jan 21]

      • harpie says:

        Thanks, Rayne! It was inspired by Marcy’s close reading, here.

        I admit, I did get a kick out of the obviously superior skills and the dripping disdain of JACOB toward EASTMAN [no contest], but to think this was all going on WHILE the Insurrection was in progress is just infuriating,
        AND I didn’t even add in GIULIANI and TRUMP’s calls to Insurrectionist Congress members.

  5. earlofhuntingdon says:

    I hope a real journalists checks to see how big a tax deduction TFG takes for giving away his shitty own-brand water to the desperate people in and around East Palestine, OH. Odds are he’ll use full retail for stuff he couldn’t give away.

    • Sue 'em Queequeg says:

      I’d guess at least twice retail, after shipping, adjustment for inflation since 2010 and extra charge for bottle aging.

      • tmooretxk says:

        It is being reported by Newsweek that the water was not his 2010 brand but the bottled water they currently use at his various establishments – you know, the stuff they charged the government for at his Mar-A-Lago press briefings.

        • ducktree says:

          Reported today in WaPo that the water used to hose down the toxic train wreck in East Palestine, OH, is to be sent down to Texas to be piped into the ground. I’d be very cautious about buying bottled water down Texas way.

        • earlofhuntingdon says:

          Not that I would believe anything coming from TFG’s team, but Newsweek has long since lost the medium-level credibility it had a generation ago. Irrespective of which, the tax dodge rationale still stands.

  6. Ravenclaw says:

    Please forgive what may be a stupid question.

    The third column of the list of exhibits describes many of them (including the Ellipse material) as “irrelevant” or “hearsay irrelevant.” Does that mean that these have been ruled inadmissible or that the attorneys for the defense have asked that this be done? If the latter, does anyone have a clue as to the judge’s likely ruling? Or do these entries mean something else entirely, that my non-lawyer mind simply doesn’t fathom?

    • bmaz says:

      No, does not yet mean that at all. It is an argument in limine we’ll see how the court responds, but that is the real measure, not simply filing of this.

    • emptywheel says:

      Sorry, I should have explained. That’s a pretrial summary of what the evidentiary disputes are, and the bases for them. So the third column shows the objects Badalian has, if any. For example, he’s still charged as a co-conspirator of Rodriguez, but he’s going to try to keep as much of Rodriguez’ speech (like that throat-slitting) out of trial, as it’s really damning.

  7. Konny_2022 says:

    I remember a video clip showing how the mob at the Capitol shouting what Trump had tweeted (at 2:24 PM?), and the people (re)starting their “chorus” re Pence. I can’t find it right now, but I think it would fit in the great timeline above (if my memory is correct).

    • harpie says:

      Yes, I agree! There are a few things that would really round it out, but I didn’t want it to get too long. I’ve been thinking about adding in those items as replies.

      Here’s the part of the J6C hearing where
      the 2:24 PM TRUMP tweet-crowd chanting was discussed and shown:
      9:01 PM · Jun 9, 2022

      A video played by the January 6 committee shows how the
      [2:24 PM] tweet Trump posted after the Capitol had been breached criticizing Pence for not helping him overturn the election prompted “hang Mike Pence!” chants [VIDEO]

      • harpie says:

        From that VIDEO [I need help with the transcript]

        [1:39] Policeman [MPD?] [beneath scaffolding]:
        “We can’t hold this, there’s too many fucking people! Look at this fucking [???]! We’re fucked!”

        • Konny_2022 says:

          Thanks for sharing the link. I couldn’t get the word from the Rupar tweet either, but I went back to the PBS recording of the June 10 hearing, and they have as caption: “We get all this, we’re going to get too many fucking people. Look at this fucking vantage point.” (I don’t include the link here because I had some problems sharing a link here recently, but if you have the respective PBS youtube, it starts at 2:01:20.)

      • harpie says:

        Thank you Konny! I think the NPR transcript gets it right and seems to fit with what I can hear on the C-span VIDEO at [55:54].

        NPR Transcript:

        [55:54] Police Officer: We can’t hold this. We’re going to get too many fucking people here. Look at this fucking vantage point. Man, we’re fucked. [56:02]

        The VIDEO footage just before that, beginning
        at [54:25] = MAN reading 2:24 PM TRUMP tweet, with crowd reactions part.

        • Konny_2022 says:

          Thanks, Harpie, for sharing the additional links. It’s always good to have more than one source for counterchecking.

Comments are closed.