Maggie and Mike Back Together Again, This Time on, or with, January 6 Corrupt Purpose

Yesterday, the NYT broke the news that Jared Kushner testified before Jack Smith’s grand jury last month and told them — in testimony that conflicts with other witness testimony — that his father-in-law really did believe he had won the election.

Federal prosecutors investigating former President Donald J. Trump’s attempts to overturn the 2020 election have questioned multiple witnesses in recent weeks — including Mr. Trump’s son-in-law, Jared Kushner — about whether Mr. Trump had privately acknowledged in the days after the 2020 election that he had lost, according to four people briefed on the matter.

The line of questioning suggests prosecutors are trying to establish whether Mr. Trump was acting with corrupt intent as he sought to remain in power — essentially that his efforts were knowingly based on a lie — evidence that could substantially bolster any case they might decide to bring against him.

Mr. Kushner testified before a grand jury at the federal courthouse in Washington last month, where he is said to have maintained that it was his impression that Mr. Trump truly believed the election was stolen, according to a person briefed on the matter.

The scoop, which brings the old team of Maggie and Mike back together again, is fine. Whoohoo! Another top witness.

Just as interesting that Jared has testified is the news — buried in paragraph 31 — that Ivanka has not yet testified before the grand jury, though there’s a good deal of wiggle room about whether she has complied with a document subpoena or whether she has spoken with prosecutors outside of a grand jury.

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Maggie and Mike, always solicitous of Ivanka and her family, mention Ivanka’s testimony to the January 6 Committee, but they neglect to mention that after Ivanka testified to the January 6 Committee, the committee specifically called her out for her lack of candor, effectively inviting DOJ to consider false statements charges for her. So it may not be a good sign for Ivanka that she hasn’t been called before the grand jury.

That’s an interesting detail, but given that this is Maggie and Mike, I’m as interested in what appears between the Jared news and the Ivanka news: Maggie and Mike’s explanation for why (they claim) this matters. They explain that asking whether Trump knew he lost is important to ascertaining whether he had a “corrupt purpose” in obstructing the vote certification. Based on that premise, Maggie and Mike raise doubts about whether Jack Smith will be able to charge this, because without that, they suggest, Smith will lack one key element of the obstruction statute.

Maggie and Mike don’t mention that dozens — probably over a hundred — people have been convicted under 18 USC 1512(c)(2) for their actions on January 6 already; by DOJ’s most recent count, 310 people have been charged with it. Many if not most of them tried to argue at some point that their crimes were cool because they really did believe Donald Trump’s lies.

To be fair to poor Maggie and Mike, who after all are mere journalists, the conceit that Trump might dodge obstruction charges because he believed his own hype is one that has long been parroted by TV lawyers, and Maggie and Mike do cite several lawyers talking about how having proof that Trump knew he lost would strengthen the case.

But we have two years of public record showing that’s not how it works.

What VIP obstruction looks like: Alan Hostetter

Here’s what a guilty verdict for obstructing January 6 looks like in reality, taken from findings that Reagan-appointed Judge Royce Lamberth wrote up to support his guilty verdict yesterday for Alan Hostetter, a southern California anti-mask activist who played a key role in organizing others from southern California to come to DC on January 6.

In December 2021, I wrote about the challenges and import of prosecuting people like Hostetter — I called him and similar figures organizer-inciters — for obstruction, in part because it’s a test of whether DOJ will be able to hold even more senior people accountable for inciting others to commit violence.

Like Trump, Hostetter is a VIP who didn’t enter the Capitol, but who spent the weeks leading up to January 6 riling up others to obstruct the vote certification. As such, he’s a really good read on how obstruction might apply to Trump.

Every time Lamberth presides over a bench trial, he writes up and dockets his findings. I could hug him for doing so, because they provide a really superb way to understand how a very senior judge who has been presiding over these cases for over two years views them. Journalists and TV lawyers who, unlike Lamberth, haven’t been living and breathing January 6 for two years could learn a lot from reading every one of his findings reports, or at least this one.

Lamberth pointed to the following evidence to support his guilty verdict that Hostetter had obstructed the vote certification:

After arriving at the West Plaza, Mr. Hostetter advanced underneath the inauguration stage scaffolding and up a set of stairs leading to the inauguration stage. While on the stairs, Mr. Hostetter used a bullhorn to cheer on the crowd below as it violently fought against police and attempted to break the lines. Meanwhile, on a landing at the top of the stairs, several officers formed a line to prevent a group of rioters from reaching the inauguration stage. Mr. Hostetter’s co-conspirator, Mr. Taylor, joined the group of rioters and began pushing against the officers who were blocking access to the stage.


Mr. Hostetter’s actions obstructed and impeded the proceeding by, together with the actions of others, forcing the evacuation of Congress and the end of the certification session, as shown in the testimony of Inspector Hawa and Mr. Schwager. By joining the riot, exhorting the crowd, standing with a vanguard of rioters making a highly-visible and violent effort to access the inauguration stage, and remaining on the Upper West Terrace for two hours while police attempted to clear out rioters, Mr. Hostetter helped ensure that Congress was under a sufficient security threat requiring adjournment and then an inability to resume the official proceeding that their actions helped to disrupt.

It’s not just that Hostetter’s own physical premise obstructed the vote certification, his exhortations to other, more violent people, did too.

Lamberth specifically noted that Hostetter’s purpose was to obstruct an election result he viewed as fraudulent.

Among other evidence … Mr. Hostetter’s own testimony[] demonstrate[s] that Mr. Hostetter understood his purpose on that day to be stopping an election result that he viewed as fraudulent by obstructing or impeding the Electoral College Certification.

Lamberth cited multiple exhibits and testimony showing that Hostetter knew the significance of the Electoral Certification. Notably, he describes how Hostetter listened to Trump explaining what he wanted, and then took action.

Mr. Hostetter testified that he had been closely following the efforts to overturn the 2020 Presidential Election and news about what was happening with the Electoral College Certification. Additionally, Mr. Hostetter testified that he listened to speeches at the Ellipse given by Rudy Giuliani and President Trump, was engaged by them, and remembers President Trump talking about Vice President Pence. During President Trump’s speech, President Trump made statements concerning what he wanted to happen with the certification and Vice President Pence’s role in the certification, which Mr. Hostetter heard.

Lamberth substantiated Hostetter’s corrupt purpose — what Maggie and Mike claim requires proof of knowledge that Trump lost — by pointing to the former cop’s consciousness of wrong-doing by walking, armed with a hatchet, onto Capitol grounds, what Dabney Friedrich adopted as “otherwise illegal means” standard to meet the statute’s corrupt purpose requirement.

Mr. Hostetter had the necessary mental state to meet the “corruptly” requirement. First, by himself carrying an inherently dangerous weapon into the restricted grounds of the Capitol, Mr. Hostetter used an unlawful means, specifically the independently felonious means of entering and remaining in a restricted building with a deadly or dangerous weapon.

Lamberth also pointed to Hostetter’s own incitement of others as evidence of corrupt purpose.

Additionally, Mr. Hostetter sent numerous messages and made speeches before and immediately after January 6 effectively calling for revolution. He also recorded videos in which he called for executions of public officials in connection with the 2020 Presidential Election.

Importantly, Lamberth specifically addresses, and dismisses the import of, Hostetter’s claims that he believed he was doing something good.

I also find that even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing. Belief that your actions are ultimately serving a greater good does not negate consciousness of wrongdoing.


[T]he point isn’t that the defendant needs to understand what he’s doing is morally wrong; it’s that he needs to understand that what he’s doing is unlawful. Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And Lamberth addresses the mid-point of the appellate debate at the DC Circuit on corrupt purpose in the Fischer decision — requiring an unlawful benefit to find corrupt purpose.

I find that Mr. Hostetter took these actions in order to provide an unlawful benefit to his preferred presidential candidate, President Trump–by disrupting the Electoral College Certification that would have led to President Trump’s loss of the presidency.

Requiring finding an unlawful benefit is not, yet, the standard for obstruction in the DC Circuit. A separate panel considered the standard for corrupt purpose in Thomas Robertson’s appeal on May 11. But it is likely to be the most conservative standard that the DC Circuit (and even SCOTUS) would adopt, so Lamberth is protecting this verdict in advance of further rulings from the Circuit.

In any case, as I’ve noted over and over, even if that were the standard, it would apply to Trump if he were charged far more easily than any of the 300-plus people who’ve already been charged with obstruction for January 6. For Trump, whether he believes he won or not is not only unnecessary, but because he was trying to steal the election, it’s easier to prove corrupt purpose under this standard for him than for anyone else.

This is what applying the obstruction statute to January 6 looks like in real life. One after another judge has, like Lamberth, explained why it doesn’t matter whether someone believed that Trump won.

It doesn’t matter. Maggie and Mike built an entire story around a standard that two years of directly applicable precedents — precedents that will dictate terms of the elements of offense if Trump ever is charged under 18 USC 1512(c)(2) — show doesn’t matter.

Whether Trump believes he won doesn’t matter for 18 USC 1512(c)(2).

Jared Kushner’s central role in monetizing the lies

Whether Trump knew he won doesn’t matter for 18 USC 1512(c)(2).

It does matter — a lot — for any campaign finance charges arising out of January 6, and in that, it could have an indirect impact on Jack Smith’s charging decisions.

And, in part because Jared made himself scarce for January 6 itself, that’s actually the area where the former President’s son-in-law has more personal exposure than on the conspiracy to obstruct the vote certification.

This is a point MSNBC’s Lisa Rubin made at length in response to this news yesterday (and her coverage of this is so good I hereby create a special category of people who happen to be lawyers but even in spite of that provide superb TV analysis based on the actual facts).

Here’s how J6C addressed it.

Several days earlier, Trump Campaign Senior Advisor Jason Miller had explained the intention for this round of advertisements in an email. He wrote that, “the President and Mayor Giuliani want to get back up on TVASAP, and Jared [Kushner] has approved in budgetary concept, so here’s the gameplan” in order to “motivate the GOP base to put pressure on the Republican Governors of Georgia and Arizona and the Republican controlled State legislatures in Wisconsin and Michigan to hear evidence of voter fraud before January 6th.”317 Miller anticipated a budget of $5 million and asked for the messaging to follow an earlier round of advertisements, “but the endings need to be changed to include phone numbers and directions to call the local Governor or state legislature.”318 On December 22nd, Jason Miller texted Jared Kushner that “POTUS has approved the buy.”319


Trump Campaign leadership was fully aware of post-election fundraising totals. According to Coby, President Trump’s son-in-law and senior advisor Jared Kushner “had the most interest in the digital program” and “would just check in on [fundraising] results,” and routinely received updates regarding fundraising from Coby.70 Coby also made clear that Kushner was heavily involved in the Campaign’s budget process71 and that he updated Kushner on TMAGAC’s post-election fundraising totals.72

The Select Committee received documents confirming Kushner’s involvement. For example, on November 8, 2020, Kushner requested that a daily tracker be created showing the Trump Campaign’s financial position from election day forward.73 In an email, Kushner noted that the tracker would allow the Campaign to consider its cash flow ahead of the creation of “a new entity for POTUS[’s] other political activities.”74 Just days after the election, and after the Campaign had three of its four best fundraising days ever on November 4th, 5th, and 6th,75 Kushner was preparing for the launch of President Trump’s new leadership PAC, Save America. Kushner stated that he needed this new daily tracker because the Trump Campaign was going to continue fundraising post-election.76 Kushner continued to receive these detailed daily trackers, which included Save America’s fundraising hauls, through at least December 2020.77

Jared Kushner isn’t much use as a witness about Trump’s actions and intent on January 6 itself.

He’s a central witness to the decision to monetize Trump’s lies by sowing violence — and even, to then use that money for purposes other than addressing election integrity. That’s why his grand jury testimony last month is of interest.

And his claim that Trump really believed he won may not help Trump; it may hurt Jared. But then, Jared has a very direct interest in claiming that all this fundraising based off lies were based on a good faith belief Trump had won.

Campaign finance fraud is an otherwise illegal action

I’m not promising here that Trump will be charged with obstruction — though, as noted, I long ago pointed to people like Hostetter as early tests of whether he could be, and his conviction yesterday shows how that might work.

I’m saying that people who came late to the understanding that DOJ is using obstruction to prosecute January 6 — which I first mapped out 23 months ago — seem little interest in the two years of precedent about how it will be applied. I include, for special notice, this “model prosecution memo” from JustSecurity — which doesn’t even mention the Justin Walker concurrence in Fischer (which Lamberth addressed in his findings), much less the pending Robertson decision in the DC Circuit that will dictate this application for Thomas Robertson, for Alan Hostetter, and for Donald Trump — in that category.

Trump’s knowledge of his loss matters far more for his decisions about fundraising than it does for obstruction charges. But they may influence any obstruction charges, because campaign finance violations — Trump’s fundraising through the moment he sicced his mob on the Capitol — would be one way DOJ could prove otherwise illegal conduct to meet that corrupt purpose standard under 18 USC 1512(c)(2) if that’s what the DC Circuit adopts in Robertson.

Plus, profiting off false claims of being robbed is another way that Trump personally benefitted from the incitement, even ignoring his bid to stay in power.

Update: This post on Maggie’s curious foray into campaign finance journalism notes that shortly after that misleading story, she and Mike broke the news of the Jared and Ivanka subpoena, which Maggie and Mike claimed was about calling off dad’s attack.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.


As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.


95 replies
  1. TimothyB says:

    As always, thank you for this penetrating analysis.

    Could the reporters be .25 right? Taking away the “I thought I won” defense by demonstrating that he knew he didn’t could be useful for trial, even if the defense isn’t strictly speaking a defense.

    As to the other .75, I appreciate very much that this site, and your hard work, call out the can’t-be-bothered elements of far too much reporting.

    • emptywheel says:

      Well, yes, but note that their quotes from lawyers DON’T actually support their book report.

      Zelenko says having Trump’s own words–totally irrelevant to Jared’s testimony–“makes them more consequential.”

      Goldstein says having Trump’s own statements, “could help justify why charges would be necessary.”

      Neither of those are about needing it to charge 1512. Neither supports their case.

      • TimothyB says:

        Agree with this, largely. Mr. Goldstein, former Fed, says “if the Department of Justice has this kind of evidence, it could help justify to the public why charges in this case would be necessary to bring.” Extralegal point, though such “justification” is possibly salient in this case. Zelenko, former Fed, comments on something nothing to do with the story.

        My main point is that this particular defendant has a tendency to make arguments with little or no legal basis, often for delay, so that having more tools to knock them down quickly and easily could be helpful. As you point out, being very well prepped to respond to such nonsense has also helped the SP team deal with delay tactics.

      • DoctorDoom says:

        Doesn’t Lamberth’s statement assert that knowledge about the outcome of the election is irrelevant, but that knowledge that the J6 events could impede certification of the results provides a sufficient basis for proving corrupt intent? Knowledge that he had lost the election is therefore irrelevant to establishing the necessary corrupt intent to charge Trump with obstruction.

        • emptywheel says:

          Generally, DOJ is not charging people w/Obstruction unless they talked about the import of the vote certification in advance. So it can’t just be that they were rioting, they need to have had some purpose for their rioting.

          To get to corrupt purpose from there, DOJ has most often been using the “otherwise illegal” standard — meaning, if you trespassed to obstruct the vote certification, you broke the law to obstruct the vote certification.

          The bar is actually higher than that, but the corrupt purpose is separate from the goal of obstructing the vote certification.

  2. Spank Flaps says:

    Trump always pretends that nothing has ever happened before. Partly because he is oblivious to history and current affairs, and partly because none of it suits his extremist agenda.
    This bizarre attitude of “only Trump has ever existed” has been spread to Republican politicians, MAGAs, and client journalists.

    • JVOJVOJVO says:

      Access journos like these two are only helping this notion to metastasize is a significant portion of the public, imho.

    • CovariantTensor says:

      Judy Miller was a GOP mole who planted poorly substantiated rumors or outright lies supporting GWB’s fake casus belli for invading Iraq. You really think Maggie descends to that level?

      • Peterr says:

        She certainly seems to be happy to uncritically channel whatever lies Trump & Co. tell her. Her whole approach is access journalism, with as little critical reflection as possible — which makes her the perfect vehicle for Trump & Co. to use to get their unhinged ideas into the mainstream conversation without being challenged on it.

        And that includes injecting poorly substantiated rumors and outright lies. Even when called out on these rumors and lies by folks like Marcy, she continues to act this way.

        Yes, I think she descends to that level. Judy did it with Iraq, and Maggie is doing it — still! – with respect to the Jan 6 coup attempt and other crimes against democracy.

      • emptywheel says:

        Maggie’s worse in a number of ways.

        Judy was using her access to write what she personally believed was an urgent matter, national security. Sure, her view of it was ginned up, but she believed it.

        Maggie is helping people her family has been close to for decades manage bad PR. And she directly benefits from the access it gives her.

        Besides, the effect of her hyping Hillary’s emails for Trump in 2016 may not have killed 1 million Iraqis, but still did really irreversible damage to the world.

        • P’villain says:

          Maybe not a million Iraqis, but query how many US citizens died of Covid, who might not have, under a Clinton Administration.

        • AgainBrain says:

          Actually, even worse, because our inaction w.r.t. COVID at time encouraged other nations to downplay it as well, so Trump & team indirectly (and likely quite substantially) inflated worldwide COVID deaths, not _just_ USA deaths.

        • Rayne says:

          Yes — the transactional nature of the Trump administration surely resulted in more COVID deaths globally. If Kushner refused aid to blue states because they didn’t vote for Trump, what did he and Pompeo and a shoddily-managed CDC do for the rest of the world?

          We know, too, Trump’s shitty foreign policy resulted in John Bolton’s appointment as National Security Advisor in April 2018, which in turn led one month later to the termination of the Global Health Security team responsible for pandemic alert and response systems put in place during the Obama administration. That definitely led to many more early COVID deaths.

          But thanks for all your hard work, Haberman. -__-

  3. Capemaydave says:

    I suspect we will read quite a bit more about “what Dabney Friedrich adopted as “otherwise illegal means” standard to meet the statute’s corrupt purpose requirement” in the months ahead.

    Thanks for the research.

  4. Rayne says:

    Trump’s name is mentioned 42 times in that article. Kushner’s name is mentioned 6 times. Nowhere does it appear Kushner is a possible target, the article’s fourth graf par for the course Maggie and Mike have set out to play:

    The questioning of Mr. Kushner shows that the federal investigation being led by the special counsel Jack Smith continues to pierce the layers closest to Mr. Trump as prosecutors weigh whether to bring charges against the former president in connection with the efforts to promote baseless assertions of widespread voter fraud and block or delay congressional certification of Joseph R. Biden Jr.’s Electoral College victory.

    But Kushner surely acted in concert with Trump the way he did during pandemic response. I guess we’ll have to read Vanity Fair’s coverage to get a better bead on Kushner’s role in January 6 just as we did about Kushner’s handling of the federal government’s COVID response. (Come on, Bess Levin, Kenzie Bryant, bring it for VF!)

    • 0Alexander Platt0 says:

      That’s more or less why they hired her in the first place, no? My understanding was she had an established beat covering Trump and Trump’s point-of-view and the NYT brought her on to make as much use of her access as possible.

    • NkcEd2023 says:

      JFC the rot is deep. Abrams lost his credibility when he batted for Barr. Smerconish does his tired routine cheaply.

      Seems like the only two left with credibility are Wheeler and Chappelle…

  5. Benvindo Soares says:

    Interesting. I remember getting a kick out of the testomony of a couple folks regarding Trimp being made aware of armed folks at the Capital and around him. I was under the impression that having firearms in these scenarious was criminal – yet the President , was not concerned. That seems to be a corrupt – state of mind for a person concerned and responsible with law and order – win or lose. Imho.

      • P’villain says:

        Given that 1) the u and i keys are right next to each other on the keyboard, 2) I frequently make that fat-finger mistake when using my smartphone to type, and 3) I have never once seen anyone use that name as a substitute for “Trump,” I’m going with typo as the explanation. I think you can stand down on this one, bmaz.

      • Benvindo Soares says:

        …. intentional , and not an attempt to be no more cutier then a man that questioned an African American’s papers who happened to be President off the United States.

        My apologies if my trifleness rubbed anyone the wrong way- or violated a posting rule I have no respect for the so called 45th President – and will never spell its name correctly .

    • CovariantTensor says:

      Trump was not concerned about the armed demonstrators because they were his people. They weren’t out to harm him. For Trump, everything is about him.

      • eyesoars says:

        True, but irrelevant to Benvindo Soares’ point. Carrying firearms in DC was a crime, in and of itself. Trump was indeed happy to have them there, regardless, specifically to further his corrupt purposes.

  6. Rugger_9 says:

    I too find it interesting that Ivanka hasn’t officially chatted with SC Smith, because Jarvanka is a unit, not separate parts. What EW has done here is to remind us that J6 did not happen out of the blue, but was a planned assault to stop transfer of power. Since this was planned, Jarvanka would have been probably the last ones to talk to Defendant-1 before putting this in motion as well as arranging the details. It would also explain why they have taken extreme pains to lay low after the Biden administration came in, to the point where Ivanka never uses her maiden name any more.

    It was scuttlebutt that the pair was known as the SABI (Source of All Bad Ideas) and some of the events of Defendant-1’s reign of error clearly had Jared’s fingerprints all over it. They were also known for being vindictive to those who were perceived as crossing them. If SC Smith really digs in here and lines up Jared’s testimony versus Ivanka’s, their respective aides’ and independent sources’ the inconsistencies may just lead to charges. As EW notes that Jared’s take differs from everyone else on Defendant-1’s grasp of his 2020 defeat.

    I’m also glad EW discusses Herschmann as some sort of private counsel not on the official payroll because it makes it clear that Herschmann was never vetted for any sensitive information (does he have any SF-86 on file?), perhaps he filled the role Michael Cohen did as fixer before Cohen got busted and had his epiphany.

    All in all, there are a lot of creatures in this swamp that need to be dealt with, and FWIW it’s probably one of the better arguments for a second Biden term.

    • Rugger_9 says:

      Since it is 5 o’clock somewhere, a sodden thought: has Herschmann been interviewed by SC Smith’s team and would he be able to shield testimony via attorney-client privilege without being retained officially by a formal document? Executive privilege ought to be barred since EW noted Herschmann had no title in the WH.

      If he’s the fixer, he would know a lot of interesting facts.

    • Grain of Sand says:

      Rugger, I know that they are sometimes referred to as Jarvanka, but what does this really mean? What is a unit? Is it legally meaningfully? Does it mean more than that a spouse cannot be forced to testify against the married partner?

      • Quake888 says:

        AFAIK it’s just a way of labeling them just like other celebrity couples (e.g, Ben plus Jennifer becomes ‘Bennifer’). I don’t think it has any meaning beyond that. They can’t be forced to testify against each other but they presumably can be forced to testify against DJT unless that would incriminate them.

  7. CovariantTensor says:

    Anti-war activists Daniel and Philip Berrigan believed what they were doing was morally right (and I agreed with them) while aware it was illegal. They spent a lot of time in prison. Civil disobedience for something you believe is morally right is fine, but you have to be willing to face the legal consequences. Is this legally any different?

    • Rayne says:

      The January 6 perps used physical violence against law enforcement or advocated or encouraged the use of violence to obstruct government proceedings while threatening VPOTUS and Congress — all of which was intended to deny 81,283,501 million Americans their civil rights while confusing 77,146,130 Americans about the status of theirs for Trump’s corrupt purposes*

      The fundamental difference between what drove the Berrigans and what drove the January 6 perps: the Vietnam War’s continuation was not legally sound as Nixon’s near-impeachment revealed, where as the 2020 presidential election was.

      I’m quite annoyed at your willingness to put a protest against a questionable war on the same footing as an effort to overthrow the U.S. government. It borders on right-wing propaganda.

      ADDER: Looking at your latest two comments I think we need to look at your 35 comment history because it looks like you’re not playing on the same field as the rest of this community.

      * Added emphasized text to clarify the ultimate driver of the conspiracy

      • CovariantTensor says:

        I agree that mentioning the Berrigans, who were incredibly courageous people, in the same breathe as the J6 rioters is, in a sense, sacrilegious. I could never make the sacrifices they made, and admit it up front. You can call the J6 rioters many things, but “cowardly” doesn’t really stick. But my point was, belief in the moral righteousness of your cause does not exempt you from the full legal consequences of your actions–whether or not your cause actually was righteous.

        Not sure what you mean by “not on the same playing field as the rest of the community”. I don’t see anything in my last 2 comments that can remotely be construed as right wing propaganda.

        • Rayne says:

          “but “cowardly” doesn’t really stick”

          Oh please. Give me a fucking break with this shit. Overwhelming police in numbers, spraying them with bear spray and battering them with poles, shitting on the Capitol floor, putting one’s feet up on Nancy Pelosi’s desk isn’t bravery.

          Your continued attempts to color the January 6 perps as brave and acting out of conscience — the conscience of privileged white supremacists who believed Trump would protect them — is bullshit.

        • David F. Snyder says:

          Worse than cowardly. There is a big difference between acting on one’s moral convictions and acting out based on the whims of one’s intestinal flora or feel-goodism.

        • Eichhörnchen says:

          Riling up the “normies” so they can be manipulated emotionally and used as fodder and cover does not scream “courageous” to me.

    • bmaz says:

      Comment how? The fact Royce mentioned “treason” three times in slamming total bullshit does not interest me.

  8. BobBobCon says:

    There’s a funny correction on the article:

    “An earlier version of this article misstated who first made public a recording of Stephen K. Bannon, a former adviser to former President Donald J. Trump, telling associates that Mr. Trump was going to summarily declare he had won the 2020 election. The recording was first reported by Mother Jones, not the House select committee on Jan. 6.”

    It’s easy to find the Mother Jones article, and what’s more there are a lot of articles in major outlets crediting Mother Jones when they reported it.

    I think this gives a nice little window into how carefully Haberman and Schmidt check their facts, and who they consider worth following. One of their sources no doubt made the wrong attribution, and it never occurred to them that an outlet like Mother Jones might have been on top of it.

    • Shadowalker says:

      Mother Jones probably sent them a nastygram with a link to their story, with a short, “Who do you think J6 got it from?” Sloppy work on the part of Haberman and Schmidt.

  9. Doctor My Eyes says:

    As with most things MAGA, the more one knows about Maggie’s background and connections, the more obvious the depths of corruption. She’s not a flawed journalist, despite gaslighting attempts to portray herself as a working class mom driving a “10-year-old minivan”.. There is little ambiguity, really. The below piece is long but filled with history and revealing personal connections that brings her work into clear focus. Propagandist is not too strong a word.

    • Ravenous hoarde says:

      “”Describing the Communist plan to “liquidate” the five million kulaks, relatively well-off farmers opposed to the Soviet collectivization of agriculture, Duranty wrote in 1931, for example: “Must all of them and their families be physically abolished? Of course not – they must be ‘liquidated’ or melted in the hot fire of exile and labor into the proletarian mass.””

      Thank you for introducing me to the name Duranty.

      The quote above perfectly encapsulates what I’ve felt since 1/6. The loser president invited a mob to a “wild protest” on a usually unknown ceremonial day while both houses and the VP attended. “Of course he didn’t mean for it to get as wild as it did. What is he, an unhinged insurrectionist?”

      Yes. And I hate the coverage that asks Americans to question what they remember and felt that day. And who Mcconnell, Graham, and McCarthy blamed.

  10. Sam Penrose says:

    Wonderful work, thank you.

    > [T]he point isn’t that the defendant needs to understand what he’s doing is morally wrong; it’s that he needs to understand that what he’s doing is unlawful.

    Not a bad definition of the rule of law.

  11. earthworm says:

    speculation on my part, as usual —
    This electoral episode, for want of a better term, appears to have been crafted by its authors (Bannon, Stone?) based on the “impossible to prove a negative” concept.

    Plausible Deniability is a thing! It was built in from the beginning, in the best tradition of the intelligence agencies, building and weaving the Trump schemers and supporters a wall of mirrors and defense against any charges.

  12. RitaRita says:

    So, despite Trump being told by his campaign manager, various aides, administration officials, including his Attorney General, Republican state officials and various trial court and appellate court judges, both federal and state, that he had lost the election and that there was insufficient credible evidence of fraud or rigging to overturn it, he still believed that the election was stolen. Is he trying to set up a diminished mental capacity defense? Politically, it seems like a loser tactic.

    There isn’t much new in the NY Times’ article, other than that Jared was called before the Grand Jury in June to talk about Trump’s state of mind. Presumably this was leaked by Jared or by someone else, with his permission. Or by a Trump ally. Are they trying to frame a narrative before the indictment drops or convince Jack Smith not to indict the pure of heart but misguided Mr. Trump?

    • Bobster33 says:

      Imagine being a crook and trying to scam a mark. And when everything is over that mark ends up beating you. Your first thought would be they cheated you (better than you cheated them).

  13. klynn says:

    “I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.”

    This is such a great question. And I cannot think of an answer that would hold an outcome for Herschmann, Jered or Trump that would be risk adverse but IANAL.

    On this pivotal “family” moment I have some questions:
    1) Has it not been established in testimony that Trump actually understood he lost? Even by Herschmann?

    2) Didn’t Trump agree and push the false electors efforts with an awareness of “gaming” that journalist Clemons stated, “What impresses me thus far about the process they’re going through is they’re laying down a legal argument that President Trump was not uninformed, not deluded, but that this was a purposeful, directed attempt to hijack power from the people who had won the election.”?

    3) Is Maggie trying to place Jered as simply an echo to Bill Barr’s, “I thought boy… he’s become detached from reality, if he really believed this stuff,” Barr says in a video. “On the other hand when I went into this and would tell him how crazy some of these allegations were, there was never an indication of interest in what the actual facts are.”?
    4) How can Jered’s statement of, “…he truly believed the election was stolen,” stand up when Trump participated in a 7 part plan to overturn the election with most parts of the plan involving Trump being told by his most informed lawyers that the “election was not stolen” during each part of the plan?

  14. jdmckay8 says:

    Excellent, and very timely. Really appreciate all this.

    Nice shout out for Lisa Rubin. My experience is Neal Katyal has set a high standard as well.

    Your comment here:

    Neither of those are about needing it to charge 1512. Neither supports their case.

    … illustrates a really, really important principle (suppose ok to call it a journalistic one): that a writing which has parts true and well intentioned, can have meaning taken by a reader entirely distorted (or worse) by just 1 ill chosen word, or “whims” represented as fact. This began to come into focus for me when I was in my mid-teens.

    I am reminded of this often reading your posts.

    You mentioned here (above):

    Besides, the effect of her hyping Hillary’s emails for Trump in 2016 may not have killed 1 million Iraqis, but still did really irreversible damage to the world.

    Too many people have turned off their “hurting people detecting switch”, allowing it to turn into 3 headed monster it is now.

    Abbie Grossberg did an interview with Nicole Wallace just after Abbie settled with FOX. Good interview. Reason I bring it up: Abbie made statement that, not long after she went to work for Tucker, she could see “this is hurting people”. Also, that Tucker was “leading” viewership to “act out”.

    Takes a lot more courage for Abby to (AFAIC) tell the truth and acknowledge “hurting people”, in that FOX environment that turned off the “hurting people” switch deliberately, and… made a ton of $$. The problem, bigly, is far to few willing to exercise that kind of courage.

  15. RMD says:

    Thank you Marcy and bmaz and Rayne for all your excellent analysis.
    wondered: is ‘presence’ the intended here?

    Hostetter’s own physical premise obstructed the vote certification…

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. With only (275) comments at this site to date, you will not be grandfathered to keep your existing username. Thanks. /~Rayne]

    • RMD says:

      Rayne, I have tried with no luck to revise my username….

      Just now, tried to register and got:

      Error: User registration is currently not allowed.

      apologies, am fairly sure this has been covered elsewhere…can you point me….and I’ll try again.
      Thank you.

      • LargeMoose says:

        You don’t|can’t register. You merely fill out the “post” or “reply” text areas, and post. Just use you new username, and you’re all set.

      • Rayne says:

        It’s easier than you may think: simply overtype whatever appears in the Name field when you comment next.

        The example above was a Reply to the user formerly known as Wajim. He overtyped what appeared in the Name field and he’s now Wajimsays.

  16. HorsewomaninPA says:

    I just heard Frank Figliuzzi school Mike Schmidt on Nicole Wallace’s show on corrupt intent right after Mike tried to explain it as what Trump believed to be true. Consistent with Lamberth’s explanation, Figliuzzi emphasized that it didn’t matter what Trump truly believed. He knew it was illegal and did it anyway; a good example of corrupt intent.

  17. Savage Librarian says:

    It wouldn’t surprise me if that family meeting with Herschmann was about some business wheeling and dealing. We know that Jared was up to some suspicious deals at that time.

    In the articles I cite below, we see that David Friedman is/was Trump’s bankruptcy lawyer. He also was Eric Herschmann’s law partner at Kasowitz Benson Torres LLP. Herschmann was Friedman’s sherpa during his confirmation process to become ambassador to Israel.

    To avoid conflicts of interest, Friedman sold his wine investment company. The company that bought it, was then registered shortly afterwards by Eric Herschmann. None of this indicates any obvious wrongdoing. But, it does make it seem like something was going on behind the scenes.

    Also, not that it means much, Roger Stone expressed disdain for Herschmann in the fall of 2022 and in the summer of 2021, about pardons and about the impeachment process, respectively.

    “U.S. Ambassador to Israel Was Tricked into Investing in an Israeli Winery, Lawsuit Alleges” | Ctech, 12/27/18,7340,L-3753016,00.html

  18. vicks says:

    Kushner’s testimony to the Jan 6th Committee may contain clues to questions he was asked in front of the grand jury.
    What caught my eye was
    P 234 – Kushner was asked about his role in fundraising, and Kushner responses describe a diminished role and then,
    P 242 Kushner was asked about American Made Media Consultants, a vendor that Trump’s campaign had paid more than $600 million, which was “nearly half of everything they spent in re-election expenditures, on this vendor”
    just because it’s in the news and MAGA’s are projecting assholes
    P240- there’s a blip about the Trump campaign pressuring social media companies for self-serving, political reasons

  19. ShallMustMay08 says:

    This is perfect for J-school.
    As Marcy has mentioned previously Maggie is not an investigate legal reporter but political. Time has long passed since I personally desire to read the NYT takes and when I do I take a breath and just accept as verbal gymnastics (intellectual abuse) and move on. Time and time again it repeats itself. Personally I think by now she (they NYT) know better. Yet as recently in past two weeks I saw in NYT a line with the quote used as “so-called” fake electors. Can’t find it now but was stunned they let that go to print.

    When all is said and done this brand of journalism by the author(s) and NYT will be cited in the manner of Walter Duranty.

    Thanks for your Kushner reminder and due diligence calling it out and here’s hoping Judge Lamberth’s decision rings up later.

  20. Randy Baker says:

    I am glad you are watching the Times, because it often slants coverage to support positions advanced by the wealthy and powerful. However, I think in this case the story is correct, because it does not assert Trump’s subjective belief suffices to warrant acquittal, but rather the prosecution’s case is strengthened by evidence he lacked such belief. I would think that anyone prosecuting Trump would want the strongest possible evidence, since it is entirely plausible that getting a jury to convict him would be more demanding than getting a jury to convict someone not on top of the money/power food chain.

    In relevant part the article says:

    Prosecutors do not need hard evidence of a defendant saying: I know that I am breaking the law. But their cases are made stronger when they can produce evidence that the defendant knows there is no legal or factual basis for a claim but goes ahead with making it anyway.

    “Words are incredibly powerful in white-collar cases because in a lot of them you’re not going to hear from a defendant, as they are seldom going to take the stand,” he said. “So, having those words put in front of a jury gives them more importance and makes them more consequential.”

    Daniel Zelenko, a partner at the firm Crowell & Moring and a former federal prosecutor, said that being able to cite a defendant’s own words can go a long way in helping prosecutors convince a jury that the defendant should be convicted.

    Andrew Goldstein, the lead prosecutor in the investigation into Mr. Trump for obstruction during the Russia investigation and a partner at the law firm Cooley, said there were other benefits to having Mr. Trump’s own statements that were critical in such a potentially weighty case.

    “Just as important, if the Department of Justice has this kind of evidence, it could help justify to the public why charges in this case would be necessary to bring,” Mr. Goldstein said.

    • emptywheel says:

      They are wrong, and I am certain of this, because they know fuckall about the law. THAT’s my point.

      AND ALSO they don’t know what the other laws under consideration are.

      • Retired Lawyer says:

        I think it’s important for the prosecutors to establish Trump “knew” or “believed” he had lost the election not because it’s a necessary element of the crime but because the jury and the judge may be less inclined to let him off if the are convinced he didn’t really believe the election was stolen. Jury nullification is a real thing as are a judge dismissing a case with prejudice after a jury is empanelled.

        • bmaz says:

          Jury “nullification” is NOT a “real thing”. It is illegal and improper. “Nullification” was one of the earliest goals of the FedSoc. Please do not spread that crap here. If you think a random “not guilty” is “nullification”, you are a moron.

        • bmaz says:

          How grand of you. So, you agree things as to scienter I have been saying for years are true?

      • Randy Baker says:

        I have no knowledge of what the authors know about the law. As to laws under consideration by Smith, the article correctly states “It is not known what charges they might be considering, but the House select committee, controlled by Democrats, referred a number of possible charges to the Justice Department last year, including inciting an insurrection, conspiracy to defraud the United States and obstructing an act of Congress.”

        • bmaz says:

          Yes, you do. You have been around here for a very long time. You know who and what we are. And nobody cares about the stupid Dem House J6 Committee.

  21. RipNoLonger says:

    In your “Update: This post on Maggie’s curious foray into campaign finance journalism notes that shortly after that misleading story, she and Mike broke the news of the Jared and Ivanka subpoena, which Maggie and Mike claimed was about calling off dad’s attack.”

    It seems that the NYT folks have some type of rapid access to either the SC or to the Trump family.

  22. harpie says:
    Jul 18, 2023 · 1:25 PM UTC

    JUST IN: Trump says on Truth Social he’s gotten a target letter from Jack SMITH’s Jan. 6 grand jury

    Marcy has a screenshot of TRUMP’s WHINE [but with “the whining and lies removed”] here:
    Jul 18, 2023 · 1:46 PM UTC

    For those who don’t want to go to the other failing social media site owned by a fascist. [screenshot of TRUMP’s Whine]

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