The Tommy Tuberville Gap in the Trump Indictment

The release of details about Dan Scavino’s testimony in Trump’s January 6 case made me realize something: Trump’s call to Tommy Tuberville around 2:26PM on January 6 isn’t in the indictment.

As you’ll recall, Trump attempted to call Tommy Tuberville, but instead got Mike Lee’s phone. Back before he became Based Mike Lee, the Utah Senator told the local UT press what happened next.

With a mob of election protesters laying siege to the U.S. Capitol, Sen. Mike Lee had just ended a prayer with some of his colleagues in the Senate chamber when his cellphone rang.

Caller ID showed the call originated from the White House. Lee thought it might be national security adviser Robert O’Brien, with whom he’d been playing phone tag on an unrelated issue. It wasn’t O’Brien. It was President Donald Trump.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

Tuberville, in real time with impeachment, confirmed the substance of the call.

Sen. Tommy Tuberville revealed late Wednesday that he spoke to Donald Trump on Jan. 6, just as a violent mob closed in on the the Senate, and informed the then-president directly that Vice President Mike Pence had just been evacuated from the chamber.

“I said ‘Mr. President, they just took the vice president out, I’ve got to go,’” Tuberville (R-Ala.) told POLITICO on Capitol Hill on Wednesday night, saying he cut the phone call short amid the chaos.

During impeachment, Lee released call records that (at the time) undercut something Democrats were suggesting about the call: that Trump may have been told by Tuberville about the mob before he sent the Tweet targeting Pence. Lee also tried to get any mention of the call — the call he had revealed — stricken from the Congressional Record.

Back on February 14, 2021 — a good ten months before Liz Cheney and through her the TV lawyers discovered Trump’s exposure on this count — I argued that was compelling evidence that Trump had obstructed the vote certification.

Trump’s indictment does describe efforts he and Rudy Giuliani and Co-Conspirator 6 (who is most likely Boris Epshteyn) made to get Congress to further delay the vote count, later in the day (perhaps hoping the Coffee County caper would provide cause to create more delay). But it places those efforts later, during the evening.

119. On the evening of January 6, the Defendant and Co-Conspirator 1 attempted to exploit the violence and chaos at the Capitol by calling lawmakers to convince them, based on knowingly false claims of election fraud, to delay the certification, including:

[Per ABC report, Trump showed Nick Luna a draft Tweet here]

a. The Defendant, through White House aides, attempted to reach two United States Senators at 6:00 p.m.

[Tweet released, an hour later Trump cut off Twitter]

b. From 6:59 p.m. until 7:18 p.m., Co-Conspirator 1 placed calls to five United States Senators and one United States Representative.

c. Co-Conspirator 6 attempted to confirm phone numbers for six United States Senators whom the Defendant had directed Co-Conspirator 1 to call and attempt to enlist in further delaying the certification.

d. In one of the calls, Co-Conspirator 1 left a voicemail intended for a United States Senator that said, “We need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you. And I know they’re reconvening at eight tonight but the only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow-ideally until the end of tomorrow.”

e. In another message intended for another United States Senator, CoConspirator 1 repeated knowingly false allegations of election fraud, including that the vote counts certified by the states to Congress were incorrect and that the governors who had certified knew they were incorrect; that “illegal immigrants” had voted in substantial numbers in Arizona; and that “Georgia gave you a number in which 65,000 people who were underage voted.” Co-Conspirator 1 also claimed that the Vice President’s actions had been surprising and asked the Senator to “object to every state and kind of spread this out a little bit like a filibuster[.]”

There’s no mention of the call that Trump made at around 2:26.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “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!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

[Tommy Tuberville call took place here]

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. [my emphasis]

Two people who might be interested in the Scavino testimony released the other day, then, are Senators Lee and Tuberville. They’ve now been told that Scavino testified that he was not in the room when that call was placed (consistent with the indictment’s claim that Trump had been left alone in the dining room), meaning there’s no witness to the call besides Trump and the two Senators, both of whom would be protected from compelled testimony under Speech and Debate.

If Scavino’s testimony ever were to change, if Scavino ever were to recall witnessing that call, it would be among the most damaging evidence available: proof that in the wake of Pence’s evacuation, Trump turned immediately to stalling doubling down on the advantage he had won.

Instead, prosecutors are left with the later calls, which can be introduced under a co-conspirator hearsay exception.

Still, it’s telling: While Trump’s advisors were someplace else squabbling about whether Scavino was responsible for that Tweet that might get Mike Pence killed, Trump was (presumably still alone) seeking more delay.

37 replies
  1. lastoneawake says:

    “I said ‘Mr. President, they just took the vice president out, I’ve got to go . . .”

    Geez. I wonder how events would have unfolded if Trump had thought Tuberville was using the mob euphemism, and the plot had succeeded.

    • Robert of Had says:

      The only calls coming into and out of the White House were from Republicans to say “send help” and Trump responding with “keep stalling and overturn the vote.”
      The Republican party were their own hostages on January 6th from 2021 to 2024.

  2. bgThenNow says:

    So calls were “intended for” Senators. Perhaps the calls went to people who are not protected by speech and debate? Have they talked? It sounds like the caller(s) did not have good contact info for the (additional?) 6 Senators. A lot of chaos. Grasping at straws.

    Who leaked all of this information about Scavino’s testimony? If not coming from the investigators, who?

    Thanks, Marcy.

    • emptywheel says:

      It’s usually a good bet that leaks like this are efforts to share the content of testimony with other potential targets.

    • Frank Probst says:

      If they knew who was making the calls, then they’ve got their phone records, and they at least know whose phones were being called, if not who actually answered the calls.

  3. Frank Probst says:

    “Speech and debate” has always confused me. I get that they can’t be prosecuted for what they said. I DON’T get why they can’t be compelled to make a record of what they said on the floor of the Senate during an official proceeding, ESPECIALLY after they’ve already discussed it publicly. And a cellphone call with the head of another branch of government about an official proceeding in progress isn’t really an “internal discussion”, either.

    • Zinsky123 says:

      Frank – IANAL, but I am also puzzled why telephone discussions between legislators about stopping the lawful transition of power in our country would be protected under the Speech and Debate clause of the Constitution. I understand the need to be protected for what is debated on the floors of the House and Senate about pending or current law, regardless of what is said, but these activities seem to be to be totally extracurricular to the business of legislating.

      • timbozone says:

        The Legislature must be at liberty to discuss changing the Constitution without fear of being rounded up for sedition. In the US, under the Bill of Rights, people are considered innocent of crimes until they are proved guilty/convicted in a court of law. In the case of the Congress, they have even more rights than the average citizen when it comes to freedom of speech, given that they are the Representatives of the People and the writers of the laws. The Framers believed that Congress was more able to fight tyranny and so we have the Speech and Debate Clause. If you look further back into English common law and Constitutional Monarchy, you will see why the Framers of the US Constitution included this clause.

  4. gulageten says:

    If Tuberville signed off of the call because of the evacuation of Pence, it seems that the call would have ended, not started, at 2:26. Otherwise it needed ~10 minutes for that information (ie that Pence was evacuated) to reach Tuberville?

    • SteveBev says:

      The Senate recessed at 2:13 pm before Lankford had concluded his remarks – Lankford was told by an aide at that point that protesters were within the building.

      Pence had handed over the chair to Grassley about 1 minute before and had been ushered out of the chamber at about 2:12 and taken to a room. It was Grassley who gavelled the recess.

      There was a period of approximately 13 minutes between Pence leaving the chamber and being evacuated from the room at 2:25.

      While it is easy to understand how Tuberville would know more or less immediately that Pence had left the chamber, how and when he came to know of Pence’s subsequent evacuation is less clear.

      And re the length of the call: we only have Lee’s estimate it was 5 -10 minutes which is a very long call in the circumstances.

    • Ginevra diBenci says:

      My hangup as well, gulageten. The indictment’s TL doesn’t make sense if Lee/Tuberville received that call at 2:26 and even only five minutes later Pence was being evacuated.

      Also I’m somewhat surprised Trump did not address Tuberville as “Coach,” given that Trump is a bootlicker at heart and tends to see sports stars as heroes. Heroes to someone, at least.

  5. Critter7 says:

    Tuberville was not the only Senator Trump called during that fateful time, or so it appears.

    Kayleigh McEnany told the J6 committee during her deposition that when Trump got back to the White House after the Ellipse speech, he asked for a list of Senators. And then, quoting McEnany from her notes, “he’s calling them one by one”.

    But the gap in White House phone logs covers this period and other R senators have not spoken out. So if those other calls happened, the details have not emerged.

    • Robert of Had says:

      The fact these calls were likely made on burner phones or Trump was using other peoples’ personal phones, was intentional so there wouldn’t be any official White House phone records.

      • Maureen A Donnelly says:

        I shake my head reading about any “legit” government official working burner phones. This person is their front runner? Grand Old Party has become Gross Old Perverts (of justice). what a mess. Those hacked but never released RNC emails from long ago must be fire to keep all these folks licking Don’s ample rear.

  6. Sussex Trafalgar says:

    Jack Smith has enough evidence to convict Trump without needing to spend time (years) trying to pierce Tommy Tuberville and Mike Lee’s Speech and Debate Clause defense they would surely invoke.

    If a democrat wins the presidency in 2024 and Smith is allowed to continue his investigations and prosecutions of the J-6 cases, he’ll have enough time to indict and prosecute members of the Senate and House who were Trump’s co-conspirators.

    • Savage Librarian says:

      Some years ago I read an article about a prison program that was implemented in the hopes of teaching a group of sociopaths there to be more empathetic. But, ultimately, what the program administrators learned was that the sociopaths used the information they gained to further exploit their victims.

      It’s appalling and totally irresponsible that all of Trump’s advisors left him alone. I guess they all must have been busy trying to figure out ways to cover their asses. Why not even one person stepped up to do the right thing is mind boggling to me.

      • MsJennyMD says:

        Yes, appalling. Yes, mind boggling. Trump is an exploiter of humanity. He embraces violence as his political objective and his violent followers go to jail for him. Abuse breeds abuse.

      • Ginevra diBenci says:

        “…the sociopaths used the information they gained…”

        That is indeed what sociopaths do–the criminals, at least, which are the ones I’ve been studying. This comment, SL, is especially trenchant now.

  7. Taxesmycredulity says:

    I remembered there were two wrong-number calls to Mike Lee that afternoon but had forgotten it was Rudy who made the other call. On 1/8/21 CNN reported, “President Donald Trump and his attorney Rudy Guiliani both mistakenly made calls to Republican Sen. Mike Lee as deadly riots were unfolding at the US Capitol.”

    I’d like to know how they both ended up with Lee’s cell number instead of Tuberville’s and how it was that TFG and Rudy were both calling Tommy. Seems like this was info being shared on-the-fly, perhaps some triangulation occurring between the White House, the Williard “war room,” and the House.

    • P J Evans says:

      I suspect that the two numbers were similar. When I worked in the landfill office, we’d get calls for the PD’s desk number – it was similar, just the last two digits reversed.

      • Rayne says:

        But would they be for a new Senator and one who had been there? If the Senate was handing out phones wouldn’t we have heard about more such misdialed/mis-received calls if a lot of SIM cards were issued with nearly sequential numbers?

        • trnc2023 says:

          There’s nothing particularly newsworthy about misdials, though, right? I suspect there were plenty of misdials if the numbers are similar, but they either didn’t happen during the insurrection or they weren’t related to the crimes being investigated.

          • Rayne says:

            But if — and there’s a lot of ifs here — cell phones are issued to Senators by Senate comms or GOP Senate comms, if the phones are issued with numbers which are very close numerically, there’d be a LOT of misdial accidents and likely at least one more on Jan 6 while members of Congress were panicky.

            I don’t think this was a misdial punching in cell phone numbers. It was a misdial of persons on a contact list, numbers which were in close proximity in some way. Why would Lee be that close to a squeaky new Senator Tuberville who was sworn in only 3 days earlier?

      • John Paul Jones says:

        It’s possible that whoever typed up the list put the wrong number next to Tuberville’s name. If so, then we only need to make one assumption: that Giuliani and Trump had each a copy of the list.

    • vigetnovus says:

      I doubt that this wasn’t intentional. Lee was probably always supposed to be a cutout to prevent investigators from knowing about the discussions with the senators in on the plot. The problem is that Lee spilled the beans the next day after it was clear the plot failed.

      In fact, I wonder if Pence was originally going to go along with the evacuation plot, and when the “expected” ANTIFA mob didn’t show up (nor did the pipe bombs explode) and the Proud Boys started storming the capitol, did he realize things weren’t going as planned. Oh, and almost forgot, he didn’t have the WI or MI “fake electors” certificates either.

      Note that the letter from Pence indicating that he wasn’t going along with the Eastman plan wasn’t issued until literally right before the joint session gaveled in. Perhaps Pence was supposed to evacuate and leave the question of certification to Grassley, but the pretense for that to happen was lost when ANTIFA failed to materialize.

      • timbozone says:

        What is you evidence for Pence participating in any planned coup? Without that, you’re talking out of your hat.

    • fatvegan000 says:

      Is it possible that Trump (and Giuliani) both actually did mean to call Mike Lee? Lee could have talked to Trump then Trump said let me talk to Tuberville. Is it only Lee’s word that Giuliani’s call to him was a mistake?

  8. wetzel-rhymes-with says:

    Even if this can’t get to court, we’re still closer than Tacitus or Suetonius were to the emperors and their wives whose conversations they described fifty or a hundred years after they took place. History will picture each of these two, the great American ignoramus of malice, Donald Trump, and Tuberville. The goat orgy on Epstein Island comes up and Tuberville knows he is being squeezed. Trump’s eyes are flaring and squeezing Ivanka’s phone like Aguirre the Wrath of God on the raft squeezing the monkey. Maybe it’s kompromat because of Tuberville’s dominatrix, or Tuberville sees an ally in his life-long mission to free Southern racism from the burden of hypocrisy, or it’s money or Tuberville was commanded by Loretta (his dominatrix is a Christian Dominionist), it’s hard to say. Tune into Netflix in 2055.

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