Laughing in the Face of Denial

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TOPSHOT – Trump supporters engaging in healing the country at the US Capitol in Washington, DC on January 6, 2021. –  (Photo by Joseph Prezioso / AFP) (Photo by JOSEPH PREZIOSO/AFP via Getty Images)

Not this again.

From Trump lawyer David Schoen on day one of the second Trump impeachment trial:

[The House impeachment managers] tell us that we have to have this impeachment trial, such as it is, to bring about unity. But they don’t want unity, and they know this so-called trial will tear this country in half, leaving tens of millions of Americans feeling left out of the nation’s agenda as dictated by one political party that now holds the power in the White House and our national legislature. But they are proud Americans, who never quit getting back up when they are down and they don’t take dictates from another party based on partisan force-feeding. This trial will tear this country apart, perhaps like we have seen only once before in our history.

*sigh*

Long ago, as a young pastor, a couple came to me about concerns with their marriage. The husband had slept with someone else, and when his wife threatened to file for divorce, they came to me together for advice. After some pleasantries at the beginning of the conversation, the tone quickly shifted. Filled with righteous indignation, the husband said “She’s going to file for divorce and break up our family! Whatever happened to forgiveness? Tell her she can’t do that!”

I laughed out loud.

Not a chuckle, not a single snort, but a good 15 seconds of laughter. (I said I was young.) They both looked at me in absolute shock. When I quelled my laughter, I said “*She* is going to break up your family? Please. *You* broke up the relationship when you slept around. That relationship is dead. You have to decide if you are willing to take responsibility for that and make the effort to repair it, or if you want to live in denial that breaking your marriage vows wasn’t that big a deal and sleeping around really didn’t hurt anyone.”

This was met with silence, so I plunged on.

Still speaking to the husband (but with the wife listening closely), I said “You don’t get to decide the terms of how she forgives anyone. Forgiveness doesn’t mean everything goes back to the way it was. It means that she quits seeing you as a monster, and quits letting the pain you caused her continue to govern her life. If she forgives you, it doesn’t automatically mean that you two will stay married. It just means she is done with letting what you did continue to hurt her. If you want this relationship to be healed and this marriage to be rebuilt, that starts with honesty, not denial. Honesty about what happened, honesty about how damaging and painful it was, and honesty about what you are or are not willing to do going forward.”

No, that husband was not David Schoen — but in listening to Schoen yesterday, the two of them sure sound a lot alike. The more Schoen and the defenders of Trump talk about unity and moving on without acknowledging anything about Trump’s role in the insurrection, the more they show they have no interest in unity or healing.

But we already knew that.

In one of my former congregations, I had a parishioner who was a psychologist who worked with men who had been convicted of child abuse, and the two of us had a number of long conversations around abuse and denial. When someone is accused of child abuse, my parishioner told me, he would see the same dynamic play out with each one. First, they deny that the abuse happened. “I didn’t do it!” When presented with evidence that they did indeed do it, the denial shifts to avoiding judgment: “OK, but it’s no big deal. No one got hurt. She/he came on to me. He/she had it coming. You have no right to judge me for that.” When that doesn’t work, denial pulls out the big trump card to avoid any consequences: “You have to forgive me!”

Perpetrators of abuse turn to denial because if there are consequences to their actions, something will have to die – their image of themselves, their relationships with others, and more. Denial is how they hope that nothing in their lives will have to change, with no consequences for their damaging actions.

Honesty, on the other hand, is where perpetrators of abuse turn if they are truly interested in healing and moving on. From everything I heard yesterday, the abusers and their enablers have no interest in healing. Power? Absolutely. Healing? Not so much.

This trial will not tear this country apart. Trump has already torn it apart.

The question now is whether the Senate wants to honestly acknowledge that reality and begin to deal with it by holding Trump accountable, or if they want to remain in denial and encourage the tear in our country to continue growing.

 

Trump Impeachment II – The Beginning

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And so it begins any minute now. Don’t fret, it will not take long, because Pelosi, Schumer and the Dems have so decreed out of political cowardice. Is that politically expedient at the start of the nascent Biden Administration? Maybe! But they all took an oath to protect and defend the Constitution, not their political expediency.

So where are we at the onset of proceedings?

The tentative schedule is this:

First, there will be a debate over the “Constitutionality” of even holding and impeachment trial at all. This is a ridiculous argument, and will fail, but with much cowardly GOP Senate support.

There will be up to four hours equally divided between the impeachment managers and the president’s counsel to debate the constitutionality of the trial. Again, that will fail as to Trump. Then there will be sixteen hours per side to argue their case. It will be predictable baloney from both sides, with no actual evidence submitted and admitted. And, no, “video presentations” do not count, that is simply argument by propaganda. Each party’s arguments are delimited by not being able to go over two days, and cannot exceed eight hours each.

“After the presentations are done, senators will have a total of four hours to question both sides. Then there will be four hours divided equally between the parties for arguments on whether the Senate will consider motions to subpoena witnesses and documents, if requested by the managers.
…
There will be up to four hours equally divided for closing arguments, along with deliberation time if requested by the senators before the vote takes place.”

Much of the above, though not all, came from an excellent report by Barbara Sprunt and Diedre Walsh at NPR.

Is this year another stupid and truncated show trial by Pelosi, Schumer and the Dems, in order to look like they are doing something while they are cowering? Of course it is. Same as it ever was.

There will also be discussion of an “organizing resolution”. Don’t fall for that, the parameters have already been agreed to behind the scenes.

Lastly, while joint stipulations may always be made, otherwise the general parameters are controlled by the extant Senate Rules on Impeachment. They are here for your reference.

And here is Leahy’s feckless “Dear Colleagues” letter.

In His Impeachment Defense, Trump Cites Mike Pence Admitting Trump Made an Unconstitutional Demand

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Eleven pages into his 75-page impeachment defense, Trump makes this claim:

President Trump did not direct anyone to commit lawless actions,

In context, he’s speaking about his speech before the riot, claiming that his invocation that his mobsters “fight” didn’t mean he wanted them to fight illegally. His defense only addresses the meaning of that word, “fight,” in his speech, while treating impeachment over and over as akin to the passage of a law restricting First Amendment protected speech and not the political act that impeachment is.

But this brief, like in the 14-page answer brief he submitted last week, barely addresses one of the times he quite clearly did direct people to commit lawless action, first, when he called Brad Raffensperger and asked him to find him votes that didn’t exist.

The article also discusses in passing other “statements” of Mr. Trump as well as a telephone call to the secretary of state of Georgia.

[snip]

The allegation that Mr. Trump should be convicted for “incitement of insurrection” based upon the telephone call to the Georgia secretary of state rests on even shakier ground. The allegations of “threats of death and violence” come not from Mr. Trump at all; they come from other individuals from the internet, not identified (nor identifiable) in the House Trial Memorandum, who took it upon themselves to make inane internet threats, which were not urged or “incited” by Mr. Trump in any way shape or form.150 Examining the discussion with the Georgia secretary of state under the standard of “incitement,” leads to the same conclusion as the January 6, 2021 statements of Mr. Trump: there is nothing said by Mr. Trump that urges “use of force” or “law violation” directed to producing imminent lawless action.151

More strikingly, given the greater length of this brief, Trump again completely ignores a key part of the article of impeachment against him: his actions targeting Mike Pence, both his demand that Pence commit an unconstitutional act by throwing out the votes of key swing states, and his comments that specifically riled up the crowd against Pence, even after the rioters started looking for him at the Capitol to assassinate him.

Instead of addressing the actions he took that got Pence targeted for assassination, Trump mentions Pence only in the context of discussions about the 25th Amendment.

The very next day, Speaker Nancy Pelosi and Senate Democratic Leader Chuck Schumer called on Vice-President Pence to invoke the 25th Amendment concluding – without any investigation – that Mr. Trump incited the insurrection and continued to pose an imminent danger if he remained in office as President.12

[snip]

First, in an attempt to usurp Constitutional power that is not in any way hers, the Speaker demanded that Vice-President Michael Pence or the White House Cabinet invoke the 25th Amendment, threatening to launch an impeachment proceeding if they refused. Four days later, on January 11, 2021, an Article of Impeachment was introduced, which charged President Trump with “incitement of insurrection” against the United States government and “lawless action at the Capitol.” See H. Res. 24 (117th Congress (2021-2022). The Speaker made good on her extortionate threat.

[snip]

After the Article was introduced, Speaker Pelosi again gave Vice President Pence an ultimatum: either he invokes the 25th Amendment within twenty-four hours or the impeachment proceedings would proceed. Vice-President Pence responded in a letter to Speaker Pelosi the following day stating that he would not allow her to usurp constitutional authority that is not hers and extort him (and by extension the Nation) to invoke the 25th Amendment because he believed to do so would not “be in the best interest of our Nation or consistent with our Constitution.”29 Vice-President Pence also noted that Speaker Pelosi was being hypocritical, as she had previously stated that in utilizing the 25th Amendment, “we must be ‘[v]ery respectful of not making a judgment on the basis of a comment or behavior that we don’t like, but [rather must base such a decision] on a medical decision.”30

I suspect Trump’s lawyers will try to defer any questions about Trump’s attacks on Pence by suggesting that Pelosi’s decision to impeach because Pence didn’t invoke the 25th Amendment is just like Trump’s incitement of violence targeted at Pence. With their use of the words, “usurp” and “extort,” Trump’s lawyers grossly overstate the force of language Pence himself used to compare the two:

Last week, I did not yield to pressure to exert power beyond my constitutional authority to determine the outcome of the election, and I will not now yield to efforts in the House of Representatives to play political games at a time so serious to the life of our Nation.

But there are several problems with this: Congress was already intent on impeaching Trump for his actions before the request that Pence intervene. More importantly, even in Pence’s treatment comparing these two, he calls one — Trump’s demand — unconstitutional but the other — Pelosi’s request — a “political game.”

So in one place in his impeachment defense, Donald Trump’s lawyers claim, “President Trump did not direct anyone to commit lawless actions.” Elsewhere, however, they cite a letter in which Mike Pence says he did, that he made a demand, “beyond [his] constitutional authority.”

And with this apparent effort to deflect a key accusation against him, Trump entirely ignores the specific, targeted action he used to lead the mob to attempt to assassinate his Vice President.

Raskin’s Gambit

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Until today, the conventional wisdom was that Senate Republicans would hide behind their claim that it was not constitutional to try Donald Trump on the single count of impeachment for inciting an insurrection, and Democrats would lose badly in an effort to convict Donald Trump. That’s still likely.

But Donald Trump’s inability to follow good legal advice and Jamie Raskin’s exploitation of that weakness may change that.

In response to the opening brief Trump’s lawyers submitted earlier this week, in which Trump went beyond a claim that the entire trial was unconstitutional and feigned responses to the actual facts alleged, Lead Impeachment Manager Raskin invited Trump to testify.

Two days ago, you filed an Answer in which you denied many factual allegations set forth in the article of impeachment. You have thus attempted to put critical facts at issue notwithstanding the clear and overwhelming evidence of your constitutional offense. In light of your disputing those factual allegations, I write to invite you to provide testimony under oath, either before or during the Senate impeachment trial, concerning your conduct on January 6, 2021. We would propose that you provide your testimony (of course including cross-examination) as early as Monday, February 8, 2021, and not later than Thursday, February 11, 2021. We would be pleased to arrange such testimony at a mutually convenient time and place.

Presidents Gerald Ford and Bill Clinton both provided testimony while in office–and the Supreme Court held just last year that you were not immune from legal process while serving as President–so there is no doubt you can testify in these proceedings.

[snip]

If you decline this invitation, we reserve any and all rights, including the right to establish at trial that your refusal to testify supports a strong adverse inference regarding your actions (and inaction) on January 6, 2021.

It’s not clear which specific claims Raskin has in mind. The letter specifically asks about January 6 and not Trump’s claims he fashions as “Answer 4,” that he didn’t lie about winning the election — though Trump reiterates that claim in Answer 6, claiming that he denies that his January 6 expression of “his opinion that the election results were suspect … is factually in error.” Still, he presents that as an opinion, not a knowingly false claim. Then there’s a claim about his January 2 call to Brad Raffensperger, so unrelated to the January 6 questions mentioned in Raskin’s letter, but which would nevertheless make great fodder for questioning under oath.

The more factual claims about January 6 that Trump made include:

  • It is denied that President Trump intended to interfere with the counting of the Electoral votes. [Answer 6]
  •  It is denied he threatened the integrity of the democratic system, interfered with the peaceful transfer of power, and imperiled a coequal branch [sic] Government. [Answer 8]
  • To the extent there are factual allegations made against the 45th President of the United States contained in Article I that are not specifically addressed above, the allegations are denied and strict proof at time of hearing is demanded. [Answer 8]

To some degree, for Raskin’s gambit to work, which false claims in specific he has in mind don’t matter.

But given that Trump’s response entirely blew off the allegations about Mike Pence in the article of impeachment, which include factual observations about Trump riling up the mob against Pence in particular, Trump has effectively, with the language in the last bullet above, denied an attack on Pence which goes well beyond any First Amendment speech.

As I said, though, it doesn’t matter, because the gambit (even ignoring that Trump is constitutionally incapable of telling the truth, under oath or not) is about forcing Trump to adopt an impossible position. The safest response to this letter would be to refuse, and let the House assume Trump’s entire claim to offering any factual response is false (as it is). But because Trump is Trump, he’s likely to choose between two more dangerous options:

  • Invoke the Fifth, thereby admitting that his First Amendment speech might expose him criminally
  • Testify, thereby undoubtedly setting up sworn lies

The former will get him in trouble for any civil suits arising out of the January 6 insurrection, the very thing that (per reports) Trump was trying to avoid with his decision not to self-pardon.

The latter will set Trump up for (at best) a perjury prosecution and at worst more substantial criminal prosecution based on his responses. Plus, it might pave the way for Mike Pence testimony, which would be compelling.

And by inviting Trump this way, without a subpoena, Raskin avoids all the drama Lindsey Graham has been trying to set up about contentious votes on witnesses. It is Trump’s choice, with no coercion.

Trump got through the Mueller investigation and Impeachment 1.0 by successfully avoiding something like this. It may finally be that the third time’s a charm.

Update: Trump has responded, claiming without legal citation that there is no negative inference in this proceeding.

The Soft Bigotry of Expecting the Commander in Chief to Only Tweet

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Based on what source does the lawyer for Donald Trump — a client who never listened to security briefings when he used to be President — state (in an interview with Maggie Haberman, but not in his written defense) that the January 6 insurrectionists planned their attack in advance?

Mr. Schoen pointed to another potential argument that could help Mr. Trump, one not related to free speech: that at least some of the Trump supporters who stormed the Capitol planned their attack in advance, suggesting that Mr. Trump was not the inciting force.

“I have no reason to believe anyone involved with Trump was in the know,” he said of the violence that unfolded at the Capitol.

This defense doesn’t help Doug Schoen as much as he thinks. After all, the House brief lays out how, even before the Proud Boys were overtly planning for the insurrection (and meeting with Lindsey Graham and finding a spot on a tour of the White House), Trump had called on the extremist group to

During a debate on September 29, for instance, he told the Proud Boys— a violent extremist group with ties to white nationalism—to “stand back and stand by.”48

[snip]

On January 2, for example, Fox News reported on a social media declaration by Proud Boys Leader Enrique Tarrio that the Proud Boys would come to the January 6 rally prepared for violence.59 Another Proud Boys organizer said, “We are going to smell like you, move like you, and look like you. The only thing we’ll do that’s us is think like us! Jan 6th is gonna be epic.”60

As someone who has spent much of the last four weeks tracking what is publicly known about the terrorist attack, anyone following closely enough to know how the Proud Boys, especially, plotted in advance also knows that Trump was coordinating with them going back months and his rat-fucker Roger Stone was coordinating with them even longer, also knows that the mobs breaking into the Capitol timed their move closely with (among other things) Trump’s speech, and knows as well that Trump and Rudy were both coordinating with events on the Hill using the mob as a delaying tactic.

But Schoen seems to be considering talking about what someone who refused briefing knew and did not know about an attack while he was still President.

I especially find Schoen’s certainty about what an ongoing investigation shows given a fairly remarkable passage in the House trial brief. There’s an 11-paragraph section describing, “President Trump’s Dereliction of Duty During the Attack.” The first describes how Trump watched in delight.

As armed insurrectionists breached the Capitol—and as Vice President Pence, the Congress, and the Capitol Police feared for their lives—President Trump was described by those around him as “borderline enthusiastic because it meant the certification was being derailed.”141 Senior administration officials described President Trump as “delighted” and reported that he was “walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.”142

But it’s another five paragraphs before the House brief mentions that Trump was the Commander in Chief.

During this time, not only did President Trump fail to issue unequivocal statements ordering the insurrectionists to leave the Capitol; he also failed in his duties as Commander in Chief by not immediately taking action to protect Congress and the Capitol. This failure occurred despite multiple members of Congress, from both parties, including on national television, vehemently urging President Trump to take immediate action.

That is, the House brief focuses on what Trump did or didn’t tweet, and what victims he never called (while calling Tommy Tuberville to coordinate his delaying tactics).

But it barely mentions that Trump sat in the White House watching an attack on the Nation’s Capitol — one his lawyer now suggests he had some knowledge of — and he did literally nothing to intervene. True, there is a thoroughly unreliable Vanity Fair piece quoting Trump’s flunkies claiming that Trump made preparations the night before. But that account doesn’t match the known events, nor does it accord with the long delay in deploying the Guard troops.

In the middle of the impeachment case against Trump is a tacit admission not just that Trump did nothing as he watched a terrorist attack on the Capitol, but no one expected him to be able to do more than Tweet.

The former President’s defense claims, with no proof, that he faithfully executed his duty to protect and defend the Constitution and served to the best of his ability.

To the contrary, at all times, Donald J. Trump fully and faithfully executed his duties as President of the United States, and at all times acted to the best of his ability to preserve, protect and defend the Constitution of the United States, while never engaging in any high Crimes or Misdemeanors

[snip]

It is denied he betrayed his trust as President, to the manifest injury of the people of the United States. Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people. The 45th President believes and therefore avers that in the United States, the people choose their President, and that he was properly chosen in 2016 and sworn into office in 2017, serving his term to the best of his ability in comportment with his oath of office.

Perhaps that’s right. But if that’s true, it’s a confession that when the nation’s capital came under attack, Trump was helpless to do the least demanded of him as Commander in Chief.

Yes, the case against Trump is deeply rooted in his Tweets inciting terrorists and he should be impeached based just on those and his speech. But along the way, all sides seem to admit that Trump didn’t even consider doing anything as Commander in Chief as the country was attacked.

Trump’s Impeachment Defense Is Silent about His Unconstitutional Demand of Mike Pence

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There are some weaknesses and gaps in the House impeachment case against the former President (which I’ll probably return to).

But there’s one giant gap in Trump’s defense.

Generally, Trump argues three things: his incitement was speech protected by the First Amendment. The House moved too quickly to impeach but having impeached him while he was still President the Senate can’t now try him, as required by the Constitution. Along the way he makes a soft case that his attempts to undermine the election results can’t be proven to be unjustified (in at least two places, those claims are demonstrably false).

But I’m most struck by Trump’s silence about his treatment of Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

The House brief describes how, even as Pence released his letter saying that he could not, constitutionally, do what Trump asked, Trump demanded again that the Vice President do anything besides certify the vote.

He also demanded again that Vice President Pence illegally interfere with the work of the Joint Session—a position that the Vice President rejected even as President Trump spoke.

The House brief then describes how the rioters threatened to, “hang Mike Pence” and left targeted threats for him.

Videos of the events show that dozens of the insurrectionists specifically hunted Vice President Pence and House Speaker Nancy Pelosi—the first and second in the line of Presidential succession, respectively. “Once we found out Pence turned on us and that they had stolen the election, like, officially, the crowd went crazy,” said one rioter. “I mean, it became a mob.”98 Rioters chanted, “Hang Mike Pence!” 99 Another shouted, “Mike Pence, we’re coming for you … fucking traitor!”100

[snip]

One of them shouted “Trump won that election!” on the Senate dais where Vice President Pence had presided. 115 Another rioter climbed onto the dais, announcing that “I’m gonna take a seat in this chair, because Mike Pence is a fucking traitor.”116 He left a note on the Vice President’s desk stating, “ITS ONLY A MATTER OF TIME / JUSTICE IS COMING.”117

It describes how, even as the attack was going on, Trump continued to complain that Pence had upheld his own oath to the Constitution.

Just over thirty minutes later, at 2:24 PM, while rioters were still attacking police and after Vice President Pence had been evacuated from the Senate floor, President Trump again tweeted to excoriate the Vice President for refusing to obstruct the Joint Session: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”144 President Trump thus singled out Vice President Pence for direct criticism at the very same time the Vice President and his family were hiding from a violent mob provoked by President Trump. [emphasis original]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

6. He also willfully made statements that, in context, encouraged – and foreseeably resulted in – lawless action at then Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore.” Thus, incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious act.

Answer 6: Admitted in Part, denied in part. It is admitted that persons unlawfully breached and vandalized the Capitol, that people were injured and killed, and that law enforcement is currently investigating and prosecuting those who were responsible. “Seditious acts” is a term of art with a legal meaning and the use of that phrase in the article of impeachment is thus denied in the context in which it was used. It is denied that President Trump incited the crowd to engage in destructive behavior. It is denied that the phrase “if you don’t fight like hell you’re not going to have a country anymore” had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech. It is denied that President Trump intended to interfere with the counting of Electoral votes. As is customary, Members of Congress challenged electoral vote submissions by state under a process written into Congressional rules allowing for the respective Houses of Congress to debate whether a state’s submitted electoral votes should be counted. In 2017, Democratic Members of Congress repeatedly challenged the electoral votes submitted from states where President Trump prevailed. In 2021, Republican Members of Congress challenged the electoral votes submitted from states where President Biden prevailed. The purpose of the Joint Sessions of Congress in 2017 and on January 6, 2021 was for Members of Congress to fulfill their duty to be certain the Electoral College votes were properly submitted, and any challenges thereto properly addressed under Congressional rules. Congress’ duty, therefore, was not just to certify the presidential election. Its duty was to first determine whether certification of the presidential election vote was warranted and permissible under its rules. [my italics]

Trump undoubtedly solicited Members of Congress to do just that, challenging individual states, which was itself an abuse of power (indeed, one weakness of the House brief is they don’t mention Rudy Giuliani’s second attempt to call Tommy Tuberville asking for a specific delay on vote counting, which shows that Trump was indeed trying to use the mob to delay the certification).

But Trump also made an explicit demand of Pence, one Pence refused. That demand, by itself, was proof that Trump intended to interfere with the Constitutional counting of votes.

And he doesn’t address that — speech which is in no way protected — in his defense.

Nor does he address how he almost got Pence killed.

Donnie The Wimp And His Impeachment Coffin

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There was a pretty astounding report by CNN early this morning depicting the, and I am being kind here, disarray in Trump’s impeachment defense. The gist is this:

Butch Bowers and Deborah Barbier, who were expected to be two of the lead attorneys, are no longer on the team. A source familiar with the changes said it was a mutual decision for both to leave the legal team. As the lead attorney, Bowers assembled the team.
Josh Howard, a North Carolina attorney who was recently added to the team, has also left, according to another source familiar with the changes. Johnny Gasser and Greg Harris, from South Carolina, are no longer involved with the case, either.

No other attorneys have announced they are working on Trump’s impeachment defense.

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.

That sounds ominous!

But here is the part that even more stuck out to me:

“As the lead attorney, Bowers assembled the team.”

and, most notably,

“The attorneys had not yet been paid any advance fees and a letter of intent was never signed.”

Lol, for the uninitiated, that means Trump never paid a dime as to a retainer, and never signed a fee agreement. That not only is inappropriate, in most jurisdictions it is, in and of itself, unethical. Even when the lawyer is agreeing to do work pro bono, there is a retainer agreement. Always, because real lawyers don’t blithely hang their asses out on the line without specified parameters. That is just how it is.

As I said on Twitter:

A rather large discussion ensued. Go look if you so desire, but I will stand by that for now. No, I do not really know, but it almost makes sense.

Trump is not cash rich. Expending collected campaign funds to perpetrate a fraudulent defense might be a dicey proposition. And no competent attorneys are lining up to pitch that. Trump may literally be down to Rudy and Jenna Ellis. Dershowitz and Jon Turley are squirrely as shit, but even they may not be that stupid.

So, where art thou go Donald?

Productive Ways to Hold Trump Accountable

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On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.

Impeaching Donald John Trump — Again [UPDATE-3]

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[NB: Check the byline. Updates will be posted at the bottom. /~Rayne]

The House is now voting on H.R. 24 to impeach Trump for high crimes and misdemeanors.

At 4:24 p.m. ET the vote stands at 228 Yea, 194 Nay, with 11 Not Voting or as-yet uncast votes.

There was a report that no GOP House member from North Carolina was present, which may boost the NV number higher than expected.

~ ~ ~

UPDATE-1 — 4:36 PM ET   — 

House members are being asked if they have voted and if any of them wants to vote. There’s no change.

H.R. 24 passes, 231 Yeas (including 10 GOP votes) to 197 Nays with 5 Not Voting.

Donald John Trump has been impeached a second time during his term, this time for High Crimes and Misdemeanors.

~ ~ ~

UPDATE-2 — 4:50 PM ET —

In comments below I said I’d like to know how many phone calls there were from the White House to GOP reps over the last 24 hours.

Rep. Jason Crow told MSNBC, “I had a lot of conversations with my Republican colleagues. … A couple of them broke down in tears … saying that they are afraid for their lives if they vote for this impeachment.”

Sure sounds like the White House may have extorted Nays from GOP representatives considering the level of fear Crow shared.

In other words, even as the House was preparing to vote to impeach Trump for High Crimes and Misdemeanors, he may well have been committing more crimes.

House whip Steny Hoyer committed to sending H.R. 24 immediately to the Senate for action. What happens next is on Senate Majority Leader Mitch McConnell, who has been making noises which sound supportive of conviction — but this is McConnell, who has so far done nothing during the last four years to the benefit of the country and in defense of the Constitution, sucking up instead to Trump or the corporate donor class.

Who will McConnell suck up to with this resolution? Will he ignore the clear and present danger Trump poses to national security every moment he remains in power between now and noon ET on January 20?

~ ~ ~

UPDATE-3 — 2:25 AM ET 14-JAN-2021 —

The final vote count was 232-197, with the following GOP representatives voting for impeachment:

Adam Kinzinger (IL)
Liz Cheney (WY)
John Katko (NY)
Fred Upton (MI)
Jaime Herrera Beutler (WA)
Dan Newhouse (WA)
Peter Meijer (MI)
Anthony Gonzalez (OH)
Tom Rice (SC)
David Valadao (CA)

Nice that two were from my state, Michigan, and one of the two a freshman; still, Michigan had five Trump-y GOP representatives who voted No.

These members did not vote:

Kay Granger (TX)
Andy Harris (MD)
Greg Murphy (NC)
Daniel Webster (FL)

All four are GOP representatives.

This past weekend Senate Majority Leader toyed around with GOP donors — or perhaps with Trump — indicating he had left Team Trump’s camp.

McConnell spoke to major Republican donors last weekend to assess their thinking about Trump and was told that they believed Trump had clearly crossed a line, the strategist said. McConnell told them he was finished with Trump, according to the consultant.

After the impeachment vote McConnell issued this statement saying the earliest he can start a trial is next week.

It’s not like there’s a clear and present danger to national security in the White House which has encouraged the assassination of the Vice President and members of Congress including the next couple of people in the line of presidential succession.

I wonder what McConnell received in exchange for refusing to move to an emergency session to take up the trial.

I’d also like to know what the big GOP donors think of McConnell’s foot dragging. The number of corporate PACs which have said they won’t donate to seditionist members of Congress has grown and includes Fortune 100 companies; how do they feel about McConnell leaving national security hanging as it is for another week?

House Speaker Pelosi named the impeachment managers Tuesday; the nine House members are a good lineup of attorneys including litigators, public defenders, and prosecutors:

Jamie Raskin (MD), lead
Diana DeGette (CO)
David Cicilline (RI)
Joaquin Castro (TX)
Eric Swalwell (CA)
Ted Lieu (CA)
Stacey Plaskett (VI)
Joe Neguse (CO)
Madeleine Dean (PA)

Let’s hope they make a tight and impactful case for conviction though Trump did a pretty good job all by himself, caught entirely on camera a little after noon on January 6, exhorting the rioters to show strength and march on the Capitol Building.

It’s a pity the seditionist caucus can’t be tried at the same time. Every member of Congress who aided and abetted this insurrection should be expelled; their districts and states deserve better representation from people who take their oath of office seriously, including protecting the Constitution from all enemies foreign and domestic.

Triage and Impeachment: Prioritize a Legitimate Criminal Investigation into the Wider Plot over Impeachment

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I want to talk about triage in the wake of the terrorist attack on Wednesday as it affects consideration of how to hold Trump accountable for his role in it.

First, some dates:

If Mike Pence were to invoke the 25th Amendment (with the approval of a bunch of Trump’s cabinet members), it could go into effect immediately for at least four days. Trump can challenge his determination, but if the same cabinet members hold with Pence, then Trump’s disqualification remains in place for 21 more days, enough to get through Joe Biden’s inauguration.

Both the House and Senate are not in session, and can’t deviate from the existing schedule without unanimous consent, meaning Mo Brooks in the House or Josh Hawley in the Senate could single-handedly prevent any business.

Because of that, impeachment in the House can’t be started until tomorrow. Right now, Pelosi is using the threat of impeachment as leverage to try to get Pence to act (or Trump to resign, though he won’t). If that doesn’t work, then the House seems prepared to move on a single article of impeachment tied to Trump’s attempts to cheat and his incitement of the insurrection. Pelosi won’t move forward on it until she’s sure it has the votes to succeed.

Even assuming a majority of the House votes to impeach Trump, that will have no impact on his authority to pardon co-conspirators, and he’ll surely attempt to pardon himself, one way or another. Because of Wednesday’s events, he will be doing that without the assistance of Pat Cipollone, which means he’s much more likely to make his plight worse.

Impeaching this week would, however, force Republicans to cast votes before it is clear how the post-insurrection politics will work out (indeed, while Trump still has the power of the Presidency). Significantly, a number of incoming members are angry that Kevin McCarthy advised them to support the insurrection. The vote may be as much an attempt to undo complicity with Wednesday’s actions as it is anything else. Done right, impeachment may exacerbate the fractures in the GOP; done wrong, it could have the opposite effect.

If the House does impeach, then the Senate will not — barring a change of heart from Hawley and everyone else who was still willing to be part of this insurrection — take up the impeachment until January 19 (the parliamentarian has already ruled on this point). That means, the trial for impeachment either happens in Joe Biden’s first week in office, or the House holds off on sending the article of impeachment over to the Senate until Chuck Schumer deems it a worthwhile time. He can also opt to have a committee consider it, calling witnesses and accruing evidence, which will provide the Senate (where there are more Republicans aiming to distance from Trump) a way to further elaborate Trump’s role in the terrorism.

Meanwhile, by losing all access to social media except Parler and with Amazon’s decision yesterday to stop hosting Parler (which will mean it’ll stay down at least a week, until January 17), Trump’s primary mouthpieces have been shut down. There’s reason to believe that the more sophisticated insurrectionists have moved onto more secure platforms like chat rooms and Signal. While that’ll pose some challenges for law enforcement trying to prevent follow-on attacks on January 17, 19, or 20, being on such less accessible platforms will limit their ability to mobilize the kinds of masses that came out on Wednesday. Trump has lost one of the most important weapons he can wield without demanding clearly criminal behavior from others. That said, the urgency of preventing those sophisticated plotters — and a good chunk of these people have military training — from engaging in more targeted strikes needs to be a priority.

But Trump is still President, with his hand on the nuclear codes, and in charge of the chain of command that goes through a bunch of Devin Nunes flunkies at DOD. Nancy Pelosi called Chairman of the Joint Chiefs Mark Milley and come away with assurances that Trump won’t be able to deploy nukes.

Preventing an Unhinged President From Using the Nuclear Codes: This morning, I spoke to the Chairman of the Joint Chiefs of Staff Mark Milley to discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike. The situation of this unhinged President could not be more dangerous, and we must do everything that we can to protect the American people from his unbalanced assault on our country and our democracy.

Nevertheless that still leaves Trump in charge of the vast federal bureaucracy, which has been emptied out and the filled back up with people who could pass Johnny McEntee’s loyalty oaths to Trump.

Because this is where we’re at, I have argued that there needs to be a higher priority on getting at least Biden’s operational nominees, along with Merrick Garland, confirmed over impeaching Trump — yet — in the Senate.

We have not yet heard why DOD and DHS and the FBI — on top of the Capitol Police — failed to prevent the terrorist attack on Wednesday (I’ll have more to say about this later). It will take a year to sort out all the conflicting claims. But as we attempt, via reporting, via oversight in Congress (including impeachment), and via a criminal investigation to figure that out, those same people who failed to prevent the attack remain in place. Indeed, most of these entities have offered little to no explanation for why they failed, which is a bad sign.

Because of that, I think Biden needs to prioritize getting at least Garland and Lisa Monaco confirmed as Attorney General and Deputy Attorney General at DOJ, along with a new Acting US Attorney for DC, as soon as possible. I have two specific concerns. First, while FBI has generally been good at policing white supremacists in recent months, they failed miserably here, when it mattered most. One effect of retaliating against anyone who investigated Trump for his “collusion” with Russia has been to install people who were either Trump loyalists or really skilled at avoiding any slight to Trump. Indeed, one of the most charitable possible excuses for FBI’s delayed response is that after years of badgering, otherwise reasonable people were loathe to get involved in something that Trump defined as an election issue.

I have more specific concerns about the DC US Attorney’s office. Michael Sherwin, who has been less awful as Acting US Attorney than Timothy Shea, originally said on the record all options in the investigation that will be led out of his office were on the table, including incitement by Trump. But then someone said off the record that Trump was not a focus of the investigation. I suspect that person is Ken Kohl, who as Acting First Assistant US Attorney is in charge of the investigation and has been cited in other announcements about the investigation.

Ken Kohl at least oversaw, if not participated in, the alteration of documents to help Trump get elected. I’ve been told he’s got a long history of being both corrupt and less than competent. The decisions he will oversee in upcoming weeks could have the effect of giving people the opportunity to destroy evidence that lays out a much broader conspiracy, all while rolling out showy charges against people who were so stupid they took selfies of themselves committing crimes. We want this investigation to go beyond a slew of trespassing charges to incorporate the actual plotting that made this attack possible. It’s not clear Kohl will do that.

Even assuming that people currently in DOJ are willing to collect evidence implicating Trump, short of having a confirmed Attorney General overseeing such decisions, we’re back in the same situation Andrew McCabe was in on May 10, 2017, an Acting official trying to decide what to do in the immediate aftermath of a Trump crime. Trump’s backers have exploited the fact that McCabe made the right choices albeit in urgent conditions, and they’ve done so with the willing participation of some of the people — notably, FBI Deputy Director David Bowdich — who are currently in charge of this investigation.

I’m happy to entertain a range of possible courses going forward, so long as all of them involve holding Trump accountable to the utmost degree possible. I assume Nancy Pelosi, whatever else she’ll be doing, will also be counting the votes to understand precisely what is possible, given the schedule.

But I also know that I’d far rather have Trump and those he directly conspired with criminally charged than have an impeachment delay the thorough fumigation of a government riddled with people who may have had a role in this plot. And that’s not going to happen if the investigation is scoped in such a way in the days ahead to rule out his involvement.

Update: Here’s a much-cited interview with Michael Sherwin. He adopts all the right language (pointedly disavowing labels of sedition or coup, saying he’s just looking at crimes) and repeats his statement that if there’s evidence Trump is involved he’ll be investigated.

On Thursday you were quoted saying the conduct of “all actors” would be examined, which was interpreted to mean President Trump might face charges. Is that what you meant — the man who gave the speech at the start of the day could be looking at charges?

Look, I meant what I said before. In any criminal investigation, I don’t care if it’s a drug trafficking conspiracy case, a human trafficking case or the Capitol — all persons will be looked at, OK? If the evidence is there, great. If it’s not, you move on. But we follow the evidence. If the evidence leads to any actor that may have had a role in this and if that evidence meets the four corners of a federal charge or a local charge, we’re going to pursue it.

Update: This story describes how a senior McConnell aide called Bill Barr’s Chief of Staff who called David Bowdich who then deployed three quick reaction teams in response.

The senior McConnell adviser reached a former law firm colleague who had just left the Justice Department: Will Levi, who had served as Attorney General William P. Barr’s chief of staff.

They needed help — now, he told Levi.

From his home, Levi immediately called FBI Deputy Director David Bowdich, who was in the command center in the FBI’s Washington Field Office.

Capitol police had lost control of the building, Levi told Bowdich.

The FBI official had been hearing radio traffic of aggressive protesters pushing through the perimeter, but Levi said it had gone even further: The mob had already crashed the gates and lives were at risk.

Capitol police had said previously they didn’t need help, but Bowdich decided he couldn’t wait for a formal invitation.

He dispatched the first of three tactical teams, including one from the Washington field office to secure the safety of U.S. senators and provide whatever aid they could. He instructed two more SWAT teams to follow, including one that raced from Baltimore.

These teams typically gather at a staging area off-site to coordinate and plan, and then rush together to the area where they are needed. Bowdich told their commander there was no time.

“Get their asses over there. Go now,” he said to the first team’s commander. “We don’t have time to huddle.”

Not explained: why Bowdich was watching protestors get through the perimeter without deploying teams on his own. Again, I’m not saying he was complicit. I’m saying he has spent the last four years by letting Trump’s claims about politicization direct the Bureau, and can see how that habit might have led to a delayed response here.

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