DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone

Earlier this month, I noted the difficulty created by the fact that 25 of the known witnesses or investigative subjects in the January 6 investigation were attorneys. Days later, I reiterated the difficulty presented by the six or so key participants in Trump’s suspected crimes who are members of Congress.

An important scoop from Politico demonstrates how difficult that is. It confirmed that a still-sealed appeal of a Beryl Howell decision pertains to DOJ’s efforts to get into Scott Perry’s phone.

The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.

The fight has intensified in recent weeks and drawn the House, newly led by Speaker Kevin McCarthy, into the fray. On Friday, the chamber moved to intervene in the back-and-forth over letting DOJ access the phone of Perry, the House Freedom Caucus chair, reflecting the case’s potential to result in precedent-setting rulings about the extent to which lawmakers can be shielded from scrutiny in criminal investigations.

The House’s decision to intervene in legal cases is governed by the “Bipartisan Legal Advisory Group,” a five-member panel that includes McCarthy, his Democratic counterpart Hakeem Jeffries, and other members of House leadership. The panel voted unanimously to support the House’s intervention in the matter, seeking to protect the chamber’s prerogatives, according to one of the two people familiar with the proceedings.

[snip]

More than four months after the government obtained Perry’s phone, Howell sided with DOJ. While Howell’s rulings in the dispute remain under seal, along with any rationale that appeals court judges may have offered for their actions, some spare details about the fight appear in that court’s public docket.

Remember: When DOJ was trying to breach the privilege claims of lawyers Jeffrey Clark and Ken Klukowski, they appeared to do so, in part, by prioritizing Perry’s contacts, emails that could not be privileged given the clients that Clark and Klukowski should have been representing — for a significant period for both, US taxpayers. Yet for most of the time since then, DOJ has been blocked from getting the non-lawyer’s contacts, even though he played a central role in attacking the peaceful transfer of power.

I have not yet been proven correct in my speculation that one reason Merrick Garland appointed a Special Counsel was because the Republican majority in the House made it more difficult to investigate those members of Congress, starting with Perry, who participated in Trump’s coup attempt. But Jack Smith’s background in investigating former members of Congress sure will help this investigation.

More on Brandon Straka’s So-Called Cooperation

There was a funny moment in Brandon Straka’s February 24, 2022 January 6 Committee interview.

Close to the beginning of the interview, he provided a description of how, he claimed, the idea for Stop the Steal came about: someone, probably Ali Alexander, simply renamed a pre-existing MAGAt Twitter DM list sometime after the election.

A So there was a Twitter DM thread, which s to say, like, a private message thread that somebody had created — I have no idea who because in all likelihood it was probably created significantly before I was added to it. It was called MAGA Verified, which essentially means anybody who is a MAGA or, you know, Donald Trump supporter, who has a blue checkmark next to their name, so as in verified on Twitter.

And so somebody had created a group, a direct message group, and so I don’t know if anyone here maybe does or does not understand how Twitter works, but with a Twitter DM group, somebody can create a group and just add people. They don’t have to have your permission. Then it’s up to you to either leave the group or decide if you  want to stay in the group. 1) So, like, as right now as we speak, I’m probably added to hundreds of groups because I don’t really check my DMs that thoroughly, and I don’t make it an effort to go through and remove myself from every group that I’m added to.

But this particular group was called MAGA Verified, and it was a collection of people who are verified, you know, Republicans or Donald Trump supporters.

And then as (he claims) results started changing, people on the group decided to adopt the hashtag #StopTheSteal.

And at after the election, so I guess around November 5th, I would say, of 2020, 6several of us were in that group just sort of expressing confusion, exasperation, sadness about how the election results had suddenly changed during the night on November 4th going into November 5th.

And thenI think over the course I mean, I’d have to go back and look, but it was over the course of, I think, a day or two that plans started getting made to kind of deploy to swing States and host these First Amendment-protected events to encourage people to keep their spirits up and encourage their State legislators to hold a thorough forensic audit of the votes in theirStates, because people were very concerned about irregularities. So I’m going to go out on a limb and assume it was probably Ali Alexander who started using the Stop the Steal hashtag.

According to the cooperation memo the government filed in advance of Straka’s sentencing last year, which just got unsealed, it’s the same story he told to the FBI.

The “Stop the Steal” effort was formed through a private Twitter group of which Straka was a member. The group was formed “long before” the 2020 election and referred to itself as the “MAGA Verified” group because it was comprised of MAGA followers who were verified on Twitter. The members of the group used Twitter to exchange private direct messages with one another. Straka provided information about an individual, Ali Alexander, who was part of the MAGA Verified group.

There are a few problems with the story. First, as J6C pointed out to Straka, he was already organizing a vote fraud event, to take place after the election, before the election.

So we’ll give you time to look at this document, but it is it looks like it’s a permit 3 application filed by WalkAway Campaign. ~The date is October 28 of 2020. It’s for John 4 Marshall Park, and it’s scheduled — the proposed scheduled date is for November 15th.

If we go down to the second, page, the purpose of the event is a demonstration for free and fair elections. So help us understand, why did you –what were you thinking about on October 28th to want to have an event on November 15th about free: and fair elections?

In response to this observation, Straka bullshitted for a while and then gave up.

It just didn’t make sense, he said.

A Julie Hanson is an event planner that we’ve worked with over – for years on various events that we’ve done. I can’t answer this question, because this doesn’t make sense to me. I don’t know if she made a mistake when she put the date on the application, or if I don’t want to speculate why Julie put that date on the application, but I can tell you this doesn’t make sense to me, because I thought that Donald Trump was going to win the election, and my reaction to how the election turned out began on November 5th. So it makes no sense to me that I would’ve done – I would’ve asked to submit an application a week before the election. That doesn’t make sense to me.

Q So it’s your just want to make sure we have your testimony clear. You don’t recall instructing Ms. Hanson or approving an application in October for this event after the election on November 15th?

A Not in October, I don’t recall that. I — again, it just doesn’t make sense.

Right: This story doesn’t make sense. That’s the problem.

Plus, as J6C pointed out, the hash tag was actually in use well before the election. After Straka engaged in a really long spiel about how he didn’t much care of Ali Alexander registered the hash tag — “I just want[] to be told where to show up, what time, and where’s the microphone” — (as he said about January 6), J6C asked about the timing again.

Q Got it. That brings me back thank you, that was helpful. That brings me back, though, to the permit application from October 28th. It looks like Stop the Steal, the hashtag, I mean, was really starting to get traction early as September 7th of 2020.

We’ve seen tweets of Jack Posobiec doing it.

So do you recall maybe filing this application in October, for November 15th, to advance the Stop the Steal messaging that was starting to percolate in September, October, and November of 2020?

A Again, it just doesn’t make any sense to me. That – because I believed wholeheartedly that Donald Trump was going to win the election. ~ So it ~ it just doesn’t make sense to me that I would’ve decided a week before the election to submit a permit under the assumption that we’re going to lose the election. It just – that just doesn’t add up inmy mind.

In fact, J6C already knew that the hashtag had been in use even longer than that.

Though Ali Alexander, in his December 9, 2021 testimony, had tried to distinguish the hashtag from everything else, when asked why he suggested he should sue the Kremers after Roger Stone was denied a speaking slot on January 6, Alexander explained,

And there was all this pretense that, you know, Roger Stone is the gentleman who came up with the phrase Stop the Steal. I have, you know, this gentleman’s agreement with him that I  have a perpetual use of the license.

And the FBI would know that Stop the Steal went back to 2016, because abundant evidence about it would have been collected by Robert Mueller’s team.

So no one should have believed Straka’s explanation.

I have long raised questions about whether DOJ allowed itself to be snookered in giving Straka a sweet plea, when instead they should have charged him with obstruction. There’s nothing in the filings unsealed in recent days to alleviate my concerns.

That’s true, first of all, because two of the things he threw at prosecutors seem to have been chum, waste material thrown out to distract predators. Straka provided second-hand information from someone who may have been in Nancy Pelosi’s office.

Information that Elijah Schaffer was inside of Nancy Pelosi’s office that is currently being investigated. It is unknown whether any other information has been discovered by the Government concerning this lead.

The government still had not verified the tip a year later.

On March 5, 2021, Straka was interviewed by the FBI a second time. Sometime after his first interview, Straka recalled that an individual, David Leatherwood, told him that an individual, Elijah Schaffer, was inside of Nancy Pelosi’s office on January 6. This information is being investigated for its accuracy.

And Straka, just before sentencing, provided the name of a guy he lived close to in Nebraska (but had not previously known), an identification he claimed came from someone he didn’t even know on Twitter.

On information and belief, Mr. Straka positively identified Gavin Crowl as an individual who participated in January 6. Mr. Crowl’s identity had not been previously provided by anyone to Law Enforcement for almost eleven months. Mr. Crowl is a convicted Sex Offender who has been placed on the Sex Offender Registry in Nebraska. His identity was confirmed by using information provided on the Sex Offender Registry, and by cross-referencing public information from his LinkedIn profile with information he provided in an Internet interview with Bobby Powell, a Government-identified “insurrectionist advocate”. This individual can be heard encouraging the crowd to take the shield of the officer in the video recorded by Mr. Straka. Other video information provided by Mr. Straka shows this individual moving toward entering the Capitol before he was stopped. It is unknown whether this individual actually did enter the Capitol Building; and what other criminal activity he participated in.

His J6C interview makes it clear Straka shared this guy’s name for the purpose of floating conspiracy theories about Antifa.

A Okay. So I — it had been brought to my attention by somebody on social media who I  don’t know, a complete stranger, had essentially reached out to me to tell me that they had identified somebody in a video who was at the Capitol who they said this person told me that they identified a person who they said was a member of antifa.

This person told me, I watched this person dressed entirely in black from head to toe, and they said, then he went away for 10, 15 minutes or whatever, and he came back dressed asa Trump supporter. And he was causing agitation, you know, et cetera.

I engaged in a conversation with this person, because the person said to me, I have this on video, or something like that, and I said, Okay. So I looked at the video that the person was talking about, just because it sounded interesting to me, and I was shocked when I discovered that recognized this person as being somebody who was standing directly beside me in my video when I was on the Capitol steps.

Now, you know, I know for a fact that one of the crimes I’m — I was accused of committing was being in a restricted area. So this person had certainly committed the same crime that I committed, and I was also very curious if this person might’ve been encouraging the crowd in ways that it was alleged that I was encouraging the crowd.

And so, I asked this person if they knew the identity of this individual, and this person said, Yes. And so he gave me the name of this individual. I googled this individual and discovered that this individual has a violent criminal record.

At that point – and –and I also discovered that this person lives, coincidentally, very close by where I live.

According to the government sentencing memo, they did open an investigation into Crowl; it was new information for them.

On December 8, 2021, counsel for Straka provided the government with information regarding a United Capitol rioter who was at the U.S. Capitol. Straka recalled observing the individual while he was standing outside on the steps outside of the East Rotunda Doors. This individual stood nearby as a U.S. Capitol Police Officer’s protective shield was taken away from him. Straka believes that the individual joined in with the crowd yelling “take it, take it,” as rioters struggled with the officer to take his shield. After January 6, the individual, identified by Straka as Gavin Crowl, participated in an interview with insurrectionist advocate, Bobby Powell. Crowl recounted what he observed at the U.S. Capitol. Straka and Crowl reside in Nebraska and live within a short distance of each other. Straka’s information is beneficial in that Crowl was not previously identified by the FBI prior to Straka’s identification of Crowl.

[snip]

Based in the information provided by Straka, the FBI has opened an investigation into Crowl and his conduct at the U.S. Capitol on January 6.

Crowl is the one, notably, that Straka claimed to be afraid of, not Trump people threatening to retaliate (though DOJ submitted exhibits of texts from someone else demanding that Straka recant his testimony).

This violent sex offender, if he learns of Mr. Straka’s cooperation in identifying him (which would be the primary reason for any subsequent arrest and prosecution) has a predatory and aggressive history, which could easily result in retaliation against Mr. Straka or his family.

Crowl has not yet — publicly, anyway — been arrested, and even if he was, it’s not clear he ever did anything more than trespass outside the building.

While the tip may have been helpful, it was not cooperation about things that Straka was uniquely positioned to know.

The single prosecution on which Straka’s cooperation was said to help (usually the standard for credit at sentencing) was Simone Gold, the anti-vax activist who was arrested even before Straka was in January 2021, and who had already been charged with felony obstruction six days before the February 11 Straka interview where he first provided the information. In its sentencing memo, the government said Straka provided a voice mail that might help get Gold to plead.

Straka provided the government with voicemail messages that he received from Gold, whom he met in Washington D.C. on either January 5 or 6. The information contained in the voicemail messages is valuable in the government’s prosecution of Gold and may assist in a plea resolution of the Gold prosecution.

After further delay, Gold did plead out, not to the felony obstruction count, but to the more serious trespassing count. Her plea agreement had the standard cooperation paragraph in it, which sometimes suggests that the person had not yet sat for the further FBI interview required by virtually all misdemeanor pleas. The government sentencing memo in her case laid out several ways she continued to delegitimize her prosecution — and fundraise, to the tune of $430,000 — off it. In short, there’s absolutely no evidence that DOJ used the information Straka provided on Gold to advance the overall investigation. It made a misdemeanor plea easier to get, but not much more than that.

Gold is more likely to be held accountable in a lawsuit by her anti-vax group, which has split into factions over how she grifted the fundraising from it (though the failed attempt by Gold’s attorney, Kira West, to drop her as a client may suggest there might be legal accountability for the grift, as well).

The combined memos make it clear that the government viewed Straka’s cooperation to be most valuable for his insight into Stop the Steal, especially Alexander. Straka himself describes identifying people on one of the Stop the Steal threads (though this sounds like the known Twitter DM list; in his J6C transcript, he described a Signal thread as well).

Contact information regarding the following members of the Stop the Steal text thread, to include: Ali Alexander, Michael Coudrey, Scott Presler, Ashley St. Clair, Nathan Martin, Courtney Holland, Megan Barth, CJ Pearson, Ryan Fournier, and another telephone number unknown to Mr. Straka.

There’s a non-zero chance that the tenth number is either that of Paul Gosar or one of his staffers, because he was on that Twitter thread (and Straka filibustered about him when asked by J6C).

There are reasons for concern, though. None of the documents pertaining to Straka — from either J6C or DOJ — mention Mike Flynn, next to whom Straka sat at the Ellipse rally, which is particularly important given Straka’s description that he went back to the Willard after the rally.

And in the discussion of Straka’s information on the organizers of Stop the Steal (Straka did not mention Caroline Wren, though he may not have understood her role), DOJ adopts the same misspelling of the Kremers’ name as Straka did: “Kremmer” rather than “Kremer.”

Straka provided information about “Stop the Steal” members Amy Kremmer, Kylie Kremmer, Cindy Chafian. This information was useful in that it identified members of “Stop the Steal.” Neither the Kremmers nor Chafian are being prosecuted by the government at this time.

Note that J6C seemed not to have communications between Straka and Chafian that should have been in his production.

How aggressively must prosecutors be following this if, over a year into an investigation of January 6, they’re still not clear on who the Kremers are, whether or not their actions are deemed suspect?

And Straka’s memo seems to confirm my fear that DOJ had not yet turned to the earlier incitement from Stop the Steal — which was a key threat to state lawmakers are they were considering whether to support Trump’s coup attempt — until his third interview, in January 2022.

Additional information concerning Michael Coudrey, Scott Presler, Ashley St. Clair, Courtney Holland, Megan Barth, CJ Pearson, and Ryan Fournier, Amy and Kylie Kremmer, Cindy Chafian, Alex “Bruisewitz” (spelling unknown), Crystal (LNU) (an organizer and logistics person involved in rallies for President Trump), and Jenny Beth Martin; as well as information about specific rallies held in the months prior to January 6, was provided during Brandon’s third interview. [my emphasis]

Brandon Straka played a central role in intimidating election workers in my state of Michigan in 2020, and the government got all the way to sentencing before asking him about that process. That pisses me off and raises real questions about how thoroughly they investigated Straka before agreeing to a misdemeanor plea.

In his J6C interview, almost seven weeks after that third interview, Straka revealed that FBI at that point still retained all his devices except his phone. Three months after his third interview, DOJ subpoenaed Alexander. DOJ may not be done with Straka.

It may be that the trade-off — of getting immediate access to his devices rather than waiting to crack whatever security he had — still made the plea worth it. It may be that that early cooperation, and more importantly, the follow-up in January 2022, provided DOJ information they couldn’t have gotten without a lot more effort.

But J6C, without warrants, was able to poke a key hole in Straka’s story. At least on the public record, it seems that FBI was not so thorough, even with warrants and seized devices in hand.

Links

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreementstatement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 9, 2021: Ali Alexander J6C testimony

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

January 20, 2022: Straka sentencing

February 22, 2022: Brandon Straka J6C testimony

April 8, 2022: Ali Alexander reports receiving a subpoena

June 24, 2022: Ali Alexander grand jury appearance

When Your Lawyer is Acting Like H.R. Haldeman, It’s Time to Get a New Lawyer

President Richard Nixon and his Chief of Staff HR Haldeman, before Nixon resigned in disgrace and Haldeman went to prison for 18 months after being convicted of perjury, conspiracy, and obstruction of justice.

When Cassidy Hutchinson’s September 14, 2022 testimony to the J6 committee first came out, I remember being struck by three sentences in bold below (emphasis added) as I read it (from p. 48):

Ms. Hutchinson. And then just, at the end of that meeting, we had — because I had asked him about doing the, like, mock question preparation, and he said, “No.” So said, “Well, do you recommend anything that I can do to prepare for next week?” He’s like, “Get a good night’s sleep,” like, a few wishy-washy things.

And he said, “Don’t read anything about this on the internet.” He said, “Again, Cass, like, just trust me on this. I’m your lawyer. I know what’s best for you. The less you remember, the better. Don’t read anything to try to jog your memory. Don’t try to put together timelines.”

And he was like, “Especially if you put together timelines, we have to give those over to the committee. So anything you produce we have to give over to the committee. So l really” — he was like, “You can have things in front of you, but really don’t want you to, because we have to give that to the committee.”

So now I’m like, oh now I’m kind of scared. — Like, what if I want notes in front of me and he gets mad at me because I have to give them to the committee now? I didn’t know I would have to give them to the committee, but he told me I did, and he was my lawyer, so I was trying to trust him.

This wasn’t the only place in the transcript where words like these were used – they were almost a refrain. “Where have I heard this before?” I asked myself, then kept reading. Over this past weekend, while helping my mom clean out some old magazines, the penny dropped.

The date was March 21, 1974 1973 [corrected] – two days before the scheduled sentencing of the convicted Watergate burglars. At the White House, things were tense, as the scandal was growing and the coverup was in the process of unraveling. President Nixon, Chief of Staff H.R. Haldeman, and White House Counsel John Dean met for almost two hours, taking stock of the mess and looking for possible routes forward. They discussed additional payments to keep people quiet (noting that earlier payments had bought them silence through the 1972 election), and tried to figure out how to sideline the recently formed Senate Watergate committee chaired by Sen. Sam Ervin (D-NC).

Toward the end of the meeting, Nixon brought up a suggestion from his Domestic Policy Advisor  (and former White House Counsel) John Ehrlichman: instead of letting the Ervin committee run riot in public, announce that all this was going to a new grand jury. From the transcript of the Nixon tapes (with all the typos, punctuation, etc. in the original, but with emphasis added):

PRESIDENT:    John Ehrlichman, of course, has raised the point of another grand jury. I just don’t know how you’re going to do it. On what basis. I, I could call for it, but I…

DEAN:              That would be, I would think, uh…

PRESIDENT:    The President takes the leadership and says, Now, in view of all this, uh, stripped land and so forth, I understand this, but I, I think I want another grand jury proceeding and, and we’ll have the White House appear before them.” Is that right John?

p. 89 [sic, should be 88]

DEAN:              Uh huh.

PRESIDENT:    That’s the point you see. That would make the difference. (Noise banging on desk) I want everybody in the White House called. And that, that gives you the, a reason not to have to go up before the (unintelligible) Committee. It puts it in a, in an executive session in a sense.

HALDEMAN:   Right.

PRESIDENT:    Right.

DEAN:              Uh, well…

HALDEMAN: And there’d be some rules of evidence. aren’t there?

DEAN:              There are rules of evidence.

PRESIDENT:    Both evidence and you have lawyers a

HALDEMAN: So you are in a hell of a lot better position than you are up there.

DEAN:              No, you can’t have a lawyer before a grand jury.

PRESIDENT:    Oh, no. That’s right.

DEAN:              You can’t have a lawyer before a grand Jury.

HALDEMAN: Okay, but you, but you, you do have rules of evidence. You can refuse to talk.

DEAN:              You can take the Fifth Amendment.

PRESIDENT:    That’s right. That’s right.

HALDEMAN: You can say you forgot, too, can’t you?

DEAN:              Sure. –

PRESIDENT:    That’s right.

p. 89

DEAN:              But you can’t…you’re…very high risk in perjury situation.

PRESIDENT:    That’s right. Just be damned sure you say I don’t…

HALDEMAN:  Yeah…

PRESIDENT:    remember; I can’t recall, I can’t give any honest, an answer to that that I can recall. But that’s it.

Hutchinson is too young to have lived through Watergate, but she clearly recognized that Stefan Passantino was acting more like he was more worried about someone else’s legal issues and not her own. It took her a while, but she eventually punted him and found a legal team who agreed to work on her behalf.

Passantino was clearly channeling his inner Haldeman when he told Cassidy Hutchinson “The less you remember, the better.”

Maybe this is a new entry in the DC book of Proverbs: “When your lawyer is acting like H.R. Haldeman, it’s time to get a new lawyer.”

Johnny McEntee: Enforcer of Trump’s Authority to Invoke the Insurrection Act

CNN’s ace Prettyman stakeout reporters spied John McEntee, Trump’s body man turned personnel enforcer, going into a grand jury appearance Friday.

That led me to spend quality time with his January 6 Committee transcript this weekend; I was trying to get a sense of whether this interview — one of the first that would have been scheduled after DOJ had an opportunity to read J6C transcripts turned over in early December — gave a sense of why Jack Smith prioritized McEntee.

I agree with CNN, this is likely part of it:

When testifying to the House committee, McEntee recalled a meeting in the Oval Office on Vice President Mike Pence’s role in certifying the election, in which he said he was asked to look into precedent. McEntee also recounted in-person exchanges between Trump and Pence, in which he heard Trump say, “Michael, do the right thing,” and “Do what you think is right, Mike.”

Here’s how it appears in the transcript.

Q Did you ever witness any conversations between the President and the Vice President about the Vice President’s role?

A No. No.

Q Or any phone calls? Anything like that?

A I remember the President saying, “Michael, do the right thing.” You know, “Do what you think is right, Mike.” That’s all I heard him say.

Q You heard him say that to Vice President Pence?

A Yeah.

Q Was it over the phone or in person?

A In person.

Q Okay. And was that in the Oval Office?

A Yeah.

Q Was anybody else there?

A I think Short was there, yeah.

Q Do you remember when that was?

A I don’t. It was, like, when he was going up for the evening, the President, and they were just finishing something up, so I came in to, like, grab all his stuff, and then he said that to him.

Q Okay.

A At the conclusion of the day at some point.

Q And did the Vice President say anything in response?

A No. He just nodded.

If credible, it would be exculpatory. DOJ needs to interview anyone who might have exculpatory information before they make a decision to charge Trump.

They may also be trying to get all testimony about Trump’s comments to Mike Pence before they move to interview Mike Pence, because they’d need to make a case they couldn’t get his testimony anywhere else.

But McEntee was not particularly credible, and I would imagine with call records and other testimony, DOJ would be able to prove that.

Indeed, even in the J6C testimony, McEntee got caught providing a dubious explanation for a call he had with Trump after the attack on January 6. At first, he claimed most of his conversation with Trump consisted of “colorful” comments about the people who resigned on January 6.

Q Did President Trump ever talk to you about the events of January 6th even after the fact?

A Just vaguely that night when we spoke.

Q Okay. Tell us about that conversation.

A I called, and I just went down the list of all the people who had resigned.

And then we discussed a little bit about each just colorfully. And then he just said this is a crazy day and, you know, I’ll see you tomorrow. But he didn’t go into many details.

Q Okay. Can you remember anything else he said about the events of that day?

A I can’t, other than he acknowledged that it was, like, wild, and we would talk tomorrow, you know, or next — we’ll see you in the morning, or something like that.

Q Okay.

A We were mostly going through all these people that resigned, and then kind of talked about them. And I was just relaying, because O’Brien called me and said you got to let him know I’m not resigning. So then I called, and he said, well, who has resigned? And then, like, I went through the list of the ones I knew at the time. And then the next day some more came out.

Q When the President said it was a crazy day, or something to that effect, what was his tone?

Q A Kind of like a little disbelief. Like, wow, like, can you believe this shit, you know?

A  Did he express any sadness over the violence?

Q No. I mean, I think he was shocked by, you know, it getting a little out of control, but I don’t remember sadness, specifically.

But in a final question, J6C pointed out the problem with that. Trump didn’t know any of the people who resigned on January 6; the people he knew who resigned only resigned on January 7.

Q I just want to ask, that conversation that January 6th evening, I think from the — the diary indicates it’s a 20-minute-long conversation. And you described it.

Many of the people who resigned that day Mr. Trump didn’t even know. In fact, the ones that he did know didn’t resign till the next day.

So 20 minutes is a long conversation, Mr. McEntee, and I’m wondering if you could just describe, when you say “disbelief” and “day is crazy,” what more color can you add to the feelings of that day as expressed to you?

A You know, it’s hard to remember, honestly. I don’t remember any details we went into about it. I know we went through each person, and I had to explain who each person was, so that took a minute or two on each –

There are other parts of McEntee’s testimony that strain credulity. He has little explanation for how he spent his day on January 6. He claimed not to understand most of what he was doing as he served as a go-between, between Steve Bannon and the White House via Bannon’s Chief of Staff Alexandra Preate. His response to being asked about a rumor that he slept at the White House for several days after the attack was weak — “not that I’m aware of.”

McEntee also described Trump using his (McEntee’s) phone — and he was a bit squishy about whether it was just his White House phone, or also his personal one — from time to time. McEntee likely learned this habit from working with Keith Schiller, who offered the same service as a body man.

But there’s an aspect of McEntee’s testimony that is far more alarming.

Shortly after returning to the White House in 2020, he was elevated to run personnel. He was wildly unqualified for the task, as intended for a government bureaucracy, but he was quite adept at politicizing every bit of the political appointment process, and demanding absolutely loyalty in the process.

And in that role, McEntee served as a means to drive the policy of the entire Pentagon.

The committee first reviewed McEntee’s role in firing Mark Esper for refusing to invoke the Insurrection Act during the summer of 2020. Then it turned to how, after simply interviewing Douglas MacGregor for an advisory role at the Pentagon, McEntee sent a memo to DOD ordering them, days after the election was called for Biden, to withdraw from Afghanistan and Somalia.

The exchange led his attorney, David Warrington, who at the time was paid by Trump’s PAC and who still represents a slew of January 6 witnesses, to go on an extended complaint about the scope of questions.

McEntee’s role in enforcing policy came up again in an exchange about the response to Army Secretary Ryan McCarthy saying, on December 18, that the military would play no role in determining the outcome of the election.

On December 18th, the Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff issued a statement that there was no role for the U.S. military in determining the outcome of an American election.

Do you remember what impact, if any, that had on the White House?

A I don’t remember that being brought up.

Q Do you remember conveying a message to Secretary Miller about the White House’s frustration that DOD, particularly the Secretary of Army, had issued such a  statement?

A No, I don’t remember. I don’t remember that.

Q Secretary Miller told the committee that he was contacted by you soon after the statement was made and you asked why McCarthy made the statement and, quote, “wanted me,” meaning Mr. Miller, “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He,” meaning you, “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

This was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

After getting McEntee to deny remembering this and claiming any interference at DOD was simply in his role as Assistant to the President, J6C then brought out a note, written by McEntee, that Trump or someone else had ripped up before it was preserved by the Archives.

It showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.

McEntee claimed he remembers none of that.

Q One second. Sorry.

These are handwritten notes that have been produced to us from the National Archives.

Is that your handwriting, Mr. McEntee?

A It looks like it, yes.

Q And it looks like the page has been torn. But it says, “Chris Miller spoke to both of them and anticipates no more statements coming out.” And then in parentheses, “If another happens, he will fire them.”

Do you remember writing this?

A No, I don’t remember writing this.

Q But this is your handwriting?

A Yes.

Q So, just want to be clear. This is your handwriting, but you have no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election?

This is important background to McCarthy’s indolent response to the attack on January 6. Trump’s chief enforcer had already intervened to make sure he didn’t do anything to fall afoul of Trump’s whims.

But it’s also important background to another comment in the interview.

As I suggested in this post, the J6C transcripts make it clear that a long-public reference to Trump requesting 10,000 National Guard on January 3 was misrepresented, no doubt deliberately so. Trump made the request not, as reported, in the interest of keeping his followers safe. Rather, he first floated having 10,000 Guard after it became clear the National Park Service would not approve a permit for a march to the Capitol, out of security concerns.

Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

And that, plus McEntee’s role in firing Esper because he refused to invoke the Insurrection Act and his threats of firing McCarthy because he said DOD would not intervene in the election, makes this reference all the more chilling. When asked about his role in the rally, McEntee described that he intervened to ask Christopher Miller to involve the Guard.

Q Did you have any conversations with the President that day?

A Only that night.

Q Okay. We’ll get to that in a minute. Did you go to the rally on the Ellipse?

A No.

Q Were you involved in any conversations about planning the rally?

A No.

Q Were you aware of any discussions about groups such as the Proud Boys, Oath Keepers, or anybody else being involved in the protests?

A I was not. The only thing I had to do that even remotely dealt with the rally was the President wanted to make sure it was safe. And either a day or two or three before, he had me call Chris Miller and ask if we could bring the National Guard in.

Q Okay. What did Mr. Miller say?

A I think he said he would look into it.

Q And do you know if anything happened after that?

A I don’t know if anything happened or came of it, no.

Q Did you report back to the President on what Secretary Miller said?

A I just let him know that I relayed his message to Chris, yeah.

Having earlier claimed not to recall using threats of firing to make demands on DOD and having earlier disclaimed any knowledge of Trump’s plan to walk to the Capitol, here’s the bullshit explanation McEntee offered for why Trump wanted to involve the Guard.

Q And did the President say anything about why he wanted the National Guard there?

A I think because that summer we had the Republican Convention. And if you remember, like, Rand Paul was getting attacked in the street. And, I don’t know, it just got kind of crazy. So this time he thought we’re going to have so many people, like, you know, we need to make sure that this city is safe. That kind of a thing.

Q Do you know why he said it to you?

A No, I think it was just on his mind and I just happened to be next to him. So he said call Chris and let him know. So I just called Chris.

Q Were you traveling at the time?

A We could have been, like, golfing, yeah, or something. You know, we could have been at his golf course maybe.

As I said above, I agree with CNN that one thing Jack Smith’s team would have wanted to ask McEntee about was his claim to have heard, alone among all known witnesses, Trump say something exculpatory.

DOJ would also want to see whether McEntee wanted to reiterate some of the more fantastic claims he made to J6C, especially knowing that DOJ would have the legal means to disprove some of them.

DOJ likely would want to ask about a conversation McEntee had with Trump, along with Dan Scavino (who has definitely appeared before the grand jury) and Molly Michael (who has definitely been interviewed in the stolen document case and likely interviewed in J6C), about testifying to J6C.

But depending on what other witnesses DOJ has already interviewed, DOJ may want to know more about McEntee’s role in arranging an ostensible Praetorian Guard for the President as he walked to the Capitol as they moved to certify his loss.

McEntee was among the people referred to, publicly at least, in the mix for a pardon after January 6. In his interview, McEntee only discussed that pardon, if it happened, in the context of a blanket pardon for staffers involved in January 6.

It was never entirely clear why McEntee might need one.

Unless he has knowledge of Trump’s attempt to use the National Guard as a Praetorian Guard to accompany his own march on the Capitol.

“Several Work and Storage Areas:” Why DOJ Likely Doesn’t Trust Biden’s Personal Attorneys

Charlie Savage has a story that — while he doesn’t say it — likely explains why DOJ doesn’t entirely trust Biden’s attorneys on the classified documents and so appointed a Special Counsel.

The currently operative story, as told by Savage, is the following:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • Based on those interviews, they told DOJ other documents would only be at Penn Biden
  • Without telling DOJ (though after they learned that DOJ had started to investigate), “and not because of any new information,” they decided to check that premise by looking at the boxes in Biden’s garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • They then decided to search other office areas, this time telling DOJ they were doing so
  • When, on January 11, they found a page with classification marks inside one of those office areas, they stopped their searches; FBI would find 5 more pages when they came to secure that single page

But look at this timeline with other dates added:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • November 4: NARA told DOJ about the classified documents
  • November 9: FBI started its assessment
  • November 14: Garland appointed John Lausch
  • Based on Biden’s lawyers’ interviews of those who packed Biden’s boxes, they told DOJ other documents would only be at Penn Biden
  • Lausch interviewed some of the people who packed the boxes
  • Without telling DOJ, “and not because of any new information,” Biden’s lawyers decided to check that premise by looking at the boxes in the garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • On January 5, Lausch recommended Garland appoint a Special Counsel
  • At some point not IDed in Savage’s story, Biden’s lawyers decided to search other office areas, this time telling DOJ they were doing so
  • On January 11, they told DOJ about another classified page, possibly inside an office, then stopped their searches
  • On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents

Biden’s lawyers probably didn’t decide to do further searches until after Lausch started interviewing people. Already, if I were DOJ, I would want to know whether Biden consulted with the people being interviewed, and based on that, realized they needed to do further searches.

But we still don’t know two other things. Savage describes the second space in Biden’s home, which heretofore had been described as the room adjacent to the garage, as “several work and storage areas inside the living area of the house.” Which is to say, we still don’t know whether the January 11 document was found inside a storage space or an office, where documents would be used rather than just stored. Or rather, John Lausch knows that, Savage’s sources know that, but we don’t.

We also don’t know if Biden found out that Garland was going to appoint a full Special Counsel and only then decided to search the interior of the home.

Something led Biden’s lawyers to take more seriously the possibility that documents weren’t just stored at Biden’s home, but used there. And while this all still could be lawyers stepping on their own toes as they try to be helpful, even just based on what we know, from DOJ’s perspective, that toe-stepping would be indistinguishable from Biden’s lawyers responding to learning things they should have been told from the start, which is different from — but not that different from — Trump moving boxes to prevent Evan Corcoran from finding classified documents.

One more detail that is actually fairly damning. Savage describes that the documents at Penn Biden were copies; the originals are stored at the Archives.

One set was believed to be material that might be useful to Mr. Biden for his post-vice-presidential career in public life or teaching, like his speeches and unclassified policy memos about topics he was interested in. Those materials were initially shipped to two transition offices and then on to his office at the Penn Biden Center when it opened in 2018. (The National Archives and Records Administration would keep original copies of the official records.)

If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.

Biden’s lawyers have been feeding the press a story about how cooperative they’ve been. But so did Trump’s lawyers. Trump’s story was far more obviously bullshit — in part for the way they spun a claim that by adding a lock to Trump’s storage room, they had made it secure.

Though this line about the Biden search — offered up as proof of extreme cooperation — gets close to lock-on-door levels of spinning.

[T]he Biden legal team invited the F.B.I. to also search every room in the residence — including bathrooms, bedrooms and the utility room, the people said.

There are still key parts of Biden’s story that aren’t being explained, most importantly whether the documents discovered this month inside Biden’s house were discovered in storage or in an actively-used office. If DOJ knows that the difference between the two would be critical information for the public to know, then this story would only further degrade confidence in Biden’s lawyer on the part of DOJ.

This is not about the reliability of lawyers like Bauer. Rather, it’s about whether Biden’s lawyers got information at the start they needed. But if they did not, it means that DOJ can’t just trust, but must verify, everything Biden’s lawyers tell them.

The Primary Thing Eric Herschmann Remembers from January 6 Is that Cassidy Hutchinson Was Wrong about That Note

There’s a funny detail in Cassidy Hutchinson’s September 14 January 6 Committee testimony.

She claimed that on May 20, after a third appearance before the committee and after firing her lawyer, Stefan Passantino earlier that day, Eric Herschmann called her and told her, “I didn’t know you remembered so much.”

And Eric called me that evening, and I just apologized. And he was like, you know, “I didn’t know that you remembered so much, Cassidy. Mark [Meadows] really put you in bad positions. I’m really sorry that he didn’t take care of you better. You never should’ve had to testify to any of that. That’s all of our jobs. I don’t know why they didn’t ask us, they asked you instead.”

And I was just like, “Look, Eric like, it is what it is.” And he kind of talked for — it was probably a 30-minute conversation.

“Remembered,” she described Herschmann saying, not “knew” or “witnessed.”

It’s an interesting word choice, if accurate, because in Herschmann’s testimony before the committee back on April 6 (and so after Passantino had sat through Hutchinson’s first two appearances before the committee, on February 23 and March 7), he didn’t remember much.

The word “remember” shows up (sometimes used as part of a question to him) 482 times in the transcript. The word “recall” shows up 166 times. The word “recollection” comes up 24 times.

Among the things Herschmann professed to have little memory of were the fake electors casting votes in December, Trump’s December 19 tweet announcing the January 6 event,  the date of a key January 5 meeting involving Marc Short and John Eastman, the details (beyond an “intellectual discussion about [John] Eastman”) of a call he had with Rudy Giuliani — out of the blue! — on the morning of the 6th, what he said to Pat Philbin to try to convince him to join him at the rally before proceeding on his own, what Trump said to him while waiting to speak at the Ellipse (Herschmann invoked Executive Privilege to cover a call between him and Trump at 10:50PM that day), any claims in Trump’s Ellipse speech that Herschmann knew to be bullshit,  what Mark Meadows, Dan Scavino, and Trump were talking about in the dining room after returning from the Ellipse, and whether he had auto-delete set for his texts.

What Herschmann did recall — aside from the times he screamed at Jenna Ellis, Sidney Powell, and John Eastman, which made him a hero of the January 6 Committee hearings — was writing a note calling on people to leave the Capitol.

Q So do you recall, did you tell them what was happening or did they seem to already be aware?

A I don’t remember. I know I wrote out something, but I don’t remember if they were aware when they came back or I told them when I came in. I just don’t remember that detail.

Q And why did you write something out?

A I thought we should put out a statement.

Q Okay. Do you remember what you wrote?

A I don’t remember the exact words, but I remember going down to Mark’s outer office, chief of staff, and asking someone there to get me something to write on. And normally, if I had to — if I was grabbing something, it would be the chief of staff.

They have one of those cards, I don’t know, it’s a rectangular card that says chief of staff.

Q So this was a handwritten note?

A It was a handwritten note, yeah.

Q Okay. Let’s go — we’ll pull up Exhibit 11. Is that the note you’re referring to?

A That is the note.

Q Okay. And what did you do with the note?

A The actual physical note.

Q Yeah. Did you give it to the President?

A No, I didn’t give it to the President. I may have given it to Meadows, but I didn’t hand it to the President. I would have — I think the reason I edited “illegally,” is someone had a discussion, I don’t remember who it was — and it wasn’t the President, but someone had the discussion, how do we establish it’s illegally — that they entered illegally? Which I thought, okay, I don’t want to say overlawyering, but overlawyering, in my view. So I crossed out “illegally” and said “without proper authority.” Okay, that solves that issue, right? And I thought we should put out the statement.

Q Did you tell the President that he should put out a statement?

A Generally, I had discussions with the President about putting out a statement. I don’t remember if I read this or I handed it to Mark, or Mark and I discussed it in front of the President. I just don’t remember that detail. But this was my first reaction to seeing the violence and what I thought the White House should do.

Q Did the President have a reaction?

A I don’t recall his reaction, but obviously he didn’t put out this statement. [my emphasis]

It’s funny that that was one of the few things Herschmann recalled on April 4, because after Hutchinson testified in her May 17 testimony to remembering a whole bunch of things that Herschmann couldn’t remember (including a discussion between Meadows, Herschmann, and Pat Cipollone about Trump’s comment that Mike Pence might deserve to be hung), she went on to publicly testify, on June 28, that she physically wrote that note as Meadows dictated it, with Herschmann chiming into to offer the alternative, “without proper authority.”

LIZ CHENEY: Now let’s look at just one example of what some senior advisers to the president were urging. Ms. Hutchinson, could you look at the exhibit that we’re showing on the screen now? Have you seen this note before?

CASSIDY HUTCHINSON: That’s a note that I wrote at the direction of the chief of staff on January 6th, likely around 3:00.

LIZ CHENEY: And it’s written on a chief of staff note card, but that’s your handwriting, Ms. Hutchinson?

CASSIDY HUTCHINSON: That’s my handwriting.

LIZ CHENEY: And why did you write this note?

CASSIDY HUTCHINSON: The chief of staff was in a meeting with Eric Hirschman and potentially Mr. Philbin, and they had rushed out of the office fairly quickly. Mark had handed me the note card with one of his pens, and sort of dictating a statement for the president to potentially put out.

LIZ CHENEY: And — no, I’m sorry. Go ahead.

CASSIDY HUTCHINSON: That’s Ok. There are two phrases on there, one illegal and then one without proper authority. The illegal phrase was the one that Mr. Meadows had dictated to me. Mr. Herschmann had chimed in and said also put without legal authority. There should have been a slash between the two phrases. It was an — an or if the president had opted to put one of those statements out. Evidently he didn’t. Later that afternoon, Mark came back from the Oval Dining Room and put the palm card on my desk with illegally crossed out, but said we didn’t need to take further action on that statement.

LIZ CHENEY: So, to your knowledge, this statement was never issued.

CASSIDY HUTCHINSON: It was — to my knowledge, it was never issued.

The difference between Herschmann and Meadows dictating the note to Hutchinson (who is not once mentioned in Herschmann’s testimony) and Herschmann writing it himself is negligible in the larger story, so he could have left it well enough alone. Especially given the number of times Herschmann claimed not to remember details of what happened with the note, such as how it was presented to Trump or how the then-President responded.

But Herschmann didn’t leave it well enough alone. Shortly after Hutchinson’s public testimony, Herschmann’s spox put out a formal statement claiming he had written the note.

“The handwritten note that Cassidy Hutchinson testified was written by her was in fact written by Eric Herschmann on January 6, 2021,” a spokesperson for Herschmann told ABC News Tuesday evening.

“All sources with direct knowledge and law enforcement have and will confirm that it was written by Mr. Herschmann,” the spokesperson said.

This statement became one of two bases — along with the pushback from people in the vicinity of Tony Ornato about the Beast story — on which Hutchinson’s credibility was attacked in the days after her testimony.

The discrepancy on the note could be just that, a discrepancy. All of Herschmann’s claimed memory lapses might one day come to be refreshed.

The dispute, however minor, between Herschmann and Hutchinson is noteworthy for several reasons though.

First, Hutchinson told the committee that the first time she met with Passantino, after being referred by Herschmann via Alex Cannon, she asked him if he was representing anyone else before the Committee. Passantino wouldn’t answer, but according to Hutchinson, he did say he had represented Eric Herschmann, among others, in the past, and that “we really want to work to protect Eric Herschmann.”

Ms. Hutchinson. ~ You previously asked about individuals he had raised with me. In my conversation with him earlier that afternoon, when I [sic] asking him about the engagement letter, I did also ask Stefan if he was representing any other January 6th clients. And he had said, “No one that I believe that you would have any conflicts with.”

And I said, “Would you mind letting me know?” Now, again, to this day, I still don’t know if that’s really a kosher question to ask an attorney, if they can share their clients with me, but I wanted to make sure that there actually weren’t any conflicts, because I didn’t have anything in writing.

He wouldn’t tell me anybody he was representing before the January 6th Committee, but he did tell me that he had previously represented Eric Herschmann and Jared Kushner and Ivanka Trump in unrelated matters.

And in that same conversation, he said, “So if you have any conversations with any of them, especially Eric Herschmann, we want to really work to protect Eric Herschmann.”

And| I remember saying sarcastically to him, “Eric can handle himself. Eric has his own resources. Why do I have to protect Eric?” He said, “No, no, no. Like, just to keep everything straight, like, we want to protect Eric with all of this.”

Ms. Cheney. Did he explain what he meant?

Ms. Hutchinson. No. And, to be honest, I didn’t ask. I didn’t have anything with Eric anyway that I felt that I had to protect. And I say that because, at the time of being back in Trump world — this is where I look back and regret some of this, but — like, I did feel a need to protect certain people. But with somebody like Eric, I didn’t feel that need, I didn’t find it necessary.  didn’t — I didn’t think that Eric did anything wrong at the time.

Ms. Cheney. Did it have something to do with NARA?

Ms. Hutchinson. He never really explained to me what it was exactly that we wanted to protect Eric on. I sort of erred on the side of: Maybe he just represents Eric in ongoing litigation, whether it’s financial disclosures or whatever it might be.

And, again, I just didn’t prod too much on that either, because, you know, I was under the impression that Eric helped set me up with Stefan, so I didn’t — I was worried that Stefan would then go back-channel to Eric and — this is my very paranoid brain at the time, but I was worried that if I, you know, pushed this subject a little too much, that he would then go back to Eric Herschmann and say, “Cassidy asked a lot of questions about you, like, why she needs to protect you.” So just didn’t really press the subject too much on that.

By the end of that first day, per her testimony, she learned that Passantino was business partners on the election-related business Alex Cannon had with Justin Clark and, possibly, Herschmann.

S0 I — “I want to make sure that I’m getting the dates right with these things?

He goes, “No, no, no.” He said, “Look, we want to get you in, get you out.

We’re going to downplay your role. You were a secretary. You had an administrative role. Everyone’s on the same page about this. It’s extremely unfair that they’re” “they’re” being the committee – “that the committee is putting you in this position in the first place. You really have nothing to do with any of this. It’s Mark’s fault that you’re even involved in this. We’re completely happy to be taking care of you now. We had no idea that you weren’t being taken care of this last year. So we’re really happy that you reached back out to us. But the less you remember, the better. I don’t think that you should be filling in any calendars or anything.”

[Redacted] When he said a

Ms. Cheney. Go ahead.

[Redacted] So everyone’s on the same page about this, did he explain who he was referring to when he said “everyone”?

Ms. Hutchinson. He didn’t at that moment. Then there are times throughout my working relationship with Stefan where he said similar things that I asked.

Later that day, sort of put together that the “they” he was referring to then were Justin Clark, Alex Cannon, Eric Herschmann. I think that’s — yeah, think that’s all of them.

Ms. Cheney. And how did you put that together?

Ms. Hutchinson.  Because he — he had said that — Justin — yeah, Justin Clark. Stefan had told me that — towards the end of the day that because he was involved with Elections, LLC, and tangentially, I guess Trump’s PACs, he had law partners. And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners that are involved in Trump world.

Then, after her third interview — the one in which Hutchinson remembered a lot of details about the response to the attack that Herschmann had already testified to not remembering — Passantino responded by confirming to Maggie Haberman that Meadows’ former aide had testified, and telling Meadows’ lawyers, his partners, and Herschmann about her testimony, all in defiance of Hutchinson’s wishes, according to her testimony.

Ms. Cheney. Did he also – so you said that he talked to Terwilliger, to his law partners. Did he also talk to Herschmann?

Ms. Hutchinson. He did. I’m sorry. I neglected to mention that. He –as we were leaving that evening, I got an Uber, and he walked me to my Uber, and he reiterated that he was going to have a conversation with his law partners. He was going back to Michael Best, and he said that he was going to have a conversation with his law partners that night.

And he asked — he asked — I forget how he said it. He said something to the effect of, “I think its best if we tell Eric about this, too. He’s not technically my law partner, but I think Eric deserves to know some of this, too.”

And I said, “Look, at this point, one, I kind of know you’re going to do what you’re going to do.” And I said, “Whatever you think is best”

That’s what led to the 30-minute call from Herschmann, the one where he expressed surprise that she remembered so much.

The discrepancy looks somewhat different give Hutchinson’s claim that Passantino told her, from the start, “they” were trying to protect Herschmann.

Particularly given that the transcripts reveal just how amorphous Herschmann’s job was. He has often been referred to as part of the White House Counsel’s office. I’ve done it. General Keith Kellogg did it in his interview with the Committee, which is why, Kellogg explained, he was so surprised that Herschmann sat silent in the Oval Office as Trump told Mike Pence he could reject electors from contested states, some details of which were something else Herschmann claimed not to remember.

Herschmann’s job was providing legal advice (he was also involved in Jared Kushner’s portfolio of pardons and Middle East negotiations, though when asked, he was coy about his relationship with the kids: “I had met them beforehand,” he said) And he did report through Pat Cipollone. But he was not part of the White House Counsel’s Office.

It’s almost like he was an in-house minder, paid by taxpayers, installed by the family or Bill Barr for the last five months of the presidency.

While working at the White House, Herschmann teamed up with Passantino and Don Jr’s buddy, Arthur Schwartz, to pitch the first Hunter Biden smears to the WSJ, even before Rudy disseminated the “laptop.”

Yet even in that short time period, Herschmann became a key gatekeeper for the President, ostensibly to prevent him from getting outrageous pitches.

Which makes a key discrepancy between Pat Cipollone and Herschmann’s testimony rather interesting, particularly given Passantino’s concern (at least per Hutchinson’s testimony) with protecting Herschmann.

Herschmann claimed that the reason Cipollone wasn’t in that meeting in the Oval Office on January 6, sometime after he spoke with Rudy out of the blue and at which he didn’t remember the Joint Session of Congress coming up, is because Cipollone hadn’t arrived to work yet. In fact, Herschmann remembered that even after the Oval Office meeting, Cipollone still wasn’t in the office; Herschmann described talking to just Pat Philbin before deciding to go, without prior planning, to the Ellipse.

I don’t remember, I don’t think Cipollone was in the office yet, but Philbin was.

The way Cipollone remembered it is that he came to the Oval Office before the meeting, but Herschmann specifically told him he didn’t need to participate — it was just family.

I remember Eric Herschmann was standing there and came and my recollection is he came to me as I was standing in the door and said, this is — this is family — just kind of –you don’t need to be here. And said, fine. And believe I went back to my office at that point.

And so, as Herschmann described, when he was in the Oval Office not hearing a discussion about the Joint Session of Congress, he was just on a social visit, just saying hello.

Q You were not there for any legal purpose. It was just, you indicated, sort of a social gathering?

A Yeah, when I first came in, it was just saying hello.

I’m sure that relative veracity of these claims are all being weighed by Jack Smith and his prosecution team. Indeed, after these events, DOJ started adding Passantino’s name to subpoenas.

I’m interested in one more detail about it. Immediately after Hutchinson testified about her claims of obstruction to J6C on September 14 and 15 (testimony which should have been secret), Maggie Haberman came out with two stories pitching Herschmann — who worked so closely on Jared’s portfolio at the White House — in positive light. On September 16, Maggie Haberman reported on Herschmann’s demand to get an Executive Privilege invocation in writing just in time to avoid testifying sometime that month. In it, Herschmann got to impugn Boris Epshteyn’s legal ability, just like he was made a star of the J6C hearings by yelling at Eastman and Powell.

The claim that Herschmann was invoking Executive Privilege is particularly interesting given two things he said in his J6C interview. First, he said that “based on his understanding” with the two Pats, he would not invoke privilege, at least with respect to Trump’s call to Mike Pence on January 6.

Q And could you hear the Vice President, or only hear the President’s end?

A Only hear the President’s end.

Q Okay. And what did you hear him say?

A Well, I guess from this, based on my understanding with Pat Philbin and Pat Cipollone — I don’t want to assert privilege on that as much as tell you that, at some point, it started off as a calmer tone and everything, and then became heated.

Given his claimed status as a social visitor and his role as an aide giving legal advice reporting to, but not part of, the White House Counsel’s Office, I’m curious what privilege he would claim.

Almost immediately thereafter, Herschmann asked to review with his own lawyers (former colleagues of his from Marc Kasowitz’ firm who also repped Ivanka, Jared, Ivanka Trump’s Chief of Staff Julie Radford and aide Rachel Craddock, and two of Trump’s Executive Assistants, Molly Michael and Austin Ferrer, as well as Alex Cannon, the latter of whom was represented pro bono), in part, whether “if I don’t recall something” it’s invoking a privilege.

Q  Okay. Others have said that President Trump said, I made the wrong decision four years ago?

Do you recall that.

A Let me — can we take a two-second break, so I get the privilege down in my head? Because if I don’t recall something, I presume it’s not invoking anything, right?

So can we take a five-minute break, so I can get my own ground rules covered.

Herschmann did, as noted, invoke privilege to cover one of two private conversations he had with Trump that day, one after the attack on the Capitol. But that was it. The single solitary thing all day he invoked privilege over. And yet somehow, there would be a lengthy discussion about privilege before he appeared before a grand jury.

The reason I find these discussions of privilege so interesting, though, is because while we know that the two Pats testified before a grand jury after Beryl Howell overruled Trump’s privilege invocation, we’ve never heard whether Herschmann did.

That’s relevant, too, because (like Alex Cannon), Herschmann also reportedly has a role in the stolen documents case. A few days after the story on privilege, on September 19, Haberman reported that Herschmann had warned Trump to return his stolen documents at some otherwise vague meeting in 2021.

As Hutchinson’s testimony and years of past practice make clear, sometimes people share stories with Maggie as a way to telegraph what has gone on in an investigation.

Trump Worked with People Who Allegedly Worked with the Proud Boys to Obstruct the Peaceful Transfer of Power

By my count, at least 14 people are known to have pled guilty to some kind of conspiracy on January 6, with four more cooperating against them. Another four were found guilty of one or more conspiracy in November’s Oath Keeper verdict. Eighteen people, in one way or another have been convicted of conspiring to prevent the peaceful transfer of power on January 6, most by obstructing the vote certification.

Trump played a key part in all those conspiracies.

Ronnie Sandlin, for example, first started planning to go, armed, to DC in response to Trump’s December 19 tweet, posting on December 23 that he planned to “stop the steal and stand behind Trump when he decides to cross the rubicon.” After he watched Trump’s speech on January 6, Sandlin did a live stream where he said, “I think it is time to take the Capitol.” Once he arrived at the Capitol, Sandlin and co-conspirator Nate DeGrave participated in tactically critical assaults on cops in two places, the East door and the door to the Senate gallery. After Sandlin helped him get into the gallery, Josiah Colt then rappelled from the gallery to the Senate floor.

Like Sandlin, Brad Smith started arming himself and planning to come to DC in response to Trump’s December 19 tweet.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

By December 31, Smith predicted, “Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” Smith and his co-conspirator, Marshall Neefe, participated in an assault on cops using an 8′ by 10′ Trump sign. And after the attack he boasted that the mission was successful because “we literally chased them out into hiding. No certification lol.”

Trump played a slightly different role in the Oath Keepers conspiracy. The Oath Keepers — Stewart Rhodes above all — viewed Trump as a means to prevent Biden’s election, because as President he could invoke the Insurrection Act and with it (the Oath Keepers believed) make the militias a legal arm of the state, defending Trump. Rhodes repeatedly called on Trump to invoke the Insurrection Act — on November 9, December 12, December 23, and January 6.

He dictated a note to Trump after January 6 asking him to call on the militias as his army to stop Biden from taking power.

For the most part, none of the channels via which Rhodes tried to speak directly to Trump (including Kellye SoRelle’s attempt to work through Rudy Giuliani’s son) are known to have reached Trump.

One of his attempted interlocutors, though, undoubtedly had access to Trump: Roger Stone, on whose Friends of Stone list Rhodes was sharing his plans for insurrection shortly after the election.

DOJ has exploited at least four phones owned by members of the Friends of Stone list: Rhodes and SoRelle, Owen Shroyer, and Enrique Tarrio. Probably DOJ asked for content from Ali Alexander as well (though he disclaimed having any Signal texts to the January 6 Committee).

While a jury found all the Oath Keepers guilty of obstructing the vote certification, with the key exception of Kelly Meggs (who was also in contact separately with the Proud Boys, Roger Stone, Ali Alexander, and alleged 3 Percenter Jeremy Liggett, who in turn had ties to the MAGA Bus Tour) as well as Jessica Watkins, it found the greater part of their conspiracy either overthrowing the government or interfering with with official duties: not obstructing the vote count. Their larger plan to keep Trump in power used different means than Trump used.

That’s not true of the Proud Boy Leaders, who are three days into their trial.

Not only did the Proud Boys allegedly pursue the same plan that Trump was pursuing — obstructing the vote certification on January 6 — but they were in communication with people who were in communication, and central to, Trump’s plan: most notably, Alex Jones, Ali Alexander, and Roger Stone. They were in communication with people who were in communication with people close to Trump during the attack.

Even their telephony records show that Enrique Tarrio, Joe Biggs, and Ethan Nordean were in contact with Alex Jones and Owen Shroyer during the period.

Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Given the known communication habits of the men, it’s possible there are Signal or Telegram communications that were unavailable to the J6C as well.

Alex Jones and Ali Alexander knew in advance they would lead the mob to the Capitol (the January 6 Report offers an unpersuasive explanation that the request came exclusively from Caroline Wren). Roger Stone had planned to join them, probably until he got cranky about being denied a speaking role on the morning of January 6. Mike Flynn wanted to latch on, as well, until the General got too cold and had to go back to his posh hotel room. “Hell no,” he said, according to Caroline Wren. “It’s freezing.”

Meanwhile, even as Shroyer was in touch with Biggs, Alexander was in touch with Caroline Wren, who remained at the Ellipse, and asked for 5-minute updates on the Trump’s progress to the Capitol (the text in question appears to have come from Wren, but may not have been provided in Alexander’s production).

The communication between Proud Boys and Jones in real time is critical because once the riot police showed up and slowed the attack, the Proud Boy leaders pulled up, effectively waiting until Jones appeared. And after Jones did appear, he told the mob following him that Trump was coming to give another speech — something Alexander, and so almost certainly Jones — knew to be false because Wren had told Alexander. Nevertheless, Jones led his mob to the East steps, riled them up with a 1776 chant, and left them there, where they were soon joined by the Oath Keepers (led by Kelly Meggs, who also was in touch with Alexander) and Joe Biggs and some other Proud Boys (including one who had been directing traffic). That collective mob breached the East door of the Capitol, opening a second major front on the Capitol and adding to the invasion of the Senate chamber.

There are rioters who were sentenced to two months in jail because they followed Alex Jones credulously to the top of those steps and joined the mob storming the Capitol.

And it wasn’t just Jones and Alexander who were in touch with Trump’s handlers.

Mark Meadows was, per Cassidy Hutchinson, in communication with Stone about his plans for January 6, at a time when Stone still planned to march to the Capitol with Jones and Alexander.

LIZ CHENEY: Thank you, Mr. Chairman. Before we turn to what Ms. Hutchinson saw and heard in the White House during the violent attack on the Capitol on January 6th, let’s discuss certain communications White House Chief of Staff Mark Meadows had on January 5th. President Trump’s associate, Roger Stone, attended rallies during the afternoon and the evening of January 5th in Washington, DC On January 5th and 6th, Mr. Stone was photographed with multiple members of the Oath Keepers who were allegedly serving as his security detail.

As we now know, multiple members of that organization have been charged with or pled guilty to crimes associated with January 6th. Mr. Stone has invoked his Fifth Amendment privilege against self-incrimination before this committee. General Michael Flynn has also taken the Fifth before this committee. Mr. Stone previously had been convicted of other federal crimes unrelated to January 6th.

General Flynn had pleaded guilty to a felony charge, also predating and unrelated to January 6th. President Trump pardoned General Flynn just weeks after the Presidential election, and in July of 2020, he commuted the sentence Roger Stone was to serve.

The night before January 6th, President Trump instructed his Chief of Staff Mark Meadows to contact both Roger Stone and Michael Flynn regarding what would play out the next day. Ms. Hutchinson, Is it your understanding that President Trump asked Mark Meadows to speak with Roger Stone and General Flynn on January 5th?

CASSIDY HUTCHINSON: That’s correct. That is my understanding.

LIZ CHENEY: And Ms. Hutchinson, is it your understanding that Mr. Meadows called Mr. Stone on the 5th?

CASSIDY HUTCHINSON: I’m under the impression that Mr. Meadows did complete both a call to Mr. Stone and General Flynn the evening of the 5th.

In an earlier interview, when she was still represented by Stefan Passantino, she had attributed the idea for this call to Peter Navarro or a Navarro staffer; the Navarro staffer who had let Mike Flynn into the White House on December 18, Garrett Ziegler, was another White House contact of Ali Alexander’s, in addition to Wren.

All this matters because of the way conspiracy law works, as laid out in the bullet points from Elizabeth de la Vega that I always rely on.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

Co-conspirators don’t all have to meet in a room together and agree to enter a conspiracy. That can happen (and did, in the Oath Keepers’ case) via a series of communications which networks everyone.

The demonstrative exhibit prosecutors used in the Oath Keeper trials showed how the various communications channels included everyone, even if some members of the conspiracy only interacted with a limited group of other co-conspirators.

I circled Rhodes and SoRelle in pink to show that even in the Oath Keeper trial, prosecutors treated the Friends of Stone list part of the communications infrastructure of the conspiracy.

Here’s what the larger conspiracy looks like, reflecting  the known communications between Rhodes, Meggs, Tarrio, Biggs, and Nordean and Jones and Stone, and the known communications between Jones and Stone and Alexander with Trump or his handlers, like Meadows, Wren, and Ziegler by way of Navarro.

The numbers and letters in parentheses come from one or another of the indictments charging conspiracy. As you can see, Trump’s known actions map onto the known, charged overt acts of various conspiracies to obstruct the vote count like a mirror.

Obviously, the pink part of this table has not been charged (yet). And it may not be unless prosecutors win guilty verdicts in the Proud Boys case. It also may not be if the obstruction charge gets narrowed on appeal.

For reasons I laid out here, the Proud Boys trial is far more complex than the Oath Keepers trial. And in the Proud Boys trial, like the Oath Keepers trial, prosecutors don’t have a clear map showing that the plan was to occupy the Capitol; instead they have testimony that Biggs and Nordean kept consulting, and everyone took orders from them, and those orders had the effect of sending cells of Proud Boys off to breach parts of the building. So it is not at all certain that prosecutors will win convictions of the men — Tarrio, Biggs, and Nordean — who were working with people who were working with Trump and his handlers.

But this is one of the means via which DOJ has been working to hold Trump accountable since just months after the attack (I first laid this out in July 2021, long before most commentators understood how DOJ was using obstruction).

Even with the disorganized conspiracy (Sandlin and friends), prosecutors have carefully shown how the men took Trump’s December 19 tweet as an explicit instruction, took instructions from a WildProtest flyer put out by Ali Alexander, believed Trump had ordered them to march to the Capitol. There are hundreds more rioters who took Trump’s December 19 tweet as an instruction, though in the case of Sandlin and his co-conspirators, they took steps that were critical to the occupation of the Capitol and the Senate chamber in response.

But with the Proud Boys, to an extent thus far only seen with Oath Keeper Kelly Meggs, the communication ties, via a two step network, to Trump’s own actions and directions. And with the Proud Boys, that coordination builds off years-long relationships, particularly between Biggs and Jones and Stone, and through them, to Trump.

Everyone was working towards the same goal: to prevent Congress from certifying Joe Biden’s victory. There were, in various places, explicit agreements made. There were, as with Trump’s Stand Back and Stand By comment that prosecutors used to kick off this trial, more implicit agreements as well.

And DOJ is now at the point where it is beginning to show how those agreements, explicit and implicit, all worked together to make the assault on the Capitol successful.

Conspiracy guilty verdicts

Oath Keepers Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Kelly Meggs, Mark Grods, Caleb Berry, James Dolan, Joshua James, Brian Ulrich, Todd Wilson (11 conspiracy verdicts)

Proud Boys Matthew Greene, Charles Donohoe, Jeremy Bertino, with Isaiah Giddings, Louis Colon, and James Stewart cooperating (3 known conspiracy verdicts)

Disorganized Militia Ronnie Sandlin, Nate DeGrave, with Josiah Colt cooperating (2 conspiracy verdicts)

“Patriots” Marshall Neefe and Charles Smith (2 conspiracy verdicts)

How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, NordeanMay 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHughMay 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, CostianesMay 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022

If the Former President Gets Top Billing in a Sedition Trial But You Didn’t Bother to Notice …

There’s a weird passage in a column that Charlie Pierce published today, announcing that,

[M]y patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted.

… Because Garland has …

let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.

It’s this passage: Charlie claims that the “announcement” of a subpoena, which he attributes to Jack Smith, got lost amid the news of the investigation into the classified documents found in President Biden’s possession.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That’s probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson’s search for the real killers. That’s genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.

There was no announcement.

What Charlie treats as an “announcement” is a WaPo story, on which Mar-a-Lago Court Reporter Josh Dawsey is the first byline and Devlin Barrett is the second, describing a subpoena sent out on December 9, just three weeks and a Thanksgiving holiday after Jack Smith was appointed and over a month before the story itself. Charlie considers the subpoena “a blast of canister fire,” and hails the “genuine momentum,” but complains that “the announcement was lost in the hurly-burly of the Biden documents.”

Charlie doesn’t consider that this paragraph is itself an admission on his part that stuff can go on — stuff that he considers really impressive — and he might not find out about it for over a month. He says that about a story that describes that, “the Jan. 6 grand jury had accelerated its activities in recent weeks, bringing in a rapid-fire series of witnesses, both high and low level,” but doesn’t describe who those witnesses are (and whose testimony, with the exception of about seven people — Rudy Giuliani, Stephen Miller, Dan Scavino, William Russell, Beau Harrison, and the two Pats, Philbin and Cipollone, has not otherwise been reported). He says that of a story that linked an earlier WaPo story, dated September 16 and so describing developments that preceded Jack Smith’s arrival by two months, that described dozens of subpoenas requesting communications with more than 100 people.

Dozens of subpoenas issued last week show that the Justice Department is seeking vast amounts of information, and communications with more than 100 people, as part of its sprawling inquiry into the origins, fundraising and motives of the effort to block Joe Biden from being certified as president in early 2021.

That’s the investigation, still under Garland, that Charlie calls “dilatory.”

And Charlie says that the same week that a third January 6 sedition trial kicked off by showing Donald Trump’s call on the men standing trial for sedition to “Stand Back and Stand By.”

As Charlie’s statement admits, his is partly a complaint about the press, which was focused on Biden’s legal discomforts rather than more important things, like Trump’s attempted coup.

Of course, Charlie is part of the press.

And Charlie, part of the press, made no mention of Trump’s prominence in DOJ’s Proud Boys opening argument. Charlie wants a compelling trial the likes of the Nuremberg Trials, yet the most important January 6 trial to date tied Trump’s actions directly to the overt acts in this alleged sedition conspiracy, and Charlie made no mention of the fact that Trump’s comments were presented as evidence in a sedition trial.

A huge part of Charlie’s complaint is about the evidence that he can see.

[Nuremburg Prosecutor Robert Jackson] wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there’s damn little evidence of it, and this week, everything seemed to be running in the opposite direction.

It’s not actually clear whether Charlie even knows that Trump’s incitement of the Proud Boys played a central role in the opening argument of a sedition trial, though dozens of reporters covered it, a number in real time. Many of those reporters are exhausted, though exhausted not so much about their perceptions of Garland, but because they’ve given up evenings and weekends for two years to make sure these events get covered.

If the former President gets top billing in a sedition trial but you didn’t bother to notice, does it count as evidence about DOJ investigations?

My January 6 anniversary post last year was about how unknowable January 6 is, particularly for anyone not working full time to know it.

To have something that poses such an obvious risk to American democracy remain so unknowable, so mysterious — to not be able to make sense of the mob that threatens democracy — makes it far more terrifying.

In recent weeks, those of us doing that full time have learned still more about how vast it all is — and how many tools the January 6 Committee withheld from prosecutors six months after the prosecutors had urgent need of them.

In those same recent weeks, two years into this thing, I’ve come to new realizations about how complex this is: it’s not just an investigation into a former President protected by Executive Privilege and at least six people protected by the Speech and Debate clause, but it’s also an investigation in which at least 26 key witnesses or subjects are lawyers protected by Attorney-Client Privilege. I’ve developed new theories about how DOJ — the same AUSAs who’ve been working 24/7 on this case for two years, before and after Jack Smith got involved — aspires to chisel away at those unprecedented protections. I’ve also increasingly seen gaps, both in PACER dockets and subpoenas, where investigative subjects used to be, gaps which sometimes suggest progress that DOJ needs to protect, progress that even those of us following full time might only confirm four months after the fact and only if we happen to be listening in real time when a lawyer blurts something out he shouldn’t have.

Charlie says this was a distressing week.

This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away.

It was a distressing week for me, too, in part for the same reasons as it was for everyone else: watching the members of Congress who participated in an insurrection launch their efforts to muddle the truth again, watching the same insurrectionists encourage a coup attempt in Brazil, losing sleep over whether American democracy can be saved.

But it was distressing for another reason: because so many really smart people I respect — and I include Charlie among them — have responded to the unknowability of January 6 not by attempting to grab ahold of something to ensure their own meanderings remain grounded in evidence, but instead by making authoritative assertions about evidence that are, instead, confessions that great swaths of this investigation are proceeding without them noticing.

One major reason we’re all so distressed is because truth is under assault — because Jim Jordan intends to spend the next two years turning Trump’s crimes into victimhood, just as he spent the entirety of Trump’s presidency doing.

But making authoritative claims about evidence without knowledge of the evidence only makes his job easier, in part because it stoops to his level, in part because it magnifies the anxiety.

You don’t respond to an assault on truth by permitting yourself to fill the vacuum created by the unknowability of January 6 with claims that themselves do not present the truth, that ignore key pieces of evidence that — while public — may have gone unnoticed.

Charlie Pierce wants trials the likes of the Nuremberg Trials, which were so powerful because the architects of an authoritarian conspiracy were tied to the events that took place at the crime scenes. And DOJ took a key step in doing that week — a key step in an effort that has been obviously in the works for 18 months, an effort that started on January 4, 2021, when Enrique Tarrio’s phone was seized (his phone, which ties the Proud Boys to other organizers, took over a year to exploit), and took another step on January 7, 2021, when the first Proud Boy who would plead guilty to obstruction was arrested.

And yet Charlie Pierce has seen no evidence of that.

Update: I’ve fixed the January 7 detail: that was a reference to Nicholas Ochs, who was arrested when he arrived back in Hawaii. He and Nicholas DeCarlo were charged with conspiring with each other to obstruct January 6, and they did plan together. But both pled to obstruction, not conspiracy. They were both sentenced to 4 years in prison.

Kash Patel Wants the Insurrection Protection Committee to Investigate Why Robert Hur Tried to Protect Past Ongoing Investigations

Matt Taibbi (aka MattyDickPics) and Kash Patel are whining about the Nunes Memo again.

As you’ll recall, in the first year of the Trump Administration, Patel wrote a misleading memo for Devin Nunes purporting that the entire Russian investigation stemmed from the Steele dossier.  When the Carter Page IG Report and FISA applications were released, it became clear how Patel spun the facts. In this post I cataloged what both Nunes and Adam Schiff, in his counterpart to the Nunes memo, got wrong.

But it’s not the Nunes Memo itself that Taibbi and Patel are whining about. They’re complaining about the circumstances of its release five years ago.

Taibbi made it the subject of his latest Twitter Files propaganda thread and related Substack — the latter of which, astoundingly, says the public has to rely on the attributions of cloud companies, something Taibbi has always refused to do when discussing the GRU attribution of the 2016 hacks targeting Democratic targets. “It’s over, you nitwits. It’s time to stow the Mueller votive candles, cop to the coverage pileup created by years of errors, and start the reconciliation process,” Taibbi says, in appealing to precisely the kind of evidence he himself has refused to credit for more than six years. I dealt with both in this thread, but the important takeaway is that Taibbi doesn’t even manage to get facts that both the Daily Beast and I were able to cover in real time, including the fact that Republicans, too, were making unsupported claims based on the Dashboard’s reporting and Russian trolls were part of — just not the biggest part — of the campaign.

[A] knowledgeable source says that Twitter’s internal analysis has thus far found that authentic American accounts, and not Russian imposters or automated bots, are driving #ReleaseTheMemo. There are no preliminary indications that the Twitter activity either driving the hashtag or engaging with it is either predominantly Russian.

In short, according to this source, who would not speak to The Daily Beast for attribution, the retweets are coming from inside the country.

The source pointed to influential American users on the right, including Donald Trump Jr., with his 2.49 million followers, pushing the hashtag forward. It’s become a favorite of far-right Republican congressmen, including Steve King, who claimed the still-secret memo shows the FBI was behaving “worse than Watergate” in one viral tweet. Mark Meadows called it an “absolutely shocking” display of “FISA abuses,” referring to a counterintelligence process.

Rules of Engagement

There are reasons for skepticism about both the source’s claim and Alliance for Securing Democracy’s contrary findings.

Russian influence accounts did, in fact, send an outsize number of tweets about #ReleaseTheMemo—simply not enough for those accounts to reach the top of Twitter’s internal analysis.

Meanwhile, Kash Patel is outraged that Merrick Garland picked Robert Hur as Special Counsel to investigate Biden’s mishandling of classified documents because, when and after serving as a top aide to Rod Rosenstein in the early days of the Russian investigation, he opposed release of the memo.

This guy Hur needs to be the first one subpoenaed by the new Special Select Committee under Jim Jordan’s authority on the weaponization of government and do you want to know why? Because Hur — we have the receipts, Steve, and we’re going to release them later — was sending communications to the Justice Department and Rod Rosenstein’s crew arguing against the release of the Nunes memo. Saying that it would bastardize and destroy the United States national security apparatus. This guy is a swamp monster of the Tier One level, he’s a government gangster, he’s now in charge of the continued crime scene cover-up, which is why the first congressional subpoena that has to go out for the weaponization of government subcommittee is against Hur.

Remember, this committee was modified during the period when key insurrectionists were refusing to vote for Kevin McCarthy to include language authorizing the committee to investigate why the Executive Branch is permitted to conduct criminal investigations of US citizens.

the expansive role of article II authority vested in the executive branch to collect information on or otherwise investigate citizens of the United States, including ongoing criminal investigations;

It may be the intent to interfere in ongoing investigations into people like Scott Perry and Paul Gosar (who changed their votes on McCarthy later in the week, as these changes were being made) and Jordan (who will have great leeway to direct the direction of this committee). But Jordan may be surprised when he discovers that Merrick Garland will enforce the long-standing DOJ policies about providing Congress access to ongoing investigations that Jeff Sessions and Matt Whitaker and Bill Barr did not. Indeed, some precedents from the Russia investigation legally prohibit the sharing of this information with Congress.

But Kash’s complaint (back atcha with the rap gangsta alliteration, Kash!) is a bellybutton moment in which he attempts to villainize Hur’s past commitment to those long-standing DOJ (and intelligence community, including the NSA that conduct much FISA surveillance) policies. Consider the things the memo revealed, many of which had never before been released publicly.

  • Details about the dates and approvals for four FISA orders
  • Financial details involving private individuals, including US citizens
  • Contents of the FISA memo (but not their true context)
  • A reference to a Mike Isikoff article that appeared in the Carter Page applications; Kash was outraged when his own public article was included in the warrant affidavit targeting Trump
  • Details from a Confidential Human Source file
  • Misrepresentations about both Bruce Ohr and his spouse, the latter of whom was a private citizen whose work was shared with the FBI as part of the effort to vet the dossier
  • Direct communications with the President-elect the likes of which Trump claimed were covered by Executive Privilege in the Mueller investigation
  • False claims about the texts between Peter Strzok and Lisa Page that are currently the subject of two Privacy Act lawsuits; even aside from the privacy implications, at the time it was virtually unprecedented for texts between FBI officials to be released, even in criminal discovery (and many of these released, including some misrepresented in the memo, pertained to work matters unrelated to the Russian investigation)

In other words, Kash Patel wants to investigate Hur’s comments, made either at the time he was the key overseer of the Mueller investigation or during a transition period as he awaited confirmation to be US Attorney, advocating that DOJ protect informants, FISA materials, details about private citizens, and work texts between FBI officials.

The very first thing Kash wants the Insurrection Protection Committee to investigate is why, five years ago, a senior DOJ official advocated following long-standing DOJ policy.

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