July 2, 2022 / by 

 

Amid Claims of Witness Tampering, Revisiting Peter Navarro’s Alleged Contempt

Last week, Steve Bannon engaged in a stunt, claiming that a Carl Nichols order requiring DOJ to provide official documents on things like executive privilege and testimonial immunity must cover DOJ’s declination decision with respect to Mark Meadows and Dan Scavino.

The stunt itself isn’t all that interesting.

Bannon claimed that he refused to testify in part on the same basis that Mark Meadows and Dan Scavino did, and so understanding how DOJ had distinguished them (whose prosecution DOJ declined) from him (who got charged) would reflect official policy.

The letters Trump lawyer Justin Clark sent to Meadows and Scavino made one difference clear, however (which the Bannon filing obliquely acknowledges). In instructing Meadows and Scavino to refuse to testify to the January 6 Committee as much as possible, Clark included language invoking testimonial immunity, on top of Executive Privilege.

Furthermore, President Trump believes that Mr. Meadows is immune from compelled congressional testimony on matters related to his official responsibilities. See Testimonial Immunity Before Congress of the Former Counsel to the President, [citing the Don McGahn OLC opinion]

The letter that Clark sent Bannon on the same day, October 6, had no such language on testimony immunity.

Indeed, after Robert Costello kept making claims about Trump instructing Bannon not to testify, Clark emailed him twice more, the first time to resend the same letter, and the second time to explicitly say that they didn’t think Bannon had testimonial immunity.

In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

Effectively, Trump’s team told Bannon to stall, but gave him no legal tools to do so. Bannon didn’t entirely ignore testimonial immunity. In a footnote, he accused Carl Nichols of misapplying the law with respect to immunity and privilege.

Finally, on this question, the Court’s oral Order of June 15, 2022, appears to indicate a view by the Court that Justin Clark’s view on the question of “immunity” is either relevant or somehow undercuts the invocation of executive privilege. It certainly is not relevant – immunity, unlike, executive privilege is not a legal concept for the President to invoke or confer and his view on “immunity” is of no consequence at all on the question of whether executive privilege was invoked. It was.

But he said the common invocation of Executive Privilege was itself enough to merit a more formal comparison (ignoring, of course, that Meadows provided some materials to the Committee that did not involve the President, whereas Bannon withheld even his public podcasts).

Though some of the news reports he cites name Peter Navarro, Bannon doesn’t invoke his case. In Navarro’s now-withdrawn lawsuit against the Committee, he invoked both testimonial immunity and Executive Privilege. But he cites no letter from Trump; instead, he relies on the same Don McGahn OLC opinion Bannon invoked in his filing. Of course, by the time Navarro was subpoenaed — February 9, as compared to the September 23 subpoenas for Bannon, Meadows, and Scavino (as well as Kash Patel) — SCOTUS had already ruled against Trump’s privilege claim.

So it may be that DOJ’s decision tree regarding charges looks like this:

Bannon’s filing may be a stunt, but he may be right that DOJ didn’t charge Meadows and Scavino because they could claim to have been covered by both Executive Privilege and testimonial immunity (and in Meadows’ case, even attempted to comply with non-privileged materials).

Given the evidence in Tuesday’s hearing that Trump and his associates continued to try to influence Cassidy Hutchinson’s testimony at least through March 7, I want to return to something I noted before: because Navarro didn’t lawyer up, whatever communications he exchanged with Trump’s lawyers would not be privileged.

After Bannon got indicted for contempt, DOJ obtained the call records for his lawyer, Robert Costello’s, communications going all the way back to when Costello’s previous representation of Bannon ended. If they did that with Navarro, they could get more than the call records, though.

Whatever else DOJ did with their charging decision, they also allowed themselves the greatest visibility into ongoing obstruction, while sustaining the case in chief.


The Men Disputing Cassidy Hutchinson’s Retelling of Trump’s SUV Lunge Got Warnings about Plans to Flood the Capitol

Since Cassidy Hutchinson’s startling testimony on Tuesday, credulous journalists have reported anonymous sources pushing back against one of her most dramatic stories: that when told he was not going to the Capitol on January 6, Donald Trump lunged towards the steering wheel of the SUV taking him back to the White House and then went after the clavicle of the head of his detail, Bobby Engel.

On top of being anonymous, the pushback never disputed Hutchinson’s claim: that she was told this story by Tony Ornato, the Secret Service Officer that Trump elevated into an important political position at the White House, Deputy Chief of Staff, in front of Engel, who did not dispute the story. Plus, Alyssa Farrah has described that Ornato, in the past, has disputed things she said under oath (about Trump’s stunt in Lafayette Square), without himself going under oath.

Nevertheless, that anonymous pushback has distracted from a far more alarming detail in Tuesday’s testimony that Ornato and Engel have not disputed, neither on or off the record: that they got warnings about plans to occupy buildings in DC and, implicitly, warnings about Proud Boy involvement.

That revelation came just before Hutchinson affirmed a detail I’ve been almost alone in reporting for over a year: Not just Roger Stone, but also Rudy Giuliani, had links to the Proud Boys.

Cheney: US Secret Service was looking at similar information and watching the planned demonstrations. In fact, their Intelligence Division sent several emails to White House personnel, like Deputy Chief of Staff Tony Ornato and the head of the President’s protective detail Robert Engel, including certain materials listing events like those on the screen.

Cheney: The White House continued to receive updates about planned demonstrations, including information regarding the Proud Boys organizing and planning to attend events on January 6. Although Ms. Hutchinson has no detailed knowledge of any planning involving the Proud Boys for January 6, she did note this:

{video}

Hutchinson: I recall hearing the word[s], “Oath Keeper,” hearing the word[s], “Proud Boys,” closer to the planning of the January 6 rally when Mr. Giuliani would be around.

The reference to Ornato and Engel is among the first in Tuesday’s hearing: while Cheney had previewed Hutchinson’s interactions with Ornato and the Secret Service in her introduction, this reference was the first substantive description of Ornato’s activities. That description, as well as Hutchinson’s explanation of how she told Trump’s National Security Advisor Robert O’Brien that Ornato had had a conversation with Mark Meadows about the warnings of violence, came even before Cheney cued Hutchinson to explain what an important role the Deputy Chief of Staff played.

Some time later, the hearing revealed texts between Hutchinson and Ornato reflecting the latter’s awareness that Trump’s supporters were trying to avoid the metal detectors.

Importantly, Cheney mentioned something about this text exchange that doesn’t appear in the texts shown on the screen: a discussion between the two of them — Hutchinson and Ornato — about an “OTR,” an “off the record” movement to get Trump to the Capitol. The Committee appears to be withholding precisely what those texts say — involving Trump personally, and so colorably covered under Executive Privilege.

That may not be the only thing the Committee withheld from its presentation: note in my transcription above that Cheney doesn’t say Ornato and Engel received the warnings that were flashed on the screen. She says they received, “certain materials listing events like those on the screen.” [my emphasis] Particularly given the reports that the Committee met in a secure facility in advance of this hearing, that phrasing could allow for other records, records too sensitive to show publicly, tying the Proud Boys to plans to occupy buildings on January 6.

The story of Trump lunging in the SUV is a distraction, and Ornato, a loyal Trumpster, is likely using his pushback to distract from far more damning details of Hutchinson’s testimony:

  • Both Engel and Ornato had warnings of plans to occupy buildings
  • Hutchinson linked Rudy Giuliani in advance of the attack to both militias that attacked the Capitol
  • Ornato discussed these warnings in advance with Mark Meadows, who pushed Hutchinson away twice during the early moments of the attack
  • In spite of foreknowledge of a plan to occupy buildings and the involvement of militias, Ornato nevertheless continued to plan to take Trump to the Capitol

Secret Service loyalists, for all their anonymous pushback, are denying none of these far more damning details, details that put them — and Meadows and Trump — in far more complicit position with respect to the attack.


Pat Cipollone Predicted the Obstruction and ConFraudUS Prosecutions

This morning, for the second time in two weeks, Liz Cheney called out former White House Counsel Pat Cipollone, by name, to cooperate with the January 6 Committee.

Yesterday’s testimony from Cassidy Hutchinson revealed one reason why his testimony would be so important. He predicted — on January 3 or 4th — that Trump might be prosecuted under the very same crimes DOJ has been charging for well over a year: conspiracy to defraud the United States and obstruction of the vote certification.

Cheney: We understand, Ms. Hutchinson, that you also spoke to Mr. Cipollone on the morning of the Sixth, as you were about to go to the rally on the Ellipse. And Mr. Cipollone said something to you like, “make sure the movement to the Capitol does not happen.” Is that correct?

Hutchinson: That’s correct. I saw Mr. Cipollone right before I walked out onto West Exec that morning and Mr. Cipollone said something to the effect of, “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.”

Cheney: And do you remember which crimes Mr. Cipollone was concerned with?

Hutchinson: In the days leading up to the sixth, we had conversations about obstructing justice of defrauding the electoral count.

Cheney: Let’s hear about some of those concerns that you mentioned earlier in one of your interviews with us.

{video clip}

Hutchinson: … having a private conversation with Pat on the after noon of third or fourth, um, that Pat was concerned it would look like we were obstructing justice, or obstructing the electoral college count. I apologize for probably not being very firm with my legal terms here.

Or rather, Cipollone didn’t predict Trump would be charged with ConFraudUS and obstruction. He predicted “we” would, presumably including himself and even Hutchinson.

Here I’ve thought I was ahead of the curve by predicting — last August — that if Trump were prosecuted, it would be for those crimes. It turns out that Trump’s White House Counsel was way ahead of me, predicting the same even before the insurrection!

Cipollone’s recognition of this legal exposure is important for a number of reasons. First, it validates DOJ’s approach — and does so in advance of the DC Circuit’s consideration of DOJ’s appeal of Carl Nichols’ outlier opinion rejecting such an application.

Those are also the crimes named in the warrant served on Jeffrey Clark last week.

But Cipollone’s awareness of this exposure also may explain why Cipollone has been reluctant to testify (though it’s possible he has testified with DOJ and simply doesn’t want that to be public). Hutchinson laid out a number of things that Cipollone did on January 6 that made it clear he was not willingly going along with Trump’s actions, most notably his efforts to get Trump to call off his mob before Trump re-ignited them with his 2:24 text attacking Mike Pence again. If there was a conspiracy to obstruct the vote certification, he took overt acts to leave that conspiracy before and during the conspiracy on January 6.

By that point, however, it may have been too late for Cipollone to avoid all exposure to Trump’s corrupt actions. That’s because Cipollone would have been involved in the pardons of those — Cheney focused on Roger Stone and Mike Flynn last night, but Bernie Kerik and Paul Manafort also got pardons — who would go on to play key roles in Trump’s insurrection. (I assume Cipollone was not involved in the Bannon pardon that came after the attack, and I noted in real time that Cipollone likely prevented a bunch of other pardons that would have made obstruction more likely.) That is, Cipollone might have exposure for obstruction for actions already taken by January 3 or 4 when he explained this legal exposure to Hutchinson.

Even Bill Barr said that rewarding false testimony with a pardon would be obstruction. And Roger Stone, Mike Flynn, and Paul Manafort all delivered on that quid pro quo.

For all Liz Cheney’s specific exhortations, Cipollone may know better than to testify to Congress. Because without testifying to DOJ, first, that may cause him more legal trouble than his current (presumed) silence.

Update: As a number of people in comments noted, the Committee has formally subpoenaed Cipollone.


Cassidy Hutchinson Proves that Trump Knew the Mob He Sicced on Mike Pence Was Armed

Cassidy Hutchinson just gave absolutely historic testimony implicating Donald Trump, Mark Meadows, and other in January 6. (My live tweet is here.) The woman is incredibly poised and courageous. Her testimony might help to turn the tide against Trumpism in this country.

But her testimony is not enough, yet, to charge Trump in January 6.

Without taking anything away from her dramatic testimony, I’d like to boil down what she said that will be useful in holding Trump accountable.

She only recently committed to delivering this testimony

The Committee announced Hutchinson’s testimony just yesterday, less than 24-hours before her testimony, in spite of the fact that she had already sat for three interviews with the committee, as well as a fourth quite recently. The decision to testify was so recent that members of the Committee had to fly back from their recess to attend.

A key reason she was willing to testify more forthrightly, it seems clear, is she recently (earlier this month) replaced her lawyer from a Trump loyalist to Jody Hunt. Hunt, once Attorney General Jeff Sessions’ Chief of Staff, is still a conservative Republican, but he has spent years holding up principle against Trump.

Particularly given his ties to the department, it’s likely that Hunt will happily guide Hutchinson to share this testimony with DOJ.

For those asking why DOJ didn’t have this testimony earlier, the answer is simple: It has taken a process for Hutchinson to get here.

She is a firsthand witness to important details

A number of things Hutchinson said are damning direct evidence against Trump or others. But it’s important to break that down, because while all of it would be admissible in a conspiracy, not all of it would be admissible against Trump.

  • In a conversation on January 2, Giuliani told Hutchinson Trump was going to go to the Capitol; when she asked Meadows about this, he said “things might get real bad on the Sixth.” This implicates both Rudy and Meadows in foreknowledge, though not Trump directly.
  • Hutchinson provided evidence that there was intelligence warning of violence (and that John Ratcliffe knew about it); she did not say — though it’s likely — that Meadows and Trump had the same awareness.
  • Hutchinson described that there were mentions of militia in advance in discussions implicating Rudy in advance of the insurrection. These would need to be more specific to be worthwhile evidence, but she may be able to point DOJ to where to get more specifics.
  • Hutchinson described advance knowledge of Trump supporters bringing weapons both in advance of January 6 and that day. Hutchinson specifically said that Meadows did not act on these warnings. She also made it clear that Deputy Chief of Staff Tony Ornato had spoken to the President about the weapons, but she did not say she knew what happened in that conversation.
  • Hutchinson’s testimony on a really critical point includes some ambiguity. In conversations at the White House and then later at the rally, Trump saw the crowd on January 6 and was furious more of his supporters weren’t inside the arena. He was aware many supporters were staying outside the arena because they didn’t want to go through the magnetometers because they had weapons. He asked to ditch the magnetometers because “they weren’t there to hurt him.” This detail is most important because it reflect knowledge on Trump’s part they were armed, before he riled them up and sent them to the Capitol. But in a trial, he would excuse letting them into the rally itself by pointing to his long-standing crowd narcissism, exhibited most famously at his inauguration.
  • Some of Hutchinson’s most damning testimony involved his insistence on going to the Capitol. Some of this — the most damning, her description of how he lunged at his Secret Service detail when he refused to take Trump to the Capitol — was second-hand. It would require Ornato or Trump Secret Service Agent in Charge Bobby Engel to present that in a trial. Plus, Trump would offer less incriminating explanations for why he wanted to go to the Capitol. Hutchinson mentioned he wanted to enter the chamber, though, which should be developed more (because he would require an invitation). The Secret Service is now pushing back on this.
  • During the rally at the Ellipse, Mark Meadows twice pushed Hutchinson away when she was trying to warn him of violence at the Capitol. This squandered 20-25 minutes in which he might have responded to the initial violence, but since he did nothing for hours anyway, it made little difference. It does, however, reflect Meadows’ own disinterest in protecting the country.
  • Hutchinson’s description of efforts to keep belligerent language out of Trump’s speech reflects on Pat Cipollone’s foreknowledge of Trump’s criminal exposure, but probably would require Cipollone’s testimony to be admissible against Trump. Hutchinson described Cipollone’s legal concerns about going to the Capitol, as well, but not necessarily that he explained that to Trump.
  • Hutchinson alluded to discussions involving Mark Meadows, Rudy, and Scott Perry about what they would have done if Trump had made it to the Capitol, but she explicitly said she wasn’t sure which of those plans were shared with Trump.
  • At Trump’s request, Mark Meadows remained in the loop with Mike Flynn and Roger Stone on January 5 which may help implicate Meadows in the militia planning; Hutchinson discouraged Meadows from attending the War Room at the Willard in person, but he did call in.
  • After the attack started Hutchinson described, Meadows telling Cipollone that “he doesn’t want to do anything,” suggesting the President didn’t want to respond at all to the Capitol attack. But that would require testimony from one or both of them to clarify the meaning.
  • Perhaps the most damning part of her testimony described that Meadows and Cipollone were in the Oval with Trump discussing the hang Mike Pence chants just before Trump put up the 2:24 tweet claiming Pence hadn’t shown courage. It’s in that conversation where Trump said, “Mike deserves it.” This goes a long way to proving the deliberate effort by Trump to put Pence at more risk. But DOJ would need another witness and/or some corroboration for the timeline to place the “Mike deserves it” comment to just before Trump sent the tweet.
  • The Committee presented some of the calls from others, including Ivanka, for Trump to call off the rioters; Hutchinson’s testimony will be one part of the evidence that Trump did nothing during the attack (though Meadows’ comment that “Trump didn’t want to do anything” may be more important to show affirmative refusal, but DOJ would need to get Meadows’ testimony on that point).
  • Hutchinson also testified that both Rudy and Meadows wanted a pardon after January 6, which implicates them, but not Trump.

Hutchinson may lead to or force the testimony of others

Whether it happens with the January 6 Committee or DOJ, Hutchinson’s is the kind of testimony that might identify witnesses who would cooperate with DOJ or against whom Hutchinson’s testimony could be used to coerce cooperation.

For example, there’s a greater (Cipollone) or lesser (Kevin McCarthy) that her testimony will embarrass or otherwise convince other witnesses to cooperate with the Committee.

Her testimony identified other White House staffers who were also witnesses to Trump’s demands that the Secret Service ditch the magnetometers or that he go to the Capitol, who would make key witnesses for DOJ.

If Ornato and Trump’s Secret Service detail have been unwilling to testify, this may make it easier to obtain their testimony.

Hutchinson’s testimony tied Rudy to the militias in advance. She also established Rudy’s foreknowledge of a plan to go to the Capitol. These might be really important details implicating Rudy (plus she was witness to some of his earlier efforts to sow the Big Lie.

Her testimony tied Meadows into the plotting at the Willard (on Trump’s orders). And she otherwise depicted Meadows as taking no action because Trump didn’t want to. The case against Meadows would/will need to be far more robust, but having testified against him publicly, she’s likely to be able to offer DOJ far more.

Liz Cheney raised witness tampering in this hearing, without naming names. It’s quite possible Hutchinson has firsthand knowledge of that.

Trump sicced a mob he knew to be armed on his Vice President

To sum up, the most important pieces of testimony show that Trump knew well a significant number of the people at his rally were armed. And after siccing them on his Vice President (and trying to join them), instead of calling them off, he instead further incited violence against Pence, claiming at the moment he did so that they were right to attack Pence.


House January 6 Committee: Public Hearings – Day 6

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Tuesday June 28, 2022 at 1:00 p.m. ET.

This hearing has been convened on short notice issued yesterday afternoon.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://youtu.be/HeQNV-aQ_jU

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?521387-1/sixth-hearing-investigation-capitol-attack

C-SPAN’s YouTube page: https://youtu.be/hSNBe-Wt6Q4

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1541478015770603520

Broadcast and cable network coverage TBD.

Twitter accounts live tweeting the hearing:

Marcy’s Twitter thread: https://twitter.com/emptywheel/status/1541829534248566784

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1541826101588140034

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1541825113938616321

Laura Rozen: https://twitter.com/lrozen/status/1541829799169122308

Chris Geidner: https://twitter.com/chrisgeidner/status/1541841253939253253

If you know of any other credible source tweeting the coverage, please share a link in comments.

The witness scheduled for today’s hearing is:

Cassidy Hutchinson, former aide to former White House Chief of Staff Mark Meadows

Hutchinson will appear today before the committee to “present recently obtained evidence and receive witness testimony” and out of concerns for her physical safety, according to Punchbowl News’ newsletter.

Hutchinson also recently changed legal representation. Her lawyer had been Stefan Passantino who was connected to Trump; he has been replaced with Jody Hunt who in turn is connected to the Trump administration’s first attorney general, former senator Jeff Sessions. Hutchinson is reported to have become more cooperative with the committee once she changed attorneys.

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Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the day progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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Side note:

According to Fox News’ Pergram in the Twitter thread above, Stenger had cancer.

Do note Stenger’s death has set off a lot of right-wing conspiracy trolling.


As Ali Alexander Returns to DC in Wake of Grand Jury Appearance, Alex Jones’ Associates Owen Shroyer and Joe Biggs Share a Lawyer

In an attempt to quash rumors that he was the surprise witness before the January 6 Committee today (he’s not; former Mark Meadows assistant Cassidy Hutchinson is), Ali Alexander complained that the January 6 Committee didn’t let him testify publicly.

On at least four occasions, my legal counsel asked the Committee to allow my deposition to be taken publicly so that the American public could operate from a shared set of facts. The Committee denied our requests to make my testimony public again and again. Instead, they me behind closed doors for 8 hours, at my own expense, depriving me of meals or making my return flight back home. [emphasis original]

That follows a statement issued last Friday, after his (first?) grand jury appearance complaining that DOJ didn’t just use his transcript from the January 6 Committee.

I provided the documents requested and suggested they obtain my full transcript of my testimony from the January 6 Committee. They responded then that they cannot obtain those transcripts due to separation of powers and thus, they needed me to repeat my testimony here today.

I almost feel a little sorry for Alexander. This Roger Stone mentee has been sent out with the same lawyer, Paul Kamenar, who helped Stone evade real accountability for his Russian operation in 2016 (in that case, by helping Andrew Miller challenge a subpoena for a year before he ultimately joined Stone’s defense team). Perhaps Alexander thought he was going to replay that same Roger Stone script, with him playing the role that Jerome Corsi did, publicly releasing a cover story as a way to get everyone telling the same false story.

To be sure, Alexander was always fucked, because by the time he told his cover story in December, DOJ had already debunked that cover story when Owen Shroyer tried to tell it. So not only was Alexander stuck, Friday, trying to retell the same story that he told in December, but even if he succeeded, he’d be on the hook for a story that Judge Tim Kelly has already ruled to be inaccurate specifically as regards the choices that the Alex Jones retinue made after they arrived at the Capitol on January 6.

In any case, Alexander will be back in DC today talking to “officials” some more about January 6. It’s unclear whether this is a follow-up interview with DOJ, now that they’ve locked Alexander into a story, or whether the GOP will attempt to serve as a clearinghouse for stories, as HPSCI did with the Russian investigation.

But Ali Alexander, a key member of Alex Jones’ retinue, is not done telling his currently operative story yet. Perhaps, if he is interviewed further, Alexander will be asked about Stop the Steal communications first made available by Brandon Straka in spring 2021, and probably bolstered by Baked Alaska earlier this year, communications that also seem to be inconsistent with Alexander’s currently operative story.

Like I said, I almost feel sorry that Alexander agreed to play the role of Roger Stone’s patsy in this go-around, because DOJ is better situated to deal with Stone’s games this time around.

For all the focus on Alexander, that makes two other recent developments rather interesting.

First, in a status hearing on Thursday, prosecutors revealed that they had only recently received the content from Alex Jones sidekick Owen Shroyer’s phone. They were providing it, unscoped, to Shroyer’s attorney, Norm Pattis, so he can have a sense of what’s there in advance of DOJ providing him the “scoped” content (“scoped” content is the stuff that the FBI determines complies with the warrant). In that case, the sides at least claim they’re discussing a plea, with plans for a status or that plea in 45 days.

Which makes the other recent development more interesting. On June 14, Norm Pattis joined Joe Biggs’ defense team.

 

This mens that Pattis formally represents two Alex Jones associates — one who currently works for InfoWars and one who worked for Jones until he got “fired” for pushing PizzaGate in 2016 — who converged at the top of the East steps on January 6; Pattis has a longtime affiliation with Jones too.

And unless and until DOJ raises conflict issues with the men (which they’re not likely to do unless and until Jones himself is charged), Pattis will have full access to what are believed to be both sides of conversations that took place in advance of and on January 6 which resulted in an Alex Jones-led mob arriving just as the carefully orchestrated Proud Boy attack on the Capitol needed large numbers of additional, unwitting “normies” to fill the building. That’s a pretty critical set of discovery.

So one member of the retinue is struggling quite obviously with his effort to come up with a consistent story (after telling one that has already been debunked), while the other members of the retinue have arranged to be in a position to share the most important discovery from the day back and forth.

Things have gotten downright interesting with the convergence of once and current Jones flunkies at the East side of the Capitol on January 6.


“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

As noted in the last thread, more than twelve hours later on the same day that federal agents conducted a search on Jeffrey Clark’s home in Virginia, FBI agents seized John Eastman’s phone as he was leaving a restaurant in Santa Fe. He has launched a bozo lawsuit attempting to get the phone back. And as part of that, he released the warrant used to seize his phone.

Orin Kerr has a long thread treating the bozo lawsuit seriously herenoting among other things that Constitutional law professor John Eastman forgot he was in New Mexico and therefore in the Tenth Circuit, not the Ninth. File411 has a post treating it like the bozo suit it is here.

But I’m interested in the warrant itself. As many people have noted (including Eastman himself), the warrant is from DOJ IG’s Cyber Division, not DC USAO. CNN has a helpful explanation for that: at least on the Eastman search, DOJ IG is engaged in fairly unusual coordination with the USAO (which explains all the squirreliness about which Federal agents had searched Clark’s home).

Federal agents from the Justice Department’s Office of Inspector General, which is coordinating with the wider FBI and US attorney investigation into January 6, 2021, last week raided the home of former DOJ official Jeffrey Clark, a source familiar previously told CNN. That search — during which the Justice Department inspector general’s participation had not been previously reported — came the same day as Eastman’s.

The inspector general investigates accusations of legal violations by Justice Department employees and has the ability to conduct searches and seizures. After investigating, the inspector general can refer possible criminal matters to prosecutors.

That makes a reference in the search warrant more interesting. This is just a seizure warrant, not a warrant authorizing the search of the phone. And it states that agents will bring the phone either the DOJ IG forensic lab in Northern Virginia or to some unidentified location in DC; it doesn’t mention the FBI’s Quantico facility, though that is also in NoVA and even experts on DOJ IG aren’t aware of any dedicated forensic lab DOJ IG has.

This warrant would be consistent with use in parallel investigations, the DC (or Main) investigation into Trump and Eastman as well as a DOJ IG investigation into January 6 that Michael Horowitz announced in early 2021. I’ve been wondering whether DOJ IG’s investigation(s), which can be quite slow, have delayed the review of DOJ’s conduct. This may be the solution: coordinated investigations. In his January 2021 announcement, Horowitz addressed that concern.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

In other words, this seizure may actually reflect at least two underlying search warrants, and as such may be an attempt to obscure (like the original Rudy Giuliani warrants would have) the focus of the underlying January 6 investigation. That is, DOJ IG could hand Eastman a warrant for an investigation into Jeffrey Clark, and that would be sufficient to answer his demands for a warrant, even if there were a more substantive warrant for the DCUSAO investigation.

That’s why the timing is of interest. As File411 notes, it was authorized on June 17, so after the Big Lie January 6 Committee hearing, but five days before it was executed on June 22. If this warrant was a response to the January 6 Committee hearings, it wasn’t a response to the hearing focused on Jeffrey Clark, but rather on one focused on Eastman.

In the days ahead, you will hear wailing about how poor Constitutional attorney John Eastman had his privacy abridged — that’s the point of the bozo lawsuit, just like Russian oligarchs do. But the very same people who’ll be whining were huge fans of DOJ IG’s best known cyber worka 2018 report explaining why the FBI’s text archiving system hadn’t captured 19,000 texts between Peter Strzok and Lisa Page.

Trump Strzok Text

That investigation, like this one, appears to be focused on a DOJ employee who has already resigned (though the earlier report was started when Strzok and Page were still at FBI). And given the seizure of devices, it may be focused on inappropriate politicization of DOJ — the allegation at the core of investigations into Strzok and Page, yet for which DOJ IG never substantiated proof.

Both Rudy and Trump are on the record supporting such DOJ IG investigations into phones for evidence of improper politicization. Chances are they’re going to be less enthusiastic now that the subjects of the investigation are John Eastman and Jeffrey Clark.


Jeffrey Clark: Physics Takes Over the Investigation Now

Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

Indeed, one reason Clark may have been raided is because he makes an easier target, for now, than Meadows or the Members of Congress who were involved. All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

To obtain Signal conversations that haven’t been saved to the cloud, one needs at least one of the phones that was involved in the conversation. That assumes the texts were not deleted. In the James Wolfe investigation, the FBI demonstrated some ability to recover deleted Signal texts, but in the Oath Keeper investigation, their Signal deletions forced investigators to seize a whole bunch of phones to reconstruct all parts of the communications.

By law, the government should have some of these Signal texts accessible. Under the Presidential Records Act, Mark Meadows had a legal obligation to share any such texts with the Archives. But because he replaced his phone in the months after the insurrection, at a time he knew of the criminal investigation, he may not have been able to comply. If DOJ can prove that he deleted Signal texts, he might be on the hook for obstructing the DOJ investigation.

So one thing DOJ may have been trying to do, by seizing the phones of at least four players in the fake electors plot on the same day, was to obtain phones sufficient to reconstruct any Signal threads about the plot. Those served subpoenas, both in this and an earlier round of subpoenas, will have to turn over Signal texts too, if they meet the terms of the subpoena. If DOJ were trying to reach the far higher bar of obtaining a warrant against someone protected by Speech and Debate or other privileges — like Perry — they likely would need to use such threads to meet that higher bar.

So back to the physics.

The table below shows how the investigations into a number of high profile investigative subjects have proceeded. While there are exceptions (investigations where the FBI has some excuse or urgency to conduct an interview, as with Mike Flynn and George Papadopoulos, are different), investigators often first obtain readily accessible cloud content with a gag order, then use the information from a person’s cloud content to obtain probable cause for a warrant to seize phones. Under that pattern, the phone seizure will alert a subject of an investigation to that investigation. In most cases (the first round of January 6 arrests and Roger Stone are exceptions, each for different reasons), the search of phones precedes any arrest by months if not years.

Whereas, during the Mueller investigation, the FBI could exploit phones in four months time, of late, it has been taking closer to six months to exploit cell phones, even without any kind of special review. Part of this delay is physics: if a person uses any kind of secure password, it takes the FBI time to crack that password (and still more time if someone uses additional security features, as Enrique Tarrio did). In many cases, the DOJ will have to use a filter team to exclude data that is somehow privileged; in all cases, DOJ will then do a scope review, ensuring that the investigative team only gets material responsive to the warrant. When a special review is required, such as the attorney-client privilege review for Rudy or the “journalistic” review for Project Veritas, that process can take much longer. Because DOJ will have to conduct a fairly exhaustive filter review for an attorney like Clark, it might take closer to nine months to exploit the devices seized last week.

This pattern suggests several things about the investigation into Jeffrey Clark (and the fake electors). First, DOJ likely obtained their first probable cause warrants against Clark and the fake electors months ago, probably pretty close to the time (though hopefully before) Lisa Monaco confirmed the investigation into the fake electors in January. In Clark’s case, an investigation may have come from a referral from DOJ IG. So contrary to what many outlets have reported, such as this example from James Risen at the Intercept, the searches of Clark and others are not proof that an investigation is beginning or that DOJ only recently established probable cause. Rather, they suggest DOJ has been investigating covertly for months, at least long enough to obtain probable cause that even more evidence exists on these phones.

But it’s also likely that it will take DOJ some months — until Christmas at least — to exploit Clark’s phone. This investigation will not move as quickly as you might think or hope that this point, and that’s partly dictated by the constraints of cracking a password — math and physics.

All that said, several prongs of an investigation that could implicate Trump may be much further on. As I’ll show in a follow-up (and as I’ve mentioned in the past), the investigation into Stop the Steal is undoubtedly much further on than people assume given Ali Alexander’s grand jury appearance last week. And the FBI has ways of getting content via the Archives, much as they obtained content from Trump’s transition from GSA, that bypass pattern laid out above.

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

Update: Several people have asked why there would be a privilege review for Clark’s phone, since he would have been a government attorney through January 6. I’m not certain there would be, but if a warrant covered the time since January 6 (which I think likely given what DOJ has done with warrants elsewhere), then any lawyering he has done since he left would be privileged.

Update: As noted in comments, also on Wednesday, the FBI seized John Eastman’s phone. The warrant is from DOJ IG, not DC USAO and bears a 2022 case number. DOJ IG opened an investigation into Clark in 2021, but perhaps something they saw in the Jan6 Committee hearings led to a new prong of the investigation, leading to this search? Given the squirreliness regarding what agency did the search of Eastman, I wonder if both these investigative steps were DOJ IG.

Background material

This annotated file shows the unsealed Mueller warrants, with labels for those warrants that have been identified.

This post shows how the Michael Cohen investigation started with Russian-related warrants in the Mueller investigation then moved to SDNY, including a crucial detail about preservation orders for Cohen’s Trump Organization emails served on Microsoft.

This post shows how the investigation into George Papadopoulos developed; his is the outlier here, in that overt actions took place closer to the beginning of the investigation — but in his case, DOJ used a series of informants against him to obtain information.

This post describes how Trump’s team only discovered Mueller had obtained transition devices three months after Mueller obtained them, via Mike Flynn’s statement of offense.

This post shows that the seizure of Roger Stone’s phones with his January 2019 arrest was just one step in an ongoing investigation.

This post uses the Michael Cohen example to explain how the Rudy investigation might work.

This post shows how the investigation into Project Veritas developed.

This post shows how it took almost an entire year to crack Enrique Tarrio’s password, with a filter team delaying access for another month.

This post describes how the sheer volume of Stewart Rhodes’ Signal texts delayed his arrest.


Bill Barr’s Attempt to Corrupt EDNY May Have Saved the Republic

Almost all of the witnesses the January 6 Committee has relied on are deeply conflicted people. The same Trump attorney, Justin Clark, who allegedly coached Steve Bannon to withhold information from the Committee about communications with Rudy Giuliani and Mike Flynn appeared on video claiming to have qualms about using fake electors in states where the campaign did not have an active legal challenge. Ivanka claimed to believe Bill Barr’s claims that voter fraud couldn’t change the election, but the Committee just obtained video of her saying otherwise. And Bill Barr himself has gotten credit for fighting Trump’s false claims of voter fraud even though he spent months laying the groundwork for those claims by attacking mail-in ballots.

But yesterday’s hearing was something else.

After Liz Cheney invited watchers to imagine what it would be like to have a DOJ that required loyalty oaths from lawyers who work there — a policy that Alberto Gonzales had started to implement in the Bush-Cheney Administration — Adam Kinzinger led former Acting Deputy Attorney General Richard Donoghue through a narrative about the Republican Party and the Department of Justice they might like to belong to.

The whole thing was a flashback. In May 2007, I was tipped off to cover Jim Comey’s dramatic retelling of the first DOJ effort to push back on Presidential — and Vice Presidential, from Liz Cheney’s father — pressure by threatening to quit. Only years later, I learned how little the 2004 Hospital Hero stand-off really achieved. So I’m skeptical of yesterday’s tales of heroism from the likes of Jeff Rosen and Steve Engel.

But that’s also because their record conflicts with some of the things they said.

For example, check out what Engel — someone who played an absolutely central role in Bill Barr’s corruption of the Mueller investigation, and who wrote memos that killed the hush payment investigation into Trump and attempted to kill the whistleblower complaint about Volodymyr Zelenskyy — had to say about politicization of investigations.

Kinzinger: Mr. Engel, from your perspective, why is it important to have a [White House contact] policy like Mr. Rosen just discussed?

Engel: Well, it’s critical that the Department of Justice conducts its criminal investigations free from either the reality or any appearance of political interference. And so, people can get in trouble if people at the White House are speaking with people at the Department and that’s why, the purpose of these policies, is to keep these communications as infrequent and at the highest levels as possible just to make sure that people who are less careful about it, who don’t really understand these implications, such as Mr. Clark, don’t run afoul of those contact policies.

Or consider how Special Counsels were described, as Kinzinger got the witnesses to discuss how wildly inappropriate it would have been to appoint Sidney Powell to investigate vote fraud. Here’s how Engel explained the limited times there’d be a basis to appoint one:

Kinzinger: So during your time at the Department, was there ever any basis to appoint a Special Counsel to investigate President Trump’s election fraud claims?

Engel: Well, Attorney General Barr and [inaudible] Jeffrey Rosen did appoint a Special Counsel. You would appoint a Special Counsel when the Department — when there’s a basis for an investigation, and the Department, essentially, has a conflict of interest.

Engel is presumably referring to John Durham with that initial comment. But Durham fails both of those tests: there was never a basis for an investigation, and for most of the time Durham has been Special Counsel, he’s been investigating people outside the Department that present absolutely no conflict for the Department. [Note: it’s not clear I transcribed this properly. The point remains: Rosen and Barr appointed a Special Counsel that violated this standard.]

In other words, so much of what Engel and Rosen were describing were abuses they themselves were all too happy to engage in, up until the post-election period.

Which is why I’m so interested in the role of Richard Donoghue, who moved from EDNY to Main Justice in July 2020, to be replaced by trusted Bill Barr flunkie Seth DuCharme. It happened at a time when prosecutors were prepared to indict Tom Barrack, charges that didn’t end up getting filed until a year later, after Merrick Garland and Lisa Monaco had been confirmed. The 2020 move by Barr looked just like other efforts — with Jessie Liu in DC and Geoffrey Berman in SDNY — to kill investigations by replacing the US Attorney.

That is, by all appearances, Donoghue was only the one involved in all these events in 2020 and 2021 because Barr was politicizing prosecutions, precisely what Engel claimed that DOJ, during his tenure, attempted to avoid.

That’s interesting for several reasons. First, in the context of explaining the January 3 stand-off in the White House, Donoghue described why environmental lawyer Jeffrey Clark was unqualified to be Attorney General.

Donoghue: Mr. President, you’re talking about putting a man in that seat who has never tried a criminal case. Who has never conducted a criminal investigation.

Well, neither had regulatory lawyer Jeffrey Rosen (or, for that matter, Billy Barr). That is, in explaining why Clark should not be Attorney General,  Donoghue expressed what many lawyers have likewise said about Barr, most notably during Barr’s efforts to undermine the Mike Flynn prosecution (the tail end of which Donoghue would have been part of, though DuCharme was likely a far more central player in that).

In the collective description of the showdown at the White House on January 3, it sounds like before that point, Donoghue was the first one who succeeded in beginning to talk Trump out of replacing Rosen, because it was not in Trump’s, or the country’s, interest.

Mr. President, you have a great deal to lose. And I began to explain to him what he had to lose. And what the country had to lose, and what the Department had to lose. And this was not in anyone’s best interest. That conversation went on for some time.

Donoghue also seems to have been the one to explain the impact of resignations in response to a Clark appointment.

Mr. President within 24, 48, 72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What’s that going to say about you?

To be clear: Rosen would have pushed back in any case. As he described,

On the one hand, I wasn’t going to accept being fired by my subordinate, so I wanted to talk to the President directly. With regard to the reason for that, I wanted to try to convince the President not to go down the wrong path that Mr. Clark seemed to be advocating. And it wasn’t about me. There was only 17 days left in the Administration at that point. I would have been perfectly content to have either of the gentlemen on my left or right to replace me if anybody wanted to do that. But I did not want for the Department of Justice to be put in a posture where it would be doing things that were not consistent with the truth, were not consistent with its own appropriate role, or were not consistent with the Constitution.

But Rosen had already presided over capitulations to Trump in the past, including events relating to the first impeachment and setting up a system whereby Rudy Giuliani could introduce Russian-brokered disinformation targeting Joe Biden into DOJ, without exposing Rudy himself to Russian Agent charges. Repeatedly in yesterday’s hearing, I kept asking whether the outcome would have been the same if Donoghue hadn’t been there.

Plus, by all appearances, Donoghue was the one providing critical leadership in the period, including going to the Capitol to ensure it was secured.

Kinzinger: Mr. Donoghue, we know from Mr. Rosen that you helped to reconvene the Joint Session, is that correct?

Donoghue: Yes sir.

Kinzinger: We see here in a video that we’re going to play now you arriving with your security detail, to help secure the Capitol. Mr. Donoghue, thirty minutes after you arrived at the Capitol, did you lead a briefing for the Vice President?

Donoghue: I’m not sure exactly what the time frame was, but I did participate in a call and participate in a briefing with the Vice President as well as the Congressional leadership that night. Yes.

Kinzinger: Where’d you conduct that call at?

Donoghue: I was in an office, I’m not entirely sure where it was. My detail found it, because of the acoustics in the Rotunda were such that it wasn’t really conductive to having a call so they found an office, we went to that office, and I believe I participated in two phone calls, one at 1800 and one at 1900 that night, from that office.

Kinzinger: What time did you actually end up leaving the Capitol?

Donoghue: I waited until the Senate was back in session which I believe they were gaveled in a few minutes after 8PM. And once they were back in session and we were confident that the entire facility was secured and cleared — that there were no individuals hiding in closets, or under desks, that there were no IEDs or other suspicious devices left behind — I left minutes later. I was probably gone by 8:30.

Kinzinger: And Mr. Donoghue, did you ever hear from President Trump that day?

Donoghue: No. Like the AAG, the acting AG, I spoke to Pat Cipollone and Mark Meadows and the Vice President and the Congressional leadership but I never spoke to the President that day.

So it seems possible, certainly, that one of the few things that held DOJ together in this period is Donoghue, seemingly installed there as part of yet another Bill Barr plot to corrupt DOJ.

Congresswoman Cheney, who in her opening statement talked about how outrageous it was for Trump to demand that DOJ make an announcement about an investigation into voter fraud (but who voted against the first impeachment for extorting Volodymyr Zelenskyy for exactly such an announcement), ended the hearing by inviting those who had put their trust into Donald Trump to understand that he had abused that trust.


House January 6 Committee: Public Hearings – Day 5

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 23, 2022 at 3:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: TBD

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?521076-1/hearing-investigation-capitol-attack

C-SPAN’s YouTube page: https://youtu.be/9Vj7FJwF35M

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner) or watch here: https://www.pbs.org/newshour/politics/how-to-watch-the-jan-6-hearings

(I wish Twitter was carrying multiple live streams but they have yet to publish an Event. I guess Twitter has decided this historic series of hearings isn’t worth their time.

4:00 p.m. — Oh, look, Twitter finally got their shit together and just in time for recess. https://twitter.com/i/events/1540059136305397760)

ABC is carrying the hearing live on broadcast; CNN, NBC Now and MSNBC on their cable networks.

(CBS has likewise thrown in the towel like Twitter as I don’t see the hearing listed under their channel.)

Twitter accounts live tweeting the hearing tonight:

Marcy’s Twitter thread: https://twitter.com/emptywheel/status/1540049823365218306

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1540046031462842369

Laura Rozen: https://twitter.com/lrozen/status/1540047956811960328

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1540055344973504515

If you know of any other credible source tweeting the coverage, please share a link in comments.

Today’s scheduled witnesses:

Jeffrey A. Rosen, Former Acting Attorney General

Richard Donoghue, Former Acting Deputy Attorney General

Steven Engel, Former Assistant Attorney General for the Office of Legal Counsel

There may be more not yet shared by the committee in their Twitter feed since the hearings to date have had two panels.

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Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the hearing progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

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Originally Posted @ https://www.emptywheel.net/january-6-insurrection/