October 28, 2021 / by 

 

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

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

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

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

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

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

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

C. Vice President Pence Refuses to Overturn the Election Results

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nor does he address how he almost got Pence killed.


The Selfie Cops: Obstructing an Official Proceeding

Yesterday, DOJ unsealed an indictment against the two selfie cops, Thomas Robertson and Jacob Fracker. The two were originally charged on January 12 — among the first to be charged — after they shared pictures of their exploits with colleagues at the Rocky Mount, VA police department, who in turn alerted the FBI.

Both are military veterans and Fracker remained in the VA National Guard when he was arrested.

The two were originally charged with two trespassing charges, 18 USC 1752 and 40 USC 5104. But the indictment adds the more serious obstruction charge DOJ has used against other more dangerous defendants, 1512(c)(2), along with an aiding and abetting charge for the same, 18 USC 2. That’s a felony that, if they’re convicted, will mean the two men will no longer be able to own guns (and probably won’t work in law enforcement anymore).

I want to look at how DOJ seems to be using that charge, because I expect more people will have it added as their case move to indictment.

The charge is an unusual application of what is normally treated as a witness tampering statute, which most people think of in conjunction with investigations and prosecutions. But the certification of the vote is every bit as much an “official proceeding” as an investigation or trial is. The standard boilerplate being used in insurrectionist charging documents establishes that the vote certification was suspended from 2:20PM, literally minutes after rioters first breached the Capitol, until shortly after 8PM.

Shortly thereafter, at approximately 2:20 p.m. members of the United States House of Representatives and United States Senate, including the President of the Senate, Vice President Mike Pence, were instructed to—and did—evacuate the chambers. Accordingly, the joint session of the United States Congress was effectively suspended until shortly after 8:00 p.m. Vice President Pence remained in the United States Capitol from the time he was evacuated from the Senate Chamber until the sessions resumed.

Up until the indictment against the cops was unsealed, DOJ had used the 1512 charge primarily with people who, in their charging documents, were shown to have done more (there were around 28 before these cops were charged with it). They include:

  • The Oath Keeper defendants
  • Many of the Proud Boy defendants
  • Some, but not all the people, who were accused of assault, damaging property, or interfering with cops
  • Those — like Gina Bisignano and Riley Williams — who were organizing traffic
  • People — like William Calhoun — whose promise of violence and intent to interfere with vote counting was explicit
  • People — like Leo Kelly — who got to the Senate or Speaker’s lobby (though not all who did were charged with 1512)

Aside from serving as a way to bring felony charges against a defendant, perhaps because the government believes the person to be a greater threat, there’s no clear rhyme or reason to this.

The primary hint of the Selfie Cops doing something like that came, after the fact, in boasts from Robertson claiming to have “attacked the government.”

“CNN and the Left are just mad because we actually attacked the government who is the problem and not some random small business … The right IN ONE DAY took the f***** U.S. Capitol. Keep poking us.” He also stated that he was “proud” of the photo in an Instagram Post that was shared to Facebook, because he was “willing to put skin in the game”

But it is also the case that the initial complaints seemed to function as a kind of triage, a way to get participants in the insurrection into the legal system to allow more focused investigation of them. Undoubtedly, the FBI continued to investigate after the initial charges.

And such an investigation — especially for people whose initial arrest didn’t rely on search warrants and who were arrested before the shape of the attack became more clear — might reveal evidence that these two cops had something more in common with the others charged with 1512, such as explicit plans to shut down the vote count or ties to a militia organization. And unlike the arrest affidavits, which put so much evidence in a few pages, we shouldn’t expect to see any of that evidence for a charge in an indictment until a litigation leading up to a trial. Indeed, that may be why DOJ feels free to include the charge in order to raise the stakes on the prosecution: because they can do so without having to tip their hand to other coup conspirators.

I expect we’ll see more 1512 charges, which will separate the people DOJ is truly concerned about from those who stupidly trespassed in support of their idol Donald Trump.

Update: DOJ did the same thing with Richard “Bigo” Barnett. In his case, he’s facing enhancements on some of these charges because he had a stun gun walking stick with him.


The Role of Trump’s Incitement in Providing Violent Foot Soldiers [Updated]

As I’ve covered, in addition to a conspiracy charge tying Zip-Tie Guy’s actions to his mother’s cheering of violence, the government has thus far charged two sets of defendants from organized gangs in the January 6 insurrection — three members of the Oath Keepers and two of the Proud Boys. While Proud Boy Dominic Pezzola is charged with assault for his efforts to steal the police shield he used to bash open a window, his co-defendant William Pepe and most other defendants identified as Proud Boys were not charged with assault (Robert Gieswein, who was indicted on his own, did allegedly assault cops with a baseball bat; he appears in videos with the Proud Boys that day, though was not identified as such in his charging documents).

Thus far at least, the most violent actions from that day aren’t known to have been perpetrated by the right wing militias, members of which appear to have, instead, channeled the violence of others, possibly while pursuing more tactical goals (like locating members of Congress).

That makes the way in which the government describes that other violence important, as it may or may not tie everything together (and tie it back to those who incited the violence).

Take Emanuel Jackson, a 20-year old black guy from DC who was twice caught assaulting cops on video. First, he was caught on film punching a cop, an assault which charging documents describe helped break the police line allowing others to stream in.

The defendant, EMANUEL JACKSON, is observed on U.S. Capitol video surveillance footage making a fist and repeatedly striking a U.S. Capitol Police officer on his person while attempting to forcefully enter the building. United States Capitol Police officers are designated as officers of the United States under 18 U.S.C. 1114.

At approximately 2:48 p.m., the large crowd that was being restrained by law enforcement overpowered the officers and gained entry. One of the first individuals observed entering the doorway is the defendant.

Then, later that day, he attempted to get back into the Capitol wielding a baseball bat.

At 4:50 p.m., the violent and aggressive crowd continued to confront law enforcement at the West Terrace entrance. The crowd was armed with various weapons and multiple individuals are observed assaulting law enforcement in the entranceway. The defendant is clearly observed in surveillance video of this entrance, wearing the same clothing described above and observed in earlier footage, and armed with a metal baseball bat. The defendant is observed repeatedly striking a group of both U.S. Capitol and Metropolitan Police Department uniformed officers with the baseball bat.

These two alleged assaults happening two hours after each other, the first unarmed, the second armed, attest to the sustained violence of the riot, as well as a possible intensification of it as violence came to incorporate additional weapons. Over those two hours, Rudy Giuliani was calling Senators asking for delay.

While Jackson did have a backpack on him during the riot, there’s nothing in Jackson’s file that suggests any organizational affiliation with known extremist groups (nor is there any explanation of why a 20-year old black guy would ruin his life for Donald Trump). According to a government detention motion, in an interview, Jackson described attending Trump’s rally and going from there to the Capitol.

During the defendant’s post-arrest interview, he clearly articulated that he attended former President Trump’s rally earlier that day, and that he joined the thousands of individuals who descended on the U.S. Capitol to protest the election results.

That ties his later actions to the events at the rally.

That’s important, because Jackson confessed that his goal in storming the Capitol was to delay the counting of the vote (and he was charged with obstructing an official proceeding as a result, which itself carries a steep sentence if violence is involved).

During the interview, the defendant stated that his purpose in joining the violent mob was to enter the U.S. Capitol and disrupt the vote count of the Electoral College as it met to certify the results of the 2020 Presidential Election. Thus the defendant combined his criminal intention to interfere with the functioning of Congress with multiple violent assaults – one with a dangerous weapon – on the law enforcement officers trying to protect that function.

The detention motion describes how his initial assault made it possible for him and others to storm the building.

The defendant was part of a group that tore out windows, ripped open the blocked entrance, and then physically attacked law enforcement in an effort to gain entry. The law enforcement officers are in full uniform with the word “police” clearly visible. At approximately 2:48 p.m., the defendant is observed physically striking a law enforcement officer with his fist. The punching continues for several strikes and seconds later, the mob forces their way into the entranceway and overruns the group of law enforcement officers. The defendant’s assaultive behavior in part allowed the large mob of individuals to successfully breach the U.S. Capitol, putting additional law enforcement officers and members and staff of Congress at grave risk. The defendant’s actions allowed other rioters to commit multiple other criminal acts inside the building.

So at least on this thin record, it appears that Jackson went to the rally, got riled up to disrupt the certification of the vote, and then took repeated violent actions in service of doing just that. As the detention motion describes, Jackson was one spoke in a wheel that together thwarted democracy.

The defendant was a spoke in the wheel that caused the historic events of January 6, 2021,

On January 27, Jackson’s attorney asked for a one month continuance, with the government’s consent. That generally indicates the defendant is preparing to plead before indictment (which isn’t surprising given that, before he got a lawyer, Jackson confessed to his assaults).

That means it’s possible that by the time Trump’s impeachment trial starts, Emanuel Jackson will have pled guilty to being inspired by Donald Trump to halt the vote certification, walking down Pennsylvania Avenue and then assaulting two cops in an effort to help Trump steal the election.

Update:  Hunter Seefried, whose dad was the one caught carrying a Confederate flag through the Capitol, played a key role in cleaning out the window many streamed through. The father and son pair marched over after listening to Trump.

Defendant Kevin Seefried told law enforcement that he had traveled with his family from Delaware to the District of Columbia to hear President Trump speak and that he and Hunter Seefried participated in a march from the White House to the Capitol led by an individual with a bull horn.

Finally, I have reviewed video footage posted to Twitter which shows Hunter Seefried punching out glass in a window in the Capitol complex after people adjacent to him in the crowd broke it with a wooden 2 x 4. Kevin Seefried confirmed to law enforcement agents that Hunter Seefried was asked by an individual unknown to the Seefrieds to assist with clearing the window because Hunter Seefried was wearing gloves. After Hunter Seefried complied, people from the crowd outside, to include the Seefrieds, were able to access the interior of the Capitol Building.

Barton Wade Shively, a former Marine who admitted to assaulting several cops, also came down for the rally and then walked to the Capitol afterwards.

During the interview, SHIVELY admitted to driving to Washington, D.C. with friends to attend the Trump rally on January 6, 2021. SHIVELY further stated that he and his friends walked to the U.S. Capitol grounds and that a significant number of protestors broke through the first set of barricades. After which, SHIVELY explained that he was in the back of the crowd, but once the barricades were broken down by other rioters, SHIVELY walked over the broken-down police barriers and up the U.S. Capitol steps where law enforcement officers were standing protecting the U.S. Capitol. SHIVELY stated that when he confronted the law enforcement officers, he was pushed back, SHIVELY admitted he became angered at that time. SHIVELY admitted “I got caught up in the moment.” and grabbed a police officer by his jacket and began yelling at the officer.

[snip]

During the interview with agents, SHIVELY admitted to a second incident physical and assaultive encounter with law enforcement officers. SHIVELY stated he was walking down a line of officers who were protecting the U.S. Capitol from rioters, when an officer repeatedly pushed SHIVELY with his baton and commanded SHIVELY to move away. SHIVELY admitted to punching the officer on the officer’s riot helmet.


Spaz: More than Just a Thumb Drive [Updated]

The government released its motion for detention for Dominic Pezzola, AKA “Spaz,” the Proud Boy who was among the first to break into the Capitol.

As a Marine with ties to the Proud Boys, it’s easy to see why the government thinks he’s dangerous.

To support their claim he is, though, the government made two arguments that probably aren’t the main reasons. First, they treat his use of a police shield to break open the door of the Capitol as a crime of violence.

Felony destruction of government property is a crime of violence. For purposes of the bail statute, as relevant to these offenses, a crime of violence is defined as “an offense that has an element of the use, attempted use, or threatened use of physical force against the person or property of another,” if that crime is punishable by ten years or more in prison. See 18 U.S.C. § 3142(f)(1)(A) & 16. Section 1361 of Title 18 of the U.S. Code meets those requirements. It is punishable by ten years if the property damage was greater than $1,000, and its elements include the use of physical force against the property of another.

More spectacularly, they point to the bomb-making materials they found at his home.

The FBI also executed a search warrant at the defendant’s residence at the time of his arrest. Agents recovered, from a room that appeared to be used exclusively by the defendant, a thumb drive that contained hundreds of .pdf files. While some of those files are related to seemingly innocuous topics, a significant number of those .pdfs provide detailed instructions for making homemade firearms, poisons, and/or explosives. A sample of titles includes, but is not limited to: (1) multiple serials of a series entitled “Advanced Improvised Explosives,” those serials including “Explosive Dusts” and “Incendiaries;” (2) “The Box Tube MAC-11,” with subtitle, “The Ultimate DIY Machine Pistol;” (3) “Ragnar’s Big Book of Homemade Weapons;” and (4) “The Advanced Anarchist’s Arsenal: Recipes for Improvised Incendiaries and Explosives.” All of the above examples contain detailed instructions for how to make the subject matter reflected in their titles, and they are but four of hundreds of similarly titled .pdf files on the recovered thumb drive.

But I’m more interested, as is my wont, in the ways that the government points to something more.

It does so, first of all, by hinting at additional charges to come — though lays out charges that are likely not the ones DOJ has in mind for Pezzola.

The defendant currently stands charged with violations of 18 U.S.C. §§ 1361, 1512(c)(2), and 1752(a), stemming from his role in the violent events that took place at the U.S. Capitol on January 6, 2021.

[snip]

The defendant is currently charged by complaint with one crime of violence—breaking the window of the Capitol with the shield—and the evidence as laid out above would establish probable cause to believe that he committed another crime of violence a short time earlier, robbery of U.S. government property, in violation of 18 U.S.C. § 2112.

[snip]

The evidence as laid out above would also establish that the defendant violated 18 U.S.C. § 2112, robbery of U.S. Government property, and § 111, assault on a federal officer, among other things. The government acknowledges that the defendant is not charged with these offenses at the time this memorandum is submitted.

More importantly, the government repeatedly talks about how he coordinated his actions.

The defendant’s actions show planning, determination, and coordination.

It uses the language of conspiracy — persons known and unknown — to describe his actions leading the mob towards the Capitol.

At around 1:00 p.m. EST, on January 6, 2021, known and unknown individuals broke through the police lines, toppled the outside barricades protecting the U.S. Capitol, and pushed past U.S. Capitol Police (“USCP”) and supporting law enforcement officers there to protect the U.S. Capitol.

The motion describes how he walked up to the barriers with others, including this guy in a flag bandana.

It shows how, at the moment he breaks in the window through which the Capitol was breached, he was wearing an earpiece.

The government describes how that first group of people immediately turned to “where they counting the votes?” (though were distracted from finding them by Officer Goodman).

Pezzola was part of a group that turned to the right and eventually confronted USCP Officer Eugene Goodman, demanding to know “where they meeting at, where they counting the votes?” It is unclear from the video which member of the mob shouted that question at Officer Goodman.

And the motion describes Pezzola talking about a “we” who had taken the Capitol.

“Victory smoke in the Capitol, boys. This is f***ing awesome. I knew we could take this motherf***er over [if we] just tried hard enough.”

While the motion lays out its argument for detention by emphasizing other things, the argument it is really making is that Pezzola, as a key member of the conspiracy (and as someone with the operational security to flee), he needs to be detained.

It’s not surprising that the government points to evidence of a conspiracy. After all, he’s associated with the Proud Boys, a key focus of their attention (and the motion cites a W-1 who is clearly privy to their plans).

It’s just telling how the government only hints at that argument while pointing to other things that make Spaz dangerous.

Update: DOJ announced the conspiracy indictment of Pazzola with William Pepe, the guy in the flag bandana pictured above.

 Dominic Pezzola, 43, of Rochester, New York, and William Pepe, 31, of Beacon, New York, were indicted today in federal court in the District of Columbia on charges of conspiracy; civil disorder; unlawfully entering restricted buildings or grounds; and disorderly and disruptive conduct in restricted buildings or grounds. Pezzola was also charged with obstruction of an official proceeding; additional counts of civil disorder and aiding and abetting civil disorder; robbery of personal property of the United States; assaulting, resisting, or impeding certain officers; destruction of government property; and engaging in physical violence in a restricted buildings or grounds.

The prosecution team includes the guy who prosecuted Maria Butina, Erik Kenerson, along with a CT prosecutor from NSD.

The case is being prosecuted by Assistant U.S. Attorneys Jason McCullough and Erik Kenerson of the U.S. Attorney’s Office for the District of Columbia and Taryn Meeks of the Department of Justice National Security Division’s Counterterrorism Section. Valuable assistance was provided by the U.S. Attorneys’ Offices for the Western and Southern Districts of New York. The case is being investigated by the FBI’s Washington Field Office, with assistance by the FBI’s Buffalo Field Office and the FBI’s New York Field Office.

Update: Here’s the indictment itself. It is very narrowly drawn, describing the conspiracy to cover just their successful entry past the cops at the second barrier.

The object of the conspiracy was to obstruct, influence, impede, and interfere with law enforcement officers engaged in their official duties in protecting the U.S. Capitol and its grounds during the demonstrations planned for January 6, 2021.

I suspect DOJ did this, in part, to have a way to keep Pepe detained. He’s not even accused of entering the Capitol, nor is he charged with stealing anything or assaulting a copy. But by being charged in a conspiracy with Pazzola, he’s on the hook for Pazzola’s more obviously violent acts.


Trump’s Role in a Seditious Conspiracy Won’t Go Away with an Impeachment Vote

There’s a conventional wisdom about the Donald Trump’s second impeachment trial, scheduled to start in ten days. WaPo predicts that impeachment will leave no more than a “bitter aftertaste.”

The Senate is hurtling toward an impeachment trial that will accomplish almost nothing by design and likely leave everyone with a bitter aftertaste.

Democratic voters will be furious that GOP senators refused to hold former president Donald Trump accountable for his role in encouraging supporters to march to the Capitol on Jan. 6. Republicans will be upset that congressional Democrats went through with an impeachment trial three weeks after Trump left the White House.

And independent voters, more focused on the health and economic crises fueled by the coronavirus pandemic, will wonder why Congress prioritized an impeachment process at all.

Perhaps most telling, WaPo describes Trump’s role as “encouraging” his supporters to march to the Capitol.

It’s true the word, “encouraged” appears in the article of impeachment against Trump.

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

But that description skips the “foreseeably result[ing]” in the interruption of the certification of the vote, the threats to Members of Congress, the deadly sedition that are also included in the article of impeachment.

Moreover, it ignores the other part of the article of impeachment, Trump’s other efforts to subvert democracy (the article describes his January 2 call to Brad Raffensberger explicitly), to say nothing of the description of Trump as a threat to national security.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.

[snip]

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

That’s a notable oversight, particularly given the — inexplicable — claim from ascendant Senate Judiciary Committee Chair Dick Durbin that we may never learn the full extent of Trump’s role in the coup attempt.

Sen. Richard J. Durbin (D-Ill.), the incoming chairman, said he would leave procedural questions up to the House managers.“I’m waiting to hear what their proposal is, but for us to suggest a trial strategy for the House managers, I don’t think that’s our job,” Durbin said.

So, instead, the Senate will rush through a trial in which the only evidence likely to be presented will be the stuff that senators themselves already lived, video clips of rioters breaking into the Capitol as senators fled through underground tunnels to their secure location.

Senators will likely not even attempt to answer the fundamental questions of every impeachment trial — what did the president know and when did he know it?

“It will be surprising to me if we ever know the answers to that,” Durbin said.

It may be true that impeachment managers will restrict themselves to the public record, though even that might include testimony from Raffensperger and evidence collected as part of the prosecution of insurrectionists. Q-Shaman Jacob Chansley even says he’d be willing to testify.

Lawyer Albert Watkins said he hasn’t spoken to any member in the Senate since announcing his offer to have Jacob Chansley testify at Trump’s trial, which is scheduled to begin the week of Feb. 8. Watkins said it’s important for senators to hear the voice of someone who was incited by Trump.

Watkins said his client was previously “horrendously smitten” by Trump but now feels let down after Trump’s refusal to grant Chansley and others who participated in the insurrection a pardon. “He felt like he was betrayed by the president,” Watkins said.

The words of Trump supporters who are accused of participating in the riot may end up being used against him in the impeachment trial. Chansley and at least four others people who are facing federal charges stemming from the riot have suggested they were taking orders from Trump.

If insurrectionists were to testify in person, the attendant security of orange jumpsuits and leg manacles might provide some sobering visuals (though COVID and real security concerns almost certainly rules that out).

But it seems foolish for any Senator to assume that the vote they’ll cast in a few weeks will make this thing go away forever.

That’s not even true for their Ukraine impeachment votes. Yesterday, Ukraine announced (much to Lev Parnas’ glee that Rudy Giuliani finally got Ukraine to announce an investigation) that it is launching a criminal probe into those — inside and outside Ukraine — who attempted to interfere in the 2020 election.

Andriy Yermak, the head of the office of Ukrainian President Volodymyr Zelenskiy, said on January 28 that Ukraine would do everything in its power to bring to justice forces within the country and outside it who attempted to damage relations between Ukraine and the United States.

“The State Bureau of Investigation has opened a criminal case,” Yermak was quoted as saying in an interview to the Ukrainian news outlet NV that was posted on the presidential website.

“The investigation is under way, and we are waiting for its results. The investigation must answer a lot of questions,” Yermak added.

Without anyone in the United States lifting a finger, then, Ukraine may provide damning new evidence about Trump’s attempt to coerce assistance on his “perfect phone call” with Volodymyr Zelensky that will make GOP negligence during the last impeachment more damning.

And in the case of the January 6 insurrection, DOJ has already mapped out a conspiracy charge that Trump could easily be charged under as well.

PURPOSE OF THE CONSPIRACY

18. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

MANNER AND MEANS

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

Meanwhile, Acting DC US Attorney Michael Sherwin has repeatedly refused to rule out incitement charges. Indeed, I’ve argued that DOJ almost certainly will need to incorporate at least Mike Flynn, if not Trump himself, in their description of the crimes of January 6, if only to distinguish the events of that day from other protected First Amendment activity — and at least some prosecutors in DC closer to the overall investigation seem to be doing that.

There’s no guarantee that Merrick Garland’s DOJ will have the courage to pursue Trump’s role in this (though thus far, Bill Barr appointee Michael Sherwin has not shied from such an investigation, and if he oversaw such a decision it would mitigate the political blowback). There’s no sign, yet, that DOJ has identified how the coup attempt tied into Rudy’s attempts to delay the certification.

But no Senator serving as juror in this impeachment should assume the investigation won’t, inevitably, disclose the machinations that tied Trump’s efforts to stay in office to the death and destruction on January 6. Indeed, there’s no guarantee that the actions of key jurors — like Josh Hawley and Ted Cruz for inciting the mob, Tommy Tuberville for his direct coordination with Rudy, and Lindsey Graham for his own efforts to throw out votes in Georgia and his meeting with accused insurrectionist Joe Biggs — won’t ultimately be incorporated into the larger conspiracy.

And so while it may be easy for lazy political journalism to spout conventional wisdom about everyone wanting to move on, this time around it is as likely as not that the votes cast next month will age poorly as the investigation into how Trump’s action ties to the death and destruction continues.


Tunnels and Trump: The Missing Details in the Oath Keeper Conspiracy

Yesterday, DOJ indicted the three members of the Oath Keepers previously charged with a conspiracy: Thomas Edward Caldwell, Donovan Ray Crowl, and Jessica Marie Watkins.  I would be shocked if this indictment didn’t serve as a building block for a larger — potentially much larger — conspiracy. Which is why I’m interested in what the indictment includes and excludes in this first release.

The indictment adds details describing the planning and intent of the conspiracy. It shows Watkins planning around the inauguration as early as November 9, the day Trump’s enablers were claiming his efforts to undermine the election might serve as an “off-ramp.”

On November 9, 2020, WATKINS sent text messages to a number of individuals who had expressed interest in joining the Ohio State Regular Militia. In these messages, WATKINS mentioned, among other things, that the militia had a week-long “Basic Training class coming up in the beginning of January,” and WATKINS told one recruit, “I need you fighting fit by innaugeration.” [sic] WATKINS told another individual, “It’s a military style basic, here in Ohio, with a Marine Drill Sergeant running it. An hour north of Columbus Ohio[.]”

She also spoke in apocalyptic terms about a Biden presidency.

I can’t predict. I don’t underestimate the resolve of the Deep State. Biden may still yet be our President. If he is, our way of life as we know it is over. Our Republic would be over. Then it is our duty as Americans to fight, kill and die for our rights.

[snip]

[I]f Biden get the steal, none of us have a chance in my mind. We already have our neck in the noose. They just haven’t kicked the chair yet.

The indictment also includes language making it clear that Watkins believed she was responding to Trump’s instructions.

On December 29, 2020, CROWL and .WATKINS exchanged the following text messages:

WATKINS: You still going to Illinois? We plan on going to DC on the 6th, weather permitting.

CROWL: No . …. What’s going on on the 6th?

WATKINS: DC. Trump wants all able bodied Patriots to come. I’m sure Tom would love to see us as well.

WATKINS: If Trump activates the Insurrection Act, I’d hate to miss it[.]

Because of that and the way the indictment lays out the conspiracy, it makes the details not included in the indictment far more interesting.

The indictment includes a remarkably clear description of the goal and means of the conspiracy. The goal of the conspiracy was to stop Congress’ certification of the vote.

Purpose of the Conspiracy

18. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

Manner and Means

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

c. Coordinating in advance with others, including members of the Oath Keepers from other regions, and joining forces with these individuals and groups to further the January 6 operation;

d. Using a walkie-talkie-like application, and creating a channel on it named “Stop the Steal J6,” to make plans for and to communicate during the January 6 operation;

e. Traveling to and meeting up in Virginia, and continuing together into Washington, D.C., for the January 6 operation;

f. Bringing and contributing paramilitary gear and supplies for the January 6 operation;

g. Forcibly storming past exterior barricades, Capitol Police, and other law enforcement officers, and entering the Capitol complex in furtherance of the January 6 operation; and,

h. After January 6, 2021, concealing evidence of their involvement in the January 6 operation and attack on the Capitol.

While many of the means included military planning, the first two items were simply planning to interfere with the certification and “recruiting as large a following as possible” to participate.

Remember: under conspiracy law, each member of a conspiracy need only agree on a common goal, agree to participate in it, and take an overt act in furthering the conspiracy — an act that doesn’t even, by itself, have to be illegal.

And Watkins, here, not only cites Trump’s goal of wanting, “all able bodied Patriots to come” to DC, but she also describes the plan pushed by Mike Flynn, the invocation of the insurrection act.

Trump and Flynn conveyed those plans on Twitter. They both,

Us[ed] social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

It would be child’s play to include them in this conspiracy (though the manner and means would likely be expanded to include other steps the two of them took). Indeed, laid out like this, not eventually including at least those around Trump in this indictment would require some lengthy explanation.

Then there’s this passage that was included in the complaint but not included in the indictment, easily the most chilling language from the complaint.

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

It’s possible DOJ excluded that paragraph from the indictment because they learned it was not actually part of the conspiracy (which would be surprising, given that it was sent while Caldwell was in the Capitol).

It’s also possible that this language reflects coordination with people against whom the case still must be developed. Whoever it was not only appears to have had a detailed understanding of the Capitol, but may have had updates about the movement of members of Congress.

Just as one possibility, this person might have been one of the people who allegedly got a Capitol tour the day before the insurrection. This person may have been getting updates from insiders — up to and including Lauren Boebert, who twice tweeted about Nancy Pelosi’s movements during the riot.

In other words, this person appears to be a pivot between the terrorists and those giving them inside instruction. DOJ will likely keep what it knows about that part of the operation under wraps until it develops it much further.

Then there are three other people alluded to in the indictment:

  • PERSON ONE, who the conspirators expected might, but did not, provide leadership for this operation. He is referred to as “Stewie” in the complaint, which DOJ took to be a reference to the head of the Oath Keepers, Stewart Rhodes.
  • PERSON TWO, who appears to be Caldwell’s spouse. She joined him in breaching the Capitol, and if prosecutors wanted to pressure him to plead, they could threaten to include her.
  • PERSON THREE appears to be the lead of a group of North Carolina Oath Keepers who came to DC on a bus. That person and the people he or she brought are likely to be added to this indictment.

Those three people, including to those who directed the Oath Keepers how to navigate the Capitol and the Trump associates who incited them to come might all one day be included in this or a related indictment.

Again, I’m not guaranteeing that DOJ will be brave enough to name Trump in this conspiracy. But if they don’t, there will be real question how they avoided it.


Whither the Douglass Mackey Investigation?

Yesterday, the FBI arrested Douglass Mackey, a far right activist who used the pseudonym Ricky Vaughn, for his efforts in 2016 to suppress Clinton voters. The complaint charges Mackey with a conspiracy against others’ Constitutional rights under 18 USC §241. I want to unpack what the complaint says about where this investigation came from and where it might head, if anywhere.

Mackey and others led almost 5,000 people to miscast their 2016 vote

There’s a lot of language in the complaint about Mackey’s social media efforts — which has a number of right wingers, including those who were tangentially involved in this effort, whining about their own First Amendment rights. Ultimately, though, the crime boils down to ads that Mackay made and popularized in the weeks leading up to the 2016 election encouraging Hillary voters to text their vote. If people did so, they would have thought their vote was cast, when in effect they would have texted it to a void.

The complaint notes that the text code Mackey used for the campaign got 4,900 responses.

According to iVisionMobile, the company that owned the Text Code listed in the two Deceptive Images distributed by MACKEY, at least 4,900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the Text Code on or about and before Election Day, including many belonging to individuals in the Eastern District of New York. Of the approximately 4,900 numbers that corresponded with the Text Code, approximately 4,850, or 99%, sent their texts after MACKEY first tweeted a Deceptive Image from MACKEY Account 2. [my emphasis]

Effectively, then, the complaint argues that Mackey tricked almost 5,000 people to miscast a Hillary vote, thereby depriving them of their right to cast a valid vote.

This investigation was started and finalized under a Trump US Attorney

Right wingers are also whining that the timing of this complaint shows that the Deep State is moving against Trump supporters immediately after his departure.

That makes no sense.

First, at least two key steps in this investigation, interviews of Paul Nehlen and filmmaker Loren Feldman, happened last fall.

On or about October 5, 2020, FBI agents conducted a voluntary interview with the Congressional Candidate. The Congressional Candidate confirmed that “Ricky Vaughn’s” true name was MACKEY, and that MACKEY had offered his services to his/her campaign. The Congressional Candidate added that, although s/he had never met MACKEY in person, s/he frequently communicated with MACKEY by telephone and via MACKEY’s personal email accounts.

On or about October 19, 2020, FBI agents conducted a voluntary interview of the Filmmaker who again confirmed that s/he had interviewed MACKEY in 2016 and that s/he knew MACKEY at that time by his Twitter name of “Rickey Vaughn.” The Filmmaker futher confirmed that s/he had subsequently been shown a photograph of MACKEY and confirmed that the individual in the photograph was the individual the Filmmaker had met as “Ricky Vaughn.”

In October 2020, as now, the Brooklyn US Attorney was Seth DuCharme. While DuCharme spent his career in EDNY, he was a key aide to Bill Barr, both as Counselor and then PADAG. In July, Barr effectively swapped DuCharme back into EDNY and moved the then US Attorney, Richard Donoghue, to PADAG.

In other words, the guy whose name will be on this indictment is among Barr’s most trusted aides.

DuCharme even issued a strong statement about this prosecution when it was announced.

“There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” said Seth D. DuCharme, Acting U.S. Attorney for the Eastern District of New York. “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes. They will be investigated, caught and prosecuted to the full extent of the law.”

I argued in this post that early indictments in the Biden Administration would (because he’s not immediately replacing all US Attorneys) be approved by Trump loyalists, and this is a perfect example of that.

Actions completed in 2016 are being charged in 2021

One of the most interesting questions about this complaint is why actions that were completed in 2016 and didn’t appear to take much investigation beyond some warrants to Twitter and two interviews were only charged in 2021.

It’s not entirely clear where this investigation came from, but the most likely is that when HuffPo originally exposed Mackey in 2018, someone at the FBI or DOJ took notice. That seems all the more likely given that the complaint relies on some of the research in that original story, including that Mackey had a reach on Twitter well outside his follower count.

There was no mistaking Ricky Vaughn’s influence. He had tens of thousands of followers, and his talent for blending far-right propaganda with conservative messages on Twitter made him a key disseminator of extremist views to Republican voters and a central figure in the “alt-right” white supremacist movement that attached itself to Trump’s coattails. The MIT Media Lab named him to its list of top 150 influencers on the election, based on news appearances and social media impact. He finished ahead of NBC News, Drudge Report and Stephen Colbert. Mainstream conservatives didn’t know they were retweeting an avowed racist and anti-Semite, but they liked what Ricky Vaughn had to say.

So the simplest explanation for the genesis of this investigation is that article.

There are other possibilities, though.

For example, as that original HuffPo story noted, Mackey magnified one of the Internet Research Agency’s most effective Twitter accounts, TEN_GOP, which many right wingers mistakenly believed was the official account of Tennessee’s Republican Party.

In the data set of significant accounts we looked at, Ricky Vaughn retweeted @TEN_GOP the most, by far. Although Twitter shut down his @Ricky_Vaughn99 handle in October 2016, another handle he possibly used, @RapinBill, took over and retweeted @TEN_GOP at least 162 times between early March and late August 2017. (@RapinBill also retweeted @Pamela_Moore13, another Kremlin-controlled account, at least 37 times during this period.)

Some far-right sources suggest that @RapinBill might be an account run by another anonymous bad actor, an assertion for which there is no proof, but the account has nevertheless capitalized on the Ricky Vaughn brand of far-right intolerance and fake news. We will update this story as we learn more.

Curiously, @RapinBill, which is still active and followed by Donald Trump Jr., does not appear to have received a single reciprocal retweet from @TEN_GOP during the time period we looked at, perhaps indicating an attempt to conceal the connection. @RapinBill retweeted @TEN_GOP until the end. When Twitter finally shut down @TEN_GOP last August, after having ignored numerous complaints about the Russian account, Ricky Vaughn did not take it well. He groused that @TEN_GOP had been “banned for supporting our president.” Within hours, he was steering traffic to the Kremlin’s backup account:

Another possibility is that this investigation arose out of Mueller’s investigation of Mike Flynn and Roger Stone’s focus on social media during the 2016 election. As Luke O’Brien (the reporter who first unmasked Mackey) noted in his coverage of the complaint, Mackey had ties to efforts involving Flynn and Stone in 2016.

Mackey and the three co-conspirators that HuffPost was able to identify are closely associated with a group of high-level pro-Trump political saboteurs known as “MAGA3X” that had ties to the Trump campaign and Trump’s disgraced former national security adviser Michael Flynn.

Presided over by far-right Twitter influencer Mike Cernovich, white nationalist funder Jeff Giesea, who is a disciple of billionaire Peter Thiel, and neo-Nazi collaborator Jack Posobiec, who counts Roger Stone as a mentor, MAGA3X spearheaded the Pizzagate disinformation campaign on social media that targeted Hillary Clinton in the weeks before the 2016 election.

Mueller’s team focused closely on both Flynn and Stone’s involvement in social media in 2016. In August 2016, Stone pitched both Paul Manafort and Steve Bannon on how to win ugly using social media. The overt parts of Stone’s effort involved an Erik Prince-funded effort to suppress the black vote. One of the still-sealed warrants pertains to multiple Twitter accounts that don’t appear to be Stone’s. And Mueller interviewed several people who worked with Stone on social media campaigns (and asked Andrew Miller about Alex Jones’ campaigns, as well).

The biggest reason to doubt that this investigation comes out of Mueller’s is the venue. While Mackey has ties to Brooklyn, at the time of his actions, he was living in Manhattan, SDNY rather than EDNY. The complaint seems to claim venue based on victims who reside in EDNY, bolded in the blockquote above, not Mackey’s location at the time of his actions. If Mueller had referred this, he presumably would have referred it to where the actions took place, SDNY.

It’s also possible it comes out of the Intelligence Committees’ investigations into disinformation. As Quinta Jurecic noted last night, Mackey’s ads were among those Twitter shared with the committees in 2018, though not by name. But again, the logical place to pick that up would have been SDNY or even DC.

There’s one other possibility. Last fall, in an effort to feed Trump’s conspiracy theories, Barr affirmatively mobilized voter fraud investigations. If someone had been sitting on the evidence unveiled in 2018, Barr’s action would have provided the opportunity to wrap it up into an indictment, effectively using GOP claims of voter fraud as the excuse to prosecute GOP voter fraud.

DOJ charged just one member of a conspiracy

Perhaps the most enticing part of this complaint is that it explicitly includes four other people as co-conspirators.

It describes the actions of Mackey’s co-conspirators to include:

  • Discussing how best to optimize social media campaigns
  • Retweeting Mackey’s campaigns
  • Running several DM-based strategy groups called the Madman Group, the War Room, Fed Free Hatechat
  • Fine-tuning some of the ads used
  • Posting some of the actual ads
  • Adding Mackey’s new accounts back into the DM collaborations after Twitter shut down his accounts

It’s not entirely clear how EDNY chose to treat these four as co-conspirators as distinct from other Twitter users and DM collaboration participants.

O’Brien IDs three of the four co-conspirators:

The complaintlists four co-conspirators referred to only by Twitter “user IDs,” a unique string of numbers assigned to each Twitter account. HuffPost can report that one co-conspirator is a prominent alt-right botmaster who goes by “Microchip” and was instrumental in making pro-Trump and anti-Hillary Clinton hashtags and content go viral on Twitter during the 2016 election. A fascist accelerationist who has expressed admiration for Adolf Hitler and Nazism, Microchip claims to have been involved in the early spread of the QAnon conspiracy cult and repeatedly told this reporter that his goal was to destroy the United States.

Another of Mackey’s co-conspirators is Anthime “Baked Alaska” Gionet, a pro-Trump white nationalist who was arrested on Jan. 16 for his involvement in storming the Capitol on Jan. 6. Gionet also participated in the deadly white nationalist “Unite the Right” rally in Charlottesville, Virginia, in 2017. (A New York Times story reported Wednesday afternoon that Gionet was a co-conspirator, citing a source close to the investigation, and HuffPost can confirm that reporting based on the Twitter ID cited in the complaint.)

HuffPost was able to link the Twitter IDs in the complaint to Gionet and Microchip through previously collected Twitter data, interviews and evidence left by both extremists on other websites. In direct messages with this reporter last year, Microchip also confirmed that he was using the Twitter account associated with the user ID listed in the complaint.

The user ID for a third co-conspirator belongs to a pro-Trump far-right activist who goes by “Nia” and has a long history of spreading disinformation on Twitter. HuffPost has not yet been able to identify the fourth co-conspirator.

It’s unclear whether EDNY plans to add them in an indictment or not. It’s possible they just named them as co-conspirators so as to be able to use their DMs and other Tweets to build the case against Mackey (which would make it a matter of prosecutorial efficacy). It’s also possible they’ll get added when this is indicted.

Particularly given the inclusion of Baked Alaska in here, though, it’s possible that this is an effort to crack down on key far right propagandists as part of a larger crackdown in the wake of the January 6 insurrection.

There’s just one detail that suggests this might go further: the inclusion of a PIN prosecutor in the prosecution team.

Assistant U.S. Attorneys Erik Paulsen and Nathan Reilly of the Eastern District of New York, and Trial Attorney James Mann of the Criminal Division’s Public Integrity Section are prosecuting the case.

Among the other cases James Mann is or was prosecuting are the Andy Khawaja case funneling money from the UAE to both 2016 candidates (though only the Hillary side was charged; George Nader is one of the defendants) and the Elliot Broidy case, whose pardon will close out that case.

While his inclusion by no means makes this a certainty, it raises the chances that this social media activity will either be considered in the scope of campaign donations or might even involve foreign partners.


A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”

[snip]

EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.


Some Key Gaps in the January 6 Story [Updated]

DOJ continues to roll out arrests of people involved in the January 6 coup attempt.

But there are some obvious gaps in the (public) story so far.

Arrests relating to over 100 police assaults

In a filing submitted over the weekend, the government asserted that 139 cops were assaulted during the insurrection.

In the course of the insurrection, approximately 81 Capitol Police and 58 MPD officers were assaulted,

In its website tracking the people arrested so far, DOJ describes assault charges being filed against 12 people (updated on 2/1 to total 17 people):

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”).
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby.
  3. Matthew Caspel, who charged the National Guard.
  4. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer.
  5. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol.
  6. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault.
  7. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick.
  8. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops.
  9. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat.
  10. Chad Jones, who used a Trump flag to break the glass in the Speaker’s Lobby door just before Ashli Babbitt was shot and may have intimidated three officers who were pursuing that group.
  11. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat.
  12. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him.
  13. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol.
  14. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol.
  15. Dominic Pezzola, a Proud Boy who stole a shield from cops.
  16. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs.
  17. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher.
  18. Peter Schwartz, a felon who maced several cops.
  19. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another.

While a number of these men — Fairlamb, Jackson, Nichols, Shively, among others — allegedly assaulted multiple cops, that’s still far below the total of 139 alleged assaults.

That says the FBI is still looking for a significant number of people in assaults on police. Over the weekend, the FBI released BOLO posters showing 12 other men believed to have assaulted police — including two targeting individuals specifically.

The murder of Brian Sicknick

Of particular note, while the FBI has released a BOLO poster focused on the men who assaulted MPD Officer Michael Fanone, no such post has identified suspects as those suspected of killing Brian Sicknick (though note that Robert Sanford did assault a different officer with a fire extinguisher). There are many possible explanations for why his murder might be treated differently (not least that the culprits are more likely to flee).

But we haven’t seen anything to suggest who assaulted Sicknick badly enough to lead to his death.

The DNC and RNC bomber

On January 21, the FBI increased their reward for information leading to the guy believed to have planted pipe bombs at the DNC and RNC. But there’s no sign they’ve found the guy yet.

Rudy’s interlocutors

On January 15, Rudy Giuliani posted texts involving “James Sullivan” claiming he was going to blame the riot on “John,” that he had gotten “my agent out of trouble along with three other” Utahans, and mentioning “Kash.”

“John” is James’ brother, John Sullivan, someone long ago IDed by leftist activists as a provocateur who had been charged two days earlier. He was arrested on January 14, but bailed the next day.

“Kash,” is Kash Lee Kelly, whose parole officer IDed him at the scene. His bail in the gang-related drug conviction he was awaiting sentencing for in IL was revoked on January 14.

John Sullivan is the only Utahan that GWU identifies as being from Utah, meaning the three Utahans, in addition to James Sullivan, he claims to have gotten out of trouble thus far are (publicly at least) still not in trouble. No one yet arrested is identifiable as his “agent,” either.

That means, key people who might be a pivot between the rioters and Rudy Giuliani, who was coordinating events in Congress with an eye to how much time the rioters would give him, remain (again, publicly at least) at large.

There are around 73 sealed cases in the DC District, many of which probably having nothing to do with the January 6 insurrection and some of which are surely defendants already publicly charged whose cases have not yet been unsealed in the DC docket. The reasons for unsealing could vary — though the most common would be that someone hasn’t been arrested yet). Still, some of these sealed cases may be people who’ve already moved to cooperate.

Update, 2/1: I’ve updated the list of those charged with assault.


Bill Barr’s Entire DOJ Chased Trump Conspiracy Theories and Plotted Inappropriately

When Bill Barr resigned rather than do the President’s bidding to challenge elections that were perfectly fair, he could have revealed that fact publicly, okayed the indictment of one of the chief purveyors of election conspiracies, Rudy Giuliani, and admitted that the entire basis for undermining the prosecution of Mike Flynn — who had already called for martial law and an election do-over — was based on conspiracy theories spun by the same woman spinning the worst election hoaxes, Sidney Powell.

He didn’t do that.

Instead, he announced his resignation with a page of abject sycophancy that repeated the conspiracy theory that got Barr hired: that the Russian investigation was, “an effort to cripple, if not oust, your Administration with frenzied and baseless accusations of collusion with Russia.”

Even before that, though, Barr launched his letter with an ambiguous statement about the election, one that might be read either as endorsing Trump’s conspiracy theories or debunking them:

I appreciate the opportunity to update you this afternoon on the Department’s review of voter fraud allegations in the 2020 election and how these allegations will continue to be pursued. At a time when the country is so deeply divided, it is incumbent on all levels of government, and all agencies acting within their purview, to do all we can to assure the integrity of elections and promote public confidence in their outcome.

At a moment where he had maximal power to halt Trump’s efforts to overturn an election, then, Barr instead just cowered, resting on the one public statement that there was not sufficient fraud to overturn the election that had gotten him ousted.

Which is to say that to the end, Barr never foreswore the conspiracy theories he adopted in service to Donald Trump.

Now, however, others who also facilitated Donald Trump’s conspiracy theories for years until they, in the final days, didn’t, are seeding stories to suggest that Jeffrey Bossert Clark was in any way unique for doing so.

The story starts with a tale that suggests the top leaders in a DOJ that had broken all norms in service of Donald Trump weren’t, themselves, in the “Trumpist faction” of the Republican Party.

It was New Year’s Eve, but the Justice Department’s top leaders had little to celebrate as they admonished Jeffrey Clark, the acting head of the civil division, for repeatedly pushing them to help President Donald J. Trump undo his electoral loss.

Huddled in the department’s headquarters, they rebuked him for secretly meeting with Mr. Trump, even as the department had rebuffed the president’s outlandish requests for court filings and special counsels, according to six people with knowledge of the meeting. No official would host a news conference to say that federal fraud investigations cast the results in doubt, they told him. No one would send a letter making such claims to Georgia lawmakers.

When the meeting ended not long before midnight, Acting Attorney General Jeffrey A. Rosen thought the matter had been settled, never suspecting that his subordinate would secretly discuss the plan for the letter with Mr. Trump, and very nearly take Mr. Rosen’s job, as part of a plot with the president to wield the department’s power to try to alter the Georgia election outcome.

It was clear that night, though, that Mr. Clark — with his willingness to entertain conspiracy theories about voting booth hacks and election fraud — was not the establishment lawyer they thought him to be. Some senior department leaders had considered him quiet, hard-working and detail-oriented. Others said they knew nothing about him, so low was his profile. He struck neither his fans in the department nor his detractors as being part of the Trumpist faction of the party, according to interviews.

The department’s senior leaders were shocked when Mr. Clark’s machinations came to light. They have spent recent weeks debating how he came to betray Mr. Rosen, his biggest champion at the department, and what blend of ambition and conviction led him to reject the results of the election and embrace Mr. Trump’s claims, despite all evidence to the contrary, including inside the department itself. [my emphasis]

You’ll note that the NYT didn’t explain why it granted six surely very powerful people, mostly lawyers, anonymity to spin this tale?

Buried much deeper in the story, however, after retelling all the ways Clark broke normal procedure while running the Environmental Division, the NYT then explains how he came to be Acting head of the Civil Department and in that role took a number of inexcusable steps that neither Bill Barr nor Jeffrey Rosen objected to (indeed, those may have been the steps that drove Jody Hunt away and won Clark the job).

While Mr. Clark oversaw environmental cases, sometimes working late into the night and personally reviewing briefs, the department’s civil division was in turmoil. Its leader, Jody Hunt, sometimes clashed with the White House Counsel’s Office and, later on, with Attorney General William P. Barr, over how best to defend the administration.

Mr. Hunt resigned with no warning in July, leaving his deputy to run the division while Mr. Barr and Mr. Rosen searched for an acting leader among the department’s thinned-out ranks. Mr. Clark wanted the job, which was a considerable step up in stature, and Mr. Rosen supported the idea even though he was already a division head, according to three people with knowledge of the situation.

After he took the helm of the civil division in September, colleagues began seeing flashes of unusual behavior. Mr. Clark’s name appeared on eyebrow-raising briefs, including what would turn out to be an unsuccessful effort to inject the government into a defamation lawsuit against Mr. Trump by a woman who has said he raped her more than two decades ago. He also signed onto an attempt to use the Justice Department to sue a former friend of the first lady at the time, Melania Trump, for writing a tell-all memoir.

Remember: the currently operative story is that Clark didn’t know Trump until Congressman Scott Perry introduced them, presumably after the election.

It was Mr. Perry, a member of the hard-line Freedom Caucus, who first made Mr. Trump aware that a relatively obscure Justice Department official, Jeffrey Clark, the acting chief of the civil division, was sympathetic to Mr. Trump’s view that the election had been stolen, according to former administration officials who spoke with Mr. Clark and Mr. Trump.

Mr. Perry introduced the president to Mr. Clark, whose openness to conspiracy theories about election fraud presented Mr. Trump with a welcome change from the acting attorney general, Jeffrey A. Rosen, who stood by the results of the election and had repeatedly resisted the president’s efforts to undo them.

He didn’t get the Civil job because Trump picked him or because he promised to turn DOJ into Trump’s own personal law firm. Someone else must have picked him. That means Clark’s other decisions — one of which he took the day after he was installed and which were “Trumpist” by any definition of the term — had the full approval of the people now suggesting he went rogue later in the year. Indeed, those interventions may have been the entire reason he got picked to run the Civil Division.

Sure, Jeffrey Bossert Clark should be shunned in the respectable legal profession for helping Trump attempt a coup. But so should the men who willfully let DOJ champion Trump’s conspiracy theories for the two years before that.

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Originally Posted @ https://www.emptywheel.net/january-6-insurrection/page/18/