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So-So Tuesday Meanderings

Even eight hours after polls started closing on the Super Tuesday primaries yesterday, I see little of real interest in yesterday’s results.

The biggest news of the day remains that we’re rid of Kristen Sinema, which should make it easier for Ruben Gallego to replace her.

Another big news nugget yesterday confirmed what some had speculated: that when Elon Musk flew to West Palm Beach the other day, it was to allow Trump to beg him for cash. Musk famously demands full board control in business negotiations; imagine how such a discussion would go with Trump’s campaign team, who thus far have run a far more professional show than Trump’s past Presidential elections. Or, for that matter, Xitter under Musk’s direction.

Speaking of Nazi sympathizers, the North Carolina GOP nominated a Black Holocaust denier to run for governor.

Adam Schiff and Steve Garvey will face off to take Dianne Feinstein’s seat — and sadly, the progressives weren’t even close.

Nikki Haley appears to have won Vermont. [Update: At 10AM, Haley will suspend her campaign but not yet endorse Trump.] Joe Biden appears to have lost American Samoa. [Correction: Updated reporting says it was a delegate tie.]

It will take days to figure out how much of Haley’s vote — under 20% in more conservative states and Texas — reflected cross-overs. Similarly, it’ll take some time to understand the significance of protest votes against Joe Biden, the most significant of which was in Minnesota. And given what a weird situation a two incumbent general presents it’ll take days to figure out what the turnout means for Biden and Trump.

One of the most important measures, in my opinion, is in where and how Latinos voted — particularly if Colin Allred, now the Democratic nominee in Texas, has a chance of replacing Ted Cruz. Again, it’ll take days to make sense of that.

The big takeaway right now is that a whole lot of people don’t want to be facing a Trump-Biden rematch. But as of yesterday, it is virtually certain that’s what will happen.

John Durham Feigns Totally Dumb about Russian “Collusion”

The day the entire GOP refuses to pursue really draconian immigration legislation because Donald Trump has demanded they not do so — and especially not pass any more funding for Ukraine — seems like a good day to resume my effort to roll out a Ball of Thread in advance of explaining how Trump trained Republicans to hate rule of law.

This post is very simple. Under grilling from Adam Schiff during his House Judiciary Committee testimony last summer, John Durham played dumb — really, really dumb — about what Trump actually did in 2016 (there were a few more examples during the hearing, usually in exchange with Schiff).

It’s not surprising. But it is very similar to the way Scott Brady played dumb when quizzed (in a deposition, by House Judiciary Committee staffers) about what really happened in 2016. Again, not surprising. Just another example where key sycophants who played a central role in this process rigidly parroted the false cover story even when confronted with the truth.

 

Mr. Schiff. I thank you for yielding. One of my colleagues in the Republican side of the aisle took issue with my saying that the Trump Campaign invited Russian help, received Russian help, made use of it, and then lied about it. So, let’s break this down.

Let’s go to invited Russian help. Mr. Durham, you’re aware of Donald Trump’s public statements along the lines of, hey, Russia, if you’re listening, hack Hillary’s emails. You’ll be richly awarded by the press. Are you aware of that?

Mr. Durham. I’m aware of that.

Mr. Schiff. You’re aware that Mueller found that hours after he made that plea for Russian help, the Russians, in fact, tried to hack one of the email servers affiliated with the Clinton Campaign or family.

Mr. Durham. If that happened, I’m not aware of that.

Mr. Schiff. You’re not–

Mr. Durham. It could very well. I just don’t know.

Mr. Schiff. –aware of that in the Mueller Report? When you’re saying you’re not aware of evidence of collusion in the Mueller Report, it’s because apparently you haven’t read the Mueller Report every well if you’re not aware of that fact. Let me ask you about something else.

Mr. Durham. Sure.

Mr. Schiff. Don Jr. when offered dirt as part of what was described as Russian government effort to help the Trump Campaign said, “if it’s what you say, I love it;” Would you call that an invitation to get Russian help with dirt on Hillary Clinton?

Mr. Durham. The words speak for themselves, I supposed.

Mr. Schiff. I think they do. In fact, he said, especially late in summer. Late in summer was around when the Russians started to dump the stolen emails, wasn’t it?

Mr. Durham. Late in the summer, there was information that was disclosed by WikiLeaks in mid to late July. I think there had been some in June, and then there was maybe some later in October was it, I think. Don’t hold me to those dates.

Mr. Schiff. This gets to the receipt of help, second thing I mentioned, receiving Russian help. The dumping of those emails by the way just as forecast by what Papadopoulos told
the Australian diplomat. That is that the Russians would help by leaking dirt anonymously through cutouts like WikiLeaks and DCLeaks.

Mr. Durham. I don’t think that’s exactly what he told the Australians.

Mr. Schiff. Well, he said that he was informed that the Russians could anonymously release this information, right?

Mr. Durham. Release what?

Mr. Schiff. By anonymously releasing information damaging to Hillary Clinton, right?

Mr. Durham. I think if you read what’s in the cable and what’s in the report as to what the diplomats reported there was a suggestion of a suggestion that the Russians could help. They have damaging information as to Ms. Clinton.

Mr. Schiff. By releasing it anonymously, right? That’s exactly what happened, isn’t it?

Mr. Durham. I don’t–

Mr. Schiff. You really don’t know?

Mr. Durham. I’m not sure–when you say exactly what happened–

Mr. Schiff. Well, the Russians released stolen emails through cutouts, did they not?

Mr. Durham. There were emails that were released by WikiLeaks.

Mr. Schiff. It’s a very simple question. Did they release information, stolen information, through cutouts, yes or no?

Mr. Durham. I’m not sure that–

Mr. Schiff. You really don’t know the answer to that? The answer is yes, they did. Through DCLeaks–

Mr. Durham. In your mind, it’s yes.

Mr. Schiff. Well, Mueller’s answer is yes. More important than mine, Mueller’s answer was yes. Now, that information, of course, was helpful to the Trump Campaign, wasn’t it?

Mr. Durham. I don’t think there’s any question that Russians intruded into hacked into the systems.

Mr. Schiff. Well, I just want to get–

Mr. Durham. They released information.

Mr. Schiff. That was helpful to Trump Campaign, right?

Mr. Durham. The conclusion in the ICA and in the Mueller investigation was that the Russians intended to assist–

Mr. Schiff. Can you answer my question, Mr. Durham? That was helpful to Trump Campaign, right?

[Crosstalk.]

Mr. Schiff. Trump made use of that, as I said, didn’t he, by touting those stolen documents on the campaign trail over 100 times?
Mr. Durham. Like I said, I don’t really read the newspapers or listen to the news.

Mr. Schiff. You were totally–

Mr. Durham. I don’t find them reliable, so I don’t know that.

Mr. Schiff. Mr. Durham, you were totally oblivious to Donald Trump’s use of the stolen emails on the campaign trail more than 100 times?

Mr. Durham. I’m not aware of that.

Mr. Schiff. Did that escape your attention?

Mr. Durham. I am not aware of that.

Mr. Schiff. Are you aware of the final prong that I mentioned, that he lied about it, that the Trump Campaign covered it up? It’s the whole second volume of the Mueller Report. I hope you’re familiar with that.

Mr. Durham. Yes, that’s a section of the report, the second volume relating to their obstruction of justice.

Mr. Schiff. Well, thank you for confirming what my Republican colleague attacked me about. He also criticized the use of the word collusion. Apparently giving private polling data to the Russians while the Russians are helping your campaign, they don’t want to call it collusion.

Maybe there’s a better name for it. Maybe they would prefer we just call it good old fashioned GOP cheating with the enemy. Maybe that would be a little bit more accurate description.

Mr. Durham. Yes.

In His House Judiciary Committee Testimony, John Durham Confessed that Michael Horowitz Was Right

Given all the discussion of Trump ordering prosecutors to go after his political enemies, I want to go back — way back — to comment on something John Durham said at his House Judiciary Committee testimony in June.

Adam Schiff observed that Durham violated DOJ policy when, in December 2019, he publicly disagreed with the conclusion DOJ’s Inspector General had made in the Carter Page investigation.

Schiff: Mr. Durham, DOJ policy provides that you don’t speak about a pending investigation, and yet you did, didn’t you?

Durham: Um, I’m not exactly sure what–

Schiff: When the Inspector General issued a report saying that the investigation was properly predicated, you spoke out, in violation of Department of Justice, Department of Justice policy, to criticze the Inspector General’s conclusions, didn’t you?

Durham: I issued a public statement. I didn’t do it anonymously, I didn’t do it through third persons, there were —

Schiff: Nonetheless, you violated Department policy by issuing a statement while your investigation was ongoing, didn’t you?

Durham: I don’t know that. If I did, then I did. But I was not aware that I was violating some policy.

Schiff: And you also sought to get the Inspector General to change his conclusion, did you not, when he was concluding that the investigation was properly predicated. Did you privately seek to intervene to change that conclusion?

Durham: This is outside the scope of the report but if you want to go there, we asked the Inspector General to take a look at the intelligence that’s included in the classified appendix that you looked at, and said that that ought to affect portions of his report.

The classified appendix, recall, pertained to what Durham called the “Clinton Plan,” details Dutch intelligence found in purportedly hacked materials at GRU. That included documents purportedly stolen from a top Hillary Foreign Policy Advisor, on which a Russian intelligence product based a claim that,

Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.

From that allegation, Durham appears to have simply made up out of thin air a claim that Hillary planned to fabricate things to tie Trump to Russia, rather than just point to him begging Russia to hack the United States.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. [my emphasis]

In another exchange with Schiff at the hearing, Durham professed to be utterly ignorant of all the things confirmed in the Mueller investigation that provided abundant reason to tie Trump to Russia. There was no need to invent anything.

In any case, what Durham revealed in his testimony is that he shared this information with Michael Horowitz, expecting it would change his mind about the predication of Crossfire Hurricane.

That’s not all that surprising. After all, Durham described as the first mandate of his investigation to determine whether any personnel at the FBI violated federal law by not fully considering potential Russian disinformation before opening an investigation into Trump.

[D]id the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?

To put it bluntly, Bill Barr told John Durham to figure out whether he could charge Peter Strzok (and presumably, Jim Comey and Bill Priestap) for not letting a Russian intelligence report dictate American investigative decisions. And either in an attempt to preempt Horowitz’ conclusion that the investigation was legally predicated or in an attempt to stave off any determination on criminality, Durham pitched him on this theory before publicly attacking his conclusion.

And Durham did so even though — accepting all his conspiracy theories about inventing false claims about Trump were true — that theory never made sense. As Phil Bump (onetwo) and Dan Friedman showed when the report came out, Hillary’s concerns about Trump couldn’t have been the cause of the investigation into Trump. By the time (a Russian intelligence product claimed) that Hillary approved a plan to tie Trump to Russia on July 26, 2016, the events that would lead FBI to open an investigation were already in place. Here’s Friedman:

This isn’t just false. It would require time travel. Durham himself confirms that the FBI launched its investigation into Trump and Russia based on events that occurred months prior to Clinton’s alleged July 26 approval of the plan. In April 2016, George Papadopoulos, a foreign policy adviser to the Trump campaign, met with a professor with Kremlin ties, who informed him that Russia “had obtained ‘dirt’ on…Clinton in the form of thousands of emails,” as Robert Mueller’s final report noted.  A week later, according to Mueller, Papadopoulos “suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release” of damaging material. When hacked Democratic emails were indeed published—by WikiLeaks on July 22—this foreign diplomat alerted US officials about what Papadopoulos had said. The FBI quickly launched an official investigation into the Trump campaign’s Russia ties in response to that tip, Durham notes, while arguing they should have begun only a “preliminary investigation.”

It was the same Russian hack, not Hillary Clinton, that drove media attention, even before the documents were leaked to the public.

There’s another problem with telling Horowitz that his Clinton conspiracy theory should have changed Horowitz’ conclusions. At the earliest, analysts and Priestap only became aware of the intelligence (though probably without Durham’s spin on it) on September 2, well after the opening of Crossfire Hurricane.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

And despite looking for four years, Durham never confirmed that CIA’s formal referral memo got shared with Peter Strzok, to whom it was addressed.

In spite of never acquiring such proof, not even after four years of searching, recently confirmed Connecticut Supreme Court Justice Nora Dannehy has confirmed that Barr pushed Durham to release an interim report on those claims. NYT described that plan this way:

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

Ms. Dannehy erupted, according to people familiar with the matter. She told Mr. Durham that no report should be issued before the investigation was complete and especially not just before an election — and denounced the draft for taking disputed information at face value. She sent colleagues a memo detailing those concerns and resigned.

By that point, Durham hadn’t yet interviewed Priestap and others who might inform him of what they actually learned.

From the start, Durham was pursuing this conspiracy theory. He tried to forestall the damning but inconvenient conclusions of the Horowitz report to sustain his conspiracy theory. And he tried to interfere with the 2020 election with his physics-defying conspiracy theory.

Bill Barr didn’t just order John Durham to investigate Hillary Clinton and all the FBI agents who had deigned to investigate Trump’s ties to Russia. He did so based on a conspiracy theory rooted in Russian intelligence.

In the End, the Leopards Who Launched the Durham Investigation Ate His Face

I’m visiting family, so my longer analysis of John Durham’s appearance before Congress will have to wait until the weekend. Here’s my live thread of the hearing.

The arc of the hearing should begin with Durham’s final answer (in response to an insane rant from Harriet Hageman, Liz Cheney’s replacement in Congress), in which Durham claimed that if people believed there is a two-tiered system of justice, the nation cannot stand.

Before he provided this answer, Adam Schiff, to whom many Democratic members deferred, had noted that in Durham’s comparison of Hillary’s treatment by the FBI with Trump’s in his report, Durham had completely ignored the way Jim Comey had tanked Hillary’s campaign, first in July and then again in October 2016. Durham had ignored, in his treatment, the most consequential events in the 2016 campaign, arguably the decisive set of events. (As I’ve noted, even CNN concluded that Durham’s actual evidence, as opposed to his conclusions, actually shows that even on other investigations, Hillary was treated worse than Trump.)

So Durham, after having been called out for ignoring the way the FBI may have decided the election against Hillary, nevertheless reiterated his false claim that he showed the FBI applying a two-tiered system of justice against Trump.

Then Durham said that if people believe his false claim, it will sink the nation. In his final answer, Durham effectively said that if people believe his false claim, it will sink democracy in the United States.

With that endpoint in mind, let’s review what happened leading up to it.

An important recurring theme from most Democrats is that Merrick Garland respected Durham’s independence. Democrats repeatedly got Durham to confirm that Garland had never interfered with Durham’s independence and even got him to endorse the independence of Special Counsels, generally. As I predicted, Durham’s testimony will undercut GOP efforts to interfere in Jack Smith’s ongoing investigations into Trump and some Republicans in Congress.

Democrats also repeatedly laid out how Durham had spent $6.5 million and found no new crime.

A really central moment came — in advance of a procedural vote to censure Schiff on the floor — where Schiff laid out that his prior claims about the Russian investigation all proved true. Both with Trump’s public call for Russia to find Hillary’s emails and Don Jr’s enthusiastic acceptance of an offer of dirt on Hillary, Trump invited Russia’s help. He got the help he asked for in the form of further hacking of Hillary. And Trump made use of it, by relying on the stolen emails over and over again.

At one point, Schiff said that if you don’t want to call Paul Manafort handing internal campaign information to a Russian spy “collusion,” then you could just call it Republicans cheating with the enemy.

In another exchange, Schiff laid out how George Papadopoulos’ prediction of help from Russia came true, in the form of the release of stolen emails via cut-outs. Durham (whose claim to be aware of Trump’s emails and public news coverage was selective throughout), claimed to have no awareness that the Russian operation released stolen emails via three different cut-outs — dcleaks, Guccifer 2.0, and WikiLeaks. He had no idea, about that, he claimed!

In short, the Durham hearing gave Schiff (and others, but especially Schiff) several opportunities to lay out just how damning the Mueller investigation results were, particularly as compared to Durham’s own flimsy outcome. Each time, Durham claimed ignorance of key details of the Mueller Report.

That said, Durham was under oath. Throughout the hearing, he stopped short of making claims that he had — while still a prosecutor with near-total immunity — made in his report. For example, Durham did not state, in the hearing, that Hillary had a plan to frame Donald Trump, as opposed to simply pointing out his very real Russian ties.  He even, in the hearing, acknowledged that Igor Danchenko did not hide his ties to Charles Dolan, when asked. MoJo is out claiming that Durham lied under oath, but the way Durham backed off key claims he made in his report is far more telling about his witting actions. The claims Durham did not repeat under oath are the ones deserving of further scrutiny.

Which brings us to the three MAGAt members of Congress who questioned Durham after a break for votes, too late for any Democrat to rebut Durham.

First, there was Hageman’s rant.

Then, Andy Biggs stated as fact that there were crimes Durham had not prosecuted, including immigration crimes by Igor Danchenko. Biggs also stated that, “the division in this country, I can trace back, it is the Steele dossier paid for by Hillary Clinton.” Of course, the Durham Report provided yet more evidence that the disinformation in the dossier came from Oleg Deripaska, so I guess Andy Biggs is congratulating Deripaska for the damage that he did to the country. And doubling down on that damage.

The most heated challenge to Durham, however, came from Matt Gaetz (again, after a half-hour break for votes; somehow Gaetz got two chances to question Durham). Gaetz demanded to know how Durham was unable to find Joseph Mifsud — the guy whose comments to Trump’s Coffee Boy started this whole investigation — for an interview, even after Durham patiently described that no US prosecutor can demand subpoena compliance for suspected Russian spies located overseas. Durham described that, as happened with former counterintelligence investigative subject Sergei Millian, Mifsud’s lawyer refused to disclose Mifsud’s location.

In response, Gaetz accused Durham of being part of a cover-up.

Durham was like the Washington Generals, Gaetz accused, paid to lose the game. Because Durham couldn’t find someone against whom the SSCI Report showed ties of Russian intelligence ties, Gaetz suggested that Durham had, from the start, planned to cover up a Deep State operation against Donald Trump.

This whole thing was an op. This wasn’t bumbling fumbling FBI that couldn’t get FISA straight. This was an op. It begs the question whether you were really trying to figure that out.

As he did in response to a parallel line of questioning from Cori Bush and even Jerry Nadler, Durham insisted on the good faith of his team. He talked about the four years he spent away from his family to conduct this investigation that made America less safe.

I don’t doubt he believes his team engaged in a good faith investigation. As he said, sometimes confirmation bias can undermine even good faith actions.

The Durham investigation was kicked off in 2018 when a bunch of Tea Partiers like Gaetz gave Papadopoulos an opportunity to float conspiracy theories in the Congressional record. That’s literally what sent Durham and Barr on a junket together to Italy, the failed attempt to find Joseph Mifsud that Gaetz presents as proof that Durham was just part of a Deep State plot.

Durham ended his investigation with the leopards who kicked it off eating his face.

I’m not happy that more of Durham’s lies weren’t exposed at today’s hearing. The hearing could have been far more effective, as an effort to get to the truth.

But I can think of no more fitting way to end Durham’s four year effort to chase the conspiracy theories of George Papadopoulos than to have Matt Gaetz accuse him of being part of a Deep State op.

Durham set off in 2019 to chase down the conspiracy theories of people with close ties to Matt Gaetz. And Durham ended it by having Gaetz accuse Durham of the same things of which Durham accused others.

The leopard always eats your face.

Update: Fixed which Washington team intentionally loses rather than does so as the result of the right wing owner’s ineptitude.

The Intelligence Gaps Where the Saudis Hid Their October Surprise

NYT has a story on Joe Biden’s serial surprise as he discovered the Saudis were reneging on what the President thought was a deal to keep pumping oil.

Here’s the timeline:

May: Amos Hochstein and Brett McGurk believe they make a deal for a two-part increase of production

June 2: OPEC announces the first part of production increases and Biden announces his Saudi trip

June 3: Trump travels from Mar-a-Lago to Bedminster for Saudi golf tournament

June 7: Adam Schiff and others send Biden a letter warning about Saudi Arabia

Prior to July 15: Briefings for Intelligence Committees on secret plan

July 15: Biden meets with Mohammed bin Salman

August 3: Saudis announce half of production increase promised (“the first public warning”)

September 5: OPEC announced production cuts

Late September: US officials begin hearing of deep production cuts on October 5

September 24: MbS says there will be no production cuts

September 27: Abdulaziz argues cuts would impede diversification plans

September 28: Saudis inform the US they will announce production cuts

October 26: Jared Kushner speaks at Saudi investment summit

NYT emphasizes the Saudi expression of self interest and hints at influence from Russia.

American officials say they believe that Prince Mohammed was particularly influenced by a high-level Sept. 27 meeting in which Prince Abdulaziz, the energy minister, argued that oil production cuts were needed to keep prices from plummeting to as low as $50 per barrel. The U.S. officials said they learned Prince Abdulaziz asserted that, under such as scenario, the Saudi government would lack the resources to fund economic diversification projects at the heart of Prince Mohammed’s domestic agenda.

Some U.S. officials believe that the Russians influenced the Saudi about-face, pointing to Prince Abdulaziz’s strong working ties with top Russian officials close to Mr. Putin, particularly Alexander Novak, the deputy prime minister who oversees energy policy.

[snip]

On Tuesday, speaking on stage at the annual investment forum in Riyadh, Prince Abdulaziz said that the kingdom would do what was in its best interests.

“I keep listening to, ‘Are you with us or against us?’ Is there any room for, ‘We are for Saudi Arabia and the people of Saudi Arabia’?” he said. “We will have to deliver our ambitions.”

But the story focuses more on how the Americans repeatedly got caught by surprise.

The Americans came away from the summit with the belief that the agreement was on track and that Prince Mohammed was satisfied. But in Riyadh, top Saudi officials were privately telling others that they had no plans for further meaningful oil production increases.

Indeed, the first public warning of this came on Aug. 3, when OPEC Plus announced a paltry bump in production for September of 100,000 barrels a day — half of what U.S. officials believed the Saudis had promised them.

American officials said they did not understand why that decision was made. Then OPEC Plus announced on Sept. 5 it would cut production by 100,000 barrels per day — retracting the increase it had announced a month earlier. After that, U.S. officials were increasingly confused and concerned about the kingdom’s direction.

In late September, American officials began hearing that Saudi Arabia could get OPEC Plus to announce a deep cut to oil production at a meeting scheduled for Oct. 5. [my emphasis]

There’s no comment about Trump’s ongoing meetings with the Saudis as this transpired, not even the one the day after Biden announced his visit, the same day (as it happens) that Trump refused to give back all the classified documents he stole. There’s no comment about MbS’s repeated, publicly stated preference for Trump over Biden.

The story describes Biden’s surprise as the result of wishful thinking. And the US wasn’t totally surprised. They got advance warning of the October cuts with enough time to send Janet Yellen to attempt to reverse the cuts.

But as depicted, the Saudis were saying, from the start, that they intended to renege on the deal with Biden, and the US went on believing the deal would hold for months.

There is no way the US should be taken by that much surprise: not by the Saudis, not by the Israelis, not even by the Brits. If they genuinely were this badly surprised, it would suggest significant intelligence gaps on the part of the US. The US spends billions to avoid such surprises.

One of the last times the IC had a surprise this big came when Vladimir Putin decided, after secret phone calls with Mike Flynn, not to respond to Obama’s 2016 sanctions. (They quickly found an explanation for the surprising turn of events, which intelligence collection Trump’s Director of National Intelligence burned years later.)

Perhaps it’s the paranoia fostered by a man who repeatedly intervenes in US foreign policy to obtain personal benefit, but I can’t help but notice these intelligence failures followed Trump’s meeting with the Saudis in Bedminster.

In Both Bannon and Stolen Document Cases, Trump’s Associates Claim He Is Still President

Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal. 

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far.  (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)

 

As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.

DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation

Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.

Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.

Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.

Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).

Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.

That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.

They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.

The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.

So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.

She probably doesn’t give a damn.

There are two other developments we might expect this week, though.

First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.

If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.

The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.

More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”

5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.

This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.

And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.

That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.

Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.

If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.

Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.

But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.

How Adam Schiff Proves that Adam Schiff Is Lying that It Is “Unprecedented” for Congress to Be Ahead of DOJ

I had imagined I would write a post today introducing Andrew Weissmann — who like a lot of other TV lawyers has decided to weigh in on the January 6 investigation without first doing the least little bit of homework — to the multiple prongs of the DOJ investigation that he complains is not investigating multiple spokes at once.

Department of Justice January 6 investigations interview with Andrew Weissmann and Rep. Adam Schiff from R G on Vimeo.

But as I was prepping for that, I watched another of the Ari Melber pieces where he replicates this false claim.

Let me correct that. Melber actually doesn’t present Weissmann’s argument that the multiple pronged DOJ investigation should have multiple prongs, perhaps because since Weissmann first made it, it became clear he missed the Sidney Powell investigation entirely, the status of the investigations into Roger Stone and Rudy Giuliani, the influencers that DOJ has already prosecuted as part of the investigation into the crime scene, and that DOJ actually started the fake electors investigation months before it was previously known.

Rather, Melber presents Adam Schiff’s claim that it is “unprecedented” for a congressional committee to be “so far out ahead” of DOJ.

Melber: We haven’t seen this kind of — he called it a breakdown, you might put it differently, but whatever it is, between the Justice Department and the Committee, but it also reflects that you’ve gotten some witnesses first. Do you share Mr. Weissmann’s concern? Could the DOJ be doing more quickly?

Schiff: I very much share his concern and have been expressing a very similar concern really for months no. It is so unprecedented — and I’ve been a part of many Congressional investigations that have been contemporaneous with Justice Department investigations — but it is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation because as he was saying, as Andrew was saying, they’ve got potent tools to get information. They can enforce their own subpoenas in a way we can’t.

Let me introduce Adam Schiff to the House Intelligence Committee investigation into the 2016 Russian attack, on which a guy named Adam Schiff was first Ranking Member, then Chair, and the Mueller investigation into the same, on which Andrew Weissmann was a senior prosecutor.

Donald Trump Jr.

Interviewed by HPSCI on December 6, 2017

Never interviewed by Mueller’s team

Roger Stone

Interviewed by HPSCI on September 26, 2017

Never interviewed by Mueller’s team

Jared Kushner

First interviewed by HPSCI on July 25, 2017

First interviewed by DOJ on November 1, 2017

Steve Bannon

First interviewed by HPSCI on January 16, 2018

First interviewed by Mueller on February 12, 2018

John Podesta

Interviewed by HPSCI in June and December, 2017

Interviewed by Mueller in May 2018

Jeff Sessions

Interviewed by HPSCI on November 30, 2017

Interviewed by Mueller on January 17, 2018

JD Gordon

Interviewed by HPSCI on July 26, 2017

First interviewed by Mueller on August 29, 2017

Michael Caputo

Interviewed by HPSCI on July 14, 2017

Interviewed by Mueller on May 2, 2018

Michael Cohen

Interviewed by HPSCI on October 24, 2017

First interviewed by Mueller on August 7, 2018

Now, Schiff, who claimed it was unprecedented for a congressional investigation to precede a DOJ one, might say that the HPSCI investigation into Russia doesn’t count as a clear precedent because it wasn’t all that rigorous because it was led by Devin Nunes (that’s partly right, but there were plenty of Democratic staffers doing real work on that investigation too). But even on the January 6 Committee, there are already multiple instances where the Committee has interviewed witnesses before DOJ has (or interviewed witnesses that DOJ never will, before charging them), but gotten less valuable testimony than if they had waited.

One example, Ali Alexander, is instructive. He at least claimed he was going to tell the January 6 Committee a story that had already been debunked by DOJ. But before DOJ interviewed Alexander, at least two people with related information had gotten cooperation recognition in plea agreements, and several direct associates — most notably Owen Shroyer — had had their phones fully exploited.

Weissmann would likely point to good reasons why Mueller took more time, too: because later interviews with people like Michael Caputo or Jared Kushner required a lot more work on content acquired with covert warrants first, or because with people like Michael Cohen there was an entire financial investigation that preceded the first interview, or because DOJ was just a lot more careful to lay the groundwork with subjects of the investigation.

But the same is true here. DOJ will likely never interview Rudy on this investigation. But Lisa Monaco took steps on her first day in office that ensured that at whatever time DOJ obtained probable cause against Rudy, they had the content already privilege-reviewed. And DOJ did a lot of investigation into Sidney Powell before they started subpoenaing witnesses.

Many of the other witnesses that HPSCI interviewed long (or even just shortly) before DOJ did on Russia lied to HPSCI.

As both these men know, and know well, it is simply false that Congress never gets ahead of DOJ. But there are good reasons for that, and one of those reasons is precisely the one that Weissmann claims should lead DOJ to go more quickly: that it has far more tools to use to ensure that interviews that happen will more robustly support prosecutions.

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

January 6 Deconfliction: “This Is Part of a Much Bigger Conspiracy”

In a Detroit Free Press article on the forged electoral certificate presented from Michigan, the state’s awesome Attorney General Dana Nessel explained why, after investigating for almost a year, she is now referring the matter to the Grand Rapids US Attorney’s Office.

Nessel told Maddow that her office has been evaluating charges for almost a year but decided Thursday to refer the matter to the U.S. Attorney’s Office for the Western District of Michigan.

“We think this is a matter that is best investigated and potentially prosecuted by the feds,” Nessel said.

The signatories of the failed attempt to award Michigan’s Electoral College votes to Trump include Michigan GOP co-chair Meshawn Maddock, national Republican committeewoman Kathy Berden and Michigan GOP grassroots vice chair Marian Sheridan, among other pro-Trump activists in the party.

The decision does not preclude possible charges against the Republicans who falsely claimed that they cast Michigan’s Electoral College votes for Trump, Nessel said. And her office might still bring charges, she added.

“Under state law, I think clearly you have forgery of a public record, which is a 14-year offense and election law forgery, which is a five-year offense,” Nessel said.

“But, obviously, this is part of a much bigger conspiracy and our hope is that the federal authorities and the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they’ve received and make an evaluation as to what charges these individuals might (face),” she said.

Consider what happened to lead to this federal criminal referral. After electors sent fake certifications to the National Archives, NARA then sent them to Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs.

Vice President Mike Pence the winners of both Michigan and Arizona and their electors after the 2020 election. Public records requests show the secretaries of state for those states sent those certificates to the Jan. 6 panel, along with correspondence between the National Archives and state officials about the documents.

Spokespeople for the Michigan and Arizona secretaries of state declined to comment on the documents. The offices confirmed that Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs, both Democrats, and their staff met with the panel in November.

“They mostly discussed election administration in Arizona, the 2020 elections, threats/harassment directed toward the office, and the Cyber Ninja’s partisan ballot review,” said Hobbs’ spokesperson C. Murphy Hebert.

Benson and her staff took questions from the committee on the 2020 election and events leading up to the Jan. 6 riot, according to Tracy Wimmer, a spokesperson for Benson.

The National Archives sent emails to the Arizona secretary of state on Dec. 11, 2020, passing along the forged certificates “for your awareness” and informing the state officials the Archives would not accept them.

Arizona then took legal action against at least one of the groups who sent in the fake documents, sending a cease and desist letter to a pro-Trump “sovereign citizen” group telling them to stop using the state seal and referring the matter to the state attorney general.

“By affixing the state seal to documents containing false and misleading information about the results of Arizona’s November 3, 2020 General Election, you undermine the confidence in our democratic institutions,” Hobbs wrote to one of the pro-Trump groups.

Arizona took immediate action; given Nessel’s comments, Benson appears to have referred the matter to Nessel. Some of these details were made public last March after American Oversight obtained them. But after the January 6 Committee put them all in context and focused renewed attention to how the fake certificates fit into a larger effort, it led Nessel to hold off on pursuing potential 14-year charges against some of the most powerful Republicans in the state, and instead to formally refer the investigation to the Feds, based on the logic that the obviously coordinated effort to forge fake electoral certificates is part of a larger whole.

This is not dissimilar from how legal action from Florida’s charity regulator led to state action as well as a grand jury investigation into Sidney Powell’s grifting.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

Defending the Republic’s finances have already prompted an investigation and a settlement with Florida’s charity regulator. The group paid a $10,000 fine in September as part of a settlement agreement related to its solicitation of contributions and failure to register as a charitable organization in the state.

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

As part of that agreement, Powell’s group agreed to register as a charity in Florida and submitted a projected budget of over $7 million. The settlement agreement also required Defending the Republic to submit an audited financial statement for the group’s operations between December 2020 and July 2021 by Nov. 30, including a balance sheet and a list of expenses and revenue.

Meanwhile, Fulton County’s DA, Fani Willis, has been investigating Trump’s call to pressure Brad Raffensperger to cheat and will reportedly make a prosecutorial decision in the months ahead.

The prosecutor weighing whether Donald Trump and others committed crimes by trying to pressure Georgia officials to overturn Joe Biden’s presidential election victory said a decision on whether to bring charges could come as early as the first half of this year.

Fulton County District Attorney Fani Willis said in an interview with The Associated Press last week that her team is making solid progress, and she’s leaning toward asking for a special grand jury with subpoena power to aid the investigation.

“I believe in 2022 a decision will be made in that case,” Willis said. “I certainly think that in the first half of the year that decisions will be made.”

[snip]

Willis declined to speak about the specifics, but she confirmed that the investigation’s scope includes — but is not limited to — a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger, a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

Regardless of what Willis decides, she can also refer actions to the Feds because it, like the forged electoral certifications, “is part of a much bigger conspiracy.”

The point is (besides that we should be grateful that Democrats elected a lot of smart, fearless women in recent years) that there are lots of moving parts to this “much bigger conspiracy.” And all those moving parts have, as an option, referring their investigative findings to DOJ to drop it into the “much bigger conspiracy.”

So during the year when DOJ has been laying what Merrick Garland called “the evidentiary foundation for more complex cases,” states and local authorities have been conducting investigations that can be joined to that evidentiary foundation.

These are all parts of a much bigger conspiracy.

All these moving parts require coordination, however, or “deconfliction,” both in an effort to maximize cross-fertilization between the investigations and to ensure no investigation screws up the criminal investigations that might lead to real consequences. While there has been no reporting on how this is being done at DOJ, we can be sure it is, not least because DOJ and the Committee are muddling through the Executive Privilege questions in tandem.

Robert Mueller, for example, had his own congressional liaison, and referrals from the Senate Intelligence Committee led directly to plea deals with Sam Patten and Michael Cohen that, in turn, led to information both (and in the latter case, Trump’s lawyers) had shielded from the Committees.

Adam Schiff, now a member on the Select Committee, knows well that Mueller also used a House Intelligence Committee interview with Roger Stone as a basis for an obstruction prosecution against Trump’s rat-fucker. While the details are less clear, I also suspect that Steve Bannon’s interviews with HPSCI served to tee up the fruitful grand jury appearance for him in January 2019 about which Stone is still furious.

Liz Cheney brings a different knowledge base to the challenge of deconfliction. Her dad played a central role in screwing up the Special Prosecutor investigation into Iran-Contra by offering key witnesses immunity. He’s one reason why congressional committees hoping to preserve criminal investigations tread carefully. Hopefully, Congresswoman Cheney can apply lessons learned from her evil genius father to the forces of good on the Select Committee. She has the most to lose if this Committee doesn’t succeed.

As noted above, the most visible sign of this deconfliction has come on privilege reviews. In July, at the same time that DOJ established their contact policy fire-walling President Biden from learning about any ongoing investigations, DOJ got privilege waivers for former DOJ personnel to appear before Congress. After that, when the Select Committee, as an independent branch of government that is also fire-walled from the criminal investigation, asked for investigative materials from the Archives, Biden conducted privilege reviews of that material and waived privilege over much, but not all, of it. If and when that material is released, however, it would be available to anyone with a need, including DOJ.

In fact, the back and forth between the Committee and DOJ has likely already made investigative materials available to DOJ. That’s because, after the Select Committee made it clear Mark Meadows had violated the Presidential Records Act with regards to some of the materials he shared with the committee, Meadows undertook efforts to fix that. To the extent he is able to provide his personal emails and Signal texts to NARA (some of the latter are likely are unavailable), that material would become available to DOJ without subpoenaing Meadows. And to the extent this process reveals that materials of investigative interest to a grand jury were deleted when Meadows obtained a new phone, it will give DOJ reason to use legal process to either hold Meadows accountable for obstruction, or reason to get it from others, like Jim Jordan. To say nothing of the fact that Meadows can’t prevent DOJ from subpoenaing the call records that led him to renege on efforts to cooperate with the January 6 Committee. That’s why I doubt DOJ will hold Meadows in criminal contempt, because they would be better served to get that information — and coerce cooperation, if he chooses that route — via their own legal process. Effectively, then, Bennie Thompson wrote a rough draft of a warrant affidavit for the FBI.

It’s in the subpoenas for witnesses, however, that I’m most curious about with regards to deconfliction between the DOJ and Select Committee investigation. Consider: There are two Trump associates who were key in sowing the Big Lie, Rudy Giuliani and Sidney Powell, who are known to be under criminal investigation right now. That’s a topic the Select Committee is focusing closely on. But in spite of the fact that Bennie Thompson has expressed an interest in interviewing Rudy, thus far Thompson remains coy about how he’ll reach out to get Rudy’s testimony. There has been no public mention of getting Powell’s testimony or, for that matter, Lin Wood or Patrick Byrne, who — based on public reports — are part of that grifting investigation as well (and Byrne would be interesting of his own accord because he was honey-potted by a Russian spy). And for that matter, at least by the time he sued the committee, Mike Flynn’s call records hadn’t been subpoenaed either.

I’m equally interested in the timing of the Stewart Rhodes subpoena: November 23. That was after DOJ obtained an arrest warrant for James Beeks, the last member of The Stack, on November 18, but the day before they arrested him. By that point (probably long before), DOJ had to have known they were going to pursue sedition charges against him. But for some reason, they held off on the sedition charges when they superseded the Oath Keepers indictment on December 1 (before they otherwise would have needed to charge Beeks) to include him and tweak the Civil Disorder language in the indictment. There may be very good reasons they needed to wait: They needed to find Rhodes; they needed to finish exploiting his phone; they needed to resolve how they were going to treat the field commander, Mike Simmons, whose status in the investigation changed pretty dramatically between the December indictment and the Sedition one. But in that period while they held off, the Select Committee tested whether Rhodes wanted to go lie under oath to Congress. He declined.

It was worth a shot!

I find it equally curious that the Select Committee chose to target colleagues who played a more ambivalent role in the insurrection on January 6, rather than people like Paul Gosar or Mo Brooks, who have clear ties to organizers and other insurrectionists.

Similarly, I share Justin Hendrix’s curiosity why — especially in the wake of his article showing that The Donald isn’t being used in FBI affidavits — the Select Committee isn’t pursuing the role of the post-Reddit social media site in the insurrection, even while they expand their prior requests on more traditional social media.

In short, DOJ and the Select Committee are necessarily deconflicting their efforts, even if the Committee remains fire-walled from what DOJ has planned in the weeks ahead. But understanding that raises interesting questions about the Select Committee choices.

These pieces are all parts of a much bigger conspiracy. And until we see all those pieces we won’t see how they all work together.

But there are increasing signs that others are putting those pieces together.

Update: On January 18, the committee subpoenaed Rudy, Sidney Powell, and two others.

Update: On January 28, J6 subpoenaed the fake electors.

Select Committee Witness Requests