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The J6 Committee Proves Themselves To Be Suspect Media Whores

Well, here it is. J6 Chairman Bennie Thompson, clearly fueled by Liz Cheney, is going to do one of the dumbest things ever.

A “criminal referral” from this Committee means absolutely nothing. The DOJ will prosecute individuals and/or entities on their own. “Referrals” from Thompson, Cheney and the J6 Committee mean less than nothing legally.

It is noise. It is garbage. And worthless except for preening J6 members. They are proving themselves to be the infomercial jokes they are.

Trump Subpoena: The Revolution Will Not Be Signaled

The January 6 Committee has released the subpoena it sent to the former President.

It requires document production by November 4 and a deposition starting on November 14. Notably, the first deadline is before the election.

It focuses not just on Trump’s attempt to overturn the election, summon mobsters, and raise money off of it. There are several questions focused on obstruction: both document destruction and witness tampering.

The witness tampering one reads:

All documents, including communications sent or received through Signal or any other means, from July 1, 2021, to the present, relating or referring in any way to the investigation by the Select Committee and involving contacts with, or efforts to contact: (1) witnesses who appeared or who were or might be expected to appear before the Select Committee, including witnesses who served as White House staff during your administration, who served as staff for your 2020 campaign, and who served or currently serve in the United States Secret Service; or (2) counsel who represented such witnesses. The documents referenced in (1) and (2) include but are not limited to any communications regarding directly or indirectly paying the legal fees for any such witnesses, or finding, offering, or discussing employment for any such witnesses, and any communications with your former Deputy Chief of Staff Anthony Ornato or any employee of the Secret Service with whom you interacted on January 6, 2021.

The subpoena mentions Signal at least 13 times. Which strongly suggests the President was in direct communication with some of the coup plotters via the mobile app.

The Trump associates named in the subpoena include:

  • Roger Stone
  • Steve Bannon
  • Mike Flynn
  • Jeffrey Clark
  • John Eastman
  • Rudy Giuliani
  • Jenna Ellis
  • Sidney Powell
  • Kenneth Chesebro
  • Boris Epshteyn
  • Christina Bobb
  • Cleta Mitchell
  • Patrick Byrne

The subpoena even asks him for communications involving the Oath Keepers, Proud Boys, “or any other similar militia group or its members” from September 1, 2020 to the present.

The subpoena also asks the former President for all communications devices he used between November 3, 2020 and January 20, 2021. In the Stone trial, there were about nine devices identified on which he may have received a call during the 2016 election, and there are several others — such as that of his then bodyguard Keith Schiller — who weren’t discussed in the trial. Tony Ornato also receives a close focus in this subpoena; I wonder if he was receiving calls for the then-President on the Secret Service phone that has since been wiped.

 

On Trump’s Subpoena and Marc Short’s Testimony

The January 6 Committee conducted what may be the last of their hearings (barring new disclosures from witnesses they intend to recall, including, implicitly, Tony Ornato and Robert Engel) by voting to subpoena Trump, for both documents and testimony. The subpoena was proposed by Liz Cheney, who learned a thing or two about bureaucratic genius from her father.

I think the most likely outcome of that will be the expiration of the subpoena with the next Congress. With the likelihood Republicans will take the House, it will not be renewed. It will, however, give the Committee opportunity to package up their findings against Trump in something that’s not a referral.

And the full House may have to vote on the subpoena before the expiration of this Congress.

The subpoena is more interesting, in my opinion, for the way it might intersect with other investigations. For example, a subpoena to Trump for January 6 documents might cover some of the documents initially seized on August 8. As I have noted, there appear to be documents in both the materials already returned to Trump and those currently under dispute before Raymond Dearie that pertain to Trump’s big lies pertaining to Georgia.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

A subpoena for these documents may change the legal status of them — and Trump’s hoarding of them at his beach resort. It may also make them easier for others to obtain.

As it happens, though, the subpoena news also came on the same day that Marc Short testified to a grand jury about topics he (and his Executive Authority maximalist lawyer Emmet Flood) originally declined to answer.

A former top aide to Vice President Mike Pence returned before a grand jury Thursday to testify in a criminal probe of efforts to overturn the 2020 election after federal courts overruled President Donald Trump’s objections to the testimony, according to people familiar with the matter.

In a sealed decision that could clear the way for other top Trump White House officials to answer questions before a grand jury, Chief U.S. District Judge Beryl A. Howell ruled that former Pence chief of staff Marc Short probably possessed information important to the Justice Department’s criminal investigation of the Jan. 6, 2021, attack on the Capitol that was not available from other sources, one of those people said.

[snip]

According to people familiar with the matter, Short had appeared before a grand jury in downtown Washington in July, but declined to answer certain questions after Flood argued the communications of top White House advisers are protected — and presented written documentation from Trump’s lawyers that they were asserting executive privilege.

The Justice Department asked the court to intervene, urging Howell to override Trump’s claim and to compel Short to answer questions about his communications with Trump, one person said. After arguments Sept. 22, Howell granted the government’s motion, the people said, but because the investigation and an appeal are ongoing, it is unclear if or when a redacted opinion will become public.

Short and Windom were spotted at court again on Thursday, as was former Trump national security and defense aide Kash Patel.

SCOTUS has already ruled against Trump’s Executive Privilege claims before the January 6 Committee. If they were able to obtain his testimony — or if DOJ took his 14-page conspiratorial rant authored by former OAN hostess as a false statement to Congress — then it would create interesting tension between these two investigations.

As DOJ gets testimony from Short and, after him, others who invoked Executive Privilege, this subpoena to Trump will be in the background, a (very distant) possibility that Trump would be required to testify — as a witness, as opposed to the subject Trump is in the DOJ investigation — to the very same topics that his top aides are now testifying to.

It’s one more moving part that may get increasingly difficult to juggle.

More than Twenty Transcripts: The January 6 Committee’s Investigation into Fake Electors

Last week, Politico reported that the January 6 Committee is preparing to share twenty transcripts from their investigation. Thus far, no outlet has confirmed which twenty transcripts are in that bunch. But the delay of the Proud Boy leader trial has alleviated the urgency — one that arose out of discovery requirements, not investigative curiosity — behind DOJ’s request for those transcripts. Though unless the Oath Keepers’ bid to move their trial succeeds, there will be some urgency to obtain and turn over transcripts of Stewart Rhodes, Kellye SoRelle, Jason Van Tatenhove, Roger Stone, Alex Jones, and probably Ali Alexander’s depositions.

That suggests the initial twenty transcripts might pertain to the fake electors scheme, which (as CNN also noted), Bennie Thompson had previously said was a priority focus for DOJ.

If that’s the case, though, the number — twenty — is rather curious. That’s because the Committee subpoenaed more than twenty people involved in the scheme and spoke to still more.

First, there are the fourteen people who were subpoenaed back on January 28, the chair and secretary of the fake elector slate for each of seven states.

Of these fourteen people, DOJ is reported to have obtained warrants targeting McDonald and DeGraffenreid and included Cottle, Pellegrino, and Shafer in subpoenas, and probably also the Michigan electors.

In addition, there were six people subpoenaed in February. Here’s how the Committee described them:

Michael A. Roman and Gary Michael Brown served, respectively, as the Director and Deputy Director of Election Day Operations for former President Trump’s 2020 reelection campaign. They reportedly participated in efforts to promote allegations of fraud in the November 2020 election and encourage state legislators to appoint false “alternate” slates of electors.

Douglas V. Mastriano was part of a plan to arrange for an “alternate” slate of electors from Pennsylvania for former President Trump and reportedly spoke with President Trump about post-election activities.

Laura Cox reportedly witnessed Rudy Giuliani pressure state lawmakers to disregard election results in Michigan and say that certifying the election results would be a “criminal act.”

Mark W. Finchem advanced unsubstantiated claims about the election and helped organize an event in Phoenix, Arizona on November 30th, 2020 at which former President Trump’s legal team and others spoke and advanced unproven claims of election and voter fraud. He was in Washington on January 6th, 2021 and stated that he had evidence to deliver to Vice President Pence in an effort to postpone the awarding of electors.

Kelli Ward reportedly spoke to the former President and members of his staff about election certification issues in Arizona and acted to transmit documents claiming to be an  “alternate” Electoral College elector from Arizona.

Roman shows up in DOJ’s general fake elector subpoena (more on him here), and Finchem and Ward show up on at least some of the AZ-targeted ones.

Then there are others the Committee is known to have interviewed who show up on subpoenas from Thomas Windom’s DOJ investigation:

The Committee also sent the following people, also included in the Windom legal process, subpoenas and presumably interviewed them:

Finally, there are those with knowledge of the scheme whose depositions have shown up in Committee hearings, including, but not limited to the fourth hearing, which focused on The Big Lie (again, I’ve linked to those who received a formal subpoena).

  • Cleta Mitchell
  • Rusty Bowers, AZ House Speaker
  • Bill Stepien, Trump campaign manager
  • Matt Morgan, Trump campaign lawyer
  • Jocelyn Benson, MI Secretary of State
  • Mike Shirkey, MI Senate Majority Leader who visited the White House
  • Angela McCallum, Trump campaign staffer
  • Robert Sinners, Trump campaign staffer
  • Brian Cutler, PA House Speaker
  • Cassidy Hutchinson, who testified that discussions about fake electors started in November
  • Ronna McDaniel, GOP Chair

Mark Meadows, of course, was also key to the fake elector plot, but blew off a subpoena.

So the Committee subpoenaed at least thirty people who played roles in the fake elector schemes, with only Meadows known to have entirely blown off the subpoena, and also interviewed people like Justin Clark (Trump’s election lawyer, not the former DOJ official) who are also included on DOJ subpoenas.

I raise all this for several reasons.

I’m beginning an attempt to lay out the overlap (or not) between the various investigations, including Fani Willis’ Fulton County investigation, which has expanded to include the fake electors as well. The three investigations seem to be adopting fairly incompatible approaches, and that may create a conflict in the weeks ahead. This is a first pass at laying out the overlapping scope of the known Committee and DOJ investigations, which I hope leads others to correct and add to this effort.

But I started the effort when I realized that depositions of almost none of the fake electors themselves have appeared in the Committee hearings yet.

Just one, Andrew Hitt, was quoted in the January 6 Committee hearing focused on the Big Lie. Hitt claimed that the Wisconsin fake electors would only be used if a court ruled in favor of the state-based challenges to the election.

ANDREW HITT:

I was told that these would only count if a court ruled in our favor. So that 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.

Mind you, the Committee’s public focus was on those who rejected Trump’s attempts at fraud, even those who, like Laura Cox, had supported other schemes, like unnecessary audits. So it may well be that the transcripts of greatest interest to DOJ are those from depositions that were not shown publicly.

Or, it’s possible DOJ’s priorities have entirely changed, and they focused on other investigative prongs.

January 6 Committee Hearing Resources

June 9 Hearing (Peaceful Transfer of Power): Rayne’s open threadlive-tweet; post; transcript

June 13 Hearing (The Big Lie): Rayne’s open threadlive-tweetpost; transcript

June 16 Hearing (Pressuring Pence): Rayne’s open thread, live-tweet; post; transcript

June 21 Hearing (Election workers): Rayne’s open threadlive-tweetpost; transcript

June 23 Hearing (DOJ officials): Rayne’s open threadlive-tweetpost; transcript

June 28 Hearing (Cassidy Hutchinson): Rayne’s open threadlive-tweetpost; transcript

July 12 Hearing (Stephen Ayers): Rayne’s open threadlive-tweet post; transcript

July 21 Hearing (Sarah Matthews and Matthew Pottinger): Rayne’s open thread; live-tweet; post; transcript

A Tale of Three January 6 Misdemeanors: Steve Bannon, Baked Alaska, and Hatchet Speed

After pundits have spent 18 months complaining (falsely) that DOJ was only pursuing misdemeanor cases against January 6 culprits, at least a dozen media outlets assigned reporters to cover the week-long misdemeanor contempt trial for Steve Bannon. The triumphal coverage of Bannon’s guilty verdict will, I fear, continue to misinform viewers about the impact of this guilty verdict.

Bannon’s was almost certainly not the most important development in a January 6 misdemeanor case last week.

That’s true, first of all, because Bannon won’t go to prison anytime soon. After Judge Carl Nichols excluded most defenses Bannon would pursue, Bannon’s attorneys spent their time laying a record on issues they’ll raise in an appeal. Some are frivolous — about the make-up of the committee, about whether Bennie Thompson signed Bannon’s subpoena, about Bannon’s last-minute stunt to pretend he was cooperating. But one of the grounds on which Bannon will appeal, on whether he could rely on his attorney’s advice in blowing off the subpoena, is one about which Nichols agrees with Bannon — indeed, Nichols stated that he agreed over and over, as Josh Gerstein laid out.

Perhaps the most central figure in Bannon’s conviction Friday and the key to his potential victory in any appeal is a long-dead Detroit mobster and bootlegger, Peter “Horseface” Licavoli.

Licavoli died almost four decades ago and spent time in federal prison on a colorful variety of charges, including tax evasion, bribery and trafficking in stolen art. However, it was his refusal to testify to Sen. Estes Kefauver’s 1951 hearings on organized crime that produced a legal precedent central to Bannon’s case.

A decade later, the D.C. Circuit Court of Appeals upheld a contempt-of-Congress conviction against Licavoli, ruling that he could not rely on his lawyer’s legal advice as a defense.

While the precedent was set 61 years ago, U.S. District Court Carl Nichols concluded it is still good law and, as a result, Bannon could not use the advice-of-counsel defense. The ruling also undercut Bannon’s ability to argue that executive privilege excused him from showing up in response to the subpoena.

However, Nichols said on several occasions before and during the trial that he thinks the Licavoli case may well be wrong under modern legal standards, but he was compelled to apply it anyway.

“I was bound by D.C. Circuit precedent that I’m not even sure is right,” the Trump-appointed judge said Thursday.

Now, Bannon’s lawyers will face the task of trying to get the decision overturned or deemed irrelevant, something that may require getting Bannon’s case in front of the full bench of the appeals court or even taking it to the Supreme Court.

In reality, Bannon’s attorney told him — BEWARE — that his failure to comply would get him referred for prosecution. Bannon was warned he’d go to jail for blowing off this subpoena.

But the facts of whether Bannon really relied on his attorney’s advice would not get adjudicated until after the DC Circuit — and after it, SCOTUS — have a chance to review the precedent. And since Nichols agrees with Bannon that the precedent stinks (and since Bannon is a white collar criminal), he’s virtually certain to let Bannon stay out of jail for his appeal.

So Bannon is probably not going to jail for at least a year. And the precedent of this conviction — showing that the legal system allows a well-lawyered defendant all sorts of ways to stall a misdemeanor sentence — is not one that’s likely to persuade the few remaining people whom it would cover, most notably Peter Navarro and Ginni Thomas, to plead out or cooperate (members of Congress defying subpoenas will have entirely different reasons to challenge one, and people like Tony Ornato have already cooperated, in limited form, with the January 6 Committee).

Meanwhile, there were two other misdemeanor cases of probable greater significance to holding the perpetrators of January 6 accountable.

The first is Friday’s guilty plea of Anthime “Baked Alaska” Gionet for the standard parading charge most other misdemeanants plead to.

Gionet won’t be going to jail anytime soon, either: his sentencing is set for January 12. Though, given Gionet’s difficulties of late staying out of legal trouble, it is noteworthy that his plea includes the standard condition that committing a crime while his sentencing is pending could void the entire plea.

As noted, Gionet’s plea is just the standard misdemeanor plea that hundreds of other January 6 rioters have already pled to. But both Gionet’s public claims that the government was threatening Gionet with an obstruction charge if he did not cooperate, and the discussion at his aborted plea hearing in May, make it clear that this was one of the misdemeanor pleas in which the government obtains limited cooperation on the front end, in Gionet’s case, probably in the form of sharing communications that would otherwise require decryption (Brandon Straka, whose sentencing memo included reference to a sealed cooperation description, is the most notable of these pleas, but Proud Boy Jeff Finley also seems to have gotten one; a continuation in Finley’s sentencing “to fully evaluate the nature and seriousness of the defendant’s misconduct” suggests he may not be as cooperative as the government expected). Gionet’s plea was originally offered in December with a deadline of January 7, 2022. It seems to have taken some months to fulfill the terms of the deal. Gionet got cute at his first change of plea hearing in May, and proclaimed his own innocence, which almost got him in a place where the government could use the information he proffered in his own felony charges. Publicly, then, Gionet’s plea only means we’re deprived of the amusement of watching him continue to fuck himself, as he did in May; but behind the scenes, DOJ seems to believe he helped the overall investigation, likely by providing evidence against other movement extremists who made the attack on the Capitol successful but who did not enter it.

These misdemeanor plea deals offer less public hint at what the government got in exchange (which may be one reason DOJ likes them). Gionet’s statement of offense focuses mostly on the abundant evidence to prove that he knew he shouldn’t be in the Capitol, as well as the evidence DOJ would have used to prove an obstruction charge against him (which they would now have sworn allocution to if Gionet tries to renege again).

Unsurprisingly for an asshole like Gionet, it is full of the kind of inflammatory rhetoric that has really offended Judge Emmet Sullivan, who is presiding over Gionet’s case, when sentencing other January 6 trespassers. Among other things, Gionet admitted to saying:

  • “Let’s go, 1776”
  • “We are the Kraken, unleash the Kraken … trust the fucking plan, let’s go.”
  • “This was a fraudulent election, we’re standing up for the truth, God’s truth.”
  • [Speaking through a broken window to other rioters] “Come in, let’s go, come on in, make yourselves at home.”
  • [Speaking into the phone in a Senator’s office] “We need to get our boy, Donald J. Trump, into office. … America First is inevitable, let’s go, fuck globalists, let’s go.”
  • [In another Senator’s office, probably Jeff Merkley’s] “Occupy the Capitol, let’s go, we ain’t leaving this bitch.”
  • [To the cops telling him to leave] “You’re a fucking oathbreaker, you piece of shit, fuck you, fuck you, fuck you, you piece of shit, you broke your oath to the Constitution, fuck you.”

With both Gionet and Straka before him, DOJ seemed to have abundant evidence to prove an obstruction case, and the pundits complaining about the misdemeanor pleas might be better served asking whether DOJ is getting enough value from these misdemeanor pleas to justify not charging someone as toxic as Gionet with a felony.

I wrote more about the various ways DOJ is using misdemeanor pleas to advance the investigation here.

But we won’t be able to weigh that soon, if ever. For now, though, DOJ seems to believe they got enough cooperation from a key influencer to let him avoid a felony conviction (though I would be shocked if Sullivan let him avoid prison altogether).

The way DOJ has been using misdemeanor prosecutions to advance the overall investigation is important background to something that happened in the case of Hatchet Speed last week. Until his arrest, Speed was a Naval petty officer and cleared defense contractor for National Reconnaissance Office.

The investigative steps described in Speed’s arrest affidavit suggest that after FBI identified him via the Google GeoFence (he was usually masked when in the Capitol), they used an undercover FBI officer to meet with him, during which meetings he provided contradictory but damning explanations for his actions on January 6, including that he went to insurrection with some Proud Boys.

During this meeting, SPEED admitted that he entered the U.S. Capitol on January 6, 2021, and that he “made it to the Rotunda down below.” SPEED told UCE-1 that going to the Capitol on January 6 “was always the plan.” He explained, “We would listen to Donald Trump then all of us would go to the Capitol. Now the reason we were going to the Capitol was to protest what was going on in the Capitol… what they were doing was counting the ballots.”

On March 22, 2022, SPEED met with UCE-1 again. During that meeting, SPEED provided further details about his activities at the U.S. Capitol on January 6, 2021. SPEED stated that he went to the Capitol on January 6 with friends who were members of the Proud Boys, with whom he keeps in contact. 1 SPEED blamed “Antifa” for breaking windows and entering off-limit areas of the Capitol, and he blamed the police for using tear gas in a manner to force the crowd into the off-limit areas.

SPEED also blamed Antifa for knocking down fencing around the Capitol. He described walking over fencing and worrying about tripping, but not knowing that he was trespassing at the time.

SPEED claimed that he and the others initially did not intend to enter the Capitol. He said that his plan was to be outside the Capitol and listen to speeches “for the 12 hours it would take to do the 2-hour rebuttal for each of the 6 contested states.” However, SPEED explained, “what the FBI did in advance is they arrested or threatened all the people they knew were going to be the speakers so that there would be no leadership. They wanted to make sure there was no one there…they wanted to maximize the possibility of violence.”

[snip]

SPEED further told UCE-1 that “there was this staircase leading up to the Senate side, where like we knew it was ‘off limits’ because that was, also the staircase was covered by the structure they’d set up the inauguration…and so, we were like we don’t need to go up there. We’re not here to go in the building. We’re just here to make a statement ‘we are here and we are paying attention’…but, the ANTIFA kept sending people up the staircase and trying to get people to come and we’re all like ‘no, we’re not going to follow you’…”

SPEED decided to go up the staircase because he was “tired of getting tear gassed.” Once up the staircase, SPEED claimed he intended to stay outside the Capitol Building at “this huge portico porch thing which can hold a couple thousand people.” However, SPEED said, he got tear gassed again. He also heard that Vice President Mike Pence had “validated” certain ballots they considered “invalid.”

SPEED described Pence’s act as a betrayal. SPEED stated that, at that point, he “was like, ‘I’m going in there. Like I have no respect for people in this building. They have no respect for me. I have no respect for them.’” SPEED stated, “[S]o we all went in and we took control. Like, when you have that many thousands of people, like there’s nothing the cops can do…it’s impressive.” [my emphasis]

The visual confirmation of Speed’s presence in the Capitol — from a moment when he let down the mask he had gotten on Amazon on December 3 — relies on video that Gionet took (though that’s fairly common).

This is the kind of guy — a cleared defense contractor who went to the insurrection with some Proud Boys “with whom he keeps in contact” — whose cooperation DOJ has used fruitfully in the past. He’s also the kind of guy who presents the ongoing urgent concern about our Deep State being riddled with militia sympathizers.

Perhaps because of the ambivalence of Speed’s comments to the undercover officer, though, he was charged just with trespassing. His case was assigned to Trevor McFadden, the Trump appointed judge who has long suggested, evidence to the contrary, that DOJ was treating January 6 rioters unfairly as compared to lefty protestors.

McFadden has long criticized DOJ’s continued charging of misdemeanor cases, partly because he thinks it treats January 6 trespassers unfairly, partly because it means he has to work hard. Presumably in response and possibly in an attempt to force DOJ to stop, McFadden issued a standing order for misdemeanor cases before him that requires — on threat of sanctions — an immediate plea offer and all defendant-specific discovery within a week of the initial status hearing.

The Government is required to provide all “defendant-specific” discovery information to the Defense by the Initial Status Conference or within one week of the Defense request for reciprocal discovery under Fed. R. Crim. P. 16(b)(1), whichever is later. Regardless of any Defense request, the deadline for disclosure of any information covered by LCrR 5.1 is the Initial Status Conference. 1 Failure to strictly follow these timelines may result in sanctions, including likely Dismissal for Failure to Prosecute. The Government is also expected to provide any plea offer that it intends to make no later than the Initial Status Conference.

This makes it impossible for DOJ to use misdemeanor charges as an investigative tool. And the deadlines McFadden imposes, plus his explicit statements making it clear he will let misdemeanants off easy, makes it virtually impossible to use misdemeanors to obtain cooperation, too.

In a hearing on Thursday, McFadden made it clear that he does intend to impose sanctions if DOJ fails to meet the discovery deadline, even in spite of two specific characteristics of this case: that it involves classified discovery (which is not surprising given that Hatchet had clearance) and that DOJ seized 22 devices when they arrested Hatchet, some of which are encrypted. To add to the near impossibility that DOJ can comply with McFadden’s orders, the AUSA in this case, Alexis Loeb (who is prosecuting a number of Proud Boy and Proud Boy adjacent cases) is in San Francisco, so it’s not like she can go sit in Quantico to speed up the exploitation of Hatchet’s devices.

There’s a bit of a loophole here, in that even the standard misdemeanor pleas require sharing ones devices with the FBI, so to take advantage of what would surely be a punishment free plea deal, Hatchet might be required to open his devices for the FBI.

McFadden has, in the past, rewarded a January 6 defendant for espousing civil war. Here, he seems set to ensure that a Naval petty officer with ties to the militia that led the attack on the Capitol likewise escapes accountability.

If that happens, it may lead DOJ to rethink its charging patterns accordingly.

Update: Corrected Speed’s rank.

The January 6 Militia Witnesses Are Cooperating with DOJ, Probably Not the January 6 Committee

Liz Cheney made a comment in Thursday’s public hearing that has attracted some attention. As part of her explanation that the January 6 investigation is ongoing, she said,

As we present these initial findings, keep two points in mind. First, our investigation is still ongoing. So what we make public here will not be the complete set of information we will ultimately disclose. And second, the Department of Justice is currently working with cooperating witnesses and has disclosed to date only some of the information it has identified from encrypted communications and other sources.

Some have wondered whether this reflects some kind of insight into where the DOJ investigation is headed.

I doubt that Cheney’s comment reflects any greater insight into where DOJ is headed than I’ve gotten from tracking DOJ’s investigation closely, though as I’ll explain below, the Committee undoubtedly has non-public insight into how the militias coordinated with those close to Trump. (One possible — and important — exception to this assumption might be Joshua James, the Oath Keeper who is known to have testified in an NYPD inquiry targeting Roger Stone associate Sal Greco.)

While the Committee showed clips of depositions it had with Stewart Rhodes (pleading the Fifth in response to a question about arming members), Enrique Tarrio (expressing regret he didn’t monetize the Stand Back and Stand By comment), and Jeremy Bertino (who is Person-1 in the sedition indictment charging the Proud Boy leaders and who told the Committee that membership tripled in response to Trump’s comment), the more substantive claims about the militias on Thursday always cited the indictments against them, not evidence independently gathered by the Committee.

For example, Cheney described how Trump’s December 19, 2020 tweet, “initiated a chain of events. The tweet led to the planning for what occurred on January 6, including by the Proud Boys, who ultimately led the invasion of the Capitol and the violence on that day.” In his questioning of documentarian Nick Quested, Bennie Thompson likewise cited the indictment against the Proud Boys for claims about the lead-up to the attack.

To be sure, Thompson laid out details of the attack that are not generally known, but which are public: the Proud Boys skipped Trump’s speech and kicked off their attack to coincide with the Joint Session, not Trump’s speech; the Proud Boys first attacked at the site where the mob soon to be led by Alex Jones would arrive. I’ve laid out some of these dynamics in this post, and the Sedition Hunters have developed two detailed timelines that show how this worked, one describing the phases of the attack, and another capturing key communications of those implicated in it.

I’ve likewise noted what Cheney has: The Proud Boys — and virtually everyone else who organized in advance — responded to Trump’s tweet as if it was an order. I’ve also described — in a post called, “Back Was Stood, And By Was Stood: The Passive Voice Behind the Top Down Structure of the Charles Donohoe Statement of Offense” — how in cooperating witness Charles Donohoe’s Statement of Offense, DOJ for the first time used the passive voice to describe how the riot was announced.

[T]he foundation of that hierarchy that is so remarkable.

On December 19, 2020, plans were announced for a protest event in Washington, D.C., on January 6, 2021, which protest would coincide with Congress’s certification of the Electoral College vote.

On or before December 20, 2020, Tarrio approached Donohoe and solicited his interest in joining the leadership of a new chapter of the Proud Boys, called the Ministry of Self Defense (“MOSD”). Donohoe understood from Tarrio that the new chapter would be focused on the planning and execution of national rallies and would consist of hand-selected “rally” boys. Donohoe felt privileged to be included and agreed to participate.

Close to every other filing in the January 6 case that mentions the announcement of these plans actually cites what was taken as the formal announcement: Trump’s tweet, in response to which hundreds if not thousands of rioters began to make plans to come to DC.

Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump https://t.co/D8KrMHnFdK . A great report by Peter. Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!

The import of that December 19 tweet was clear even in real time; the NYT and WaPo recently returned to the central role it plays in a great number of January 6 cases.

But this statement of offense instead presents what was viewed as an order from Trump in the passive voice: “Plans were announced.” Trump announced those plans, as every other charging document makes clear.

And the next day, in response to that announcement, Tarrio started building that top-down hierarchical structure that would go on to intentionally assault the Capitol and cops.

There are many things this statement of offense does with that masterful use of the passive voice. It implicates, without mentioning, people like Peter Navarro and Ali Alexander, the former because he was mentioned in the tweet and the latter because he was organizing it. The statement of offense makes clear that Tarrio told Donohoe and other Ministry of Self Defense leaders about what their plan was, but doesn’t reveal what he has shared, particularly what he shared about direct planning with people close to Trump. Indeed, the language of the statement of offense leaves open the possibility that Tarrio was moving on this even before the public launch of the riot by Trump.

But most importantly, without naming him, this structure puts Trump at the head of that hierarchy that bears top-down responsibility for the intentional violence and damage in the service of obstructing the vote certification.

The implication from the Statement of Offense is that Donohoe learned certain things starting on December 20 that he has shared with prosecutors. One reason I’m pretty sure that prosecutors haven’t shared it with the Committee, yet, is because Donohoe’s cooperation does not show up in the discovery index provided to the defendants themselves on May 12, over a month after Donohoe flipped, which prosecutors filed publicly last week. Similarly, prosecutors have not yet explicitly told defense attorneys the person who shared a plan with Tarrio talking about occupying the Capitol, though they have the returns for Tarrio’s phone that should help defense attorneys learn that person’s identity.

(I do wonder whether a challenge to a very recent call records subpoena from the Committee by Russian-American Kristina Malimon, discovered by Kyle Cheney, not to mention the high profile former Trump impeachment lawyers representing her, means the Committee thinks they’ve figured out the person’s identity, though.)

The schedule of upcoming January 6 hearings explains one reason why Cheney referenced the ongoing investigation when citing DOJ’s cooperating witnesses:

  • June 13: The Big Lie
  • June 15: Decapitate DOJ
  • June 16: Pressuring Pence
  • June 21: Pressuring the States
  • Hearing 6: Trump Assembles a Mob and Sics it on Congress
  • Hearing 7: Trump Does Nothing as Capitol Is Attacked

The dates for the last two hearings, hearings that will include details about how the Proud Boys paused their attack to await reinforcements brought by Alex Jones, opened a second front in seeming coordination with the Oath Keepers and Jones, and considered a second assault until learning the National Guard had finally been deployed, are not known yet. Whenever they are, though, they’ll come after June 21, and therefore after the June 17 discovery deadline in the Proud Boy Leaders case. DOJ has said they won’t supersede the Leaders indictment beyond what it currently is (meaning no more co-conspirators will be added to it). But the fates of Persons-1 (Bertino), -2, and -3 are up in the air right now, as well as a number of charged Proud Boys (like Ron Loehrke), who played key roles in the tactical success of the attack but who have not yet been indicted. Similarly, the fates of those known to coordinate most closely with the militias — Roger Stone, Alex Jones, and Ali Alexander — remain uncertain.

Who knows? Their fates may be less uncertain between now and the last Committee hearing!

To be clear: as Chairman Thompson told Jake Tapper this week, the Committee does know of some of the coordination. I’ve heard of a communication implicating Stone that I believe the Committee has. Alex Jones complained about how many communications the Committee — specifically those of Cindy Chafian and Caroline Wren — had obtained, and one or both of them also communicated with Tarrio. A key focus of the testimony of Dustin Stockton and Jennifer Lawrence — and surely, Katrina Pierson, whom Stone and his associates have tried to blame for the attack — described their panic after Trump told his mob to walk to the Capitol. That testimony must explain why Pierson fought so hard to keep Wren’s chosen speakers, including Mike Flynn, Roger Stone, Brandon Straka, and others, off the stage. This fight also shows up in Mark Meadows’ texts. And Ali Alexander testified for eight hours; we’ll see how successfully the Committee debunked his already-debunked cover story, but Alexander lost his shit during the hearing on Thursday. The role of the Stop the Steal effort in delivering bodies to the right places at the Capitol is the most important known coordination from the day of the attack.

Rudy Giuliani also had communications with Proud Boy associate James Sullivan, Mike Flynn had some ties to militias (especially the First Amendment Praetorians), and Sidney Powell was paying for the defense of a number of militia members.

The Committee knows a great deal about how Trump’s mob got directed to the Capitol. But I suspect they’re still waiting to learn all the details that cooperating witnesses have provided.


Known cooperating witnesses

Oath Keepers

Jon Schaffer: The substance of Schaffer’s cooperation against the Oath Keepers is still not clear (and could well extend beyond them).

Graydon Young: Young interacted with Roger Stone in the weeks leading up to the attack, may know details of the alliance struck between Proud Boys and Florida Oath Keepers, and was part of the First Stack to bust into the Capitol; he also implicated his sister.

Mark Grods: Grods was the first Oath Keeper who was present at the Willard the day of the attack to flip, and likely provided details of the QRF and implicated Joshua James.

Caleb Berry: Berry would provide more details of Oath Keeper activities, potentially implicating Stone, in Florida, and also was witness to the attempt to hunt down Nancy Pelosi.

Jason Dolan: Dolan would explain why he and Kenneth Harrelson were waiting at the top of the East Stairs when the First Stack, Joe Biggs and his co-travelers, and Alex Jones and Ali Alexander converged there before the door was opened from the inside.

Joshua James: James called in reports from someone who is almost certainly Stone the day of the attack, participated in key discussions with Stewart Rhodes, Kelly Meggs, and Mike Simpson during the attack, and was closely involved in Rhodes’ continued efforts after January 6.

Brian Ulrich: Ulrich would provide details of planning specific to Georgia Oath Keepers and the advance planning in December.

Todd Wilson:  Wilson would explain the mobilization of the North Carolina Oath Keepers; he also witnessed a call Rhodes made to someone close to Trump after the riot.

Proud Boys

Matthew Greene: Greene will explain details of the communications involved the day of the attack and the specific goal to pressure Mike Pence.

Charles Donohoe: Donohoe will provide prosecutors an inside understanding of how the leadership of the Proud Boys worked, including with whom Tarrio may have been working starting in December and details about Tarrio’s arrest, which led Donohoe to try to fill in.

Louis Colon: A Kansas City Proud Boy who received perhaps the most favorable deal will undoubtedly implicate his co-conspirators and describe how the cell structure of the Proud Boys worked on January 6; he may also provide important debunking of someone who had been an FBI informant the day of the attac.

Others

Gina Bisignano: Bisignano cooperated against her fellow SoCal anti-maskers, but in the light of Carl Nichols’ rejection of DOJ’s application of obstruction, is attempting to withdraw her guilty plea. A hearing on her attempt to withdraw her plea will be held on June 22. She has not withdrawn her stated intent, one directly influenced by Trump’s speech, to pressure Mike Pence.

Josiah Colt: Colt cooperated against his co-conspirators, Ronnie Sandlin and Nate DeGrave, describing how they armed themselves and helped open both the East Door and the Senate Gallery.

Klete Keller: The substance of Keller’s cooperation is not known.

Jacob Fracker: Fracker testified against fellow VA cop Thomas Robertson.

Robert Lyon: Lyon testified against his co-defendant, Dustin Thompson.

Misdemeanor cooperators

Virtually all plea deals require the defendant to share their social media and sit for an interview with the FBI. A handful of defendants are known to have convinced prosecutors to drop or hold off felony charges by providing limited cooperation (including sharing encrypted communications) in advance. They are believed to include:

Jeff Finley: Finley was a co-traveler of Proud Boy Zach Rehl on January 6.

Brandon Straka: Straka who was among those excluded from speaking on January 6,  was on Ali Alexander’s Stop the Steal listserv, and spent time with Mike Flynn before heading to the Capitol.

Anthime “Baked Alaska” Gionet: Baked Alaska could share communications involving white nationalists like Nick Fuentes. But Gionet fucked up his plea colloquy, so prosecutors can charge him with a felony incorporating his cooperation if he doesn’t plead by July 10 (not like I’m counting days but that’s less than a month away).

Jacob Hiles: Hiles cooperated against Capitol Police Officer Michael Riley and his buddy James Horning.

Father and son Proud Boy pair Jeffrey and Jeremy Grace likely also avoided felony exposure by cooperating (though Jeffrey’s plea just got pushed back two weeks); they spent much of January 6 with Ron Loehrke.

The Peaceful Transfer of Power: What President Reagan Called, “Nothing Less than a Miracle”

I’ve caught up to all of you in the States watching the first January 6 Committee hearing (my Twitter commentary while watching the video is here).

I think the hearing was an effective scene-setter, laying out information in a coherent narrative.

Perhaps the most striking part of the hearing was the degree to which, aside from the two live witnesses, Capitol Police Officer Carolyn Edwards and Nick Quested, the hearing relied exclusively on Republicans to make their case, with clips from:

  • Jason Miller
  • Alex Cannon
  • Matt Morgan
  • Bill Barr
  • Ivanka
  • Mike Pence (from a video appearance at the Federalist Society)
  • Greg Jacob
  • Steve Bannon
  • General Mark Milley
  • Sean Hannity and Kayleigh McEnany
  • Jared
  • Jeremy Bertino
  • Enrique Tarrio
  • Stewart Rhodes
  • A number of Jan 6 defendants, including Eric Barber

If I’m not mistaken, Thomas Jefferson was the only Democratic President named, but a slew of Republican Presidents were named (George W Bush was not, but Gerald Ford was).

There was plenty of shaming, including calling out Jeffrey Clark and Scott Perry for refusing to cooperate and noting that Kevin McCarthy was scared.

The clip of Jared accusing Pat Cipollone of “whining” when he threatened to quit may make it more likely to get the former White House Counsel’s testimony.

In short, this was directed at Republicans and relied on Republicans to make the case for democracy.

In that frame, I found the closing words of Liz Cheney’s opening statement to be the most effective messaging.

I ask you to think of the scene in our Capitol Rotunda on the night of January 6. There in a sacred space in our Constitutional Republic. The place where our Presidents lie in state. Watched over by statues of Washington and Jefferson, Lincoln and Grant, Eisenhower, Ford, and Reagan. Against every wall that night encircling the room, there were SWAT teams. Men and women in tactical gear, with long guns, deployed inside our Capitol building. There in the Rotunda these brave men and women rested beneath paintings depicting the earliest scenes of our Republic, including one painted in 1824, depicting George Washington resigning his commission, voluntarily relinquishing power, handing control of the Continental Army back to Congress. With this noble act Washington set the indispensable example of the peaceful transfer of power, what President Reagan called, nothing less than a miracle. The sacred obligation to defend the peaceful transfer of power has been honored by every American President, except one. As Americans, we all have a duty to ensure that what happened on January 6 never happens again. To set aside partisan battles. To stand together, to perpetuate and preserve our great Republic.

With this speech (and the imagery), Cheney attempted to invoke the mantle of Reagan, her party’s (and our shared generation’s) political icon. In doing so, she attempted to make democracy a religion again, something worth defending.

At the very least, she provided some mythology on which she will rebuild her party.

Members of Congress Subpoena Members of Congress

The January 6 Committee just issued subpoenas to five of their colleagues.

Minority Leader Kevin McCarthy was in communication with President Trump before, during, and after the attack on January 6th. Mr. McCarthy was also in communication with other members of the White House staff during the attack and in the days before and after January 6th concerning the events at the Capitol. Mr. McCarthy also claimed to have had a discussion with the President in the immediate aftermath of the attack during which President Trump admitted some culpability for the attack.

Representative Scott Perry was directly involved with efforts to corrupt the Department of Justice and install Jeffrey Clark as acting Attorney General. In addition, Mr. Perry had various communications with the White House about a number of matters relevant to the Select Committee’s investigation, including allegations that Dominion voting machines had been corrupted.

Representative Jim Jordan was in communication with President Trump on January 6th and participated in meetings and discussions throughout late 2020 and early 2021 about strategies for overturning the 2020 election.

Representative Andy Biggs participated in meetings to plan various aspects of January 6th and was involved with plans to bring protestors to Washington for the counting of Electoral College votes. Mr. Biggs was involved in efforts to persuade state officials that the 2020 was stolen. Additionally, former White House personnel identified Mr. Biggs as potentially being involved in an effort to seek a presidential pardon for activities connected with the former President’s efforts to overturn the 2020 presidential election.

Representative Mo Brooks spoke at the rally on January 6th, encouraging rioters to “start taking down names and kicking ass.” In addition, Mr. Brooks has publicly described conversations in which the former President urged him to work to “rescind the election of 2020” and reinstall Mr. Trump as President. The Select Committee also has evidence that Mr. Brooks’s staff met with members of Vice President Pence’s staff before January 6th and conveyed the view that the Vice President does not have authority to unilaterally refuse to count certified electoral votes.

I suspect such a subpoena only conceivably has a chance in hell of working with Kevin McCarthy (or possibly Mo Brooks if he can do it quietly, given how Trump has targeted him). The rest of genuine criminal liability they’d like to use Speech and Debate to dodge.

But this provides a way for the January 6 Committee to package up what evidence they have against these five in such a way as to feed it to DOJ.

The Error that Betrays Insufficient Attention to the Obstruction Standard in the January 6 Eastman Filing

There’s a telling error in the January 6 Committee’s filing aiming to overcome John Eastman’s claims his emails are covered by Attorney-Client privilege. In the section asserting that Trump had probably violated 118 USC 1512(c)(2) — the same obstruction statute used to charge over 200 of the other January 6 defendants — the filing asserts that six judges “to date” have “refused to dismiss charges against defendants under the section.”

That number is incorrect. As of March 2, at least ten judges had upheld DOJ’s application of 18 USC 1512(c)(2), and a few more have as much as said they would.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean*
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson

When I first made this observation, I thought I was being a bit churlish in making it. But on reflection (and after reading the quotes from lawyers in this Charlie Savage article), I think it’s an important point. All the more so given how TV lawyers have claimed that, because the January 6 Committee has claimed Trump could be charged with obstruction, then damnit DOJ should already have done so.

The fact that the Jan 6 Committee isn’t even aware of all the obstruction rulings suggests they’ve been insufficiently attentive to what the rulings actually say, aside from the baseline holding of all of them that the vote certification was an official proceeding.

While ten judges have upheld the application, there are some differences between these opinions, particularly with regards to their formulation of the corrupt mens rea required by the statute. The most important differences from my review (but I’m not a constitutional lawyer and so I should not be the one doing this analysis!!!!!), are:

  • Whether “corrupt” intent requires otherwise illegal action
  • Whether such corruption would be transitive (an attempt to get someone else to act improperly) or intransitive (whether it would require only corruption of oneself)

Dabney Friedrich argued (and I laid out briefly here) — and has repeatedly warned in pretrial hearings for Guy Reffitt — that as she understand this application it must involve otherwise illegal actions. Amit Mehta ruled (as I wrote up here) that, at least for the Oath Keepers, this corruption may be just intransitive.

On both these issues, the Jan 6 Committee’s argument is a bit muddled. Here’s how they argue that Trump’s actions (and, less aggressively, Eastman’s) demonstrate that corrupt intent.

The Electoral Count Act of 1887 provides for objections by House and Senate members, and a process to resolve such objections through votes in each separate chamber. 3 U.S.C. §§ 5, 6, 15. Nothing in the Twelfth Amendment or the Electoral Count Act provides a basis for the presiding officer of the Senate to unilaterally refuse to count electoral votes — for any reason. Any such effort by the presiding officer would violate hte law. This is exactly what the Vice President’s counsel explained at length to Plaintiff and President Trump before January 6. Plaintiff acknowledge that the Supreme Court would reject such an effort 9-0. And the Vice President made this crystal clear in writing on January 6: [1] any attempt by the Vice President to take the course of action the President insisted he take would have been illegal

Nevertheless, pursuant to the Plaintiff’s plan, the President repeatedly asked the Vice President to exercise unilateral authority illegally, as presiding officer of the Joint Session of Congress, to refuse to count electoral votes. See supra at 11-13. In service of this effort, he and Plaintiff met with the Vice President and his staff several times to advocate that he universally reject and refuse to count or prevent the counting of certified electoral votes, and both also engaged in a public campaign to pressure the Vice President. See supra at 3-17.

The President and Plaintiff also took steps to alter the certification of electors from various states.

[snip]

The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but [2] the President nevertheless sought to use the Vice President to manipulate the results in his favor.

[snip]

[T]he President and the Plaintiff engaged in an extensive public and private campaign to convince the Vice President to reject certain Biden electors or delay the proceedings, without basis, so that the President and his associates would have additional time to manipulate the results. [3] Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result. [numbering and bold mine]

As I said, I think this is a bit of a muddle. For starters, the Jan 6 Committee is not arguing that the delay actually caused by Trump’s mob amounted to obstruction. Rather, they’re arguing (at [3]) that had Eastman’s efforts to get Pence to himself impose a delay would be obstruction.

They make that argument even though they have evidence to more closely align their argument to the fact pattern ten judges have already approved. The emails included with this filing show Pence Counsel Greg Jacob twice accusing Eastman of convincing Trump of a theory that Trump then shared with his followers, which in turn caused the riot.

[T]hanks to your bullshit, we are now under siege.

[snip]

[I]t was gravely, gravely irresponsible of you to entice the President of with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.

That is, Jacob argued, in real time, that Eastman’s knowingly impossible theory, amplified by the President, caused the riot that ended up putting Pence’s life at risk and delaying the vote certification. But the Jan 6 Committee argues instead that the attempted persuasion of Pence the was the obstructive act.

Perhaps as a result, the agency (transitive versus intransitive) involved in this obstructive act is likewise muddled. In one place (at [1]), the Jan 6 Committee argues that the obstructive act was a failed attempt to persuade Pence to take an illegal action. I’m not sure any of the failed attempts to persuade people to do something illegal (to persuade Pence to do something he couldn’t do, to persuade members of Congress to challenge the vote with either good faith or cynical challenges, to persuade Jeffrey Clark to serve as Acting Attorney General) would sustain legal challenges.

If the Commander in Chief ordered his Vice President to take an illegal act, that would be a bit different, but that’s not what the Jan 6 Committee argues happened here.

Elsewhere, this filing (and other attempts to apply obstruction to Trump) point to Trump’s awareness (at [2]) that he lost the election, and so his attempts to win anyway exhibit an intransitive corrupt intent.

As Charlie Savage noted in his story and a thread on same, to some degree the Jan 6 Committee doesn’t need to do any better. They’re not indicting Trump, they’re just trying to get emails they will likely get via other means anyway (and as such, the inclusion of this argument is significantly PR).

But to the extent that this filing — and not, say, the opinion issued by Judge Mehta after he had approved obstruction, in which he both ruled it was plausible that Trump had conspired with two militias and, more importantly (and to me, at least, shockingly), said it was also plausible that Trump may be liable under an aid and abet standard — is being used as the model for applying obstruction to Trump, it is encouraging a lot of unicorn thinking and, more importantly, a lot of really sloppy thinking. There are so many ways to charge Trump with obstruction that don’t require an inquiry into his beliefs about losing the election, and those are the ones DOJ has laid a groundwork for.

Plus, there are a few more realities that TV lawyers who want to talk about obstruction should consider.

First, it is virtually guaranteed that Friedrich’s opinion — the one that holds that “corrupt” must involve otherwise illegal actions — will be the first one appealed. That’s because whatever happens with the Guy Reffitt trial this week and next, it’s likely it will be appealed. And Reffitt has been building in an appeal of Friedrich’s obstruction decision from the start. First trial, first appeal. So TV lawyers need to study up what she has said about otherwise illegal action and lay out some rebuttals if their theory of Trump’s liability involves mere persuasion.

Second, while ultimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

I’m convinced not just that Trump could be prosecuted for obstruction, but that DOJ has been working towards that for some time. But I’m not convinced the current January 6 Committee theory would survive.

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

Bennie Thompson filed his original lawsuit against Donald Trump on February 16, 2021. He amended it on April 7, 2021 to account for the legal dissolution of the Proud Boys, to add plaintiffs, and to add more details.

That means the allegations addressed in Judge Amit Mehta’s order rejecting Trump’s motion to dismiss are over ten months old and entirely predate the foundation of the January 6 Select Committee. The amended complaint was filed just days after DOJ arrested Joe Biggs’ co-travelers (providing the first documentary visibility on his second breach of the building) and similarly shortly after the first Oath Keepers superseding indictment to incorporate the Grand Theft Golf Cart chase by those who had been at the Willard the morning of the attack. In other words, the allegations addressed in Friday’s opinion were laid out an eternity ago in our understanding of the insurrection.

As Trump described it in his response to the amendment complaint, the only new things added pertained to Roger Stone and a public report that the FBI had found communications between a Trump associate and the Proud Boys.

The Amended Complaint added little in the way of additional material allegations. In paragraphs 70 and 71, Plaintiffs cryptically claim that someone associated with the White House communicated with the Proud Boys, without specifying who. They also try guilt by association. They claim to show a conspiracy to incite the January 6 riot by suggesting that at the “end of December” President Trump communicated with Roger Stone, who they then allege also communicated with members of the Proud Boys. Am. Compl. ¶ 71. Of course, they do not allege what conspiratorial statements were supposedly exchanged between any of the parties, other than to say that Mr. Stone met with Mr. Trump to ensure he “continues as our president.” Plaintiffs incredibly and without any detail also claim that Mr. Trump “knew” of the planning of the violence at the U.S. Capitol because of statements by supporters found on the dark corners of the Internet, seeking to implausibly impute his awareness of those statements. Id. at ¶¶ 66, 56-62.

Here’s that language from the amended complaint.

70. The White House was also in contact with the Proud Boys. An FBI review of phone records showed that, in the days leading up to the rally, a person associated with the Trump White House communicated with a member of the Proud Boys by phone.

71. At the same time, Defendant Trump was in contact with long-time associate Roger Stone, who was in contact with both the Proud Boys and the Oath Keepers. Mr. Stone posted on the social media website Parler that, at the end of December, he met with Defendant Trump to “ensure that Donald Trump continues as our president.” Proud Boys leader Enrique Tarrio confirmed that he called Roger Stone in early January. Members of the Oath Keepers agreed to serve as Mr. Stone’s security detail during the January 6 protests.

Judge Mehta, of course, has had front row seats as DOJ has continued to supersede the Oath Keeper indictments. That’s why his treatment of this exchange bears close notice.

The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.

He’s not relying on either of these allegations, and doesn’t think much of the first one.

I have always suspected that was a reference to Rudy Giuliani, who posted then immediately deleted and reposted newly-cropped communications with Proud Boy affiliate James Sullivan a week after the riot. In it, Sullivan proposed blaming the entire riot on his brother John. But Sullivan also spoke of at least five people who had participated in the riot (an “agent,” three Utahns, and Kash Kelly).

Kash Kelly remains charged by complaint over 13 months after his arrest. And other judges (Emmet Sullivan for John Sullivan, and possibly Randolph Moss for the most likely Utahns) are presiding over the cases in which this exchange might have shown up in some manner.

So unless Landon Copeland (also from Utah) is one of Sullivan’s Utahns, then Mehta would have little separate means to understand this reference, if it is even the one that came up in FBI toll records.

But even the public record of the Oath Keeper case has shown how close the ties between Stone and the Oath Keepers are, both in the weeks leading up to the insurrection in Florida and in the repeated calls from the Willard Hotel that morning. Indeed, Mehta may be persuaded of the plausibility of a conspiracy between the Oath Keepers and Proud Boys because of what he has seen of Stone’s role linked to the two, including in Kelly Meggs’ claims to have brokered a Florida-based alliance in December 2020.

And Mehta has almost certainly seen more of Stone’s role than what can be read through the redactions, particularly now that DOJ has spun off the part of the Oath Keeper conspiracy that most closely implicates Stone’s actions that day.

Judge Mehta didn’t rely on what he may know of Stone’s role in this conspiracy. But as the person with more familiarity about what the evidence is than anyone else, he suggested there’s a there there.

Update: Fixed “Utahan,” which is a misspelling I adopted from Sullivan before and which as someone who loved Utah when I lived there I really regret.

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