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Shrug: Beau Harrison’s Renewed Memory about Trump’s Lunge

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One trick of trying to map the DOJ investigations into Trump onto the testimony available from the January 6 Committee is that so many Trump associates could be witnesses on so many aspects of the investigation.

I noted, for example, how Alex Cannon is a direct witness to matters pertaining to the stolen documents, Trump’s Big Lie, Trump’s misuse of money raised to combat voter fraud, and the effort to take care of Cassidy Hutchinson. When Stephen Miller appeared before a grand jury twice in eight days, did he appear on different issues, or the same? When the two Pats, Cipollone and Philbin, split a long day in grand jury rooms, were they both exclusively in a January 6 grand jury, or did they also testify before the stolen documents one?

And when three Trump aides — Dan Scavino, William Russell, and Beau Harrison– appeared before a grand jury on December 1, did they all appear before the same grand jury and for the same prong of the investigation? Their subpoenas were first reported in a NYT article that revealed the focus on Trump’s use of PAC financing. All three continued their association with Trump after he left the White House. But that doesn’t mean their testimony only relates to the financial part of the investigation. Beau Harrison’s two interviews with J6C reveal why.

I’m not aware that an interview with Russell has been released (more on him here).

Scavino refused to cooperate with J6C, for which DOJ declined to prosecute him, though the J6C report did focus on how Scavino has been paid by Save America PAC.

[F]rom July 2021 to the present, Save America has been paying approximately $9,700 per month to Dan Scavino,171 a political adviser who served in the Trump administration as White House Deputy Chief of Staff.172 Save America was also paying $20,000 per month to an entity called Hudson Digital LLC. Hudson Digital LLC was registered in Delaware twenty days after the attack on the Capitol, on January 26, 2021,173 and began receiving payments from Save America on the day it was registered.174 Hudson Digital LLC has received payments totaling over $420,000, all described as “Digital consulting.”175 No website or any other information or mention of Hudson Digital LLC could be found online.176 Though Hudson Digital LLC is registered as a Delaware company, the FEC ScheduleB listing traces back to an address belonging to Dan and Catherine Scavino.177

That leaves just Beau Harrison’s two J6C appearances (April 7, 2022; August 18, 2022).

Harrison played an Advance role in the White House and was one of several witnesses with incomplete memories about January 6 who reported to Deputy Chief of Staff Tony Ornato. In fact, Harrison shared a small office with Ornato (parts of whose unpersuasive testimony I tweeted about here).

Three things stick out about Harrison’s testimony. First, Trump’s Executive Assistant Molly Michael (who is a known witness in the stolen documents prong of the investigation and who was interviewed by the committee on March 24, 2022) named Harrison in her list of people who was employed by Save America PAC.

And how many other people from the White House staff did go onto Florida to work with him, your current colleagues or otherwise associated with the former President?

A A small handful

Q Who else was on that list besides you, Ms. Michael?

A Someone that works for the First Lady, Hayley D’Antuono.

Q Okay. She was in the White House and now works in Florida for the First Lady, correct?

A Yes.

Q Okay. Who else?

A Someone that worked in operations named Beau Harrison.

Q Okay. Mr. Harrison works for – he’s actually engaged to Ms. D’Antuono, right?

A That’s correct.

Q Okay. And what’s his role currently down in Florida?

A He continues in an operations role.

Q Okay. Are they all, like you, employed by the Save America PAC?

A Yes.

When asked about Save America in his second interview in August, here’s how Harrison answered.

Q Has anyone told you to not provide certain information, even if it’s the answer to a question that the select committee poses?

A No.

Q And then just a final set of questions. Are you receiving any assistance from anyone or entity to help cover your legal costs related to the select committee only, nothing else?

A Yes. I’m not personally — I’m not personally paying for legal representation.

Q Do you know who is, who’s covering those costs?

A Not specifically, which may be something I probably should know, but that I don’t Know.

Q Do you know what the Save America PAC is?

A Yes

Q Do you know if they have any role in helping to cover your legal costs or find somebody who would cover your legal costs?

A They — I don’t know if they are covering them. They are associated with — with whoever — whoever it may be that is.

Q Do you have a contact there who — who you talk to about issues related to this?

A The only — the only time it’s ever come up — or the only contact, you know, related to this would be when I got the initial phone call, whenever, you know, whenever, a couple months ago. whenever it was. And I contacted Justin Clark.

Like Cassidy Hutchinson, Justin Clark helped arrange for a lawyer. Like Cassidy Hutchinson, Stefan Passantino represented Harrison, including in this second interview.

A far more important part of Harrison’s testimony pertains to Trump’s reported request to be taken to the Capitol on January 6. Though the final J6C report focused closely on the story Cassidy Hutchinson first relayed about Trump lunging in his limo when informed he couldn’t be driven to the Capitol, it makes no mention of Harrison’s testimony on the issue.

In his first interview, Harrison claimed not to remember much of anything unusual about the day. The security alerts he elevated to Mark Meadows, including Ashli Babbit’s shooting, were just normal security alerts, per that testimony. Though he played a security liaison role, there was virtually nothing unusual about the day when Trump’s mob attacked the Capitol.

In that first appearance, over and over, Harrison denied recalling details of Trump’s interest in going to the Capitol. After explaining that he learned of Trump’s call to walk to the Capitol from Twitter, Harrison provided these answers about specific knowledge of discussions of Trump going to the Capitol.

Q Do you know whether Mr. Ornato or anybody else talked to the Secret Service or anyone about making arrangements for the President to goto the Capitol that day?

A I mean, I think that — again, I don’t know this for fact or specifics, but remember, you know, the – kind of the understanding was If for whatever reason it were to come up, it should be directed as with any game-time decision, it should be directed to the Secret Service, to, you know, Bob Engel or Robert Engel, you know, if that could happen.

Q Okay. And after the President said he was going to march or even shortly before, but on that day of January 6th, are you aware of those conversations or communications happening with the Secret Service or otherwise?

A No.

In his second interview, however, Harrison had a much clearer memory of Bobby Engel stopping in the office he shared with Tony Ornato than he did before Cassidy Hutchinson testified publicly in June (after she got a new lawyer to replace Passantino). In his revised memory, Harrison said that Bobby Engel described Trump “shrugg[ing] off” the instructions from Secret Service that he would not be taken to the Capitol.

Q When the President came back, do you remember Bobby Engel ever coming to your office or the office you shared with s Mr. Ornato?

A Yes

Q Tell us about that. What was he there for? What happened? What did you guys talk about?

A So as Bobby Engel normally would do, so, you know, the limo would drop off, depending on where the President was, if they were arriving on the south grounds, you know, if the President was going up to the residence, it would stop at the portico there, you know, kind of the center of the residence. If he was going the — the President was going back to his office, they would pull forward. And, you know, he could walk. There’s a little pathway from. you know, you’ve probably seen that. There was a, you know, a pathway from the drop point to the corner of the, you know, the door of the in between the Oval Office and the Rose Garden that he would use. Tony — or Bobby would be in the car with him and would, obviously, he wouldn’t go back into the Oval Office. But he would continue through the West Wing back through his office in the EEOB. You know, one of the common things that he would do would be he would, you know, pop in our office and just kind of give us an update of how the trip went or what — really anything.

And so when they got back that afternoon, again, I don’t remember the time, when they got back. I remember Bobby popped into our office. It was the three of us — Tony, Bobby, myself. And he gave an update of, you know, kind of the events there at the Capitol.

I have a memory of Bobby saying that, before the President went onstage there at the offstage announce area, you know, the whole question of should he go up to the Capitol, should he go up to the Capitol. That was kind of getting tossed around. A lot of it was — was getting directed back to Bob Engel as kind of the deciding, you know, with the events in real time, you know. Anything like that would go — would run through Bobby.

I remember Bobby, you know, saying, hey, you know, we can’t do that. You know, we have no plan for that. There are no plans to do — to do that. You know, we couldn’t — we couldn’t secure that in this amount, short amount of time, on and on like, you know, as we talked about last time. You know, further than, that he said the President went on stage, gave his remarks. And this is Bobby told Tony and myself that, you know, he was like — it was almost like he had to ask. And then when he was told that, hey, you can’t go to the Capitol, he was like, you know, kind of, again, shrugged it off and was like, all right, at least I asked. And that was it.

Now, there are a lot of ways in which this (and other parts of his) testimony conflicts with what Harrison had already said, what Engel testified to later, what records subsequently shared with the committee (and so far more readily available to DOJ) revealed.

But it’s not this conflict that I find most interesting. It’s the conflict between what Tony Ornato had to say about talking to Harrison and what Harrison had testified to months earlier.

When Liz Cheney asked Ornato whether he had spoken to anyone after Hutchinson’s testimony, he admitted speaking to the Secret Service people about Hutchinson’s testimony, but claimed that a conversation he had with Harrison was about real estate.

Ms. Cheney. Anyone else from the administration?

The Witness. I have talked to [Beau] Harrison, who has left the — Trump’s — at this point, but nothing about any testimony or anything of that nature. It was more about real estate and him moving to the area.

Ms. Cheney. Did you speak with the Secret Service spokesperson following Ms. Hutchinson’s testimony?

The Witness. I recall, that day after Ms. Hutchinson’s testimony, going to the Secret Service Counsel and being in his office and then the Secret Service spokesperson asking me about what my recollection was of that story. And I relayed that that is not a story I recollect and I don’t recall that story happening and the first time hearing it is when she had said it.

Harrison told the story differently. In an exchange just after Passantino piped in to make sure the record reflected Harrison saying that Trump “shrugged it off” rather than “shrugged his shoulders” in response to being told he couldn’t go to the Capitol, Harrison assured the committee he would know if this kind of conflict had taken place.

Q Uh-huh. so I think [redacted] had asked you about there was public reporting about a heated argument that occurred in the — and I’ll take it in two parts. First the heated argument, did you hear anything to that effect?

A No.

Q And how about what, as you said, you described, you saw Ms. Hutchinson’s testimony on TV. Is that — I want to make sure heard you correctly. Was that the first time you heard that testimony in terms of what occurred in the vehicle, as she said, relayed by Mr. Engel?

A Yes. Her — the story that was — the story that was told during her public testimony was the first I had heard of you know, anything like that being described.

Q Was there any kind of discussion, putting aside the testimony, but the days following, did you learn of anything that occurred that was more than just a back and forth of as you’re describing, of can I go and I guess Mr. Engel saying no? Was there anything in that range of more of a request, anger, heated 6 argument, altercation, anything?

A No.

Q Did you see —

A I would — I’m sorry

Q That’s okay.

A I would also add that, if something like had been described had occurred, I percent would have known about it and would have heard that.

Q And why do you say that?

A Because that is something that would have, you know — that’s — that’s the report that Bobby would share when he got — when he got back. You know, that would fall into the, hey, how’d it go and he’d be like, oh, you know. like, you know, this — this — let me tell you. But —

Q If it was shared only with Mr. Ornato, would Mr. Ornato have shared that with you?

A If it was shared with Tony, yes, Tony would have shared it with me.

Harrison similarly assured the committee, even less convincingly, that there’s no way Trump’s limo was left running to keep open the possibility of a trip to the Capitol without him knowing.

But then the committee asked Harrison, three months before Ornato would answer the same question, whether he had spoken to Ornato about this.

In addition to explaining that he’s “kind of a big brother” to Ornato’s son, Harrison revealed that Ornato called Harrison immediately after (during, maybe!?!?) Hutchinson’s testimony.

Q What about with Tony Ornato, have you talked to him about January 6th or anything that happened on January 6th before your testimony today?

A The only — the only, you know, time that we — again. Tony and I are personal friends and have talked about — you know, I’m — I’m kind of a big brother to his son and to, you know — he — we’re personal friends. The only thing that we’ve talked about on this matter is during Cassidy’s testimony, he just — he basically said, can you — you know, can you believe this? And — and that was that. You know, nothing further — nothing further. you know, was — was discussed on the matter of — aside from the fact of like, you know. where is this coming from?

Q How did he say that to you? Did he call you? Did he send you a text message?

A I believe it was a phone call. And — and I think it was more of, you know, he was like, did I — you know, did I miss something or am I — am I — you know, clearly this did not happen, but how — how is this being — you know, where is this story even coming from or, you know, where could this even, you 12 know, be coming from.

Q In that conversation, did he — he told you it didn’t happen? What portion of the testimony did he say didn’t happen in that phone call with you?

A I –well, I mean, as it was described when — you know, the whole — the whole story of — the whole story of Bob Engel returning to our office, you know, and going into the — going into the — you know, the story about the President being irate and, you know, the President grabbing Bob Engel’s neck and grabbing for the steering wheel, you know, that was the part he was like, you know — like, did that happen? Did the — you know, did that — did — was that even discussed? Was that — did that ever come up? And at that point I said —

Q In that —

A I’m sorry, go ahead.

Q Go ahead. I’m sorry. I cut you off right before you were about to say what you said in response.

A And I’m saying, no, you know, the first — the first I had even — I have ever even heard of this was. you know, just this afternoon, this afternoon when it was being described, you know, that way on TV.

Q In that conversation, did Mr. Ornato kind of relay his recollection of the events to you?

A That, I don’t remember. But, I mean, I don’t think he went, you know, play by play of what happened. I think it was mainly just kind of just, you know, kind of shock as to, you know, getting associated with and being the kind of the source of that type of information.

Harrison and Ornato could — and one day may — testify in defense of Trump at some trial. On the issue of whether he responded angrily when told he could not going to the Capitol, their testimony might just present a conflicting account to that of Hutchinson and others (and some documentary records).

But on the issue of the conversation that Harrison had with Ornato, there’s a dramatic conflict, real estate versus a direct response to Hutchinson’s testimony, possibly even as she testified.

And that’s what I mean about how interlocking all these issues are. Sure, Harrison may have been interviewed about being paid out of funds originally raised based on false claims of voter fraud.

But it’s hard to separate those payments from his evolving testimony about that shrug.

Update: At the very end of Ornato’s testimony, after learning Engel’s testimony conflicted with his and learning that Hutchinson had shared Signal texts Ornato had sent her, he described speaking to both Engel and Harrison during Hutchinson’s testimony, a clear conflict with his earlier answer about real estate.

A No, sir. The only time I had reached out to Mr. Engel was when Cassidy Hutchinson was testifying during her – as she was testifying, and I was I wasn’t watching it, was called to put it on, and I was shocked and surprised of her testimony and called Mr. Engel and asked him, What’s she talking about? And his response was, I don’t know.

And then I then proceeded to say I said, Let me listen to the rest of this now. I have no idea And that was the only time I had — I had reached out to Mr. Engel. I actually reached out to Mr. Harrison as well, because I knew Beau was in my office. And I said, Beau, what’s she talking about? And Beau said the same thing. He said, I don’t know. I don’t remember her being in your office. that was just shocked and surprised at – of the testimony, and I did reach out 9 during her testimony, I believe, to the both of them to ask that. ~ But, at that point, after I~ my head settled down, I didn’t discuss it any further.

How the January 6 Committee Investigation Maps onto DOJ’s Known Investigation

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I’m going to attempt to do a live post mapping what we’re learning from the January 6 Committee investigation onto what we know about the multi-prong DOJ investigations. Before I do so, however, I want to point out several ways this matters, by showing how the multiple investigations intersect and how testimony to J6C may be useful for DOJ.

Ken Klukowski’s two interviews

I raised one example in this thread on Ken Klukowski, the lawyer who wrote the memo associated with John Eastman and Jeffrey Clark meant to justify a late-December DOJ intervention in Georgia. Klukowski is one of four people (and three lawyers) involved in a grand jury proceeding partially unsealed in December. By May 2022, DOJ had shown probable cause that one of his email accounts would include evidence of a crime, but DOJ also spent much of last summer working through the dicey privilege problems posed by an investigation involving a bunch of lawyers.

We now know the grand jury matters were unsealed after such time as DOJ first got some of the J6C transcripts, per this filing in the Proud Boys case, which shows DOJ passed on 16 Proud Boy transcripts before December 8.

Klukowski sat for two interviews with J6C — one on February 15, 2022, when he came off as a cooperative witness, and one on June 10, when the committee asked him about a bunch of documents involving John Eastman that Judge David Carter had released, some under a crime-fraud exception. At least during the interviews, Klukowski was represented by lawyers from Matt “Big Dick Toilet Salesman” Whitaker’s firm; see this exchange from Justin Caporale’s interview about how Matt Schlapp arranged for the defense of some Trump flunkies via the firm, and this reference to funding going to Schlapp from the J6C Report. In Klukowski’s second interview, the one discussing documents that had been liberated in part under a crime-fraud exception, one of Klukowski’s lawyers objected to the possibility that Klukowski might have to reassert privilege claims under oath. Whether these transcripts are part of why DOJ unsealed the grand jury materials or not, the two transcripts show how liberating the Eastman communications undercut much of what Klukowski had originally said about his involvement. And because he had already testified, this second interview provided useful backtracking on his earlier interview. The two transcripts may serve as useful tools in further breaching the privilege claims of these three lawyers, if not obtaining cooperation from one or several of them.

Alex Cannon’s two interviews

Alex Cannon is another example. Trump whisperers Josh Dawsey and Maggie Haberman have given him good press for his role in the stolen documents case. In February 2022, they tell us, Cannon refused to certify that Trump had turned over the the documents the President took from the White House.

Shortly after turning over 15 boxes of government material to the National Archives in January, former President Donald J. Trump directed a lawyer working for him to tell the archives that he had returned all the documents he had taken from the White House at the end of his presidency, according to two people familiar with the discussion.

The lawyer, Alex Cannon, had become a point of contact for officials with the National Archives, who had tried for months to get Mr. Trump to return presidential records that he failed to turn over upon leaving office. Mr. Cannon declined to convey Mr. Trump’s message to the archives because he was not sure if it was true, the people said.

[snip]

The conversation between Mr. Trump and Mr. Cannon took place after officials at the archives began asking Mr. Cannon, following the return of the 15 boxes, whether additional classified material was at Mar-a-Lago. It was when Mr. Cannon raised this with Mr. Trump that Mr. Trump told him to tell the archives he had given everything back, the people familiar with the discussion said.

At the time, the various investigations related to the Jan. 6 attack on the Capitol by Mr. Trump’s supporters were ramping up, with a number of requests for documents, the people familiar with the discussion said. Mr. Cannon told people that he was concerned that if Mr. Trump was found to be withholding material related to Jan. 6, he would be in a worse situation, according to people familiar with the discussions.

But Cannon’s two transcripts (April 13 and August 18, 2022) put that seeming scrupulousness in different light. Much of the first one establishes how, because of the jobs he was given as a campaign lawyer, he was in a position to understand that the claims made in fundraising emails sent after the election conflicted with the evidence showing no significant vote fraud. At the very end of that first interview, though, investigators asked Cannon why he was claiming privilege over discussions with Jared Kushner about forming a PAC when he was working with a campaign that should not legally coordinate with such a PAC (to say nothing of Cannon’s admitted inexperience on campaign finance law).

In that first interview, Cannon agreed that money raised after the election would have to be spent on recounts or debt retirement. His second interview (which took place ten days after the Mar-a-Lago search) focused more closely on how money raised in the guise of fighting vote fraud was actually spent. In it, Cannon bristled when investigators suggested campaign money could only be spent on debt retirement or recounts.

Then in Cassidy Hutchinson’s September interviews (September 14 and 15) — the two focused on attempts to obstruct her testimony — she described how Cannon first helped set her up with Trump lawyer Stephen Passantino, and then tried to get her several jobs. Hutchinson also described how Passantino claimed that Cannon (as well as Eric Herschmann, another person heroically portrayed in Maggie stories) was involved in the manipulation of stories with Maggie Haberman.

When J6C made its referrals, it made clear that DOJ was already aware of efforts to tamper with Hutchinson’s testimony. Hutchinson started cooperating with DOJ shortly after her solo J6C testimony, in July. So even before the raid on Mar-a-Lago, then, DOJ likely understood that Cannon’s role was more complex than you might understand from reading a Maggie Haberman story. Importantly, Cannon’s role in allegedly tampering with Hutchinson’s J6C testimony would span the time when (per Maggie’s reporting) he heroically refused to certify Trump’s February 2022 production and the time in May 2022 when Trump’s team tried to find ways to stave off further investigation. These strands overlap temporally.

That puts Cannon’s role as a witness in much different light, because it would give him different visibility — and criminal exposure — on several different things: Trump’s document theft, Trump’s lies about vote fraud, Trump’s efforts to tamper with witnesses, and Trump’s spending of money raised to combat vote fraud.

And that’s important background when you consider CNN’s reporting about the financial side of DOJ’s investigation, which described that “in recent months” an existing year-long investigation into the financing of the attack has shifted (like the J6C focus has) to how money raised purported in support of election integrity actually got spent.

Another top prosecutor, JP Cooney, the former head of public corruption in the DC US Attorney’s Office, is overseeing a significant financial probe that Smith will take on. The probe includes examining the possible misuse of political contributions, according to some of the sources. The DC US Attorney’s Office, before the special counsel’s arrival, had examined potential financial crimes related to the January 6 riot, including possible money laundering and the support of rioters’ hotel stays and bus trips to Washington ahead of January 6.

In recent months, however, the financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

When Cannon refused to certify Trump’s production in February 2022, he had personal exposure in January 6. Refusing to certify documents because withholding some might amount to obstruction is far less heroic than the Trump whisperers have made out. But in ensuing months, as the complexity of Cannon’s role has become clear, it would provide DOJ many angles for DOJ to persuade Cannon to cooperate.

Other privilege claims

The grand jury release last month made me realize just how complex it is to investigate suspected crimes in which at least 12 lawyers were involved. But the transcripts should help DOJ pierce other privilege claims as well. For example, multiple witnesses were asked and mocked the idea that their own conversations with Jenna Ellis — who is a lawyer whose name was on many of the subpoenas DOJ has sent out but was often described as playing a spokesperson role — might be privileged. The same is true of lawyer Boris Epshteyn, described as playing a logistics, not legal role.

So in the same way that DOJ seemed to focus on emails involving Scott Perry with the Eastman, Jeffrey Clark, and Klukowski seizures, the J6C testimony will provide many more levers to use to chip away at attorney-client privilege claims (on top of what seems to be a slew of subpoenas that will partly serve the same purpose).

At some point in recent weeks, Jack Smith returned to the US to oversee the investigation he has been leading since November. The belated sharing of J6C transcripts will likely provide a big boost to that investigation.

Proving Trump’s Corrupt Purpose: The Forgotten Unpermitted March

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It’s an object of blind faith among TV lawyers that DOJ must prove that Donald Trump knew he lost the election to be able to charge him under 18 USC 1512(c)(2). That blind faith seems to come from several places. It was part of David Carter’s opinion — which applied 9th Circuit precedent — finding that Trump and John Eastman had the corrupt intent necessary such that Eastman’s communications about efforts to pressure Trump were crime-fraud excepted.

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute.222 However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,”223 meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c). President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent,224 the Select Committee points to numerous executive branch officials who publicly stated225 and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence,227 noting that they made “strained legal arguments without merit and speculative accusations”228 and that “there is no evidence to support accusations of voter fraud.”229 President Trump’s repeated pleas230 for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”231 Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

Many TV lawyers seem to exist in a Green Room bubble, largely insulated from familiarity with the actual DOJ investigation, where they reinforce each other’s blind faith. Stunningly, few of these actual lawyers have paid attention to the long debate over obstruction as DOJ has actually applied it to January 6, not even the December 12 DC Circuit hearing on DOJ’s appeal of a Carl Nichols opinion sharply limiting its application. The TV lawyers rely far more on the Carter opinion than on the Amit Mehta one that — while applying a lower civil standard and addressing an earlier and therefore thinner body of claims — nevertheless was written by a judge who had already written a long 1512 opinion directly relevant to January 6. That is, most TV lawyers’ analysis of any potential case against Trump largely stems from a Ninth Circuit standard, not the hotly debated standard specifically addressing January 6, and largely stems from the white collar crimes Trump is alleged to have committed with John Eastman, not any of his other potential criminal exposure.

It will likely be a few weeks before we learn how the DC Circuit will rule, but my read of the hearing is that Trump appointee Greg Katsas was strongly opposed to DOJ, Trump appointee Justin Walker started out not quite as strongly opposed, but seemed to grow increasingly peeved by defense attorney Nick Smith’s minimization of the uniqueness of January 6, and Biden appointee Florence Pan (who presided over her share of January 6 cases before being elevated to the DC Circuit) favored DOJ’s views. But it’s more complex than that: The Republican judges seemed inclined to overturn DOJ not on the basis before them — whether 1512(c)(2) had to have a documentary component — but on the definition of corrupt purpose, precisely the basis on which TV lawyers rely on Carter’s opinion. Anything could happen: Katsas and Walker could rule against DOJ on the Nichols appeal, only to have DOJ appeal to the full DC Circuit. While procedurally unusual, Katsas and Walker suggested they might remand to Nichols to consider the corrupt purpose definition, in which case it’ll come back on appeal. Or Walker and Pan could rule narrowly for DOJ, with the defendants appealing, possibly directly to the Trump-heavy SCOTUS.

As I alluded in this post, no matter how the DC Circuit rules, it’s likely the ruling would still permit charges against Trump, even while roiling all the cases against the mobsters. That’s because with Trump, there’s a documentary component to his obstruction of the vote certification — the fake elector certificates that Trump associates were flying into DC — that is more attenuated for the mobsters; Trump would meet Nichols’ standard even while the mobsters arguably would not. And with Trump, if Walker were to write an opinion that sided with Pan on the documentary issue but argued for a much more stringent standard on corrupt purpose, requiring a personal benefit to the corruption, it would still apply to Trump. There’s no more obvious example of corruptly chasing a personal benefit than trying to remain President by obstructing the votes from being counted even though Joe Biden had received more votes. It’s probably in this latter scenario where the blind faith claim by TV lawyers that DOJ needs to prove that Trump knew he lost would come into play; because DOJ would likely appeal such an outcome in any case, it’s still more likely that DOJ would be dealing with the standard that most DC District judges have adopted.

That’s why I often return to Dabney Friedrich’s standard, because it is fairly stringent — starting from an analysis of whether someone engaged in otherwise illegal activity. It’s a higher standard than Judge Carter used, but not unlikely to be where we end up for the application of obstruction to January 6.

There are still multiple ways to get there with Trump:

  • Conspiring to making false statements (or even a forgery) to the Federal government with the fake elector certificates, which would require proving that Trump knew of the efforts to deliver those certificates
  • Ordering Mike Pence to do something Trump knew to be illegal, rejecting the certified votes, which would require proving Trump knew the request was illegal
  • Aiding or abetting the violence on January 6, an allegation bolstered by J6C’s focus on Trump’s awareness that his mob was armed when he told them to march on the Capitol
  • Conspiring to obstruct the vote certification by occupying the Capitol, which would require showing that Trump entered into an agreement with people like Alex Jones and Ali Alexander and through them with the Proud Boys and others or by treating his multiple calls to the mob as entering into a conspiracy and his tweet targeting Pence during the riot as ratification of it

The latter description is one of the ways that Judge Mehta ruled that Trump might have conspired with the mob on January 6.

But, as I laid out here, Mehta focused on another element to get to find it plausible that Trump bore responsibility for the attack, which is a fifth way Trump might have exposure: the unpermitted march.

President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”).

[snip]

[T]he President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.”

[snip]

That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.

Absent a claim of incitement, asking his followers to march to the Capitol would, generally, be legal. But even before you include the incitement, if Trump knew that he was asking his followers to do something that was not permitted, it would add one more prong showing corrupt purpose.

Mehta relies on this part of his judgment on Bennie Thompson’s own complaint, citing parts of the amended complaint filed in April 2021.

69. After Defendant Trump decided he would speak at the Save America rally on January 6, he became more actively involved in decisions concerning the event, including the speaking lineup and even the music that would be played. Defendant Trump and his campaign proposed that the rally include a march to the Capitol. An organizer of the Save America rally later told reporters he was surprised to learn that the even would involve a march from the Ellipse to the Capitol. Before the White House became involved, he said, the plan had been to stay at the Ellipse until the counting of the Electoral College votes was completed.

[snip]

90. The permit obtained for the Save America rally expressly provided: “This permit does not authorize a march from the Ellipse.” Defendant Trump nevertheless instructed the angry crowd to march from the Ellipse to the Capitol for the purpose of “fight[ing] like hell,” and therefore directed the crowd to take action outside the bounds of what the permit authorized.

That complaint was written in April, before J6C was constituted, much less before it got a ton of witness testimony about how the march came about.

The January 6 Report focuses on the march — particularly, in other sections, on Trump’s desire to participate in it — but it only addresses the issue of permitting of the march (as opposed to other events) in an appendix. [links added]

Within a few days, the White House began to take a more direct role in coordinating the rally at the Ellipse.421 In a December 29th text to Wren, Caporale wrote that after the President’s planned speech there “maybe [sic] a call to action to march to the [C]apitol and make noise.”422 This is the earliest indication uncovered by the Select Committee that the President planned to call on his supporters to march on the U.S. Capitol. But it wasn’t the last. On January 2nd, rally organizer Katrina Pierson informed Wren that President Trump’s Chief of Staff, Mark Meadows, had said the President was going to “call on everyone to march to the [C]apitol.”423 Inside the White House, the President’s intent was well-known. CassidyHutchinson, an aide to Meadows, recalled in her testimony that she overheard discussions to this effect toward the end of December or early January. One such discussion included an exchange between Meadows andRudolph Giuliani that occurred on January 2nd.424 Hutchinson understood that President Trump wanted to have a crowd at the Capitol in connection with what was happening inside—the certification of the electoral count.425 Hutchinson also recalled that President Trump’s allies in Congress were aware of the plan. During a call with members of the House FreedomCaucus, the idea of telling people to go to the Capitol was discussed as a way to encourage Congress to delay the electoral college certification and send it back to the States.426 On January 4th, WFAF’s Kylie Kremer informed Mike Lindell, the CEO of MyPillow and an ally of President Trump, that “POTUS is going to have us march there [the Supreme Court]/the Capitol” but emphasized that the plan“stays only between us.”427 The “Stop the Steal” coalition was aware of the President’s intent. OnJanuary 5th, Ali Alexander sent a text to a journalist saying: “Ellipse thenUS capitol [sic]. Trump is supposed to order us to the capitol [sic] at the end of his speech but we will see.”428

6.14 “WELL, I SHOULD WALK WITH THE PEOPLE.”

President Trump wanted to personally accompany his supporters on the march from the Ellipse to the U.S. Capitol. During a January 4th meeting with staffers and event organizer Katrina Pierson, President Trump emphasized his desire to march with his supporters.429 “Well, I should walk with the people,” Pierson recalled President Trump saying.430 Though Pierson said that she did not take him “seriously,” she knew that “he would absolutely want to be with the people.”431 Pierson pointed out that President Trump “did the drive-by the first time and the flyover the second time”—a reference to the November and December 2020 protests in Washington, DC.432 During these previous events, President Trump made cameo appearances to fire up his supporters. Now, as January 6th approached, the President again wanted to be there, on the ground, as his supporters marched on the U.S. Capitol. The President’s advisors tried to talk him out of it. White House Senior Advisor Max Miller “shot it down immediately” because of concerns about the President’s safety.433 Pierson agreed.434 But President Trump was persistent, and he floated the idea of having 10,000 National Guardsmen deployed to protect him and his supporters from any supposed threats by leftwing counter-protestors.435 Miller again rejected the President’s idea, saying that the National Guard was not necessary for the event. Miller testified that there was no further conversation on the matter.436 After the meeting, Miller texted Pierson, “Just glad we killed the national guard and a procession.”437 That is, President Trump briefly considered having the National Guard oversee his procession to the U.S. Capitol. The President did not order the National Guard to protect the U.S. Capitol, or to secure the joint session proceedings. Although his advisors tried to talk the President out of personally going, they understood that his supporters would be marching.438 Pierson’s agenda for the meeting reflected the President’s plan for protestors to go to the U.S. Capitol after the rally.439 But President Trump did not give up on the idea of personally joining his supporters on their march, as discussed further in Chapter 7.

[snip]

At no point was any permit granted for a march from the Ellipse to the Capitol. The President planned to announce that march “spontaneously.”114

422. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Justin Caporale, (Mar. 1, 2020), p. 44; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0644 (December 29, 2020, text messages with Justin Caporale).

423. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 79-82; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0181 (January 2nd email from Katrina Pierson to CarolineWren and Taylor Budowich).

424. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 32-33, 41; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), pp. 107-08, 135.

425. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), p. 42.

426. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 44-45, 47, 52-54; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), p. 87.

427. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Kylie Kremer Production), KKremer5447, p. 3 (January 4, 2021, text message from Kylie Kremer to Mike Lindell at 9:32 a.m.).

428. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Ali Alexander Production), CTRL0000017718, p. 41 (January 5, 2021 text message with Liz Willis at 7:19 a.m.).

429. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 120-21.

430. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

431. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

432. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

433. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Max Miller, (Jan. 20, 2022), pp. 91-92.

434. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 123.

435. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 121-26.

436. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Max Miller, (Jan. 20, 2022), pp. 98-99.

437. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Max Miller Production) Miller Production 0001, p. 1 (January 4, 2021, text message from Max Miller to Katrina Pierson).

438. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

439. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 95; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Katrina Pierson Production), KPierson0180, at 180, 196-97 (January 4, 2021, President TrumpMeeting Agenda).

While the report shows that Trump was directly involved in several meetings about plans to march to the Capitol, it doesn’t address whether he was told that there not only wasn’t a permit for the march, but that the National Park Service had specifically prohibited such a march. And several people did know that.

Justin Caporale, the guy at Event Strategies whom the report describes the White House selecting to put on the event, described the decision not to formally plan for the march this way.

Q Understood, and I appreciate that. Let’s move on. Mr. Caporale, during the planning for the January 6th event, did you hear anyone suggest that rally-goers should march or walk to the Capitol following the President’s speech?

A In the early days of the planning around that end-of-December timeframe, you know, it was discussed that it would include a march. And after consulting and working with the National Park Service, we decided not to move forward with planning, you know, a march from the Ellipse to anywhere.

Q When you say “it was discussed,” who were those discussions with?

A The National Park Service.

Q Sorry, it sounded like you said it was discussed that there might be a march, and then you had consultations with the Park Service. Were there discussions about a march before you brought it up with the Park Service?

A There were — I don’t recall the exact discussions, no. But I remember talking with the Park Service about it during the permit and application process under the general question of, you know, what is the vision for your event.

Q Let’s go ahead and take a look at exhibit 3, and this might refresh your recollection a little bit. Exhibit 3 are your text messages with Caroline Wren. And if we go to page 7, she sends you an image with a question right there in the middle. And we can zoom in a little bit. This is December 29th, about 2:00 in the afternoon. She writes, any updates from WH on your end? And you write back later that evening, schedule proposal will work its way around tomorrow. Noon seems to be a good time. Then maybe a call to action to march to the Capitol and make noise. Did you have conversations with people in the White House about having a call to action to march to the Capitol and make noise? A No, not to my recollection.

Q So where did you get this information that you sent to Caroline Wren about a call to action to march to the Capitol and make noise?

A I would really view my response at 10:50 as two separate conversations. 14 So, the scheduling proposal will work its way around about noon, noon seems to be a 15 good time, that was in reference to any updates from the White House on your end. 16 And then maybe a call to action to march to the Capitol and make some noise is referring 17 to the discussions we as planners were having with the National Park Service to see if that 18 would be something that would even be possible given the timeframe that we had to 19 plan. 20 Q So my question is, whose idea was it to have a march to the Capitol and 21 make noise?

A I don’t recall whose idea it came from. It was, again, conversations with 23 the client at that point. You know, their event was branded, March for Trump, and it 24 had been for the year leading up to it. So, it was part of those natural discussions, well, 25 should we, you know, submit a permit for a march and coordinate that end of things.

Q I think we’ve established that by this point you had been in touch with folks 2 from the White House. That text message you sent to your parents was December 27th, 2 days before, and this is the same day, December 29th, that you’re texting Max Miller about Women for America First submitting the permit for the Ellipse. Was anybody in5 the White House conveying to you plans about having a call to action to march to the Capitol and make noise at this time?

A No, sir.

Q Why don’t we take a look then at exhibit 15. This is from — this is a text message that you produced. KP is Katrina Pierson, and the other person on the thread is Taylor Budowich. And on January 3rd, at 10:10 in the morning, Ms. Pierson texts, 11 “WH has not approved these speakers. I was asked to modify, and I’ll send over a new draft to you guts” — I think it’s a typo for “guys” — “and POTUS.” And then she writes, “POTUS expectations are intimate and then send everyone over to the Capitol.” So by this time, were you aware that the White House, or representatives from the White House, were considering sending rally-goers to the Capitol following the President’s speech?

A My awareness was limited to, you know, receiving a text message like this. But I was, you know, never given official instructions by my client or anybody to coordinate a march, to plan a march, and we didn’t.

Q Okay. You say you were never given any instructions from your client to plan or coordinate a march?

A No.

Q So what was the December 29th message to Caroline Wren about a call to action to march to the Capitol and make noise about?

A I’m sorry, if I can, let me be a little bit more clear. So in the text message that you’re referring to earlier in late December, that’s when the conversations were happening between myself and the client, is do we want to include a request for a march in our permit process. During that late December time period, we would host calls with National Park Service every morning that included, you know, members of Metro PD and Park Police, all the relevant authority members in the permitting process. Sometime in that late December, I don’t remember the exact date, it became very clear that, given the timeframe we had to plan, you know, the manpower that it would take and the resources that it would take, that we — we were not going move forward with planning a march. So in that time period, you know, we decided, the client decided that they no longer wanted to pursue that, and that we would focus our attention on the event on the Ellipse and in our permitted area. And that’s what we did.

As the report noted, Caporale redacted his own December 29 description of a call to action in a text to Caroline Wren.

One of his close friends and contacts at the White House who was present for a January 2 meeting between Katrina Pierson and Mark Meadows at which the possibility of using 10,000 National Guards to make the march possible was floated and rejected claimed he simply didn’t hear that part of the conversation. He and Caporale are both among the Trumps staffers represented by former Acting Attorney Matt “Big Dick Toilet Salesman” Whitaker’s law firm, a topic about which one of the attorneys in question got really confrontational.

It’s unclear whether Caporale’s reference to a client was to Caroline Wren or Kylie Kremer, but the latter specifically said she chose not to apply for a permit for a march because she couldn’t do it truthfully.

Now, I think that that is important because when I had this conversation and took over the permitting process for January 6th, Marissa made it very clear that if you are putting something on a document that you know to be invalid, that’s a major issue because this is a Federal Government form that you’re filling out and you’re willingly putting something that is not truthful. So I was horrified when I found that out because it was the opposite of what Cindy had told me, and that’s one of the main reasons that we decided from that point not to pursue the marching permit because there was no way, whatever those current COVID restrictions were — I don’t know if it was 50 people or 500 people — whatever they were at that time, there was no way that I was going to put our organization’s name and my name on a permit that I knew would greatly exceed that number and then face potential ramifications.

[snip]

Q So was the plan at this point — and I know I’ve asked this before. I’m going to ask you probably each iteration. Was there a plan to march to SCOTUS or the Capitol Grounds at this point when you were planning at the Ellipse?

A I don’t believe so because I believe before I filed those permits, the numbers that were used were as accurate and the best of my ability, and that is when I told you that I believe I was told by Marissa, I guess it could have been Deborah Deas, but I believe it was Marissa telling me specifically about the numbers and how, you know, you can’t lie on an application like that even knowing which was a red flag to me because, clearly, she probably told Cindy that too.

Here’s how she explained a text to Mike Lindell confiding there would be a march but asking him to keep it under wraps.

Q I know this jumps ahead of where we just were, Ms. Kremer, so I’ll give you a second to read this message, the longer one that you sent Mr. Lindell on January 4th of 2021. The part that I’m going to ask you specifically about is where you say: This stays only between us. We’re having a second stage at the Supreme Court after the Ellipse. POTUSs going to have us march there, the Capitol. It can also not get out about the march because I will be in trouble with the National Park Service and all agencies, but POTUS is going to call for it in quotes – it looks like, unexpectedly. Only myself and Katrina know full story of what is actually happening, and we’re having to appease many by saying certain things.

So the first question is, how did you know that President Trump was going to have people march to the Capitol after his speech at the Ellipse?

[snip]

A Because — right. Because I – I, we, Women for America First, are not responsible and giving people the directive to go and march. People are able to do whatever they want. So, if they want to come to the Ellipse and come to the event that is presented by Women for America First and then they want to go to an event with, let’s say, Jericho March or “Stop the Steal” or whatever, people are free to make their own decisions. And that was a conversation that had continuously been had with NPS, that other events were being permitted and that we could not control any sort of, you know, when do you leave, when do you stay because that was something that was discussed about an exit plan, right, of how do we talk – or how do we plan to get all of these people that are coming to D.C., what is the plan for them to leave? And so that was something that was confusing in the process to me too,

Wouldn’t it make it easier if there was a permit to march because then things could be more controlled? There could be more law enforcement, and NPS and whoever these different agencies that I was speaking with, both on Zoom calls and then also individual conversations that were being had, it did not make sense to me. But I was being continuously told by NPS that we could not have a permit to march, and if we did or promoted a march, then the Ellipse permit would be revoked, or we would not officially get the final one.

Here’s how she tried to claim she learned about the march from social media.

So, when I’m talking about that and saying about social media, it’s not specifically from Trump social media that the President and/or his staff were tweeting out. It was social media of people from anywhere talking about what had previously happened. Obviously, there was going to be a joint session in Congress. It doesn’t take a rocket scientist to figure it out, if the first event is at the Ellipse, that they’re going to go to the second location, putting pressure on Members of Congress to say: Hey, we’re here. We’re watching. I mean, the fact that this is news that NPS and everybody else were putting pressure on me, saying there should be no marching, I mean, I had this conversation with them multiple times. It was obvious what was going on

Q Ms Kremer

A and that people were going to go and leave.

Later in her testimony, she specifically denied learning from Pierson — who had just met with Trump and Mark Meadows the day before — that Trump would call for a march.

So, Ms. Kremer, we know that Katrina Pierson spoke with folks at the White House, including Mark Meadows, on January 2nd, which is days before the text message we are looking at that you sent to Mr. Lindell, about the President’s participation in the Ellipse rally. We know that she received guidance about what the President hoped would happen at the Ellipse rally. And we know that that guidance included that the President wanted to send people from the Ellipse to the Capitol. In that text message, you say, “only me and Katrina know the real plan or know the truth about what we tetyingto do. So, when you say that the President is going to announce unexpectedly, encourage people, in quotes, “unexpectedly” to go down to the Capitol, that’s because: Katrina told you that, right?

A No a

Q So Katrina never told you that the President had hoped to send people to the White House before you sent this text message to Mr. Lindell?

A I–to my best recollection, I do not believe that that specific directive was told to me via Katrina.

There’s good reason to believe that the reference to the Guard — Trump’s proposal that 10,000 National Guard could protect him and his followers — was actually pitched as a solution to the one the Park Service kept raising: there was no way to properly staff a march of this size, short of Trump calling out an army.

This is not an issue the available evidence clarifies. It raises more questions about the veracity of certain witnesses than others.

But it is squarely among the things that recent subpoenas sought to address.

 

The Thinness of the January 6 Committee’s Obstruction Referral

/54 Comments/in , /by

I’m back (in Ireland after a visit to the US)!

I just finished a detail read of the Executive Summary released by the January 6 Committee. See this Mastodon thread for my live read of it.

I’d like to address what it says about referrals.

In the big dispute between bmaz and Rayne about the value of referrals, I side, in principle, with Rayne. I have no problem with the Committee making criminal referrals, especially for people not named Donald Trump. Some of the most damning details in the report involve details about how Kayleigh McEnany, Ivanka, and Tony Ornato turned out to not recall things that their subordinates clearly remembered (Pat Cipollone probably falls into that same category but the Committee gave him a pass for it) and how what must be Cassidy Hutchinson’s original lawyer fucked her over — details that would support an obstruction of the investigation referral.

Here’s an example of the former:

While some in the meeting invoked executive privilege, or failed to recall the specifics, others told us what happened at that point. Sarah Matthews, the White House Deputy Press Secretary, had urged her boss, Kayleigh McEnany, to have the President make a stronger statement. But she informed us that President Trump resisted using the word “peaceful” in his message:

[Q]: Ms. Matthews, Ms. McEnany told us she came right back to the press office after meeting with the President about this particular tweet. What did she tell you about what happened in that dining room?

[A]: When she got back, she told me that a tweet had been sent out. And I told her that I thought the tweet did not go far enough, that I thought there needed to be a call to action and he needed to condemn the violence. And we were in a room full of people, but people weren’t paying attention. And so, she looked directly at me and in a hushed tone shared with me that the President did not want to include any sort of mention of peace in that tweet and that it took some convincing on their part, those who were in the room. And she said that there was a back and forth going over different phrases to find something that he was comfortable with. And it wasn’t until Ivanka Trump suggested the phrase ‘stay peaceful’ that he finally agreed to include it.”525

[snip]

Kayleigh McEnany was President Trump’s Press Secretary on January 6th. Her deposition was taken early in the investigation. McEnany seemed to acknowledge that President Trump: (1) should have instructed his violent supporters to leave the Capitol earlier than he ultimately did on January 6th; 710 (2) should have respected the rulings of the courts;711 and (3) was wrong to publicly allege that Dominion voting machines stole the election.712 But a segment of McEnany’s testimony seemed evasive, as if she was testifying from preprepared talking points. In multiple instances, McEnany’s testimony did not seem nearly as forthright as that of her press office staff, who testified about what McEnany said.

For example, McEnany disputed suggestions that President Trump was resistant to condemning the violence and urging the crowd at the Capitol to act peacefully when they crafted his tweet at 2:38 p.m. on January 6th. 713 Yet one of her deputies, Sarah Matthews, told the Select Committee that McEnany informed her otherwise: that McEnany and other advisors in the dining room with President Trump persuaded him to send the tweet, but that “… she said that he did not want to put that in and that they went through different phrasing of that, of the mention of peace, in order to get him to agree to include it, and that it was Ivanka Trump who came up with ‘stay peaceful’ and that he agreed to that phrasing to include in the tweet, but he was initially resistant to mentioning peace of any sort.”714 When the Select Committee asked “Did Ms. McEnany describe in any way how resistant the President was to including something about being peaceful,” Matthews answered: “Just that he didn’t want to include it, but they got him to agree on the phrasing ‘stay peaceful.’”715

The Committee invites the public to compare McEnany’s testimony with the testimony of Pat Cipollone, Sarah Matthews, Judd Deere, and others, [punctuation original]

It turns out the latter example — of the lawyer Trump originally provided for Cassidy Hutchinson directing her testimony — doesn’t need to be referred in this report. That’s because, the report makes clear, the Committee already shared those details with DOJ (or knew them to be shared under the guidance of Hutchinson’s new lawyer, Jody Hunt).

The Select Committee has also received a range of evidence suggesting specific efforts to obstruct the Committee’s investigation. Much of this evidence is already known by the Department of Justice and by other prosecutorial authorities. For example:

[snip]

  • The lawyer instructed the client about a particular issue that would cast a bad light on President Trump: “No, no, no, no, no. We don’t want to go there. We don’t want to talk about that.”;
  • The lawyer refused directions from the client not to share her testimony before the Committee with other lawyers representing other witnesses. The lawyer shared such information over the client’s objection;
  • The lawyer refused directions from the client not to share information regarding her testimony with at least one and possibly more than one member of the press. The lawyer shared the information with the press over her objection.
  • The lawyer did not disclose who was paying for the lawyers’ representation of the client, despite questions from the client seeking that information, and told her, “we’re not telling people where funding is coming from right now”;
  • The client was offered potential employment that would make her “financially very comfortable” as the date of her testimony approached by entities apparently linked to Donald Trump and his associates. Such offers were withdrawn or did not materialize as reports of the content of her testimony circulated. The client believed this was an effort to impact her testimony.

That’s a testament that, even with regards to crimes that victimized the investigation itself, DOJ already has the details to pursue prosecution. This is a symbolic referral, not a formal one, even for the crimes that the Committee would need to refer.

As to the more significant referrals, you’ve no doubt heard that the Committee referred four major crimes:

  • 18 USC 1512(c)(2): obstruction of the vote certification
  • 18 USC 371: conspiracy to defraud the US in the form of obstructing the certification of the election
  • 18 USC 371 and 18 USC 1001: conspiracy to present false statements — in the form of fake elector certifications — to the National Archives
  • 18 USC 2383: inciting, assisting, or aiding an insurrection

I don’t so much mind that the Committee made these referrals. But I think they did a poor job of things.

For example, they don’t even consider whether Trump is exposed for aiding and abetting the actual assaults, something that Judge Amit Mehta said is a plausible (civil) charge against Trump. Some of the Committee’s evidence, especially Trump’s foreknowledge that the mob he sent to the Capitol was armed, would very much support such a charge. If Trump were held accountable for something like the tasing of Michael Fanone it would clarify how directly his actions contributed to the actual violence.

I’m also mystified why the Committee referred the obstruction conspiracy under 371 without consideration of doing so under 1512(k), even as DOJ increasingly emphasizes the latter approach. If DOJ’s application of obstruction is upheld, then charging conspiracy on 1512 rather than 371 not only brings higher base level exposure (20 years as opposed to 5), but it also lays out enhancements for the use of violence. If this application of obstruction is upheld, by charging conspiracy under 1512(k), you have a ready way to hold Trump accountable for the physical threat to Mike Pence.

It’s in the way that the Committee referred the obstruction charge, however, I’m most disappointed. This referral matters, mostly, if it can be used by DOJ to bolster its own defense of the statute or by a sympathetic judge to write a compelling opinion.

And this referral is weak on several counts. First, even with evidence that Trump knew his mob was armed when he sent them to the Capitol, the referral does not incorporate emphasis that the David Carter opinion they rely on did: That Trump (and John Eastman) not only asked Mike Pence to do something illegal, but then used the mob as a tool to pressure Pence.

President Trump gave a speech to a large crowd on the Ellipse in which he warned, “[a]nd Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.”217 President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”

The means by which Trump succeeded in obstructing the vote count was the mob, not just pressuring Pence. Indeed, the former was the part that succeeded beyond all expectations. The Committee referral here doesn’t account for the crowd at all (even though Greg Jacob explicitly tied the pressure on Mike Pence to riling up the crowd in real time). It just doesn’t conceive of how the mob played into the obstruction crime.

Second, there should be no doubt that President Trump knew that his actions were likely to “obstruct, influence or impede” that proceeding. Based on the evidence developed, President Trump was attempting to prevent or delay the counting of lawful certified Electoral College votes from multiple States.597 President Trump was directly and personally involved in this effort, personally pressuring Vice President Pence relentlessly as the Joint Session on January 6th approached.

[snip]

Sufficient evidence exists of one or more potential violations of 18 U.S.C. § 1512(c) for a criminal referral of President Trump based solely on his plan to get Vice President Pence to prevent certification of the election at the Joint Session of Congress. Those facts standing alone are sufficient. But such a charge under that statute can also be based on the plan to create and transmit to the Executive and Legislative branches fraudulent electoral slates, which were ultimately intended to facilitate an unlawful action by Vice President Pence –to refuse to count legitimate, certified electoral votes during Congress’s official January 6th proceeding.603 Additionally, evidence developed about the many other elements of President Trump’s plans to overturn the election, including soliciting State legislatures, State officials, and others to alter official electoral outcomes, provides further evidence that President Trump was attempting through multiple means to corruptly obstruct, impede or influence the counting of electoral votes on January 6th. This is also true of President Trump’s personal directive to the Department of Justice to “just say that the election was was [sic] corrupt + leave the rest to me and the R[epublican] Congressmen.”604

A far more unfortunate weakness with this referral, though, is in the shoddy analysis of the “corrupt purpose” prong of the crime.

Third, President Trump acted with a “corrupt” purpose. Vice President Pence, Greg Jacob and others repeatedly told the President that the Vice President had no unilateral authority to prevent certification of the election.599 Indeed, in an email exchange during the violence of January 6th, Eastman admitted that President Trump had been “advised” that Vice President Pence could not lawfully refuse to count votes under the Electoral Count Act, but “once he gets something in his head, it’s hard to get him to change course.”600 In addition, President Trump knew that he had lost dozens of State and Federal lawsuits, and that the Justice Department, his campaign and his other advisors concluded that there was insufficient fraud to alter the outcome. President Trump also knew that no majority of any State legislature had taken or manifested any intention to take any official action that could change a State’s electoral college votes.601 But President Trump pushed forward anyway. As Judge Carter explained, “[b]ecause President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly’ under § 1512(c).”602

600 Documents on file with the Select Committee (National Archives Production), VP-R0000156_0001 (January 6, 2021, email chain between John Eastman and Marc Jacob re: Pennsylvania letter). One judge on the U.S. District Court for the District of Columbia, in the course of concluding that Section 1512(c) is not void for vagueness, interpreted the “corruptly” element as meaning “contrary to law, statute, or established rule.” United States v. Sandlin, 575 F. Supp. 3d. 15-16, (D.D.C. 2021). As explained above, President Trump attempted to cause the Vice President to violate the Electoral Count Act, and even Dr. Eastman advised President Trump that the proposed course of action would violate the Act. We believe this satisfies the “corruptly” element of the offense under the Sandlin opinion.

This part of the January 6 Committee’s arguments has always been weak, but it is especially inexcusable given how much more clear the status of the application has gotten in ensuing months. The Committee knows that Carl Nichols has already rejected the application of the statute based on acceptance that the vote certification was an official proceeding, but holding that the obstruction must involve documents. But as they acknowledge in footnote 600, they also know the clear standards that Dabney Friedrich has adopted — that one means to find corrupt purpose is by pointing to otherwise illegal activity. And they should know that the DC Circuit is looking closely at corrupt purpose, and one of two Republicans on the existing panel, Justin Walker, entertained a theory of corrupt purpose tied to personal benefit. (Here’s the oral argument.)

This referral was the Committee’s opportunity to show that no matter how the DC Circuit rules, you can get to obstruction with Trump for two reasons.

First, because unlike the hundreds of mobsters charged with obstruction, Trump had a direct role in documentary obstruction. As the Committee lays out, he was personally involved in the fake elector plot that resulted in faked electoral certifications. So even if the outlier Nichols opinion were sustained, obstruction would still apply to Trump, because he oversaw (the Committee used that word) an effort to create fraudulent documents as evidence before Congress.

And given the focus of the DC Circuit on corrupt purpose (which may well result in a remand to Nichols for consideration of that standard, and then a follow-up appeal), the Committee would do well to lay out that Trump, alone among the hundreds of people who have been or will be charged with obstruction, meets a far more stringent standard for corrupt purpose, one that some defense attorneys and Republican appointees would like to adopt: that his goal in obstructing the vote certification was to obtain an unfair advantage.

Trump can be referred for obstruction not just because he gave Mike Pence an illegal order, but because he used a mob as a tool to try to force Pence to follow that order.

Trump can be referred for obstruction because even if Nichols’ opinion is upheld, Trump would still meet the standard Nichols adopted, an attempt to create false documentary evidence.

And Trump can be referred for obstruction not just because he knowingly engaged in other crimes, but because the reason he did all this was to obtain the most corrupt kind of benefit for himself: the ability to remain as President even after voters rejected him.

On the key issue of this referral, the Committee missed the opportunity to show how, by any standard under consideration, Trump corruptly tried to prevent Congress to certify the electoral victory of Trump’s opponent. He did so by committing other crimes. He did so by mobilizing a violent mob. He did so using fraudulent documents. And most importantly, he did so for personal benefit.

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

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It’s that time that comes in many high profile investigations where it becomes prudent to remind readers — and journalists! — that the word “cooperate,” even the word “inform,” may not mean what sources want you think it does.

Correction: It’s long past the time to remind journalists that investigative subjects will boast to the press about “cooperating,” when their lawyers really mean, “complying” with the most basic requirements of legal process. When Ali Alexander ran to the press revealing he had received a subpoena (revealing a subpoena is something investigators generally consider uncooperative), most outlets repeated his claim to have “agreed to cooperate” with DOJ. What Alexander described instead was “compliance,” not cooperation.

Nevertheless, some really experienced legal beat reporters used the words often reserved for someone who has entered into a cooperation agreement to describe Alexander’s compliance and they did so in articles probably pitched as a way to share details revealed in a subpoena with other suspects in an investigation.

The latest messaging strategy from Trump demonstrates why the subject of an investigation might do this. This detailed WSJ report is based on Trump sources reading the content of letters sent between Trump lawyer Evan Corcoran and counterintelligence head Jay Bratt in June.

Aides to Mr. Trump have said they had been cooperating with the department to get the matter settled. The former president even popped into the June 3 meeting at Mar-a-Lago, shaking hands. “I appreciate the job you’re doing,” he said, according to a person familiar with the exchange. “Anything you need, let us know.”

Five days later, Trump attorney Evan Corcoran received an email from Mr. Bratt, the chief of the Justice Department’s counterintelligence and export control section, who oversees investigations involving classified information.

“We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice,” according to what was read to the Journal over the phone.

Mr. Corcoran wrote back, “Jay, thank you. I write to acknowledge receipt of this letter. With best regards, Evan.” By the next day, according to a person familiar with the events, a larger lock was placed on the door. It was the last communication between the men until Monday’s search of Mar-a-Lago, according to the person.

On June 22, the Trump Organization, the name for Mr. Trump’s family business, received a subpoena for surveillance footage from cameras at Mar-a-Lago. That footage was turned over, according to an official. [my emphasis]

Side note: The nice thing about Trump sharing a lawyer, Corcoran, with Steve Bannon is that we can evaluate Corcoran’s credibility based off stunts he pulled in Bannon’s case — which is a good reason to expect his representation of these events is not entirely forthcoming, especially when made without the ethical obligations stemming from making them as an officer of the court.

So this exchange, which doesn’t rule out further contact with Mar-A-Lago and which likely misrepresents Trump’s conviviality at having the head of DOJ’s espionage prosecutors waltzing into his golf resort, is designed to present the illusion of full “cooperation.”

And Trump’s spox uses that portrayal, later in the story, to claim that a search — the spox calls it a “raid” — was unnecessary. Trump had been so cooperative, the WSJ relays Trump camp claims, that his unreliable lawyer was even engaged in “breezy chats” with the head of the department that prosecutes spies.

“Monday’s brazen raid was not just unprecedented, it was completely unnecessary,” Trump spokesman Taylor Budowich said. “President Trump and his representatives have gone to painstaking lengths in communicating and cooperating with all the appropriate agencies.”

WSJ doesn’t hide that this story is the one they’re being pitched.

A timeline of events, they say, demonstrates this cooperation, down to quickly fulfilling the June request to place a new lock on the storage door.

But it also doesn’t consider why putting a lock on a room full of suspected stolen documents amounts to cooperation.

More importantly, WSJ admits it doesn’t have the one detail that would test whether this fairy tale of cooperation were true or not: the warrant showing which crimes were being investigated, as well as the warrant return showing whether the government had obtained evidence that confirmed the suspicions they used to obtain probable cause.

The warrant, signed by a judge in Palm Beach County, refers to the Presidential Records Act and possible violation of law over handling of classified information, according to Christina Bobb, a lawyer for the former president. The warrant hasn’t been made public by Mr. Trump nor has the inventory of documents retrieved by the government.

The warrant Trump’s lawyers received doesn’t refer to “possible violation of law over handling classified information,” it refers to a law, possibly even the Espionage Act. Simply sharing that warrant and return would tell us far more about whether Trump was as cooperative as his unreliable lawyer — who made virtually identical claims about his contemptuous client Steve Bannon’s “cooperation” — now wants to claim about Trump.

There is a significant legal reason why Trump’s lawyers would like to claim he was cooperative, aside from ginning up threats against judges from Trump’s mob. As I laid out here, “fail[ing] to deliver [National Defense Information] to an officer or employee of the United States entitled to receive it,” is a key element of 18 USC 793e. So in addition to stoking violence, it’s possible that Trump is already attempting to set up a defense for trial, that he simply had not yet complied with DOJ and NARA requests to give back the stolen documents, but surely would have if they just asked nicely one more time. This is, in fact, precisely the argument Corcoran made for Bannon at trial: he would have cooperated if only Bennie Thompson would have accepted a last minute offer to cooperate.

Anyway, given abundant precedent, it’s probably too late. If you’re storing stolen classified information in your basement, with or without a substantial padlock, you’ve committed the crime of unauthorized retention of NDI.

The issue of cooperation extends beyond Evan Corcoran’s dubious (and provably false, in Bannon’s case) claims of cooperation, though.

WSJ seems to match far more inflammatory reporting from William Arkin in Newsweek, that someone told DOJ that Trump still had classified documents at Mar-a-Lago.

In the following weeks, however, someone familiar with the stored papers told investigators there may be still more classified documents at the private club after the National Archives retrieved 15 boxes earlier in the year, people familiar with the matter said. And Justice Department officials had doubts that the Trump team was being truthful regarding what material remained at the property, one person said. Newsweek earlier reported on the source of the FBI’s information.

Arkin is a well-sourced reporter (though not a DOJ reporter), but Newsweek is no longer a credible outlet. And in Arkin’s story — which seems like it was meant to be a comment primarily on the political blowback from the search — a headline Arkin probably didn’t write calls this person “an informer” (notably, language Arkin likely did have some say over also called it a raid, which credible DOJ sources would never do).

Exclusive: An Informer Told the FBI What Docs Trump Was Hiding, and Where

The raid on Mar-a-Lago was based largely on information from an FBI confidential human source, one who was able to identify what classified documents former President Trump was still hiding and even the location of those documents, two senior government officials told Newsweek.

There are other parts of this story that raised real credibility questions for me and for multiple counterintelligence experts I spoke with about. For example, it describes a 30-year veteran of the FBI, now a senior DOJ official, sharing grand jury information. Because Special Agents retire after 25 years, there are a very small number of 30-year FBI veterans running around, and describing the person as a senior DOJ official to boot would pinpoint the source even further. If this person really had knowledge of grand jury proceedings, it would be child’s play to charge them based on this story for violating laws prohibiting such things. Plus, the person doesn’t even describe what happens in a grand jury accurately, suggesting that the grand jury had “concluded” the law was broken (in which case there would be an indictment).

Moreover, the story relies on public reporting, based off Trump’s lawyer’s own claim, for its evidence that DOJ knew precisely where to look.

According to news reports, some 10-15 boxes of documents were removed from the premises. Donald Trump said in a statement that the FBI opened his personal safe as part of their search. Trump attorney Lindsey Halligan, who was present during the multi-hour search, says that the FBI targeted three rooms—a bedroom, an office and a storage room. That suggests that the FBI knew specifically where to look.

That claim is fundamentally incompatible with the earlier report that an “informer” had told FBI precisely where to look.

More importantly, it wouldn’t take an informant — a confidential human source infiltrated into the Trump camp — to obtain this kind of information.

Cassidy Hutchinson, who helped Trump move to Mar-a-Lago, reportedly “cooperated” (that word again!) with DOJ after her blockbuster testimony before the January 6 Committee. She worked at Mar-a-Lago and unlike others who moved with Trump to Florida, had the clearance to handle these documents. Her attorney, former Assistant Attorney General Jody Hunt, knows firsthand about Trump’s attempts to suppress sensitive classified information from his attempts to kill the Russian investigation. So if Hutchinson had information that would be useful to this investigation (including details about where Trump stored what at Mar-a-Lago), DOJ likely has it.

Similarly, of the seven people whom Trump named to represent his interests with the Archives, three — Pat Cipollone, Pat Philbin, and Steve Engel — have been willing to testify with varying degrees of resistance before the January 6 Committee. Engel would have likewise been asked to cooperate on any DOJ investigation of Jeffrey Clark, but he didn’t share details of that with the press. The two Pats both recently received subpoenas in DOJ’s January 6 probe (which they did share with the press). And Pat Philbin is likely the lawyer described in earlier reports who attempted, but failed, to negotiate transfer of Trump’s stolen documents to the Archives.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

But after an extended back and forth over several months and after multiple steps taken by Trump’s team to resolve the issue, Stern sought the intervention of another Trump attorney last fall as his frustration mounted over the pace of the document turnover.

If Philbin was the person who tried but failed to resolve the Archives’ concerns, he is a direct, material witness to the issue of whether Trump had willfully withheld classified documents the Archives was asking for, something the Archives would have made clear in its referral to DOJ. And because of the way the Espionage statute is written (note the Newsweek article, if accurate, mentions National Defense Information, language specific to the Espionage Act), Philbin would have personal legal exposure if he did not fully disclose information about Trump continuing to hoard stolen classified documents. Plus, Philbin has been involved in national security law since the 00s, and probably would like to retain his clearance to represent clients in national security cases.

All of which is to say that DOJ has easily identifiable people who are known to be somewhat willing to testify against Donald Trump and who are known to have specific knowledge about the documents he stole. If either Hutchinson or Philbin (or both!) answered FBI questions about Trump’s document theft, they would not be “informants.” They would be witnesses. Just like they’re both witnesses to some of Trump’s other suspected crimes.

Nor does that make them “cooperators” in the stricter sense — people who’ve entered into plea agreements to work off their own criminal liability.

As remarkable as six years of Trumpism has made it seem, sometimes law-abiding citizens answer FBI questions without the tantrums that Corcoran seems to tolerate from his clients.

Indeed, if the crime that FBI is investigating really is as serious as the Espionage Act, far more witnesses may see the wisdom of sharing their information with the FBI.

Update: Propagandist John Solomon offers a version of the same story as WSJ, though in his telling, DOJ also subpoenaed Trump in June, specifically asking for documents with classified markings, including those involving correspondence with foreign officials.

The subpoena requested any remaining documents Trump possessed with any classification markings, even if they involved photos of foreign leaders, correspondence or mementos from his presidency.

This is the kind of detail that the lawyers who negotiated initial efforts to retrieve stolen documents would know about. If Philbin, for example, knows that Trump had tried to hold onto his love letters with Mohammed bin Salman and Vladimir Putin, but Trump still didn’t provide them in response to a subpoena, then there’d be a clearcut case of withholding classified documents.

Update: CNN has matched Solomon’s report.

Trump and his lawyers have sought to present their interactions with Justice Department prosecutors as cooperative, and that the search came as a shock. The subpoena was first reported by Just the News.

In response to questions about the grand jury subpoena, Trump spokesman Taylor Budowich said in a statement to CNN: “Monday’s unprecedented and absolutely unnecessary raid of President Trump’s home was only the latest and most egregious action of hostility by the Biden Administration, whose Justice Department has been weaponized to harass President Trump, his supporters and his staff.”

But CNN’s version suggests that Trump’s lawyers showed the head of the espionage division of DOJ classified documents, but only agreed to hand over those that were Top Secret or higher.

During the meeting, Trump’s attorneys showed the investigators documents — some of them had markings indicating they were classified. The agents were given custody of the documents that were marked top secret or higher, according to a person familiar with the matter.

That suggests even after turning over 15 boxes of documents, Trump still had highly classified documents lying around the basement of a building riddled with counterintelligence concerns. And when the head of the espionage department came to collect classified documents, Trump withheld less classified ones.

Of course they had probable cause there were classified documents still at Mar-a-Lago. Trump’s lawyers told DOJ there were.

The Evidentiary Hole in the Middle of Ari Melber’s “Not anything but evidence”

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Fresh off giving Andrew Weissmann a platform to complain that DOJ’s multi-spoked investigation into January 6 should be multi-spoked, fresh off giving Adam Schiff an opportunity to make the (still-uncorrected) false claim that Congress never gets ahead of DOJ on parts of investigations they’re conducting in parallel, Ari Melber rolled out a schema (one, two) about his understanding of Trump’s corrupt acts that others have found really helpful.

It came with a nifty, mostly-accurate graphic that shows how multiple attempts to stay in power worked in parallel.

That graphic is helpful for those trying to keep track of all the efforts Trump pursued.

But Ari’s “special report,” which he claims is “built on evidence, not anything but evidence,” is most useful for demonstrating the evidentiary hole in the middle of his understanding of events leading up to January 6. And not just his understanding: also my own, and (at least based off their hearings) even the January 6 Committee’s. Neither Ari, the Committee, nor I, nor anyone I know to be investigating — save possibly DOJ and one or two really well sourced journalists — knows for certain what happened between the end of the December 18, 2020 meeting where Sidney Powell pitched Trump on a plan to seize voting machines and Trump’s December 19 tweet that led Stop the Steal plotters to start taking steps that led to a violent attack on the Capitol.

Before I lay out how well Ari illustrates that evidentiary hole, there are multiple things that Ari gets wrong (I’ve put my transcription of the most important parts of his presentation below). Most have to do with Ari’s apparent misunderstanding of how the blue collar violent attack on the Capitol related to the white collar parts of the coup attempt he has familiarity with.

For example, he claims, without evidence, that Rudy Giuliani, Mark Meadows, and John Eastman wanted pardons, “totally separate from the January 6 violence.” But according to Cassidy Hutchinson, both Rudy and Meadows knew by January 2 that Trump planned to go to the Capitol and it might get “real, real bad.”

CASSIDY HUTCHINSON: As Mr. Giuliani and I were walking to his vehicles that evening, he looked at me and said something to the effect of, Cass, are you excited for the 6th? It’s going to be a great day. I remember looking at him saying, Rudy, could you explain what’s happening on the 6th? He had responded something to the effect of, we’re going to the Capitol.

It’s going to be great. The President’s going to be there. He’s going to look powerful. He’s — he’s going to be with the members. He’s going to be with the Senators. Talk to the chief about it, talk to the chief about it. He knows about it.

LIZ CHENEY: And did you go back then up to the West Wing and tell Mr. Meadows about your conversation with Mr. Giuliani?

CASSIDY HUTCHINSON: I did. After Mr. Giuliani had left the campus that evening, I went back up to our office and I found Mr. Meadows in his office on the couch. He was scrolling through his phone. I remember leaning against the doorway and saying, I just had an interesting conversation with Rudy, Mark. It sounds like we’re going to go to the Capitol.

He didn’t look up from his phone and said something to the effect of, there’s a lot going on, Cass, but I don’t know. Things might get real, real bad on January 6th.

Hutchinson also tied White House awareness of the militias now charged with seditious conspiracy with Rudy’s presence.

CASSIDY HUTCHINSON: I recall hearing the word Oath Keeper and hearing the word Proud Boys closer to the planning of the January 6th rally when Mr. Giuliani would be around.

As for Eastman, Mike Pence’s Counsel, Greg Jacob, accused Eastman in real time, as his family was worried whether Jacob would get out alive, of causing the “siege” on the Capitol by “whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law.”

[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.

Judge David Carter’s opinion finding it likely Eastman and Trump conspired to obstruct the vote count included Trump’s effort to send the mob, which we now know he knew to be armed, to the Capitol.

President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”218

So all of these three men, per key witnesses and one judge, have legal exposure that is directly tied to the violence at the Capitol. Maybe they only wanted pardons for their white collar crimes, but — according to the evidence — all are implicated in the blue collar crimes.

Ari also treats the consideration of a plan to have DOD seize the voting machines as “the military plot,” one that ended on December 18. There are two problems with this. First, Ari ignores that this plan was revised to put DHS in charge of seizing the machines, which is how the plan resurfaced on December 31, when Trump serially tried to get DOJ and DHS to seize the machines.

ADAM KINZINGER: Mr. Rosen, the President asked you to seize voting machines from state governments. What was your response to that request?

JEFFREY A. ROSEN: That we had — we had seen nothing improper with regard to the voting machines. And I told him that the — the real experts that had been at DHS and they had briefed us, that they had looked at it and that there was nothing wrong with the — the voting machines. And so that was not something that was appropriate to do.

ADAM KINZINGER: There would be no factual basis to seize machines. Mr. Donoghue —

JEFFREY A. ROSEN: — I — I don’t think there was legal authority either.

ADAM KINZINGER: Yeah. Mr. Donohue can you explain what the President did after he was told that the Justice Department would not seize voting machines?

RICHARD DONOGHUE: The President was very agitated by the Acting Attorney General’s response. And to the extent that machines and — and the technology was being discussed, the Acting Attorney General said that the DHS, Department of Homeland Security, has expertise in machines and certifying them and making sure that the states are operating them properly.

And since DHS had been mentioned, the President yelled out to his Secretary get Ken Cuccinelli on the phone. And she did in very short order. Mr. Cuccinelli was on the phone. He was the number two at DHS at the time. It was on the speakerphone, and the President essentially said, Ken, I’m sitting here with the Acting Attorney General.

He just told me it’s your job to seize machines and you’re not doing your job. And Mr. Cuccinelli responded.

More importantly, Ari ignores that both militias charged with sedition and a goodly number of other armed rioters believed that larger scale violence would break out (possibly via clashes with counter-protestors, possibly in response to the GOP attempt to steal votes at the Capitol) on January 6, which would create the excuse for Trump to invoke the Insurrection Act to accord legal authority to the mob to act on his behalf. That will literally be Stewart Rhodes’ defense against a sedition charge, that he expected his attack on the US to come with Trump’s legal sanction.

And the plan may have gone further than that. To the extent that Trump asked the National Guard to be prepared for January 6, it was to protect his supporters, not to protect the Capitol.

Mr. Meadows sent an email to an individual about the events on January 6 and said that the National Guard would be present to ‘‘protect pro Trump people’’ and that many more would be available on standby.

When reports that the Guard would deploy first started to come out on January 6, Proud Boy Charles Donohoe [now a cooperating witness] reacted with surprise that the Guard would attack, rather than protect, Trump supporters.

That is, the actual plans for a military coup, rather than a Sidney Powell plan that Trump rejected then revisited, envisioned having armed Trump supporters and the National Guard holding the Capitol together. It was a plan that multiple militia members — most notably Rhodes, which forms a key part of the sedition evidence against him — but even joined by some members of Congress continued to pursue after January 6. There was a military plot that was far worse than the one that Ari labels as “that very bad red illegal plan,” but to understand it, you need to understand what happened at the Capitol, and what plans continued for weeks — still continue!! — after, per Ari, the violence “ended within one day.”

On top of a lack of understanding of what actually happened at the Capitol, Ari’s scheme includes conflicting claims. Ari claims that after Trump chose not to pursue Sidney Powell’s plan on December 18, he turned to “muscle.” “So that’s when I bring muscle to January 6.” His nifty graphic shows the plans to “sabotage Jan. 6” (adopting an utterly bizarre word, “sabotage,” which whitewashes both the violence planned and the legal crime, obstruction, committed) started right then, on December 19. But then, after claiming that Trump turned to “muscle” starting on December 19, Ari suggests that Trump’s only agency in the violence that ensued was the speech he gave on January 6. “The law makes it hard to pin an insurrection on one speech.”

In his presentation, at least, Ari ignores that “muscle” had been a part of the plan from the start, with operatives forming mobs at counting locations in the swing states that in turn created the cover for the fake electors plot and elicited threats against election officials, and it continued through to January 6 and beyond.

This may stem from an unfortunate unevenness on the part of the January 6 Committee.

The seventh hearing — the one purportedly focused on the rioters — depicted the actions of Ali Alexander and Alex Jones as an organic response to Trump’s December 19 tweet.

Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

ALEX JONES: It’s Saturday, December 19th. The year is 2020, and one of the most historic events in American history has just taken place. President Trump, in the early morning hours today, tweeted that he wants the American people to march on Washington DC on January 6th, 2021.

That hearing similarly implied that Oath Keeper Kelly Meggs’ efforts to set up an alliance between the militias, which undoubtedly started at least days earlier, was a response to Trump’s tweet.

On December 19th at 10:22 a.m., just hours after President Trump’s tweet, Kelly Meggs, the head of the Florida Oath Keepers, declared an alliance among the Oath Keepers, the Proud Boys and the Florida Three Percenters, another militia group.

He wrote, we have decided to work together and shut this shit down. Phone records obtained by the Select Committee show that later that afternoon, Mr. Meggs called Proud Boys leader Enrique Tarrio, and they spoke for several minutes. The very next day, the Proud Boys got to work. The Proud Boys launched an encrypted chat called the Ministry of Self-defense.

That is, in places, the Committee encouraged this notion that everything pivoted on December 19 after that tweet.

But elsewhere, the Committee made it clear that the “muscle” and the militia were part of the plan from the start. Its fourth hearing on the Big Lie, for example, made clear that the earlier mobs were led by the very same people who seemingly sprung to action in response to Trump’s December 19 tweet.

[Ali Alexander]:

Let us in. Let us in. Let us in. Special session. Special session. Special session. We’ll light the whole shit on fire.

NICK FUENTES:

What are we going to do? What can you and I do to a state legislator besides kill him? Although, we should not do that. I’m not advising that, but I mean what else can you do? Right?

UNKNOWN:

The punishment for treason is death.

[End Videotape]

ADAM SCHIFF:

The state pressure campaign and the danger it posed to state officials and to State Capitols around the nation was a dangerous precursor to the violence we saw on January 6th at the US Capitol.

[snip]

The Select Committee has uncovered evidence in the course of our investigation that at stop the steal protests at state capitols across the country, there were individuals with ties to the groups or parties involved in the January 6th attack on the US Capitol. One of those incursions took place in the Arizona House of Representatives building, as you can see in this footage.

This is previously undisclosed video of protesters illegally entering and refusing to leave the building. One of the individuals prominently shown in this video is Jacob Chansley, perhaps better known as the QAnon Shaman. This rioter entered the Capitol on January 6th, was photographed leaving a threatening note on the dais in the US Senate chamber, and was ultimately sentenced to 41 months in prison after pleading guilty to obstruction of an official proceeding. Other protesters who occupied the Arizona House of Representatives building included — included Proud Boys, while men armed with rifles stood just outside the entrance.

And different parts of the seventh hearing showed that these ties are much better established, including through Roger Stone’s Friends of Stone listserv that started plotting immediately after the election.

Raskin: In the same time frame, Stone communicated with both the Proud Boys and the Oath Keepers regularly. The committee obtained encrypted content from a group – – from a group chat called Friends of Stone, FOS, which included Stone, Rhodes, Tarrio and Ali Alexander.

The chat focused on various pro-Trump events in November and December of 2020, as well as January 6th. As you can see here, Stewart Rhodes himself urged the Friends of Stone to have people go to their state capitols if they could not make it to Washington for the first million MAGA March on November 14th. These friends of Roger Stone had a significant presence at multiple pro-Trump events after the election, including in Washington on December the 12th. On that day, Stewart Rhodes called for Donald Trump to invoke martial law, promising bloodshed if he did not.

[snip]

JAMIE RASKIN: Encrypted chats obtained by the Select Committee show that Kelly Meggs, the indicted leader of the Florida Oath Keepers, spoke directly with Roger Stone about security on January 5th and 6th. In fact, on January 6th, Stone was guarded by two Oath Keepers who have since been criminally indicted for seditious conspiracy.

One of them later pleaded guilty and, according to the Department of Justice, admitted that the Oath Keepers were ready to use, quote, lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard. As we’ve seen, the Proud Boys were also part of the Friends of Stone Network.

Stone’s ties to the Proud Boys go back many years. He’s even taken their so-called fraternity creed required for the first level of initiation to the group.

[snip]

Katrina Pierson, one of the organizers of January 6th rally and a former campaign spokeswoman for President Trump, grew increasingly apprehensive after learning that multiple activists had been proposed as speakers for the January 6th rally. These included some of the people we discussed earlier in this hearing.

Roger Stone, a longtime outside advisor to President Trump; Alex Jones, the founder of the conspiracy theory website Infowars; and Ali Alexander, an activist known for his violent political rhetoric. On December 30th, Miss Pierson exchanged text messages with another key rally organizer about why people like Mr. Alexander and Mr. Jones were being suggested as speakers at the President’s rally on January 6th. Ms. Pierson’s explanation was POTUS, and she remarks that the President likes the crazies.

Remember that the Committee cut a good deal of their presentation focused on the militia in that seventh hearing to integrate more of Pat Cipollone’s testimony, which I think was one of the more unsuccessful planning decisions the Committee made.

Even still, taken as a whole, the Committee shows that the network around Roger Stone, which linked Ali Alexander, Alex Jones, and other movement activists to the militias (Jones had his own long-standing ties to the militias, including his former employee Joe Biggs), was riling up crowds starting immediately after the election, took concrete steps seemingly in response to Trump’s December 19 tweet, and continued to do so on January 6.

I mean, Roger Stone has been doing this since 2000.

In his most recent schema at least, Ari ignores all of that. Stone, Alexander, the militias, go unmentioned, and Trump’s role in the violence is limited to a single speech.

Which brings me back to the evidentiary gap that Ari and I share, seemingly in conjunction with the Committee.

In Ari’s telling, Donald Trump and Peter Navarro (with whom Ari has had a series of interviews) are the agents of this timeline. In his telling, Trump made an effort to “find a coup plotter” who would go further than his personal lawyer Rudy, who at least according to Hutchinson, had ties to the militias (though Powell is currently funding the legal defense of several Oath Keepers). Ari claimed that Powell was still on the campaign team, even though Rudy had explicitly and publicly stated she had no role on the campaign as early as November 22.

And Ari suggested that Trump adopted Powell’s plan, then either “back[ed] down” or “quit” it.

But as the January 6 Committee described it, it’s not really clear what happened; Pat Cipollone couldn’t even say whether Powell was appointed Special Counsel.

PAT CIPOLLONE: I don’t know what her understanding of whether she had been appointed, what she had been appointed to, Ok? In my view, she hadn’t been appointed to anything and ultimately wasn’t appointed to anything, because there had to be other steps taken. And that was my view when I left the meeting. But she may have a different view, and others may have a different view, and — and the president may have a different view.

To make matters worse, there are few if any credible witnesses here. Sidney Powell and her entourage (including Patrick Byrne, Mike Flynn, and an unnamed attorney) are batshit insane. So is Rudy. Cipollone, who gets treated as a grown-up, seems to be protecting Trump with his privilege claims. Meadows showed up later, but he’s a liar. Cassidy Hutchinson was texting details about the screaming and took a picture of Meadows escorting Rudy from the premises, but she is not known to have been in the meeting.

What seems common to all descriptions is that the Powell entourage showed up without an appointment and were let in by (as Ari notes) Peter Navarro aide Garrett Ziegler, though Patrick Byrne’s account describes two others being involved in their unplanned entry as well. That’s not a plan, it’s a pitch.

During the course of the meeting, Trump entertained the Powell plan because, he complained, Rudy and others were offering him nothing better.

UNKNOWN: So one of the other things that’s been reported that was said during this meeting was that President Trump told White House lawyers Mr. Herschmann and Mr. Cipollone that they weren’t offering him any solutions, but Ms. Powell and others were. So why not try what Ms. Powell and others were proposing? Do you remember anything along those lines being said by President Trump?

DEREK LYONS: I do. That sounds right.

ERIC HERSCHMANN: I think that it got to the point where the screaming was completely, completely out there. I mean, you got people walk in, it was late at night, had been a long day. And what they were proposing I thought was nuts.

RUDY GIULIANI: I’m gonna — I’m gonna categorically describe it as you guys are not tough enough. Or maybe I put it another way. You’re a bunch of pussies. Excuse the expression, but that — that’s I — I’m almost certain the word was used.

But the impression given by virtually all versions of this story (key versions linked below) is that by the end of the night, the White House lawyers and Rudy had mostly convinced Trump not to adopt this plan.

If that’s the case (and several people have backed that story under oath), this will be exculpatory if and when Trump ever goes to trial, not inculpatory. Entertaining a suspect idea — even the arguably legal one of appointing Jeffrey Clark to more aggressively pursue voter fraud claims, and especially a plan to seize the poll machines — but rejecting it on the advice of lawyers, even if Trump was persuaded to do so largely out of self-interest, is evidence someone is trying to stay inside the law, not break it. To be sure, there’s plenty of other evidence that Trump knowingly broke the law, but some of the most contentious meetings will actually be used in his defense. That just means prosecutors will find their proof of motive in places more directly tied to the crimes.

But the meeting accounts showing lawyers at least stalling on any decision about seizing the machines is where the trail goes dark.

No one has yet explained what happened between the time everyone left and the moment Trump’s tweet went out, and the understanding with which key planners adjusted their own timelines. Instead, we get narratives like Ari’s, or Jamie Raskin’s, that present the timing as proof that Trump took a third alternative — a pretty strong inference, undoubtedly — without an explanation of how the tweet got sent out or whether those involved knew where things would lead or who pitched Trump.

Not long after Sidney Powell, General Flynn, and Rudy Giuliani — Giuliani left the White House in the early hours of the morning, President Trump turned away from both his outside advisers’ most outlandish and unworkable schemes and his White House counsel’s advice to swallow hard and accept the reality of his loss.

Instead, Donald Trump issued a tweet that would galvanize his followers, unleash a political firestorm, and change the course of our history as a country. Trump’s purpose was to mobilize a crowd. And how do you mobilize a crowd in 2020? With millions of followers on Twitter, President Trump knew exactly how to do it. At 1:42 AM on December 19, 2020, shortly after the last participants left the unhinged meeting, Trump sent out the tweet with his explosive invitation.

Trump repeated his big lie and claimed it was “statistically impossible to have lost the 2020 election” before calling for a big protest in DC on January 6th, be there, will be wild. Trump supporters responded immediately. Women for America First, a pro-Trump organizing group, had previously applied for a rally permit for January 22nd and 23rd in Washington, DC, several days after Joe Biden was to be inaugurated.

But in the hours after the tweet, they moved their permit to January 6th, two weeks before. This rescheduling created the rally where Trump would eventually speak. The next day, Ali Alexander, leader of the Stop the Steal organization and a key mobilizer of Trump supporters, registered Wildprotest.com, named after Trump’s tweet.

Wildprotest.com provided comprehensive information about numerous newly organized protest events in Washington. It included event times, places, speakers, and details on transportation to Washington DC. Meanwhile, other key Trump supporters, including far right media personalities, began promoting the wild protest on January 6th. [Begin videotape]

It appears that both Powell’s contingent and Rudy left after midnight, with Meadows and Rudy together alone as Rudy left. Less than two hours later, that tweet went out, a tweet that was demonstrably central to both the organized and disorganized mobilization of the mob, one that has long been a focus of DOJ’s prosecutions (proof, among other proof, that Ari’s claim that DOJ has only focused on January 6 and the days immediately before it is false).

It’s certainly possible that after everyone left Peter Navarro came in, or maybe just Ziegler, and presented an alternative plan, a mob, but Ari presents no evidence that happened and it’s unlikely either Ziegler or Navarro would have been silent about their role in it. It’s more likely that Rudy and Meadows agreed they had to offer Trump another alternative, and they settled on January 6 (certainly, Meadows had advanced knowledge of Rudy’s plans for January 6). It’s possible that Trump had a late night call with someone else — Roger Stone or Bannon, maybe — who operationalized what came next. Maybe the dim-witted Meadows came up with the plan by himself.

Meadows, who refused to cooperate with the Committee, surely knows. Dan Scavino, who refused to cooperate, spent four years knowing what led up to most every tweet that Trump sent out. He also must know.

And while Ari doesn’t appear to know and I don’t either and the Committee doesn’t explain it if they know the answer, the one other place one might learn the answer is from those who turned existing infrastructure — the Stop the Steal effort, the permits — towards planning for January 6 (both of which DOJ has issued grand jury subpoenas to learn).

DOJ has been a bit coy about whether they know. That’s why I pointed to the remarkable use of the passive voice in Donohoe’s statement of offense in April, which virtually alone among January 6 filings obscures Trump’s role in announcing the riot on December 19, then turns immediately to Enrique Tarrio’s very hierarchical plan to instill discipline in the Proud Boys that didn’t exist at the December 12 MAGA March (the same trip to DC where Tarrio visited the White House as part of a Latinos for Trump visit).

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.

That happened “on or before” December 20, allowing for the possibility that the Proud Boys started to plan before Trump publicly announced the rally. Among other communications that DOJ likely has that the Committee has more limited access to are at least three versions of the Friends of Stone listserv (from Tarrio, Rhodes, and Owen Shroyer’s phones).

My instinct — based on all the evidence that these same people had been the muscle going back to the election — is that that’s where one could find the answer: Meadows, Scavino, Trump, Rudy, but also those who directed existing infrastructure towards January 6. But that’s just instinct. We still really don’t know for sure.

Presidents often adopt the plans of the last person in the room, and that’s probably more true with Trump than many of his predecessors. We know — or believe — that Sidney Powell and Rudy both left. Which means we don’t know who pitched Trump on the plan he ultimately adopted, the one that led directly to an attack on the Capitol.

There absolutely is a slew of evidence that that tweet made the difference, not just with the militias, but with disorganized conspirators and individuals who took Trump’s tweet as an order to make travel plans. It is absolutely the case that after that meeting, Trump took a fateful step (though that has been clear for at least a year). We just don’t know what led him to post that tweet.

Many of those people [Rudy, Meadows, Eastman] wanted pardons totally separate from the January 6 violence and that is important as we look at a different plot Trump’s effort to find a coup plotter would who go farther than Giuliani, his lawyer, Sidney Powell. She would go even farther. So the plan was to take her off the campaign team and try to install her inside the government to get the military to seize voting machines.

[snip]

Trump did back down on that very bad red illegal plan. And by the way, quitting an illegal coup would be a good thing, but this was the military plot: another conspiracy’s prong that hits a dead end. And this is key, because facing that dead end, late that same night of December 18th, Trump turned to the other plot pushed by Eastman and Navarro, posting what is by now an infamous tweet that announces the January 6 rally, beginning, quote, Peter Navarro releases 36-page report alleging election fraud ‘more than sufficient’ to swing victory to Trump. That was the lie Trump needed to build on when he summons the people to DC for the first time. Quote, big protest in DC on January 6th. Will be wild. Now that’s the first time Trump ever told supporters there was a place to come join this fight. And none of this happened in isolation. The evidence of Trump’s criminal intent is worse when all the facts are shown about the plot. Trump began the public operation to sabotage January 6 as a certified vote which was criminal, only after hitting this dead end in the failed plot to have the military help a coup. Now his lawyers warned him of the criminal issues here. Of the criminal intent and actions of that military plot. And he still moved, continuously, from that conspiracy to this one. Now, that’s damning evidence if prosecutors are indicting a broader conspiracy. And the White House aide connecting both plots is Navarro whose aide helped sneak in the military plotters there, then, he’s part of Trump’s January 6th announcement.

[A quote about seizing machines, ignores DHS]

This is something that Rudy Giuliani said would land them all in prison. Rudy Giuliani. He’s already lost his law license. We’ll see what else happens to him. But that is the context as we showed tonight: That when that fails, is the same time, the same night, that Donald Trump comes in and says, alright, I can’t abuse military power. I’m even being told by my most aggressive, lawless lawyers — the kind that he apparently prefers — that that’s not gonna work. So that’s when I bring muscle to January 6. But we have had, in this country, in our minds and apparently at the Justice Department as we reported tonight, a fixation on only looking here [post December 19]. On basically the 6th, or the lead-up to the 6th, or a few days out. And that’s understandable, given what we lived through. We’re human beings and the 6th was one of the worst attacks and one of the worst national security crises America has ever faced, from a domestic threat, let alone an incumbent outgoing President. The point tonight, which we’ve built on evidence, not anything but evidence, is that when you actually go all the way back, when you actually understand how this started, and how many different plots were pursued, thwarted, warned about, and then desperately doubled down upon, that goes to the criminal intent. Let me put it simply. Taken separately, some of these plots can be viewed like a gray area, clumsy plans that didn’t occur or the insurrection that exploded but also ended within one day. I’ll tell you something. The law makes it hard to pin an insurrection on one speech. As it should. But taken together, you have the evidence of this wider criminal conspiracy with criminal intent running across weeks if not more. Remember, in court, prosecutors have to prove criminal intent in a moment, just that you meant to do it. This is weeks of that with lawyers warning these were crimes, especially after the legal door was closed in mid-December when the Electoral College voted — everything after that, when it comes to overturning votes and installing fraudulent electors, that’s that illegal red zone. That’s where you see the evidence of several crimes. And taken together? Well, this evidence suggests the question is no longer whether there are any indictable election offenses here, but how prosecutors would explain a failure to indict and enforce the law and how that does risk letting the close call of this documented and attempted multi-prong coup conspiracy turn into a training exercise that American democracy may not survive.

 

Liz Cheney’s Women in White Fighting Donald Trump’s Deceit

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Last night’s January 6 Committee hearing had largely been telegraphed already, a minute by minute depiction of Trump’s inaction as his mob attacked the Capitol, seeking out to harm his Vice President. The most effective new material were the outtakes from Trump’s attempt to film a video the following day, where he couldn’t bring himself to say the election was over.

The most striking thing was how Pat Cipollone invoked Executive Privilege not just to protect conversations he had with the President, but to avoid speaking the most important things that could be used as the direct testimony that will be necessary to convict Donald Trump.

Here’s my thread from watching the hearing.

I’d like to talk about how Liz Cheney crafted her closing comments.

After formally thanking the witnesses there in the room, Sarah Matthews and Matthew Pottinger, she then transposed Cassidy Hutchinson’s bravery against the cowardice of the old men hiding, like Cipollone, behind Executive Privilege.

She emphasized the several women witnesses who had set an example of strength for women and girls.

Let me thank our witnesses today. We have seen bravery and honor in these hearings. And Ms. Matthews and Mr. Pottinger, both of you will be remembered for that, as will Cassidy Hutchinson. She sat here alone, took the oath, and testified before millions of Americans. She knew all along that she would be attacked by President Trump and by the 50-, 60-, and 70-year old men who hide themselves behind Executive Privilege. But like our witnesses today, she has courage, and she did it anyway. Cassidy, Sarah, and our other witnesses, including Officer Caroline Edwards, Shaye Moss and her mother Ruby Freeman are an inspiration to American women and to American girls. We owe a debt to all of those who have and will appear here.

And that brings me to another point. This committee has shown you the testimony of dozens of Republican witnesses. Those who served President Trump loyally for years. The case against Donald Trump in these hearings is not made by witnesses who were his political enemies. It is, instead, a series of confessions by Donald Trump’s own appointees, his own friends, his own campaign officials. People who worked for him for years. And his own family. They have come forward and they have told the American people the truth.

And for those of you who seem to think the evidence would be different if Republican Leader McCarthy had not withdrawn his nominees from this committee, let me ask you this. Do you really think Bill Barr is such a delicate flower that he would wilt under cross-examination? Pat Cipollone, Eric Herschmann, Jeff Rosen, Richard Donoghue? Of course they aren’t. None of our witnesses are.

At one point in 2016, when he was first running for office, Donald Trump said this: I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters. That quote came to mind last week when audio from Trump advisor Steve Bannon surfaced, from October 31, 2020, just a few days before the Presidential election.

[describing Bannon predicting that Trump would declare victory]

And of course four days later Trump declared victory when his own campaign advisors told him he had absolutely no basis to do so. What the new Steve Bannon video demonstrates is that Donald Trump’s plan to falsely claim victory in 2020, no matter what the facts actually were, was premeditated. Perhaps worse, Donald Trump believed he could convince his voters to buy it, whether he had any actual evidence of fraud or not. And this same thing continued to occur from election day onward until January 6. Donald Trump was confident that he could convince his supporters the election was stolen, not matter how many lawsuits he lost. And he lost scores of them. He was told over and over again in immense detail that the election was not stolen. There was no evidence of widespread fraud.

Cheney then described how Trump exploited the patriotism of his followers to convince them to attack the country (something we see all the time in court hearings from January 6 defendants).

It didn’t matter. Donald Trump was confident he could persuade his supporters to believe whatever he said, no matter how outlandish. And ultimately, that they could be summoned to Washington to help him remain President for another term. As we showed you last week, even President Trump’s legal team, led by Rudy Giuliani, knew they had no actual evidence to demonstrate the election was stolen. Again, it didn’t matter.

Here’s the worst part. Donald Trump knows that millions of Americans who supported him would stand up and defend our nation, were it threatened. They would put their lives and their freedom at stake to protect her. And he is preying on their patriotism. He is preying on their sense of justice. And on January 6, Donald Trump turned their love of country into a weapon against our Capitol and our Constitution. He has purposely created the false impression that America is threatened by a foreign force controlling voting machines. Or that a wave of tens of millions of false ballots were secretly injected into our election system. Or that ballot workers have secret thumb drives and are stealing the elections with them. All complete nonsense.

The ability to get to the truth, Cheney laid out, is fundamental to remaining a free nation.

We must remember that we cannot abandon the truth and remain a free nation.

In late November of 2020, while President Trump was still pursuing lawsuits, many of us were urging him to put any genuine evidence of fraud forward in the courts and to accept the outcome of those cases. As January 6 approached, I circulated a memo to my Republican colleagues explaining why our congressional proceedings to count electoral votes could not be used to change the outcome of the election. But what I did not know at the time was that President Trump’s own advisors — also Republicans, also conservatives — including his White House Counsel, his Justice Department, his campaign officials, they were all telling him almost exactly the same thing I was telling my colleagues. There was no evidence of fraud or irregularities sufficient to change the election outcome. Our courts had ruled. It was over.

Now we know that it didn’t matter what any of us said, because Donald Trump wasn’t looking for the right answer legally or the right answer factually. He was looking for a way to remain in office. Let’s put that aside for a moment and focus just on what we saw today. In our hearing tonight you saw an American President faced with a stark and unmistakeable choice between right and wrong. There was no ambiguity. No nuance. Donald Trump made a purposeful choice to violate his oath of office. To ignore the ongoing violence against law enforcement. To threaten our Constitutional order. There is no way to excuse that behavior. It was indefensible. And every American must consider this: Can a President who is willing to make the choices Donald Trump made during the violence of January 6 ever be trusted with any position of authority in our great nation again?

Then, minutes after saluting the bravery of women like Cassidy Hutchinson, Cheney pivoted to the historical moment of women’s suffrage.

In this room, in 1918, the committee on women’s suffrage convened, to discuss and debate whether women should be granted the right to vote. This room is full of history and we on this committee know we have a solemn obligation not to idly squander what so many Americans have fought and died for.

Finally, she closed with that great conservative heroine, Margaret Thatcher.

Ronald Reagan’s great ally, Margaret Thatcher, said this: let it never be said that the dedication of those who love freedom is less than the determination of those who would destroy it. Let me assure every one of you this: our committee understands the gravity of this moment, the consequences for our nation. We have much work yet to do, and we will see you all in September.

As I described, her closing comments from the first hearing assumed the mantle of Reagan.

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.

Last night, along with Sarah Matthews and Cassidy Hutchinson, Liz Cheney assumed that mantle in distinctly feminist form.

This message is not for you or I. We are not the audience for the invocation of Margaret Thatcher.

But as Cheney attempts to convince Republicans that Donald Trump made them betray their patriotism, she is pitching the alternative in distinctly female form.

Just before she goes home to lose her primary, badly, this woman is committing to coming back in September to continue the work of trying to persuade her fellow conservatives to believe in the truth again.

Note: Mr. EW and I are headed out on an Irish-sized road trip. Unless something major happens, posting will be light in days ahead. 

Cassidy Hutchinson Is a Superb Witness — to Get Other Witnesses against Trump

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According to a CNN report of Pat Cipollone’s testimony, the January 6 Committee did not ask him whether he told Cassidy Hutchinson that (as she testified), if “we” didn’t prevent Trump from going to the Capitol on January 6, “we” would get charged with every charge imaginable.

Two people familiar with former Trump White House counsel Pat Cipollone’s testimony Friday told CNN that the House select committee investigating January 6, 2021, did not ask him if he told then-White House aide Cassidy Hutchinson the day of the attack that they would “get charged with every crime imaginable” if they went to the US Capitol.

If asked, he would not have confirmed that particular statement, the sources said.

A separate source familiar with the committee told CNN, “The select committee sought information about Cipollone’s views on Trump going to the Capitol on January 6,” implying that the committee’s questions were focused on Cipollone’s perspective as opposed to his take on other witness’ testimony.

[snip]

Cipollone told the committee on Friday that he wasn’t giving legal advice to staff regarding movements on January 6. This came up during his testimony as part of a question not relating to the specific anecdote from Hutchinson.

It doesn’t mean that he didn’t say such a thing. Indeed, other outlets have said that he didn’t contradict anything she said. It means that, thus far at least, one of the six to ten witnesses who would be important witnesses to charge Trump for crimes beyond the obstruction and conspiracy charges framework DOJ has been explicitly pursuing since August is thus far unwilling to recall some of the more damning details of Hutchinson’s testimony. He may have reason to avoid it! After all, the pardons he was a party to before the insurrection — most importantly of Mike Flynn and Roger Stone — may implicate him in the later events, no matter how hard he tried on January 6 to prevent more bloodshed.

That’s an important detail to keep in mind as you read this NYT story, which has led the usual suspects to claim that DOJ has done nothing to pursue a Trump investigation.

The electrifying public testimony delivered last month to the House Jan. 6 panel by Ms. Hutchinson, a former White House aide who was witness to many key moments, jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.

In conversations at the department the day after Ms. Hutchinson’s appearance, some of which included Ms. Monaco, officials talked about the pressure that the testimony created to scrutinize Mr. Trump’s potential criminal culpability and whether he intended to break the law.

Ms. Hutchinson’s disclosures seemed to have opened a path to broaching the most sensitive topic of all: Mr. Trump’s own actions ahead of the attack.

Department officials have said Ms. Hutchinson’s testimony did not alter their investigative strategy to methodically work their way from lower-level actors up to higher rungs of power. “The only pressure I feel, and the only pressure that our line prosecutors feel, is to do the right thing,” Mr. Garland said this spring.

But some of her explosive assertions — that Mr. Trump knew some of his supporters at a rally on Jan. 6, 2021, were armed, that he desperately wanted to join them as they marched to the Capitol and that the White House’s top lawyer feared Mr. Trump’s conduct could lead to criminal charges — were largely new to them and grabbed their attention.

Even while many took from this that DOJ is not investigating, the article — written by Katie Benner, probably the journalist with the best sources at the top of DOJ across administrations, and Glenn Thrush, whose background is as a political reporter and who exhibits little understanding of DOJ matters (but who is bylined on most of the stories about AUSA Thomas Windom) — also reported that Windom was asked to lead the fake electors investigation last fall, at least a month before Lisa Monaco confirmed it and possibly much earlier than that. It also describes that Merrick Garland was briefed on an “influencer” strand of the investigation in March 2021, which is consistent with when we know DOJ obtained Brandon Straka’s phone providing information on the Stop the Steal listserv, the VIP treatment, and possibly even events at the Willard.

Mr. Sherwin presented Mr. Garland with a strategy that included four teams of prosecutors, labeled A through D: “Team B,” already staffed by 15 lawyers, had begun looking into “public influencers and officials” linked to the attack, according to a copy of a memo shared with The New York Times.

There are strands of the investigation not mentioned in this — such as the Sidney Powell investigation, which started no later than September 2021, the way DOJ got a privilege review for Rudy Giuliani’s phones that would go through the insurrection, or the way Roger Stone has been a key focus of the Oath Keeper investigation since March 2021. And the piece doesn’t describe Monaco’s own public statement the day after Hutchinson’s testimony, which claimed, at least, that DOJ is “deep” into its January 6 probe.

All that said, I don’t doubt that Hutchinson did make DOJ consider previously unconsidered investigative next steps and I have even less doubt that former Assistant Attorney General Jody Hunt, the lawyer who shepherded Hutchinson through her more expansive testimony to the Committee in late June, has been in touch with DOJ.

But back to the Cipollone point with which I started: As I noted in my review of Hutchinson’s testimony, she gave absolutely crucial firsthand testimony about Cipollone, Mark Meadows, and Tony Ornato, as well as damning comments about Rudy Giuliani and Scott Perry, but with a few exceptions, those men were and are still the ones who would have the firsthand testimony about what Trump said and did. I noted, too, that on the topic about which Hutchinson had the most important firsthand knowledge of Trump’s mindset — his demand that the Secret Service take down metal detectors so his armed supporters could enter the official venue for his speech — she acknowledged his motivation stemmed in significant part from his narcissism.

Hutchinson’s testimony on a really critical point includes some ambiguity. In conversations at the White House and then later at the rally, Trump saw the crowd on January 6 and was furious more of his supporters weren’t inside the arena. He was aware many supporters were staying outside the arena because they didn’t want to go through the magnetometers because they had weapons. He asked to ditch the magnetometers because “they weren’t there to hurt him.” This detail is most important because it reflect[s] knowledge on Trump’s part they were armed, before he riled them up and sent them to the Capitol. But in a trial, he would excuse letting them into the rally itself by pointing to his long-standing crowd narcissism, exhibited most famously at his inauguration.

Read that post! It holds up! Including my point that her testimony will be most valuable for getting the testimony of others like Cipollone and Ornato, and it’ll make whatever charges DOJ uses to coerce Meadows’ cooperation more onerous and therefore more likely to be effective.

I also noted that Hutchinson’s testimony would not have been available in its current form without the process she has been through since February, which has since been laid out in detail in this piece. That process not only involved replacing the lawyer Trump provided her with, Stefan Passantino, with Hunt, but also depended on growing trust with Liz Cheney.

Now unemployed and sequestered with family and a security detail, Ms. Hutchinson, 26, has developed an unlikely bond with Ms. Cheney, a Wyoming Republican and onetime aide to former Secretary of State Colin L. Powell during the George W. Bush administration — a crisis environment of another era when she learned to work among competing male egos. More recently, as someone ostracized by her party and stripped of her leadership post for her denunciations of Mr. Trump, Ms. Cheney admires the younger woman’s willingness to risk her alliances and professional standing by recounting what she saw in the final days of the Trump White House, friends say.

[snip]

Over the next months, Ms. Hutchinson warmed to the idea of helping the committee’s investigation, according to a friend, but she did not detect the same willingness in Mr. Passantino.

“She realized she couldn’t call her attorney to say, ‘Hey, I’ve got more information,’” said the friend, who requested anonymity. “He was there to insulate the big guy.”

Mr. Passantino declined to comment.

At that point Ms. Hutchinson got in touch with Ms. Griffin, who had been cooperating with the committee herself. Ms. Griffin passed on Ms. Hutchinson’s concerns to Barbara Comstock, a former Republican congresswoman and outspoken critic of Mr. Trump. In an interview, Ms. Comstock said that she could have predicted Ms. Hutchinson’s predicament, recalling how she had once talked a young man out of joining the Trump administration. “I said, ‘You’re going to end up paying legal bills,’” Ms. Comstock recalled.

Ms. Comstock offered to start a legal-defense fund so that Ms. Hutchinson would not have to rely on a lawyer paid for by Trump affiliates. But this proved unnecessary. Jody Hunt, the former head of the Justice Department’s civil division under Jeff Sessions — Mr. Trump’s former attorney general and another pariah in Mr. Trump’s world — offered to represent her pro bono. Mr. Hunt accompanied Ms. Hutchinson to her fourth deposition in late June, when she felt more comfortable talking about Mr. Trump’s actions on Jan. 6. Everyone agreed it was time to speed up her public testimony.

Two realities have now taken hold for Ms. Hutchinson. One is that she will continue to offer information to the Jan. 6 committee, with Mr. Hunt as her counsel and Ms. Cheney as the committee’s designated interlocutor to her.

For better and worse, we’re all better off that Hunt will be sitting in on her DOJ interviews than Passantino, but we might not have gotten to this place without the involvement of Liz Cheney and other people, like Barbara Comstock, with whom this site has a very long contentious relationship.

So Hutchinson represents real progress — which is what the NYT story says! But the NYT story also makes clear that DOJ will continue to investigate known crimes, not people.

Days after Hutchinson’s testimony, I started but never finished a post attempting to revisit this framework for how DOJ seems to be approaching the investigation, included below in italicized type. They key point is that for each “nice to have” there’s the cooperation — coerced or voluntary — of a key witness who worked directly with Trump. Cassidy Hutchinson is not that witness. But she offers a way to get to those witnesses with a greater likelihood of success.

The other day, I noted that, while Cassidy Hutchinson’s testimony was courageous and powerful, many of the details she provided would need additional corroboration (from people like Pat Cipollone, who has since been subpoenaed) before being used to prosecute Donald Trump. Nevertheless, her testimony has led people who haven’t followed the investigation to again engage in speculation that Merrick Garland is sitting in an office somewhere pondering whether to push the “indict Trump” button or not. That misunderstands how such a decision would work.

That’s true, first of all, because it would not be Garland’s button to push. It would be a team of AUSAs working for DC US Attorney Matthew Graves, who would first get Graves’, then Lisa Monaco’s, and only then Garland’s approval. If and when Trump is charged, DOJ will be able to point to some career AUSAs (including Thomas Windom, whom NYT described the other day as someone who clerked for a conservative judge) who made the initial prosecutorial decision.

At this point, too, I think the question is not whether Garland (or, rather, the AUSAs) are sure they can convict Trump et al.

Every single thing in the public record shows they’re still taking steps to pursue that investigation, in part by seizing more records and in part by obtaining the witness testimony they would need. A prosecution becomes far easier if Pat Cipollone cooperates, not least because — Hutchinson’s testimony revealed — he warned ahead of time that Trump was exposed with the very same crimes that DOJ has been pursuing against everyone since last summer. Cipollone could be compelled by DOJ to testify, but there’s no sign yet that he has been. I presume Cassidy Hutchinson’s lawyer, Jody Hunt (who was Assistant Attorney General under Trump and who saw how badly Trump treated his boss, Jeff Sessions) is already in discussions about arranging her cooperation with DOJ, and the kind of detail she provided about what Cipollone will get DOJ a step closer to where they would be ready to get Cipollone’s testimony.

Everything that’s public (and I’m sure there’s a lot that’s not) suggests DOJ is working towards five kinds of conduct that Trump would exposed on: 1) coordination — through Stone and, Tuesday’s testimony confirms something I’ve been virtually the only one reporting since early 2021, Rudy — with the militias 2) plans with Stop the Steal that significantly involve Alex Jones’ role in bringing bodies that the militias used to occupy the Capitol 3) the fake electors plot, which is the illegal manifestation of the larger Big Lie 4) pressure on Mike Pence, which includes both an illegal order and real threats of violence 5) the separate illegal request of Brad Raffensperger (which could be charged in GA as early as this week [note: This did not happen, and/but also she appears to have expanded her scope significantly]).

DOJ is making visible signs of progress with many of these prongs, but some of those visible signs suggest any charging decision would be six months away at least. The reason Garland has not pushed a button marked “indict” yet, or why AUSAs haven’t presented a package for approval up a bureaucratic chain of command, is because before DOJ indicts they need to have both the comms in hand, as well as the cooperating direct witnesses to Trump’s actions and intent.

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

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

The stunt itself isn’t all that interesting.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

{video}

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

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

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

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

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

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

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

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