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[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Paul Nakasone’s Concerns about Mike Ellis Hiring Vindicated

DOD Inspector General released a report yesterday finding there was no evidence of impropriety in the hiring of Michael Ellis as General Counsel, but also suggesting that NSA Director Paul Nakasone was vindicated in his concerns about Ellis’ hiring. DOD IG made those conclusions without succeeding in getting Pat Cipollone — who might know a back story to Ellis’ hiring — to sit for an interview about his role in the process.

The hiring process

As the report lays out, Ellis was one of 29 candidates who were deemed qualified for the position to apply in early 2020. An initial vetting process did not work as one of the participants said it had in the past, partly because of how the panel considered the technical requirements, partly because they did not conduct interviews. But by all accounts Ellis was deemed one of the top seven candidates, and so qualified for the position.

In the next round, just three people were reviewed, including Ellis. Several of the three panel members deemed a different candidate to have had an exceptionally good interview, but all agreed Ellis did quite well and that it was a close decision.

After that DOD General Counsel Paul Ney, who had selection authority, chose Ellis. When asked why he preferred Ellis, he cited Ellis’ more extensive Intelligence Community experience and his experience both on the Hill (where he wrote dodgy reports for Devin Nunes) and in the White House (where he ran interference for Trump), though there’s no evidence Ney understood Ellis’ role on those bodies. Ney told DOD IG that he had several calls with John Eisenberg and one with Pat Cipollone where the lawyers spoke favorably of Ellis during the hiring process, but he did not regard those as being an attempt to pressure him.

The law requires that the NSA Director be consulted in this process. After the decision was made, Nakasone conducted interviews and decided that the same candidate who had had the exceptionally good interview would best manage the 100-person General Counsel department at the NSA. He also shared concerns with Ney about the way that Ellis had done the classification review of John Bolton’s book (probably reflecting that Ellis was pursuing a political objective on that front). Nevertheless, Ney picked Ellis, and after the election, his hiring was announced.

As the transition wore on and Congress got involved, Nakasone raised concerns about whether the Office of Personnel Management had done an adequate review of the hiring of a political appointee. The review is not required (the IG Report recommended that it be required going forward), and was not used with Obama’s General Counsels Raj De and Glenn Gerstell either. On January 15, Nakasone attempted to stall the on-boarding process, citing the OPM review and concerns from Congress. But then Ney got Christopher Miller to order Nakasone to hire Ellis by the end of the following day, which Nakasone did.

After that (but before the inauguration), Nakasone learned of two security incidents involving Ellis, and based on that and the ongoing IG investigation, put the newly hired General Counsel on leave.

The Eisenberg and Cipollone calls

The IG Report considered whether in calls from John Eisenberg and Pat Cipollone, they inappropriately influenced Ney. It credibly shows they did not. That’s true, first of all, because the IG Report makes it clear that Ney had regular interactions with Eisenberg, Ellis, and Cipollone. Ellis’ bosses at the White House wouldn’t have needed to push him — he was a known figure to Ney.

Eisenberg’s positive comments were credibly described as a supervisor expressing positive comments about someone.

When we asked Mr. Eisenberg about the rationale for his comments to Mr. Ney, he told us,“I would not have been happy with myself if somebody who … works so hard for me, that I … couldn’t be bothered to basically give a recommendation before somebody makes a decision.” Mr. Eisenberg told us, “[T]here’s nothing inappropriate about … somebody from the White House in an appropriate context, providing an evaluation of their employee.”

The IG Report doesn’t describe (and it would be beyond its scope) that Eisenberg played a central role in some key cover-ups for Trump, the most notable of which was Trump’s attempt to coerce election assistance from Ukraine. Ellis was a part of those cover-ups (indeed, that’s arguably what the Bolton classification review was). Eisenberg also played a key role, way back in 2008, in withholding information from FISC for the first programmatic review of PRISM.

That is, a recommendation from Eisenberg is a recommendation from someone who did questionable things to protect the President, often with Ellis’ help. John Eisenberg is a very credible, experienced national security lawyer. He’s also someone who helped Trump undermine democracy.

Still, the IG Report credibly describes this as the normal kind of comment that a supervisor would make. It’s only important given who the supervisor was and what the supervisor had asked Ellis to do in the past.

I’m rather interested, however, that Cipollone blew off DOD IG’s request for information.

Shortly after interviewing Mr. Ney on March 15, 2021, we attempted to contact Mr. Cipollone. He did not respond; however, his assistant responded on July 12, 2021, and we asked to interview Mr. Cipollone. Neither Mr. Cipollone nor his assistant provided any response to our request. Based on the witness testimony and documents we reviewed, we determined that Mr. Cipollone likely did not have any additional information different from what we obtained from other sources, and we decided, therefore, not to further delay our review waiting for a response from Mr. Cipollone or his assistant.

Cipollone had no legal obligation to cooperate, and DOD IG had no legal means to coerce him to do so. But he’s also the kind of person who would know better than to get himself in an interview where he might have to reveal other pertinent details. For whatever reason, he just blew off the request.

In the days after January 6, Ellis was discovered to have two security violations

After determining, credibly, that Ellis was legally hired, DOD IG then considered whether Ellis was legally put on leave as soon as he was hired. The analysis involves the discovery of two security violations on January 7 and January 8, as laid out in this table.

In the first incident, NSA discovered that Ellis had put together and shared notebooks of documents of “compartmented, classified [NSA] information” without NSA knowledge or consent.

An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.

[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.

In the second, more alarming instance, two days after Trump’s coup attempt, an NSA employee tried to retrieve “some of the most sensitive information that NSA possesses” from Ellis, only to discover he was storing it with inadequate security and refusing to return it. (After DDIRNSA Barnes asked for help from Eisenberg, NSA got the information back.)

On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” Mr. Barnes added:

And then we started to get the pressure on the 15th is when Acting SecDef ordered us to issue a job offer to him. And so, in that intervening several days, all’s we knew his [sic]is we have a problem, we have to investigate the nature of how these documents were handled, distributed outside of our purview and control. And so that was—the flares were up but we didn’t have time to actually do anything yet and Mr. Ellis was not our employee so we didn’t have a chance to contact him yet for questioning for anything. We had to get security involved to do it right whenever we do an investigation because we didn’t know if there was a disconnect or an understanding that so these were just—the flares went up on the 7th and the 8th.

Effectively, at a time when NSA was trying to ensure that outgoing Trump officials didn’t walk out with NSA’s crown jewels, they learned that Ellis wanted to keep the crown jewels on White House servers.

Importantly, two aspects of these violations repeat earlier concerns about Ellis’ tenure: He shared information with people (like Nunes) not authorized to have it, and that he and Eisenberg played games with White House servers to avoid accountability. And while it’s not clear why Ellis was violating NSA’s security rules, it does seem of a part of his efforts to politicize classification with the John Bolton review.

DOD IG found that it was not proper to put Ellis on leave based on the then-ongoing IG investigation. But it did find Nakasone’s decision to put Ellis on leave was proper based on Nakasone having control over Ellis’ clearance.

The investigation into Ellis’ security violations appears to have ended when he resigned in April. The IG Report includes a recommendation that it be reconsidered.

The Office of the Undersecretary of Defense for Intelligence and Security should review the allegation and supporting material that Mr. Ellis improperly handled classified information on two occasions to determine what, if any, further actions the NSA or another agency should take regarding this allegation.

It’s possible, though, that this investigation didn’t go further for a different reason. That’s because the President is ultimately the Original Classification Authority for the entire US government. If Ellis was distributing these notebooks and withholding the NSA crown jewels based on Trump’s authorization, it wouldn’t be a violation at all.

That said, that seems reason enough to chase down why he did those things.

Journalists Getting Suckered by Ass-Covering Sources on Afghanistan

Rather than explaining why the government didn’t know that Ashraf Ghani was going to flee the country, allegedly with bags of cash, national security sources are busy suckering journalists to report that they warned of the quick demise of the Afghan military.

A positively egregious example is this piece from WSJ’s Vivian Salama. What it reports is that 23 people in the State Department concerned about the rapid collapse of the Afghan government warned that the collapse would happen after August 31 — that is, still eleven days in the future from today. It also reports that the Biden Administration was already hastening efforts to get allies out of Afghanistan the day after those 23 people warned Tony Blinken (meaning, State was already aware of and working on the urgency).

The cable was sent to Secretary of State Antony Blinken and Director of Policy Planning Salman Ahmed. Mr. Blinken received the cable and reviewed it shortly after receipt, according to the person familiar with the exchange, who added that contingency planning was already under way when it was received, and that Mr. Blinken welcomed their feedback.

[snip]

The signatories of the dissent channel cable urged the State Department to begin registering and collecting personal data in advance for all Afghans who qualify for Special Immigrant Visas, aimed at those who worked as translators or interpreters; locally employed embassy staff; and for those eligible for other U.S. refugee programs while there was still six weeks left before the withdrawal deadline.

It also urged the administration to begin evacuation flights no later than Aug. 1, the people said.

On July 14, a day after the cable was sent, the White House announced Operation Allies Refuge to support the relocation of interested and eligible Afghan nationals and their immediate families who supported the U.S. government for the special immigrant visas. Evacuations didn’t kick into high gear until last week and have been complicated by the Taliban takeover of Kabul on Sunday.

Several other actions that have since been taken by the administration were consistent with some of the requests and recommendations in the cable, the person familiar with the cable exchange said. [my emphasis]

In other words, the story should be about how top Biden officials were already ahead of where the 23 people who signed this dissent cable were, and where they weren’t, they integrated the recommendations of the cable.

The story should be about how the process worked. The story should be about how, even these 23 people who were really alarmed about the fragile state of the Afghan government were still too optimistic about how long it could survive.

The story probably should also be about how, after Biden made comments on July 8 (which the article quotes) that were far too rosy about the state of the Afghan government, someone got him to stop.

That’s not what the story is about though. The paragraph describing how contingency planning was already underway is the seventh paragraph in the story; the paragraphs describing how the White House had already prepared an attempt to accelerate SIV evacuations appear at paragraphs 16 to 19.

In paragraph two, meanwhile, the story uses the word “imminent” to suggest days when it really means weeks.

The classified cable represents the clearest evidence yet that the administration had been warned by its own officials on the ground that the Taliban’s advance was imminent and Afghanistan’s military may be unable to stop it.

And the headline doesn’t note that the cable’s warning was, like all other warnings, too optimistic about the state of the Afghan government.

Internal State Department Cable Warned of Kabul Collapse

I get that such stories — suggesting that Biden ignored warnings and so owns this collapse — will drive a lot of traffic. Biden does own this collapse, along with Trump, Obama, and (especially) George Bush. But he owns it because of stupid decisions made 18 months and 18 years ago, not the efforts he made in July to mitigate the aftermath of those earlier decisions.

A far more urgent, and honest, story is the explanation for why, thus far, zero anonymous sources have claimed to have an explanation why no one knew that Ghani was going to flee. Another urgent story is to understand what forces helped the Taliban succeed so wildly, and how such efforts were able to so thoroughly evade our intelligence collection. Another interesting story is why Afghan veteran Christopher Miller, who was promoted way outside of his expertise level and was surrounded by flunkies fiercely loyal to the President, is making shit up about what was the real plan he was hired to implement.

Every story claiming prescience published thus far has in fact revealed that the people claiming prescience didn’t know this would happen either. It’s time to stop pretending they did and starting figuring out why they didn’t.

What If the US Had Fought the Saudis Instead of the Taliban?

Poof.

Our twenty year occupation of Afghanistan is ending in humiliating fashion. Jim and I are thinking about re-running every one of his posts cataloging the failures of training Afghans who would — and now have — changed sides when necessary or convenient.

While I’ve got burning questions about how Trump and his hand-picked Acting Secretary of Defense, Christopher Miller, made this defeat more certain, I’m going to hold off on recriminations for a bit. After all, we have two decades of accountability to demand.

I am, however, interested in how the way in which we’re fleeing Afghanistan will influence how President Biden responds to a demand from the families of the 9/11 victims to declassify more intelligence from the investigation. They have said Biden is not welcome at the memorial if he does not respond to their demand.

Families of 9/11 victims say an FBI offer to release some documents from its investigation into the attack has not gone far enough, and are demanding a comprehensive declassification review of all relevant material, particularly on Saudi Arabia’s role.

The FBI offer on Monday followed a call by some victims’ families and first responders for Joe Biden to stay away from ceremonies marking the 20th anniversary of the attack next month, if the president failed to honour a campaign pledge to lift the secrecy surrounding the multi-agency investigations.

The families want information on who financed and supported the attacks, and are currently suing the Saudi Arabian government in a federal court in New York. As part of that case, three former Saudi officials were questioned in June by the plaintiffs’ lawyers about their links with two of the 9/11 hijackers, Khalid al-Mihdhar and Nawaf al-Hazmi, who spent several months in southern California before the attack. Their testimony cannot be shared with the families under secrecy rules.

Of course, if Biden does respond fully, it will demonstrate that, rather than occupying Afghanistan for two decades, we should have been fighting the Saudis.

And yet, we remained allies with the Saudis, continuing to let Saudis like Ahmed Mohammed al-Shamrani enter the US without adequate vetting, allowing yet another Saudi-linked terrorist attack on US soil.

We have hidden the role that our “allies” the Saudis had in 9/11 for two decades because if we actually held them accountable, rather than inflicting our need for revenge on the Taliban, their oil could no longer be a cornerstone to our  empire.

We could not hold the Saudis accountable because if we did, we would have had to stop burning oil.

We would have had to replace Saudi oil with renewables, a more modest way of life, and some humility.

We would have, out of necessity, done something about climate change.

We have plenty of time for recriminations about our failures in Afghanistan. But we have no time left to make up for the twenty years we might have spent addressing climate change instead.

“Leave the Rest to Me and the R Congressmen:” Trump’s Big Lie and the Actual Harm of January 6 Obstruction

As I noted, yesterday lawyers for January 6 defendant Brady Knowlton argued before Judge Randolph Moss that Congress’ certification of the vote count is not an official proceeding covered by the obstruction statute Knowlton was charged under. Knowlton’s argument was going as well as could be expected, in my opinion, until his attorney, Brent Mayr, argued that the vote certification was not an official proceeding because no one faced actual harm based on the outcome of the proceeding. Unbelievably, Mayr seems to have given zero consideration to the harm that the lawfully elected President, Joe Biden, might suffer if Congress failed to certify his win, to say nothing of the 81 million voters who voted for him.

The argument happened even as notes and other documents coming out of the House Oversight Committee make it how clear how real that risk was.

Before the notes that have been released start, Trump had already tweeted out an announcement for the January 6 “protest” on December 19.

Trump tweets: “Statistically impossible to have lost the 2020 Election” and “Big protest in DC on January 6th. Be there, will be wild!”

On December 27, Acting Deputy Attorney General Richard Donoghue took notes from a call where Trump laid out the alleged fraud that merited DOJ involvement. Donoghue noted Trump saying, “You guys may not be following the Internet the way I do.” Donoghue recorded multiple times that DOJ officials told Trump his election claims were wrong, detailing the investigations that DOJ had already done into the allegations. He recorded Trump’s intimation that he might start replacing people with Jeffrey Bossert Clark if they didn’t back his claims of fraud.

At one point, Trump demanded, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”

That day, Trump tweeted about the January 6 riot again.

December 27, 2020: Trump tweets, “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow.”

The next day, Clark wrote a draft letter to Georgia instructing them to run another election. Donoghue responded, “There is no chance I would sign this letter or anything remotely like it.”

Days later, on January 1, Trump pitched the January 6 protest again, branding it an attempt to “stop the steal.”

Trump himself tweets, “The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!”

On January 2, Acting Attorney General Jeffrey Rosen reiterated, “I confirmed again today that I am not prepared to sign such a letter,” calling on Georgia to send alternate votes to Congress.

On January 3, Trump attempted to make good on the threat he made on December 27, to replace Rosen with someone who would help him steal the election, Clark. Because he didn’t want to distract from his efforts to overturn the election, Trump backed down.

[Clark] informed Mr. Rosen midday on [January 3] that the president intended to replace him with Mr. Clark, who could then try to stop Congress from certifying the Electoral College results. He said that Mr. Rosen could stay on as his deputy attorney general, leaving Mr. Rosen speechless.

Unwilling to step down without a fight, Mr. Rosen said that he needed to hear straight from Mr. Trump and worked with the White House counsel, Pat A. Cipollone, to convene a meeting for early that evening.

[snip]

Around 6 p.m., Mr. Rosen, Mr. Donoghue and Mr. Clark met at the White House with Mr. Trump, Mr. Cipollone, his deputy Patrick Philbin and other lawyers. Mr. Trump had Mr. Rosen and Mr. Clark present their arguments to him.

Mr. Cipollone advised the president not to fire Mr. Rosen and he reiterated, as he had for days, that he did not recommend sending the letter to Georgia lawmakers. Mr. Engel advised Mr. Trump that he and the department’s remaining top officials would resign if he fired Mr. Rosen, leaving Mr. Clark alone at the department.

Mr. Trump seemed somewhat swayed by the idea that firing Mr. Rosen would trigger not only chaos at the Justice Department, but also congressional investigations and possibly recriminations from other Republicans and distract attention from his efforts to overturn the election results.

After nearly three hours, Mr. Trump ultimately decided that Mr. Clark’s plan would fail, and he allowed Mr. Rosen to stay.

Mr. Rosen and his deputies concluded they had weathered the turmoil. Once Congress certified Mr. Biden’s victory, there would be little for them to do until they left along with Mr. Trump in two weeks. [my emphasis]

On the same day Trump tried to replace Rosen with Clark, January 3, he instructed his Acting Secretary of Defense to make sure the National Guard protected his supporters.

The following day, January 4, Trump made DOJ the lead agency for incident response on January 6 (Update: see comments–this happened on January 3). But the people who had almost just been replaced claim that didn’t happen. Whatever the reality, however, DOJ’s inaction is what led to DOD’s delayed response during the insurrection on January 6.

According to Mr. McCarthy, on January 4, the White House designated DOJ as the lead federal agency for January 6: “Sunday evening, after Acting Secretary Miller and General Milley met with the President, they got the lead [f]ederal agency established, all of the pieces started coming together.”559 Mr. Miller also recalled that DOJ was designated as the lead federal agency at some point prior to January 6, but he did not know what role the White House played in the decision.560

Although DOD understood that DOJ was designated as the lead federal agency, there appears to have been no clearly established point of contact within the department, according to Mr. McCarthy, which he found “concerning.”561 Prior to January 6, Mr. McCarthy sent a letter to Acting Attorney General Jeffrey Rosen outlining the Army’s operational plan in support of the Mayor’s request and reached out informally to David Bowdich, FBI Deputy Director, because the two had worked together previously.562 But Mr. McCarthy claimed, even during the attack, he was never provided an official point of contact at DOJ and had no contact with DOJ or FBI officials until approximately 4:00 p.m. 563 General McConville also stated that DOJ was designated as the lead federal agency; however, he noted that DOJ did not conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency.564 General McConville stressed the importance of integrated security plans and acknowledged that had there been one on January 6, DOD’s response time would have been quicker.565

In contrast, Mr. Miller stated Richard Donoghue, Acting Deputy Assistant Attorney General, served as DOJ’s operational lead on January 6.566 Notably, however, Mr. Miller acknowledged that, during the attack, he convened calls with Cabinet members to share information and ensure everyone was on the same page.567 When asked why he convened the calls, as opposed to the lead federal agency, Mr. Miller responded, “somebody needed to do it.”568 Mr. Miller was not familiar with any actions DOJ took to coordinate the federal response on January 6.569

On May 12, 2021, Jeffrey Rosen, the Acting Attorney General on January 6, testified at a House Oversight hearing that it was “not accurate” that DOJ was the lead federal agency for security preparations on January 6. 570 He stated that DOJ’s responsibilities were specific to intelligence coordinating and information sharing.571 DOJ has not acknowledged that it was designated the lead federal agency for January 6 and has yet to fully comply with the Committees’ requests for information. 572

These are the events that led up to Brady Knowlton breaching Congress with hundreds and thousands of other people. This is the back story to what led Knowlton to tell a cop that his vote — for the losing candidate of the election — didn’t count, and so he had shown up in the Senate Gallery to make his voice heard.

And according to the President who had set off this attack on another branch of government, all he needed was the claim the election was corrupt. Leave the rest to Trump and the Republican members of Congress, he instructed.

Brady Knowlton’s presence in the Senate Gallery was instrumental to that plan. Knowlton was what Trump had in mind when he said, “leave the rest to me.” And Knowlton helped to intimidate Republican members of Congress to help Trump steal the vote.

Both Brady Knowlton and the then-President seem to have understood that storming Congress was a way to inflict an egregious harm on Joe Biden. And yet Knowlton’s lawyer claims no one would face an injustice if such a harm resulted.

The Hole in the Senate January 6 Report Created by DOJ’s Non-Cooperation

The Senate Rules/Homeland Security Report on January 6 is as helpful for the holes it identifies as it is for the questions it answers.

The most amazing hole pertains to the actions of the Secret Service. The report notes that the Secret Service attended a preparatory meeting on January 5, and like the FBI, Secret Service raised no warnings about the violent mob that their primary protectee was convening in DC.

He has stated that in a January 5 meeting with USCP leadership, members of the Capitol Police Board, and officials from the FBI, U.S. Secret Service, and DCNG, no entity “provided any intelligence indicating that there would be a coordinated violent attack on the United States Capitol by thousands of well-equipped armed insurrectionists.”153

The Report notes that then-Capitol Police Chief Steve Sund called Secret Service and asked for help on the day of the riot.

At 1:01 p.m., Mr. Sund also requested assistance from the United States Secret Service.79

[snip]

Mr. Sund testified that he first contacted MPD, followed closely by the U.S. Secret Service Uniformed Division.457

But the language about the agencies that did come to help does not mention Secret Service.

After 3:00 p.m., additional reinforcements from federal agencies began to arrive, and USCP turned to extracting and securing congressional staff.111 A number of agencies and entities provided assistance, including DHS; the FBI; the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Montgomery County Police Department; the Arlington County Police Department; the Fairfax Police Department; and Virginia State Troopers.112 With this help, USCP secured the Senate and House chambers, along with the basement, subways, first floor, and crypts by 4:28 p.m. 113 DCNG personnel began arriving at the Capitol at approximately 5:20 p.m.114 By 6:14 p.m., USCP, DCNG, and MPD successfully established a security perimeter on the west side of the Capitol building.115

We’ve been focusing for months on the delayed response from DOD, but all this time Secret Service’s role has gone little noticed (and I’m still interested in Park Police’s absence). The silence here suggests that Secret Service blew off an explicit call for help as a mob threatened both Mike Pence and Kamala Harris.

As the report notes, Secret Service’s lead agency, DHS, has not yet fully complied with the Senate’s information requests.

Most entities cooperated with the Committees’ requests. There were notable exceptions, however: the Department of Justice and DHS have yet to fully comply with the Committees’ requests for information, the Office of the House of Representatives Sergeant at Arms did not comply with the Committees’ information requests, and a USCP Deputy Chief of Police declined to be interviewed by the Committees.

As to DOD’s slow response in deploying the Guard on the day of the attack, the report suggests that Army Secretary Ryan McCarthy had a key role in it.

There are multiple conflicting stories about what happened at DOD. It was clear from his testimony that former Acting Secretary Christopher Miller genuinely didn’t understand how much of a delay there was with the deployment of the National Guard. An important detail included in the report is that Miller believed the Guard had his okay to deploy by 3:04, but McCarthy dawdled until after 4:32, after other law enforcement had secured much of the Capitol.

By 4:32 p.m., Mr. McCarthy and his D.C. counterparts had agreed upon a “task and purpose” for DCNG, “identif[ied] link-up locations, and confirm[ed] key leaders at each site.”656 Accounts differ as to who within DOD needed to approve the final plan in order to deploy DCNG troops to the Capitol. Mr. McCarthy briefed Mr. Miller on the plan, who raised no objections.657 But Mr. Miller informed the Committees that he did not need to approve the plan—in his view, his 3:04 p.m. authorization was all encompassing and as soon as Mr. McCarthy and General Walker finished their mission analysis, DCNG had all necessary authorizations to deploy.658 General McConville informed the Committees that, although he did not know for sure, he believed Mr. Miller did need to approve the deployment plan.659

The reason why McCarthy dawdled is important, though.

After a bunch of conflicting excuses about the delay itself, there’s a section addressing why the Quick Reaction Force wasn’t deployed (ironically, given that the Oath Keepers seemed more prepared to release theirs than the entire DOD). After yet more conflicting excuses, McCarthy said that one reason the QRF couldn’t be deployed was because DOD needed to “link up with an organization and contact.”

General Walker also testified that the QRF was outfitted with all the equipment needed to go to the Capitol and was “ready to go” before 5:00 p.m.694 General McConville stated that “there was never an intent to have a quick reaction force going in to clear the Capitol.”695 Neither Mr. McCarthy nor Mr. Miller recalled whether the QRF had its civil disturbance gear available at Joint Base Andrews. Mr. McCarthy also noted that he was never informed that the QRF was at the Armory, equipped, and prepared to depart for the Capitol.696 When asked whether the QRF was properly equipped to respond to the Capitol, even if that was not the original intent, General McConville reiterated the importance of the assigned mission: “it depends on what the mission was.”697

Mr. McCarthy also acknowledged that, even if properly equipped, the QRF still needed to be briefed on the new mission.698 “I wanted to be clear of the concept for operations and how we were going to bring these [available DCNG personnel, including the QRF] together, make sure they ha[d] the right equipment, a clear understanding of their mission, and then link up with an organization and contact.

In other words, the reason the Pentagon couldn’t send a QRF to fight mobs prepared with their own QRF was because there was no lead agency to oversee them.

One of the most important sections of this report describes how Trump made DOJ — the same agency that had deployed even BOP officials during the summer — the lead agency on January 6. But DOJ did nothing. Miller explained that’s why he got so involved — because DOJ did nothing. “Somebody needed to do it,” he explained. And then McCarthy repeatedly used the lack of a lead federal agency as his excuse not to deploy the Guard. This discussion of DOJ’s disavowals of being the lead federal agency is one of the few areas where the report reiterates that an agency refused to cooperate with the Senate.

All DOD officials interviewed stressed the importance of the designation of a lead federal agency to support operations on January 6. The lead federal agency is “the nexus and locus for all information flow” and ensures that everything is coordinated and synchronized across federal agencies and departments.556 Mr. Miller noted that DOD “should never, ever be the lead federal agency for domestic law enforcement,” except for the establishment of martial law.557 Indeed, Mr. McCarthy required an agency to be designated before supporting the Mayor’s request for National Guard assistance. 558 According to Mr. McCarthy, on January 4, the White House designated DOJ as the lead federal agency for January 6: “Sunday evening, after Acting Secretary Miller and General Milley met with the President, they got the lead [f]ederal agency established, all of the pieces started coming together.”559 Mr. Miller also recalled that DOJ was designated as the lead federal agency at some point prior to January 6, but he did not know what role the White House played in the decision.560

Although DOD understood that DOJ was designated as the lead federal agency, there appears to have been no clearly established point of contact within the department, according to Mr. McCarthy, which he found “concerning.”561 Prior to January 6, Mr. McCarthy sent a letter to Acting Attorney General Jeffrey Rosen outlining the Army’s operational plan in support of the Mayor’s request and reached out informally to David Bowdich, FBI Deputy Director, because the two had worked together previously.562 But Mr. McCarthy claimed, even during the attack, he was never provided an official point of contact at DOJ and had no contact with DOJ or FBI officials until approximately 4:00 p.m. 563 General McConville also stated that DOJ was designated as the lead federal agency; however, he noted that DOJ did not conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency.564 General McConville stressed the importance of integrated security plans and acknowledged that had there been one on January 6, DOD’s response time would have been quicker.565

In contrast, Mr. Miller stated Richard Donoghue, Acting Deputy Assistant Attorney General, served as DOJ’s operational lead on January 6.566 Notably, however, Mr. Miller acknowledged that, during the attack, he convened calls with Cabinet members to share information and ensure everyone was on the same page.567 When asked why he convened the calls, as opposed to the lead federal agency, Mr. Miller responded, “somebody needed to do it.”568 Mr. Miller was not familiar with any actions DOJ took to coordinate the federal response on January 6.569

On May 12, 2021, Jeffrey Rosen, the Acting Attorney General on January 6, testified at a House Oversight hearing that it was “not accurate” that DOJ was the lead federal agency for security preparations on January 6. 570 He stated that DOJ’s responsibilities were specific to intelligence coordinating and information sharing.571 DOJ has not acknowledged that it was designated the lead federal agency for January 6 and has yet to fully comply with the Committees’ requests for information. 572

In this post, I suggested the January 6 investigation hypothetically could (which is no guarantee it will) reach far more of the potentially criminal behavior than virtually everyone not following closely believes.

But in addition to the two areas where I expressed doubt that could happen — members of Congress, and DOD itself — this report makes it clear that DOJ remains a key subject that should be investigated.

It’s not at all clear that the FBI can or would investigate DOJ’s former top leaders.

Admittedly, DOJ — along with DOD, DHS, and Interior — is conducting a review of DOJ’s role that day and in weeks leading up to it (it’s not clear DHS’ review will include Secret Service, which has its own IG).

Review Examining the Role and Activity of DOJ and its Components in Preparing for and Responding to the Events at the U.S. Capitol on January 6, 2021

The DOJ Office of the Inspector General (OIG) is initiating a review to examine the role and activity of DOJ and its components in preparing for and responding to the events at the U.S. Capitol on January 6, 2021. The DOJ OIG will coordinate its review with reviews also being conducted by the Offices of Inspector General of the Department of Defense, the Department of Homeland Security, and the Department of the Interior. The DOJ OIG review will include examining information relevant to the January 6 events that was available to DOJ and its components in advance of January 6; the extent to which such information was shared by DOJ and its components with the U.S. Capitol Police and other federal, state, and local agencies; and the role of DOJ personnel in responding to the events at the U.S. Capitol on January 6. The DOJ OIG also will assess whether there are any weaknesses in DOJ protocols, policies, or procedures that adversely affected the ability of DOJ or its components to prepare effectively for and respond to the events at the U.S. Capitol on January 6. If circumstances warrant, the DOJ OIG will consider examining other issues that may arise during the review.

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

DOJ IG has suggested that it is looking into the late Trump term shenanigans. But it’s not clear that it would look at why DOJ let a violent mob assault the Capitol.

Which, given the Senate report, is an issue that needs far more scrutiny.

Two One-Time Devin Nunes Flunkies Under Investigation for Leaks

Michael Ellis, the Devin Nunes flunky who had been installed as NSA General Counsel over more qualified people, resigned from NSA after being placed on leave since Inauguration Day. I hadn’t realized until I read Ellen Nakashima’s report on Ellis’ resignation that he was being investigated for leaking classified information, though Catherine Herridge reported that investigation in real time, the very same day that Ellis’ attorney wrote NSA inquiring about the investigation.

Meanwhile, a long David Ignatius profile of another Nunes flunky, Kash Patel, mentions that he, too, is under investigation for leaking classified information.

Patel repeatedly pressed intelligence agencies to release secrets that, in his view, showed that the president was being persecuted unfairly by critics. Ironically, he is now facing Justice Department investigation for possible improper disclosure of classified information, according to two knowledgeable sources who requested anonymity because of the sensitivity of the probe. The sources said the investigation resulted from a complaint made this year by an intelligence agency, but wouldn’t provide additional details.

Both of these men (along with a third Nunes flunky, Derek Harvey) have been a real threat to national security and both have a history of writing crappy reports for Nunes (recent reporting reminds that Ellis was the author of an unnecessarily shitty Edward Snowden report, for example). There’s little doubt they have released the kinds of material that have never before been released, but much of that would either be legal and/or protected by Speech and Debate.

But the fact that both are being investigated for leaking classified information raises questions whether leak investigations are just being used as an easy way to take out intelligence community critics, whether they’re both suspected of leaking the same information, or whether there’s more there.

The Ignatius story, in particular, is of interest, not least because he’s the guy who first reported Mike Flynn’s conversation with Sergey Kislyak in a seemingly sanctioned leak, making this report a kind of book-end to the Trump Administration. All the more so given that Ignatius not only notes the sensitivity of the probe into Patel, but then tells a story that likely relies on classified information of how Patel’s incompetence almost blew up a SEAL rescue mission in Niger.

Anger toward Patel within the national security bureaucracy mounted after an Oct. 31, 2020, hostage rescue mission in Nigeria. The incident, never previously reported in detail, was described by four high-level sources.

It was a rescue mission that was nearly aborted partly because of inadequate coordination by Patel. SEAL Team Six had been assigned to rescue 27-year-old Philip Walton, a missionary’s son who had been kidnapped by gunmen in Niger, near the border with Nigeria. Patel, as a senior counterterrorism adviser, had assured colleagues that the mission had a green light, according to several sources. The SEALs were ready to parachute into the rescue site from high altitude (one source estimated 30,000 feet) when there was a last-minute hitch.

But as the SEALs were about to jump, military commanders and State Department officials realized that one necessary item hadn’t been completed: The Nigerian government hadn’t been informed prior to the operation inside their country, as required.

A frantic last-minute effort to obtain the necessary permission ensued. The SEAL team’s aircraft held over the target, flying in a racetrack pattern, for about 45 minutes while the State Department tried to locate a Nigerian national security official who could receive the official notice. Finally, just 15 minutes before the operational window closed, the Nigerians were given word, the SEALs parachuted down, and the hostage was rescued.

Secretary of State Mike Pompeo and Gen. Mark A. Milley, chairman of the Joint Chiefs of Staff, were angry that, in their view, Patel had prematurely said the operation was fully cleared, according to knowledgeable officials. One senior Pentagon official said he was “incensed” at Patel. A second senior Pentagon official described Patel’s actions as potentially “dangerous” for the SEALs.

The attack on Patel’s role in the hostage rescue may be a signal about what Patel is suspected of leaking.

While Ignatius provides no indication of what Patel is suspected of leaking, the WaPo columnist does link to an interview Patel did with Aaron Maté. The interview is about what you’d expect from a propagandist interviewing a propagandist.  Patel makes a slew of false claims that Maté encourages: the purpose of FISA, what normally goes in FISA applications, the intelligence against Carter Page, what servers the FBI obtained as part of its investigation into the hack (Maté still ascribes the single server fallacy!), what Crowdstrike actually had access to, what Bruce Ohr’s FBI interviews actually showed. Perhaps the most hysterical part of the interview is where Patel claimed that the way to conduct an investigation is to follow the money, but Maté never asked him why HPSCI didn’t follow the money on a single Trump associate, to say nothing of Trump’s role in money laundering for Russian oligarchs.

Nevertheless, in their discussion about the Russian investigation, Patel was quite careful to avoid revealing non-public information, not even for a report he authored claiming poor tradecraft on the Intelligence Community Assessment of the Russian attack that both SSCI and John Durham have investigated and dismissed.

Maté similarly let Patel dodge really answering questions about his conduct on January 6, even though some of the biggest questions about that day pertain to why DOD delayed for three hours before reinforcing the Capitol, including why it took over 30 minutes for an order to deploy to get from Acting Secretary of Defense Christopher Miller to Guard Commander General William Walker who had been waiting on stand-by. In response to Maté’s question, Patel first repeated his selective breach of Executive Privilege to claim that Trump had already authorized Guard deployments, then answered a totally different question than the one Maté asked — not why DOD let the attack continue for 3 hours, long after it had gotten repeated requests for help, but how quickly DOD deployed the Guard after they had allowed an attack to happen across town while they watched.

We activated, from a start, the fastest augmentation and mobilization of uniformed military troops in the DC area since World War II, and we put 24,000 boots on the ground in less than 48 hours. I don’t know who’s saying we slow-rolled anything, because these are Guardsmen, they’re not active duty military.

While Patel violated Executive Privilege, there’s nothing classified about the belated Guard deployment.

It’s in-between those two conversations, though, where Patel may have succumbed to Maté’s persistent questioning about the very same topic about which Ignatius’ sources attack Patal: hostage rescues. Maté asked about a report that Patel had tried to negotiate the release of Austin Tice. Patel first responded to Maté by saying that he wouldn’t address whether Tice is alive or not. But then Maté followed up, and Patel told a self-serving story about his role in an attempt to free Tice. In it, Patel provided non-public details about his meeting with Assad representatives in Syria and may have confirmed an intercept on Bashar al-Assad.

Maté: Can you tell us anything about your discussions with Syrian officials, what they were asking from you, their level of openness to having talks with the US government?

Patel: Sure, I mean, look, that didn’t happen overnight. You know, one of President Trump’s priorities was, “go get American hostages home,” and I think we got over 50 — 53ish, hostages, detainees back — from 20-some countries maybe. Maybe a little less. But Austin Tice had been missing for, going on eight years, and we had made no headway, really, on it, so we made it a priority. We started working with our counterparts in the region. That trip was almost 18 months in the making. And we finally were able to land a meeting in Damascus because I told them, I said, “I’ll come see you. You send someone who can represent President Assad directly, because I can represent President Trump directly on this matter. And let’s go sit down.” And they said, “okay, come to Damascus.” And I don’t know if they thought we would show up or not. We did. And we were very clear. We said, “look, I understand I’m not getting Austin home on this trip, but I would like a proof of life. What would you like in return for that?” We had very frank conversations. They said, we want X amount of movement for the United States military. Troops stuff, and this and that. And I said, “look, all of that’s on the table. We can discuss all those things. I need a proof of life.” And they said they would take it back to Assad. Which they did. I know they did that. And then, I think shortly thereafter, I switched over to the Department of Defense, and tried to continue that mission, but, um, that one was one I just, unfortunately, didn’t succeed on. [my emphasis]

The most likely way that Patel would come to learn, with certainty, that whatever go-betweens he met with in Damascus actually did report back to Assad would be via an NSA or CIA intercept. If that is how he learned, then confirming that he knew Assad got a report back might have burned the intercept. Doing so with Maté at the Grayzone, which personally and as an outlet produce a lot of Assad apology, might be particularly sensitive. And the ease with which Maté appealed to Patel’s ego to get him to reveal these details would raise real questions about whether Patel played a role in the earlier WSJ story about the meeting, which was published on October 18, days before Patel almost fucked up the October 31 Niger mission.

That is, this Ignatius story seems like an effort to undermine Patel’s self-interested stories of heroism on hostage rescues, after he disclosed non-public details about one of them.

Which would also suggest that, whatever the merit of the investigation into Ellis (and I think GOP concerns about it have some merit), the investigation into Patel may be substantive.

How Did the Proud Boys Have Better Lines of Communication about National Guard Reinforcements than the National Guard Did?

At 3:38 on January 6, according to the Proud Boy leaders conspiracy indictment, Charles Donohoe announced on the 60-member operational Telegram channel the Proud Boys used that day that, “we are regrouping.”

Sometime around that time, a bunch of Oath Keepers, having already entered the Capitol, were gathered together on the east side of the Capitol.

According to the most recent Oath Keepers indictment, two minutes after Donohoe announced the Proud Boy plan to regroup, at 3:40, Oath Keeper Joshua James called Person Ten — who was doing much of the coordination for the Oath Keepers that day — and had a 3 minute, 4 second phone call, their second longest call described in the indictment.

Roberto Minuta and Rhodes exchanged two calls just after 4:00 — 42 seconds, then 2 minutes 56 seconds. At 4:10, according to a Thomas Caldwell detention motion, someone on the Oath Keepers’ operational channel said, “Fight the good fight. Stand your ground.”

It seems the militias were preparing for a second, seemingly coordinated, operation of the day: resuming the assault on the Capitol.

Indeed, some of the fighting and attempted breaches at the Capitol did intensify about that time (for example, that’s shortly before, as some cops were trying to help Rosanne Boyland, who had been trampled, they were allegedly assaulted by James Lopatic, Jeffrey Sabol, Peter Stager, and Wade Whitten, with police officer BW being dragged down the steps prone and beaten).

But not the militias, at least not the Proud Boys.

According to the government’s detention memo for Donohoe, he subsequently — they don’t provide the time — sent out a message that the National Guard and DHS agents were incoming.

Donohoe’s intent to create mayhem and disrupt the proceedings at the Capitol continued well after the initial breach into the restricted grounds and up to the west terrace. Indeed, at 3:38 p.m., more than an hour after Pezzola and others had broken into the building, Donohoe indicated that he had left the Capitol grounds, but then announced over Telegram, “We are regrouping with a second force.” That plan appears to have been short-lived, as Donohoe subsequently advised the group that the National Guard and “DHS agents” were “incoming.”

This is fairly remarkable timing, as it came during the most inexplicable period of DOD’s delayed response with the National Guard. At 2:30, just before the second breach by militia-led groups, Acting Defense Secretary Christopher Miller met with (among others) Army Secretary Ryan McCarthy about requests for help from the city and the Capitol Police. At 3, Miller determines the Guard is needed at the Capitol and McCarthy orders them to prepare to move. At 3:04, Miller provides verbal approval for the Guard to support MPD. At 3:19 and 3:26, McCarthy was on the phone with first Chuck Schumer and Nancy Pelosi and then Bowser, assuring them the Guard was on the way. At 3:48, McCarthy leaves to go to MPD headquarters, taking 22 minutes to transit, even as two trained militia groups full of military veterans prepared to make a second assault on the Capitol. At 4:32, after calls back and forth among the militia, Miller provided verbal authorization for the Guard to help the Capitol Police.

Tick tock, tick tock, tick tock.

But then, according to the guy DOD sent to the Senate to not answer questions like this, Robert Salesses, General William Walker, the guy in charge of the Guard, didn’t get that order for another 36 minutes.

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

Tick tock, tick tock, tick tock.

Somehow, it seems, Proud Boy Charles Donohoe knew that the National Guard was coming to reinforce the Capitol before DC Guard Commander General Walker.

Somehow, it seems, the militias assaulting the Capitol had better lines of communication than the US Department of Defense.

Timeline

2:30PM: Acting Secretary of Defense Christopher Miller and Army Secretary Ryan McCarthy meet to discuss the requests for assistance from the MPD and CPD.

2:40PM: Oath Keepers and Proud Boys breach second front of the Capitol.

3PM: Miller determines the Guard is needed.

3:04PM: Miller authorizes Guard assistance to MPD.

3:19PM: McCarthy on the phone with Democratic leaders. Roberto Minuta enters Capitol.

3:26PM: McCarthy on the phone with Mayor Bowser.

3:38PM: Charles Donohoe announces, “we are regrouping.”

3:40PM: James calls Person Ten, speaks for 3:04.

3:48PM: McCarthy leaves for MPD.

4PM: Meeting with Stewart Rhodes on east side of Capitol.

4:04PM: Minuta calls Rhodes, speaks for 42 seconds.

4:05PM: Rhodes calls Minuta, speaks for 2:56.

4:10PM: McCarthy arrives at MPD. Proud Boy leader channel instructs, “Stand your ground.”

4:32PM: Miller provides the verbal order for the Guard to reinforce the Capitol Police

5:08PM: General Walker gets the order to reinforce the Capitol Police

Unknown time: Donohoe advises that National Guard and “DHS” are incoming.

86 Minutes: Two Arrests Thwarted and Three Cops Disabled by “Bear Shit”

In the 86 minutes after the Capitol Police first asked for help from the National Guard on January 6, police had to drop two arrests of violent rioters, and three cops — including Brian Sicknick — were temporarily disabled after being sprayed with “bear shit.”

At 1:49 on January 6, Capitol Police Chief Steven Sund asked the Commander of the DC National Guard, General William Walker, for urgent help pushing back the riot attacking the Capitol. According to Walker’s testimony, he loaded Guardsmen onto busses to be able to respond as soon as he got authority, but that approval was not granted and communicated to him for over three hours. Walker testified that he could have reinforced the Capitol within 15 minutes, and indeed, once DOD granted approval, according to Walker’s testimony the Guard arrived within 20 minutes (DOD says it took almost 40 minutes).

At 1:49pm I received a frantic call from then Chief of U.S. Capitol Police, Steven Sund, where he informed me that the security perimeter at the Capitol had been breached by hostile rioters. Chief Sund, his voice cracking with emotion, indicated that there was a dire emergency on Capitol Hill and requested the immediate assistance of as many Guardsmen as I could muster.

Immediately after the 1:49pm call with Chief Sund, I alerted the Army Senior Leadership of the request. The approval for Chief Sund’s request would eventually come from the Acting Secretary of Defense and be relayed to me by Army Senior Leaders at 5:08pm – 3 hours and 19 minutes later. We already had Guardsmen on buses ready to move to the Capitol. Consequently, at 5:20pm (in under 20 minutes) the District of Columbia National Guard arrived at the Capitol.

Had DOD worked the way they had in the past then, the Capitol Police might have had reinforcements from the Guard at the Capitol by around 2:10 PM.

About five minutes after the time General Walker says the Guard could have arrived, around 2:15, Hunter Ehmke allegedly started trying to punch through a window from a ledge outside the Rotunda.

Officer Fluke observed Ehmke pointing towards the window, followed by looking at the crowd to his south and waving his hand as if to summon others over to his position. Ehmke repeated the sequence of gestures again. Officer Fluke shouted out, “They’re going to break the window” during this time in hopes to bring attention from fellow officers.

An officer who saw what Ehmke was doing looked at the hundreds of rioters he was trying to repel then back towards Ehmke, only to see that Ehmke had punched the window and broken it.

Officer Fluke looked east to focus back on the crowd pushing on the shields and gave orders for the growing crowd to get back. Officer Fluke turned to look north again and observed Ehmke with a balled fist, pulling his arm back and twisting his upper body. Ehmke then swung forward striking a pane of the window about shoulder level of Ehmke. Officer Fluke began to run toward Ehmke while continuing to hold his shield in both hands.

Officer Fluke managed to knock Ehmke down and two other officers came to help arrest him. Others attempted to set up a perimeter to protect the now-broken window and create space for an arrest. But as confrontations elsewhere grew more urgent and a crowd started demanding that the cops let Ehmke go, police released him and told him not to come back.

As the officers discussed an action plan, the disturbance caused individuals of the crowd facing the Rotunda doors to divert their attention towards the approximately 10 officers in the northwest corner of the landing. Individuals in the throng began to show aggression by pointing fingers and shouting obscenities. One unidentified individual threatened Officer Fluke and the other officers, stating “you’re not leaving with him”, while pointing in the direction of Officer Fluke and Ehmke. Due to the growing aggression of the large crowd that far outnumbered the officers and the exigent circumstances at the time, officers made the decision to allow Ehmke depart under his own power.

Eight minutes after the confrontation with Ehmke began, at 2:23, Julian Khater and others were wrestling with police over a set of bike rack barriers. Khater appears to have sprayed what he had called, “bear shit” towards the cops. Three cops, including Brian Sicnick, withdrew from their position. All three took at least 20 minutes recovering from the toxic spray before they could return to the fight against the insurrectionists.

Officer Chapman’s BWC shows that at 2:23 p.m., the rioters begin pulling on a bike rack to Chapman’s left, using ropes and their hands to pull the rack away. Seconds later, KHATER is observed with his right arm up high in the air, appearing to be holding a canister in his right hand and aiming it in the officers’ direction while moving his right arm from side to side. Officer Chapman’s BWC confirms that KHATER was standing only five to eight feet away from the officers.

[snip]

In reviewing the surveillance footage and BWC video, your affiant observes that Officers Sicknick, Edwards and Chapman, who are standing within a few feet of KHATER, all react, one by one, to something striking them in the face. The officers immediately retreat from the line, bring their hands to their faces and rush to find water to wash out their eyes, as described in further detail below and as captured in the following screen shots.

While Sicknick returned to his work, that spray may have contributed to his death.

About eight minutes after Khater sprayed Sicknick and two others, starting at 2:31, Mark Ponder appears on camera beating an officer’s shield with a pole. After he broke that pole, he found another more substantial one.

Moments later, shortly before 2:32 p.m. PONDER reemerges from the crowd holding another long pole. This second pole appears to be thicker than the first pole and is colored with red, white, and blue stripes.

17 minutes after Ponder first grabbed the pole, at 2:49, he started swinging it more aggressively at individual cops, striking one.

As PONDER swings the pole in the direction of the officers, he struck Officer #3 once in the left shoulder.

Officer 3 and others tackled Ponder and started moving to arrest him. They found his ID at 3:03, but Ponder apparently lied about where he currently lived. By 3:15 — 86 minutes after Sund first requested assistance — the officers learn there’s no transport available to complete the arrest of Ponder at that time. So, as happened with Ehmke less than an hour earlier, the cops let him go, instructing him not to come back.

Ponder remained at the riot for almost two more hours.

At 4:32, according to DOD’s timeline, Acting Secretary of Defense Christopher Miller approved a deployment of the Guard to help at the Capitol. General Walker didn’t receive that order for another 30 minutes. Sometime between 5:20 (per Walker) and 5:40 (per DOD), the Guard arrived at the Capitol and started to help.

That is, in the first 86 minutes of the three hour period between when Sund asked for help and the Guard showed up, police moved to arrest two violent insurrectionists, only to be forced to let them go, and (as NYT had noted in a story some time ago), Brian Sicknick was sprayed with a toxic substance that may have led to his death.

It took 70 days for the FBI to track Ponder down after he was first released, and almost as long — 67 days — to arrest Julian Khater (likely delaying efforts to identify of the substance used against Sicknick in the process). Part of that delay must be attributed to the three hours it took DOD to provide relief to the Capitol Police.

Chain of Command: The AWOL Descriptions of the Commander in Chief’s Role in the National Guard Non-Response on January 6

The only formal explanation Trump has offered to describe his role in deploying the National Guard in response to the attack on the Capitol on January 6 came in his impeachment defense. As part of that defense, Bruce Castor pointed to things he claimed happened before Trump’s speech ended. In Castor’s inaccurate portrayal of the timeline, he suggested that the first action Acting Secretary of Defense Christopher Miller took was when, at 1:05 (which Castor said was 11:05), Miller “received open source reports of demonstrator movements to the U.S. Capitol.” He continued to claim that,

At 1:09 PM, US Capitol Police Chief’s Steven Sund called the House and Senate Sergeants at Arms, telling them he wanted an emergency declared and he wanted the National Guard called. The point: given the timeline of events, the criminals at the Capitol were not there to even hear the President’s words. They were more than a mile away engaged in a preplanned assault on this very building.

Admittedly, this was probably no more than an incompetent parroting of the existing timeline released by DOD. It’s possible that Trump’s lawyers didn’t ask him what happened inside the White House that day, because if they did, it would not help their case.

Still: Trump’s own defense claimed that the first that Acting Secretary Miller did in the matter was at 1[1]:05 on January 6.

That’s mighty interesting because there have been two claims that Trump proactively offered up National Guard troops for January 6 in the days beforehand. The first came in a Vanity Fair piece written by a journalist that Trump’s DOD flunkies permitted to embed with them (he requested to do so before the insurrection, but didn’t start his embed until January 12, meaning the claims reported in this article were retrospective). That piece claimed that, the night before the attack, Trump told DOD they would need 10,000 people.

The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

[snip]

“We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

[snip]

What did Miller think of the criticism that the Pentagon had dragged its feet in sending in the cavalry? He bristled. “Oh, that is complete horseshit. I gotta tell you, I cannot wait to go to the Hill and have those conversations with senators and representatives.”

[snip]

Miller and Patel both insisted, in separate conversations, that they neither tried nor needed to contact the president on January 6; they had already gotten approval to deploy forces. However, another senior defense official remembered things quite differently, “They couldn’t get through. They tried to call him”—meaning the president.

So according to Acting Secretary of Defense Christopher Miller, Trump had given him “clear instructions” to “do what you need to do,” and had warned him to have thousands of Guardsmen available. Miller said he was speaking non-stop to Mark Meadows, though an anonymous source stated that they tried but failed to get the President on the line.

Long after impeachment and even after his CPAC speech, Trump went to Fox to make the same claim that appeared in Vanity Fair.

Former President Trump told Fox News late Sunday that he expressed concern over the crowd size near the Capitol days before last month’s deadly riots and personally requested 10,000 National Guard troops be deployed in response.

Trump told “The Next Revolution With Steve Hilton” that his team alerted the Department of Defense days before the rally that crowds might be larger than anticipated and 10,000 national guardsmen should be ready to deploy. He said that — from what he understands — the warning was passed along to leaders at the Capitol, including House Speaker Nancy Pelosi — and he heard that the request was rejected because these leaders did not like the optics of 10,000 troops at the Capitol.

“So, you know, that was a big mistake,” he said.

Fox and other Trump mouthpieces have suggested that Nancy Pelosi rejected the Guard. That’s false. According to then Capitol Police Chief Steve Sund, House Sergeant at Arms Paul Irving did.

On Monday, January 4, I approached the two Sergeants at Arms to request the assistance of the National Guard, as I had no authority to do so without an Emergency Declaration by the Capitol Police Board (CPB). My regular interactions with the CPB, outside of our monthly meetings regarding law enforcement matters, were conducted with the House and Senate Sergeant at Arms, the two members of the CPB who have law enforcement experience. I first spoke with the House Sergeant at Arms to request the National Guard. Mr. Irving stated that he was concerned about the “optics” of having National Guard present and didn’t feel that the intelligence supported it. He referred me to the Senate Sergeant at Arms (who is currently the Chair of the CPB) to get his thoughts on the request. I then spoke to Mr. Stenger and again requested the National Guard. Instead of approving the use of the National Guard, however, Mr. Stenger suggested I ask them how quickly we could get support if needed and to “lean forward” in case we had to request assistance on January 6.

Notably, Sund’s request and Irving’s response occurred before the conversation between Miller and Trump purportedly took place the night before the attack (which was far too late to deploy 10,000 people in any case). Moreover, Pelosi, Zoe Lofgren, and Mark Warner, among others, raised concerns about staffing for the day, so it’s not like Democrats weren’t raising the alarm.

Still, over a month after making no such claim as part of his Impeachment defense, Trump and his flunkies want to claim that Trump was proactive about deploying 10,000 people to defend the Capitol against his most ardent supporters.

That’s interesting background to the testimony offered by Robert Salesses, the “Senior Official Performing the Duties of the Assistant Secretary for Homeland Defense and Global Security,” in a joint Rules/Homeland Committee hearing on January 6 yesterday. As several people noted during the hearing, for some reason DOD sent Salesses, who wasn’t involved in the key events on January 6, rather than people like General Walter Piatt or General [Mike’s brother] Charles Flynn — who were on a call with MPD Chief Robert Contee and Sund on January 6 and who have made disputed claims about what occurred, including that Piatt recommended against sending the Guard because of optics. Effectively, Salesses was repeating what others told him, offering no better (indeed, more dated) information than Vanity Fair was able to offer. Salesses apparently called General Piatt the day before and dutifully repeated Piatt’s claim that he did not use the word, “optics,” which DC National Guard Commander General William Walker had just testified did occur.

General Piatt told me yesterday, Senator, that he did not use the word, “optics.”

Salesses then gave more excuses, explaining,

Senator, in fairness to the committee, General Piatt is not a decision-maker. The only decision-makers on the Sixth of January were the Secretary of Defense and the Secretary of the Army Ryan McCarthy. It was a chain of command from the Secretary of Defense to Secretary McCarthy to General Walker. That was the chain of command.

General Walker, the Commander of the DC National Guard, responded by reiterating the response he had gotten from Piatt (and the brother of the guy who had incited many of the insurrectionists) implicitly correcting Salesses about chain of command. The Commander in Chief, of course, is in that chain of command.

Yes, Senator. So the chain of command is the President, the Secretary of Defense, the Secretary of the Army, [points to self] William Walker Commanding General District of Columbia National Guard.

After General Walker described more of the restrictions placed on him ahead of time, including the preapproval before moving a traffic control point from one block to another (which restriction, Walker said, he had never experienced in 19 years) and the issuance of riot gear, Salesses made more excuses (repeating his silence about the role of the President’s role in the chain of command). Remarkably, he described how Ryan McCarthy dithered from 3:04 until 4:10 because shots had been fired at the Capitol.

Salesses: Sir, Secretary Miller wanted to make the decisions on how the National Guard was going to be employed on that day. As you recall, Senator, the spring events, there was a number of things that happened during those events, that Secretary Miller as the Acting Secretary –

Rob Portman: Clearly he wanted to. The question is why? And how unusual. Don’t you think that’s unusual based on your experience at DOD?

Salesses: Senator, there was a lot of things that happened in the spring that the Department was criticized for — Sir, if I could. Civil Disturbance Operations? That authority rests with the Secretary of Defense. So if somebody’s gonna make a decision about employing military members against US citizens in a Civil Disturbance Operation —

Salesses: At 3:04, Secretary Miller made the decision to mobilize the entire National Guard. That meant that he was calling in all the National Guard members that were assigned to the DC National Guard. At 3:40–at 3:04 that decision was made. Between that period of time — between 3:04 and 4:10, basically, Secretary McCarthy had asked for — he wanted to understand, because of the dynamics on the Capitol lawn, with the explosives, obviously shots had been fired, he wanted to understand the employment of how the National Guard was going to be sent to the Capitol: what their missions were going to be, were they going to be clearing buildings, be doing perimeter security, how would they be equipped, he wanted to understand how they were going to be armed because, obviously, shots had been fired. He was asking a lot of questions to understand exactly how they were going to be employed here at the Capitol, and how many National Guard members needed to be deployed to the Capitol.

When asked whether restrictions placed on Walker hampered his defense, yes or no, Salesses again invoked the chain of command, again leaving out the Command-in-Chief.

Senator, General Walker, in fairness to him, can’t respond to a civil defense — a Civil Disturbance Operation without the authority of the Secretary of Defense.

Finally, Salesses explained a further 36-minute delay, from 4:32 until 5:08, when Walker was given approval to move, this way:

Salesses: In fairness to General Walker too, that’s when the Secretary of Defense made the decision, at 4:32. As General Walker has pointed out, cause I’ve seen all the timelines, he was not told that til 5:08.

Roy Blunt: How is that possible, Mr. Salazar [sic], do you think that the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn’t told for more than a half an hour after the decision.

Salesses: Senator, I think that’s an issue.

It’s not just that the people who were actually involved didn’t show up to explain all this to Congress. It’s not just that there were big gaps in the timeline, or gaps explained by dithering even after DOD learned about explosives and shots fired.

It’s that the guy sent to provide improbable answers seems to have removed the Commander-in-Chief, who was watching all this unfold on TV and now wants credit for proactively telling DOD they would need at least 10,000 people, from the chain of command he used to justify the delay.

That’s all the more striking given that — as Dana Milbank noted — the delay until Miller’s authorization (to say nothing of the 36-minute delay in informing Walker) also meant that DOD did not respond until after Trump had instructed his insurrection to go home.

Curiously, the Pentagon claims Miller’s authorization came at 4:32 — 15 minutes after Trump told his “very special” insurrectionists to “go home in peace.” Was Miller waiting for Trump’s blessing before defending the Capitol?

DOD’s selected witness yesterday said that General Walker couldn’t send the Guard to help protect the Capitol because of the chain of command. But the Commander-in-Chief seems to be AWOL from that chain of command.

Update: On Twitter AP observed that there is a discrepancy between Miller’s 10,000 person claim and Trump’s: Trump says it happened days before January 6, which would place it before Miller’s letter imposing new restrictions on the Guard.

The DOD Flunkies’ Convenient Lapse of Executive Privilege

The first thing you should take away from this long Vanity Fair profile of the Trump loyalists who led DOD during the Transition period is that Kash Patel has a very selective approach to Executive Privilege. Deep in the story, when caught in a lie about a plot to have him replace CIA Director Gina Haspel, Patel invokes Executive Privilege to refuse to answer.

I asked Patel about an Axios story that broke just before we sat down to talk. It asserted that CIA director Gina Haspel threatened to resign after learning that Trump planned to install Patel as her deputy. “I’m not going to comment on what the president wanted to do or didn’t want to do, but there’s no conversations of that now or this week or this year,” he replied. But he seemed to be playing coy. The CIA gambit took place last year. In fact, when I had spoken with Cohen about the matter, he had told me, “The idea was to put Kash in as the deputy, which doesn’t require Senate approval, and then to fire Gina the next day, leaving Kash in charge…. Robert O’Brien, [Trump’s national security adviser], is the one who deep-sixed it.” When I pressed Patel further about these machinations, which had occurred in December, I saw him turn lawyerly: “That stuff is between me and the boss. That’s the only thing I don’t comment on. Ever. It’s executive privilege.”

But in the first lines of the profile, both he and former Acting Secretary of Defense Christopher Miller happily offer up a tale of how Trump not only claimed to know what an appropriate deployment of National Guard troops would be in preparation for January 6, but ordered DOD to have them deployed.

On the evening of January 5—the night before a white supremacist mob stormed Capitol Hill in a siege that would leave five dead—the acting secretary of defense, Christopher Miller, was at the White House with his chief of staff, Kash Patel. They were meeting with President Trump on “an Iran issue,” Miller told me. But then the conversation switched gears. The president, Miller recalled, asked how many troops the Pentagon planned to turn out the following day. “We’re like, ‘We’re going to provide any National Guard support that the District requests,’” Miller responded. “And [Trump] goes, ‘You’re going to need 10,000 people.’ No, I’m not talking bullshit. He said that. And we’re like, ‘Maybe. But you know, someone’s going to have to ask for it.’” At that point Miller remembered the president telling him, “‘You do what you need to do. You do what you need to do.’ He said, ‘You’re going to need 10,000.’ That’s what he said. Swear to God.”

I could not recall the last time a contingent that large had been called up to supplement law enforcement at all, much less at a demonstration—the Women’s March and the Million Man March sprang to mind—and so I asked the acting SECDEF why Trump threw out such a big number. “The president’s sometimes hyperbolic, as you’ve noticed. There were gonna be a million people in the street, I think was his expectation.” Miller maintained that initial reports on the anticipated crowd size were all over the map—anywhere from 5,000 to 40,000. “Park Police—everybody’s so hesitant to give numbers. So I think that was what was driving the president.”

There’s a lot of reason to believe this is bullshit. Trump wouldn’t ask for the Guard if he wanted a show of force, he’d ask for a helicopter flyover or something else inappropriate.  Trump isn’t a detail guy. Miller and Patel offered up a key (and dubious) excuse used elsewhere — that they hadn’t been told the Park Service had expanded the Trump rally to 30,000 attendees.

Most importantly, Patel demonstrated that he believes his actual conversations with Trump should be protected by Executive Privilege. Certainly, he would refuse to say anything bad about Trump.

Ezra Cohen[-Watnick], by contrast, isn’t prompted to. While he is permitted to claim that Trump threw everyone — the entire country — under the bus, he’s not asked about his mentor Mike Flynn’s role in the conspiracy.

Ezra Cohen, another of Miller’s top confidants, believes that his colleagues’ words and deeds may be well and good, but are beside the point: “The president threw us under the bus. And when I say ‘us,’ I don’t mean only us political appointees or only us Republicans. He threw America under the bus. He caused a lot of damage to the fabric of this country. Did he go and storm the Capitol himself? No. But he, I believe, had an opportunity to tamp things down and he chose not to. And that’s really the fatal flaw. I mean, he’s in charge. And when you’re in charge, you’re responsible for what goes wrong.”

[snip]

His promotion was fodder for trolls of every stripe. “To the left I became this horrible person that enabled the president, attacking [Obama officials] and all this other stuff like that,” Cohen contended as we sat in his kitchen and later drove through a Chick-fil-A before tooling around northern Virginia. “And then to the crazy people on the right—that are dangerous people that did the horrible, antidemocratic behavior with the Capitol—these nutjobs are saying that I am QAnon.”

The silence about Flynn’s call for martial law is all the more telling given Cohen’s nod to the way QAnon has worked him into their conspiracies. Flynn played a key role in mobilizing QAnon to serve as Trump’s army.

Also missing from this profile? Any mention of Flynn’s brother, Charles, who participated in a call with local DC officials calling for more help but whose role DOD hid until after Biden was inaugurated.

There are other silences as well, perhaps most notably Miller’s stubborn effort to burrow in a fourth ally, Mike Ellis, at NSA in the last hours of the Trump Administration.

So even before you get into the details, this profile should be regarded as an effort by three very slick dudes to recast their role as Trump flunkies in the wake of an inexcusable event.

With all that said, it appears to differ in key ways from the timeline DOD released days after the coup attempt. The Vanity Fair narrative makes several claims that are probably true: That Miller came to work expecting he might not get home that night (though didn’t stay in DC even as the National Guard did in advance of the inauguratoin), and that DOD was chastened given the gross abuse in response to June protests.

But it also suggests Muriel Bowser called for help 48 minutes after DOD’s timeline shows she did.

On the morning of January 6, as Miller recounted, he was hopeful that the day would prove uneventful. But decades in special operations and intelligence had honed his senses. “It was the first day I brought an overnight bag to work. My wife was like, ‘What are you doing there?’ I’m like, ‘I don’t know when I’m going to be home.’” To hear Patel tell it, they were on autopilot for most of the day: “We had talked to [the president] in person the day before, on the phone the day before, and two days before that. We were given clear instructions. We had all our authorizations. We didn’t need to talk to the president. I was talking to [Trump’s chief of staff, Mark] Meadows, nonstop that day.”

The security posture and response on January 6 did not occur in a vacuum. June 1, 2020, had been a perilous precedent. On that day federal police had expelled peaceful protesters from Lafayette Square to facilitate the president’s saunter over to St. John’s Church for a publicity stunt. But the brute force displayed to clear out the area proved a national embarrassment and allegedly influenced Washington mayor Muriel Bowser’s view, come January, about how the capital should be policed—and by whom. On the day before all hell broke loose on the Hill, she made it clear the D.C. police (MPD) would be running the show on the 6th, though 340 unarmed National Guard troops had been requested to help with traffic: “The District of Columbia is not requesting other federal law enforcement personnel and discourages any additional deployment without immediate notification to, and consultation with, MPD.”

Miller told me that when Trump made him head of the Pentagon, in November, “the bar was pretty low.” He had three goals. “No military coup, no major war, and no troops in the street,” before observing dryly, “The ‘no troops in the street’ thing changed dramatically about 14:30…. So that one’s off [the list].”

The day began with a lull. “We had meetings upon meetings. We were monitoring it. And we’re just like, Please, God, please, God. Then the damn TV pops up and everybody converges on my office: [Joint Chiefs of Staff] chairman [Mark Milley], Secretary of the Army [Ryan] McCarthy, the crew just converges.” And as intelligence started cycling in, things went from watch and see to “a current op.” Miller recalled, “We had already decided we’re going to need to activate the National Guard, and that’s where the fog and friction comes in.”

“The D.C. mayor finally said, ‘Okay, I need more,’” Kash Patel would tell me. “Then the Capitol police—a federal agency and the Secret Service made the request. We can support them under Title 10, Title 32 authorities for [the] National Guard. So [they] collectively started making requests, and we did it. And then we just went to work.”

With his use of the word “finally,” Patel insinuates there was a delay before Bowser called and asked for help. Meanwhile, Miller suggests that DOD’s response took place at 2:30PM.

The timeline, however, shows that Bowser requested help 29 minutes after DOD says they got “open source reports” of demonstrators moving on the Capitol.

1305: A/SD receives open source reports of demonstrator movements to U.S. Capitol.

1326: USCP orders evacuation of Capitol complex.

1334: SECARMY phone call with Mayor Bowser in which Mayor Bowser communicates request for unspecified number of additional forces.

1349: Commanding General, DCNG, Walker phone call with USCP Chief Sund. Chief Sund communicates request for immediate assistance.

1422: SECARMY phone call with D.C. Mayor, Deputy Mayor, Dr. Rodriguez, and MPD leadership to discuss the current situation and to request additional DCNG support.

1430: A/SD, CJCS, and SECARMY meet to discuss USCP and Mayor Bowser’s requests. 1500: A/SD determines all available forces of the DCNG are required to reinforce MPD and USCP positions to support efforts to reestablish security of the Capitol complex.

1500: SECARMY directs DCNG to prepare available Guardsmen to move from the armory to the Capitol complex, while seeking formal approval from A/SD for deployment. DCNG prepares to move 150 personnel to support USCP, pending A/SD’s approval.

1504: A/SD, with advice from CJCS, DoD GC, the Chief of the National Guard Bureau (CNGB), SECARMY, and the Chief of Staff of the Army, provides verbal approval of the full activation of DCNG (1100 total) in support of the MPD. Immediately upon A/SD approval, Secretary McCarthy directs DCNG to initiate movement and full mobilization. In response, DCNG redeployed all soldiers from positions at Metro stations and all available non-support and non-C2 personnel to support MPD. DCNG begins full mobilization.

The Vanity Fair profile suggests DOD made the decision based off watching TV — presumably those open source reports — that reinforcements would be needed. But they didn’t even begin to “discuss” doing so until 2:30, and didn’t move to make that deployment until 3:04 (so 34 minutes after Miller describes).

Plus, Patel makes no mention of the call from Capitol Police at 1:49.

Ezra Cohen would like you to believe that he got thrown under the bus along with all the people supporting rule of law. Patel would like you to believe the failures of DOD under his watch were not attributable to the Chief of Staff. And Miller would like you to know his family doesn’t much like Donald Trump.

But the whole story reads like a fairy tale.