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Michigan Attorney General Dana Nessel Charges Michigan’s Fake Trump Electors

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The whole time that DC journalists were focused on Fani Willis’s Georgia fake electors investigation and — more recently — Arizona, I was laughing because I knew prosecutors in Michigan were working away quietly.

Today, Attorney General Dana Nessel charged Trump’s 16 fake electors with 8 felonies apiece.

They include very senior Republicans, including former GOP Chair, Meshawn Maddock, and close Ronna McDaniel associate Kathy Berden.

As I noted in March, one thing horse race considerations always forgot is that very senior Republicans in at least three swing states risked charges themselves. They risked charges — and Trump attorney Kenneth Chesbro knew they did, because he wrote that down in a December memo.

Several States also had rules requiring electors to cast their votes inthe State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot wereunavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognizedthat these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

In the case of Michigan’s electors, Michigan law requires electors sign their paperwork in the Capitol. Instead, Trump’s fake electors did that in the basement of their own party headquarters.

These defendants are alleged to have met covertly in the basement of the Michigan Republican Party headquarters on December 14th, and signed their names to multiple certificates stating they were the “duly elected and qualified electors for President and Vice President of the United States of America for the State of Michigan.” These false documents were then transmitted to the United States Senate and National Archives in a coordinated effort to award the state’s electoral votes to the candidate of their choosing, in place of the candidates actually elected by the people of Michigan.

As I said in March, no one can predict how the party will respond if Trump’s recklessness starts getting other senior Republicans charged.

We’re about to find out.

Update: Here’s the affidavit behind the charges.

On Enrique Tarrio’s Complex Password and Other Reasons the January 6 Investigation Can Now Move to Organizer-Inciters

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A Wednesday filing in the Proud Boy leadership conspiracy revealed that, between cracking his password and conducting a filter review, DOJ had not been able to access Enrique Tarrio’s phone — which was seized even before the riot he allegedly had a central role in planning — until mid-January.

On January 4, 2021, Tarrio was arrested in Washington, D.C., and charged with destruction of property for his December 12, 2020, burning of a #BLACKLIVESMATTER banner and possession of two large capacity magazines. At the time of his arrest, Tarrio’s phone was seized by law enforcement. The government promptly sought a search warrant for that device in this investigation. Despite diligence, the government was not able to obtain access to Tarrio’s phone until December 2021. Thereafter, a filter team was utilized to ensure that only non-privileged materials were provided to the investigative team. The investigative team did not gain access to the materials on the phone until mid-January 2022, and it has worked expeditiously since that time to review these materials.

I can think of just a few other phones that have been this difficult for FBI to access (those of Zachary Alam and Brandon Fellows are others). The delay means that the very first phone DOJ seized pertaining to the January 6 investigation was one that, to date, has taken the longest to access.

This is the kind of delay — presumably due to the physics involved in cracking a complex password and the due process of a privilege review — that is unavoidable. Yet it stalled DOJ’s efforts in the most pivotal conspiracy case as it tries to move from rioters at the Capitol through organizer-inciters to Trump himself.

The delay in accessing Tarrio’s phone is one thing to keep in mind as you read the multiple reports that DOJ has sent out subpoenas to people who organized the rallies. WaPo reported that these subpoenas first started going out two months ago — so late January, shortly after the time DOJ accessed Tarrio’s phone content. NYT reported that the subpoenas focus on the rallies and the fake electors.

One of the subpoenas, which was reviewed by The New York Times, sought information about people “classified as VIP attendees” at Mr. Trump’s Jan. 6 rally.

It also sought information about members of the executive and legislative branches who had been involved in the “planning or execution of any rally or any attempt to obstruct, influence, impede or delay” the certification of the 2020 election.

And it asked about the effort by Trump supporters to put forward alternate slates of electors as Mr. Trump and his allies were seeking to challenge the certification of the Electoral College outcome by Congress on Jan. 6.

Another person briefed on the grand jury investigation said at least one person involved in the logistics of the Jan. 6 rally had been asked to appear.

None of this is a surprise or unexpected. Dana Nessel formally referred Michigan’s fake electors to DOJ for investigation (the kind of referral that may have been important to DOJ assuming jurisdiction in state elections) on January 18, and Lisa Monaco confirmed DOJ was investigating the fake electors on January 25.

As to the organizers, on December 16, I wrote a piece describing that DOJ would need to turn to “organizer-inciters” next — people like Alex Jones, who had a central role in turning rally-goers who imagined themselves to be peaceful protestors into an occupying force. We know of several other pieces of evidence that would have been important, if not necessary, to lock down before DOJ moved to those organizer-inciters.

For example, DOJ likely first obtained direct information about tensions involving VIPs in Brandon Straka’s first and second FBI interviews in February and March of last year, information that the government claimed during his sentencing provided valuable new leads. Straka was one of those VIPs who expected to have a speaking slot on January 6 only to discover all he was getting was a seat at the front, next to Mike Flynn. Access to his phone would have provided the government comms depicting growing tensions tied to the extremism of Nick Fuentes and Ali Alexander described in this ProPublica article.

“Is Nick Fuentes now a prominent figure in Stop the Steal?” asked Brandon Straka, an openly gay conservative activist, in a November text message, obtained exclusively by ProPublica. “I find him disgusting,” Straka said, pointing to Fuentes’ vehemently anti-LGBT views.

Alexander saw more people and more power. He wrote that Fuentes was “very valuable” at “putting bodies in places,” and that both Jones and Fuentes were “willing to push bodies … where we point.”

Straka, Fuentes and Jones did not respond to requests for comment.

Straka was part of a Stop the Steal listserv on which Michael Courdrey and Alexander were on the day of the riot.

The Stop the Steal group chat shows a reckoning with these events in real time.

“They stormed the capital,” wrote Stop the Steal national coordinator Michael Coudrey in a text message at 2:33 p.m. “Our event is on delay.”

“I’m at the Capitol and just joined the breach!!!” texted Straka, who months earlier had raised concerns about allying with white nationalists. “I just got gassed! Never felt so fucking alive in my life!!!”

Alexander and Coudrey advised the group to leave.

“Everyone get out of there,” Alexander wrote. “The FBI is coming hunting.”

The government described learning new information about Straka as recently as December 8 followed up in a January 2022 interview. Some of this appears to have been a late discovery of his own grift and, possibly, his role in inciting a riot at the TCF center in Michigan. But at sentencing, prosecutors reaffirmed that the sealed contents of his cooperation remained valuable.

Some other existing defendants whose phone and/or cooperation could provide such insight are Simone Gold (who pled guilty in early March but who had not yet done her FBI interview) and Alan Hostetter and Russell Taylor; prosecutors described still providing primary discovery in the latter case the other day, meaning they’re still getting phone contents there, too.

Tarrio’s phone would include comms with many of the people DOJ has turned its focus to; he had known communications with Alex Jones, Ali Alexander, and Cindy Chafian, to say nothing of his close ties to Roger Stone.

In addition to Tarrio’s phone, exploiting that of Stewart Rhodes — seized in May — took some time because he had so many Signal texts that it was an extended process sorting through the inculpatory and exculpatory ones.

The hold up on Rhodes’ phone is one of the things that held up his own arrest and charges for Seditious Conspiracy. In that superseding indictment, DOJ completely hid what new information they had learned about the Oath Keeper ties with the Willard planners.  But the seditious conspiracy charge (along with the cooperation of Mark Grods) appears to have persuaded Joshua James to flip. James’ cooperation would provide lots of new testimony about what Stone and other VIPs were doing on January 5 and 6, including an explanation as to why James felt he needed to call into Mike Simmons to report on what is almost certainly Stone’s anger about the sidelining of his extremist group at the main rally, something clearly at issue in these recent subpoenas.

James would have proffered before he pled guilty (meaning prosecutors would have know what he would say if he did plead), but they would hold off on using his testimony for legal process until he testified before a grand jury in conjunction with his plea on March 2.

Public reporting has revealed that both the January 6 and DOJ investigations have obtained at least some of the documentary footage implicating Tarrio and Stone from the day of the riot.

And if the January 6 committee works like the SSCI investigation into Russia, it could share transcripts from obviously problematic testimony with DOJ. Ali Alexander spent most of day telling a story to the committee that had already been debunked by DOJ.

On the anniversary of January 6, Merrick Garland explained that all of the arrests from the first year had laid the foundation for more complex cases.

We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.

Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.

In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.

We follow the physical evidence. We follow the digital evidence. We follow the money.

This is the kind of thing he was talking about: working your way up through Mark Grods to Joshua James to Stewart Rhodes to Roger Stone, taking the time to crack and exploit Tarrio’s phone, exploiting early access to Straka’s comms to get to the organizers. The investigation “aperture” hasn’t changed; what has changed is DOJ has acquired information it needed before it could take the next step.

She’s “No Angel:” Josh Dawsey’s Nice Little Old Lady Suspected of Crimes to Steal an Election

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According to this Josh Dawsey piece on the GOP’s vote to censure Liz Cheney and Adam Kinzinger, Ronna Romney McDaniel claims she decided to support this censure effort after a little old lady friend of hers was subpoenaed by the January 6 Committee.

McDaniel said she was particularly upset when an elderly, recently widowed friend of hers was subpoenaed by the Jan. 6 committee after it was reported the friend was an alternate elector at the campaign’s behest. She declined to name the friend.

This nice little old lady is probably Kathy Berden, one of the two people from Michigan who were subpoenaed. Dean Berden passed away last August.

It took me 3 Google searches to find Berden’s name and Dean’s obituary, and unlike me, Dawsey has the support of an entire newsroom. But rather than ask a follow-up question about the most likely person that McDaniel was discussing, Dawsey just accepted McDaniel’s refusal to name the person and published the GOP Chair’s spin with absolutely no pushback.

That let Dawsey off easy.

Rather than explain that, if it is Berden, she is someone whom Michigan Attorney General Dana Nessel has said obviously broke Michigan law.

There’s no question a troop of faux GOP electors violated the law when they signed on to phony documents and tried to barge into the Michigan State Capitol in an effort to fraudulently award the state’s electoral votes to former President Donald Trump, says Attorney General Dana Nessel.

But, given the scope of what Michigan’s top law enforcement official called a “conspiracy,” Nessel says the criminal prosecution of at least the 16 sham Republican delegates is better suited for federal authorities.

“Seemingly there’s a conspiracy that occurred between multiple states. So if what your ultimate goal is, is not just to prosecute these 16 individuals, but to find out who put them up to this, is this part of a bigger conspiracy at play in order to undermine the legitimate results of the 2020 presidential election, not just in Michigan but nationally? … It creates jurisdictional issues,” Nessel said Tuesday during a virtual news conference.

“I feel confident we have enough evidence to charge if we decide to pursue that. Again, I want to make it clear, I haven’t ruled it out. But for all the reasons I stated, I think that it’s a better idea for the feds to pursue this.”

More importantly, Nessel described this as a “multi-state conspiracy,” something criminally implicating those beyond just the fake electors. Given McDaniel’s position in both Michigan and national politics, McDaniel likely at least knows key details of any such conspiracy, if she wasn’t an active part of it herself.

And it’s not just Michigan. Deputy Attorney General Lisa Monaco has confirmed that federal prosecutors are also investigating suspected crimes associated with the fake certificates.

So Dawsey let McDaniel’s claim that she was taking action to censure (and possibly fund the opponent of) Liz Cheney because of some nice little old lady, without mentioning that that nice little old lady is by definition someone being criminally investigated by the FBI for her role in an effort to steal the election. Dawsey also didn’t mention that that nice little old lady might also have information that would implicate McDaniel personally in that crime.

This is in a larger article that frames this all as some horserace politics — even if “unprecedented” — and not a fight about the aftermath of an attack on the peaceful transfer of power.

Dawsey published text from the resolution against Cheney and Kinzinger, describing them as “two members engage[d] in a Democrat-led persecution of ordinary citizens who engaged in legitimate political discourse,” in paragraph five.

He doesn’t get into the substance of what Republicans are defending with this vote until paragraph nine, which quotes Cheney.

“The leaders of the Republican Party have made themselves willing hostages to a man who admits he tried to overturn a presidential election and suggests he would pardon Jan. 6 defendants, some of whom have been charged with seditious conspiracy. I’m a constitutional conservative and I do not recognize those in my party who have abandoned the Constitution to embrace Donald Trump. History will be their judge. I will never stop fighting for our constitutional republic. No matter what,” Cheney said.

Dawsey never considers what it means that the Chair of the Republican Party says that Democrats may keep the House if a full investigation of these alleged crimes occurs, or even what it means that McDaniel intervened to turn David Bossie’s motion to expel Cheney and Kinzinger from the caucus entirely into one calling for censure, a pretty important point if, like Dawsey, you’re pretending this is just boring old horse race politics.

The RNC will vote today to say that if the Select Committee investigation into January 6, including into Kathy Berden and those suspected of conspiring with her, is allowed to continue, the Democrats may to keep the House, a fairly stunning concession that hints at the depths of the conspiracy.

But instead of telling that story, horse race journalist and WaPo’s full-time Mar-a-Lago stenographer wants to tell the story about nice little old ladies.

Update: Via JR, it turns out Berden has some curious ties with McDaniel.

McDaniel was reelected as chair of the RNC in January 2019, with Trump’s endorsement. Two days earlier, her PAC paid $5,000 to Kathleen Berden, a voting member of the RNC, a volunteer position. Reed said the PAC paid Berden because she “whipped votes” for McDaniel’s reelection. He would not address why McDaniel needed Berden’s services or whether it was appropriate for McDaniel to pay a volunteer RNC voting member to influence fellow voters.

When reached for comment, Berden declined to elaborate on her work for McDaniel.

h/t unhuh who first focused on this paragraph

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

These are all parts of a much bigger conspiracy.

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

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

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

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

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

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

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

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

It was worth a shot!

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

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

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

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

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

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

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

Select Committee Witness Requests

Four Things Judge Emmet Sullivan Should Do in the Wake of Flynn’s Pardon

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As I noted, Trump attempted to be expansive with his pardon of Mike Flynn. He failed. I think the chances that Flynn does prison time are almost as high today as they were last week.

And while I think there is absolutely nothing defective in the pardon that Trump signed and while I’m certain that Judge Sullivan will honor that pardon (though DOJ is asking him to dismiss the charges with prejudice; Sullivan should dismiss them without prejudice), there are four things that Sullivan has the means of doing to raise the cost of Trump’s pardon. Those are:

  • Make Trump name Flynn’s crimes
  • Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon
  • Force DOJ to explain what went into the altered documents
  • Identify who wrote the pardon

Make Trump name Flynn’s crimes

While whoever wrote this pardon tried (but failed) to make it comprehensive, it only names one of Flynn’s crimes: false statements (indeed, that’s the only crime that DOJ lists for the pardon on its website).

But by moving to withdraw his plea, Flynn put his other crimes before Judge Sullivan. So Sullivan has every right to inquire whether this pardon includes all of Flynn’s crimes. He could issue an order for Trump to come before him to answer whether the pardon forgives Flynn for:

  • His lies about what he said to Sergey Kislyak during the transition
  • Serving as an undisclosed Foreign Agent for Turkey
  • Lying about serving as an undisclosed Foreign Agent for Turkey
  • Conspiring with others to hide that he was an undisclosed Foreign Agent of Turkey
  • Lying about his own guilt and the circumstances surrounding his guilty pleas
  • Lying about lying to Flynn’s Covington lawyers

The answer to all those questions is yes. Trump does mean to pardon Mike Flynn for secretly working for Turkey while getting classified briefings. Trump does mean to pardon Flynn for lying to Sullivan (and he does know that Flynn did lie to Sullivan). Sullivan has a need to know that explicitly and he should get Trump on the record.

Trump won’t show, of course.

Until he is made to, after January 20th.

Note, I’d also make Trump state, under oath, when he signed the pardon. It is dated with Wednesday’s date, but I highly doubt that DOJ had it written by then. If Trump signed it after having lunch with Mike Pence yesterday, it’s possible that Trump didn’t write it this broadly until broaching a pardon for himself with Pence.

Establish a record about whether Flynn or Sidney Powell traded electoral assistance for this pardon

Judge Sullivan also has reason to want to know if someone offered Trump something of value for this pardon. He has evidence they did — in the altered documents designed to serve as a campaign attack on Joe Biden. And the news is full of evidence that Sidney Powell may have offered further benefit, in her efforts to challenge Trump’s election loss.

Sullivan should put both Flynn and Powell under oath and require that they confirm or deny whether they have offered favors to Trump for the pardon.

They won’t show, of course.

Until they are made to, after January 20th.

None of this would invalidate the pardon, of course. But if Trump got some other benefit from Flynn’s lies that went into this pardon, especially efforts to undermine a legal election, then the Attorneys General in those states that already investigating Trump’s efforts to steal the election would have reason to want to know that, and Sullivan has the means to get them under oath to do that.

Force DOJ to explain what went into the altered documents

People at both FBI and DOJ altered documents submitted in Sullivan’s court, the FBI by adding false dates to exhibits and DOJ by redacting footers indicating that the documents were covered by the protective order. Sullivan has reason to ask how that happened and who was involved in the effort.

Even if Trump pardoned everyone involved, there would still be a means for Sullivan to punish most of those involved, because most of those involved have law licenses and can be disbarred.

Sullivan should schedule a hearing — no need to rush, he might as well schedule it for January 26, after everyone involved gets a COVID shot — to ask the following people if they had a role in altering the documents (or eliciting a corrupt interview with Bill Barnett):

  • AUSA Jocelyn Ballantine
  • AUSA Sayler Fleming
  • AUSA Ken Kohl
  • US Attorney Jeffrey Jensen
  • FBI Executive Assistant Director John Brown
  • FBI Agent Keith Kohne
  • Acting DEA Administrator Timothy Shea
  • AG Bill Barr
  • DAG Jeffrey Rosen

Again, most of these people have law licenses that Sullivan could put at issue, and he has good reason to want to hold someone accountable for altering documents in his court.

These people won’t want to show. But after January 20th, they may have no way of avoiding it.

Identify who wrote the pardon

In his confirmation hearing, Bill Barr said that pardoning someone for giving false testimony would be a crime. Trump just committed that crime. Whatever lawyer wrote up the pardon language — whether it’s Barr or White House Counsel Pat Cipollone — just conspired to commit a crime.

Judge Sullivan should identify everyone who had a role.

[Fourth item added after the original post.]

Those Complicit in Trump’s False Story about the Election Are Willingly Damaging This Country

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Trump is telling a story — a false story — about his loss. The story, by itself, is not enough to overturn his resounding loss, and because of that, a host of people are treating the story-telling as relatively harmless. That’s a mistake, not least because Trump may intend this story-telling to justify other activities, such as a crack-down on people who protest his actions. He may even intend to make this country ungovernable — and in that, he may well succeed. Because of that, every single person who is complicit in telling that story bears direct responsibility for what comes next, including violence and potentially an attempt to thwart the will of voters.

I’d like to look at two kinds of story-telling that are complicit with Trump’s efforts, using this WSJ story, by Rebecca Balhous and Rebecca Davis O’Brien, as an example (though there are a slew of other possible examples).

First, there are Trump’s advisors, many of whom are described as recognizing that Trump’s claims of voter fraud won’t reverse his overwhelming loss.

Trump advisers have grown more vocal in conversations with Mr. Trump in recent days that they don’t see a path to victory, even if his legal efforts meet some success, a White House official said, though some advisers have continued to tell the president he still has a shot. An official said Mr. Trump understands that the fight isn’t winnable but characterized his feelings as: “Let me have the fight.”

One potential strategy discussed by Mr. Trump’s legal team would be attempting to get court orders to delay vote certification in critical states, potentially positioning Republican-controlled state legislatures to appoint pro-Trump electors who would swing the Electoral College in his favor, according to people familiar with the discussions.

It isn’t known how seriously the campaign has considered this idea, one of the people said.

Many of the advisers and lawyers said they doubt the effort would succeed and say it is aimed largely at appeasing Mr. Trump, who believes the election was stolen from him and expects his legal team to keep fighting.

Some of Mr. Trump’s advisers and lawyers said there isn’t an overarching legal theory or coordination behind the campaign’s efforts. The legal battle likely will conclude with Mr. Trump claiming the election was rigged against him and that he fought the outcome, the White House official said.

These people are willing to tell a story — one claiming that Trump’s legal challenges are meant to be serious legal challenges and not theater designed solely for story-telling — just to “appease” Trump. These people are all admitting that they are willing to damage the country just to allow a narcissist to claim he didn’t lose because a majority of the country, even a majority of people in states that make up an Electoral College victory, rejected him, but instead to claim he lost because over half the country did something illegitimate. These people are participating in Trump’s efforts to rebrand the act of casting a vote against Donald Trump as cheating.

No one making those admissions should be given anonymity, because they are willingly doing damage to the country.

Worse still, these anonymous sources are described as not really knowing how far Trump intends to go with the story. If they don’t know how Trump intends to use this effort, then they cannot rule out the possibility that they are telling a story that Trump intends to lay the groundwork for some kind of violent or extralegal effort to refuse to hand over power. Presumably, given that these people recognize how elections work, none of these people would willingly participate in a coup. Except they may be doing just that, by helping Trump tell a story that delegitimizes Joe Biden’s resounding win.

If this fight is not winnable, as these sources acknowledge, then participating in it can only serve to harm the country.

But it’s not just these anonymous sources who are complicit in the damage Trump is doing to this country.

This story treats the outcome of the election as a both-sides issue, one that pits Democrats against Republicans. For example, it notes that “officials in each state” have said there were no problems with the election. But then it only quotes Democrats, and labels each one as a Democrat.

Officials in each state have defended their voting processes as fair and free of major problems. Democrats said they would fight any effort to stop certification of the vote.

[snip]

Michigan Attorney General Dana Nessel, a Democrat, said the Michigan lawsuits were aimed at preventing the state from certifying results in hopes that the Republican Legislature would send Congress electors for Mr. Trump. “We are prepared to combat that,” she said on a conference call Wednesday.

[snip]

A spokeswoman for the office of Pennsylvania Attorney General Josh Shapiro, a Democrat, said Gov. Tom Wolf, a Democrat, certifies the electors selected by the popular vote.

A spokeswoman for Arizona Secretary of State Katie Hobbs, a Democrat, said the office is confident it will certify election results on time. “Arizona’s courts have plenty of experience handling and expeditiously resolving election-related lawsuits within the very strict statutory deadlines,” said spokeswoman Sophia Solis. [my emphasis]

It is, frankly malpractice to treat these claims as a partisan issue, and even bigger negligence to not quote any of the numerous Republicans who have also said the votes conducted in their states were fair, such as Georgia’s Geoff Duncan, or other Republican experts saying the same, such as Ben Ginsberg or Karl Rove.

Truth is not a partisan issue, but Balhous and O’Brien are treating it as such.

This story also treats claims that have been debunked or that are meaningless as credible.

In Michigan, it has offered affidavits from Republican election challengers who say they were harassed, forcibly excluded from absentee ballot-counting facilities and witnessed tampering with scores of ballots.

[snip]

In Pennsylvania, the campaign’s lawsuit contends the state didn’t give observers enough access to ballot counters and gave voters in Democratic leaning counties more opportunities to correct deficiencies in their mail-in ballots.

It would take about ten minutes of reporting to explain how these claims misrepresent the legal guidelines surrounding official poll challengers or exploit Democrats’ far wider use of mail-in voting this year to suggest disparate treatment. There are multiple court transcripts now where Republican lawyers have admitted this.

And yet, instead of doing that reporting, these journalists treat these bogus claims as if there is some dispute about them. There is not. The facts show these claims are without merit, and including the claims without clearly noting that is irresponsible.

Finally, having spent thirty paragraphs treating these election claims as if they are serious, in spite of the overwhelming evidence they are not, the WSJ admits that they are instead intended to accomplish other objectives.

Republican leadership in Congress has supported Mr. Trump’s legal battle. Some advisers see the efforts as a way to keep the Trump base energized ahead of the runoff elections in Georgia in January that will determine control of the Senate.

The suits also offer Republicans a greater platform to draw attention to any potential voting irregularities. And they provide an opportunity for political payback by Mr. Trump, who has long complained that the special counsel investigation into his campaign’s ties to Russia in the 2016 election was a way for his opponents to delegitimize his victory that year.

Responsible reporting would start with this admission. It would make the lead of the story that Republicans are lying about the viability of their challenge but are willing to do so, with all the damage that will do, to score payback because Trump was investigated for crimes he committed. But instead the WSJ buries it in the last lines, hiding their own complicity and that of Republicans they inexcusably grant anonymity where few will ever read it.

The story that Donald Trump is telling is doing tangible harm to our country. If you are complicit in telling that story — whether you are an anonymous enabler or a both-sides reporter — you also are doing tangible harm to this country.