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Donald Trump Says He Can Only Work Over Christmas If He’s Planning a Coup

There’s a passage of Trump’s opposition to fast-tracking the DC Circuit review of Judge Tanya Chutkan’s opinion holding he is not immune from criminal prosecution that has gotten a lot of attention: Where he accuses Jack Smith of being a mean old Grinch.

Even if the Court grants expedited consideration—which it should not do—it should not adopt the prosecution’s proposed schedule, which is facially unreasonable. The prosecution “requests that the Court require the defendant’s opening brief be due no later than ten days from the entry of a briefing order,” Mot. 5-6—which, assuming the Court rules promptly on the motion to expedite after the close of briefing, would make President Trump’s opening brief due the day after Christmas. This proposed schedule would require attorneys and support staff to work round-the-clock through the holidays, inevitably disrupting family and travel plans. It is as if the Special Counsel “growled, with his Grinch fingers nervously drumming, ‘I must find some way to keep Christmas from coming. … But how?’” DR. SEUSS, HOW THE GRINCH STOLE CHRISTMAS (Random House 1957).

Trump shouldn’t have to reschedule his holidays to make his argument that he is above the law, he says.

The argument is obnoxious on its face. All the more so because Trump has been known to work over Christmas.

Indeed, Donald Trump worked his ass off — as did many of his closest aides and his lawyers — over Christmas 2020.

On December 18, Trump had the famous meeting to discuss seizing the voting machines. On December 19, he tweeted out the “Will be wild” announcement, kicking off efforts around the country to travel to DC for the rally. On December 21, he had a planning call with members of the Freedom Caucus. On December 22, Trump approved an ad buy to pressure governors. On December 22, Trump met with Scott Perry and Jeffrey Clark. On December 22, Mark Meadows attempted to enter the counting area in Cobb County, GA. On December 22, Trump gave a speech in which he defamed Ruby Freeman and Shaye Moss. On December 23, Trump called Georgia investigator Frances Watson and suggested that he she showed him winning by hundreds of thousands, “you’ll be praised.” On December 23, Trump accused Georgian election officials of being “Terrible people.” On December 23, Trump had an Oval Office meeting with Doug Mastriano and other Pennsylvania State Senators. On December 23, John Eastman fine-tuned his scheme to have Vice President Pence pick and choose which votes to count. On December 23, Trump tweeted out about Operation PENCE Card. On Christmas Day, Trump called Rusty Bowers and asked him to support the fake elector scheme. Also on Christmas, Trump tried to persuade Pence to reject Biden votes. On December 26 and 27, Scott Perry developed his plan to have Jeffrey Clark intefere at DOJ. On December 27, Trump harangued Jeffrey Rosen and Richard Donoghue for two hours in an attempt to get them to support his false claims of fraud, before he suggested he might install Clark. On December 27, he spoke with Roger Stone about plans for January 6, including his own plan to speak. On December 27, Trump started getting more involved in planning the event, beginning to discuss a march to the Capitol. On December 27, Trump boosted January 6 again. On December 28, Rudy’s team finalized their Strategic Communications Plan they’d been working on for weeks.

This is a non-exclusive list. Trump worked his ass off over the Christmas holiday in 2020.

So it’s not that Trump (or his lawyers) are averse to working through the holidays.

They’re only willing to do so, though, when planning a coup.

When John Eastman Acknowledged that Candidate Trump Spoke in His Personal Capacity

In Sri Srinivasan’s opinion in Blassingame holding that presidents, when speaking as candidates, are not immune from civil suit, he pointed to a key moment in the 2020 transition period to illustrate the distinction he was making between when a president running for re-election speaks as an office-seeker, rather than an office-holder: When Trump intervened in the Texas v. Pennsylvania lawsuit.

As an example, consider a situation directly germane to the cases before us in which President Trump publicly volunteered that he was acting—and speaking—in an unofficial, private capacity. In the period after the 2020 election and before January 6, the Supreme Court considered an effort by Texas to challenge the administration of the election in several battleground states in which then-President-elect Biden had been declared the winner. Texas v. Pennsylvania, No. 22O155 (U.S. 2020). President Trump moved to intervene in the case. In doing so, he specifically explained to the Supreme Court (and captioned his filing accordingly) that he sought to “intervene in this matter in his personal capacity as a candidate for re-election to the office of President of the United States.” Motion of Donald J. Trump, President of the United States, to Intervene in his Personal Capacity as Candidate for ReElection, Proposed Bill of Complaint in Intervention, and Brief in Support of Motion to Intervene 14, Texas v. Pennsylvania, No. 22O155 (U.S. Dec. 9, 2020) (Trump Mot. to Intervene). He relatedly elaborated that he wished “to intervene to protect his unique and substantial personal interests as a candidate for re-election to the Office of President.” Id. at 24.

President Trump, then, affirmatively communicated to the Supreme Court (and the public) that he was acting and speaking in that matter in his “personal capacity” as a candidate for reelection—indeed, he explained that his reason for wanting to participate in the case was a “substantial personal” one rather than an official one. That stands in sharp contrast with other cases in which he—like all Presidents—had filed briefs in the Supreme Court in his “official capacity as President of the United States.” See, e.g., Brief for the Petitioners at II, Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). But while President Trump’s effort to participate in Texas v. Pennsylvania was made in an expressly and self-consciously personal, unofficial capacity, the content of his speech in his submission undoubtedly involved a matter of significant public concern: his challenge to the election results in various pivotal states, whose “electors [would] determine the outcome of the election.” Trump Mot. to Intervene 27.

As that example illustrates, an immunity for all presidential speech on matters of public concern—without regard to the context in which the President speaks—would be grounded purely in “the identity of the actor who performed it” rather than “the nature of the function performed.” Clinton, 520 U.S. at 695 (quoting Forrester, 484 U.S. at 229). Such a result is “unsupported by precedent.” Id. And it is unsupported by the basic object of granting a President official-act immunity: assuring that the President is not “unduly cautious in the discharge of his official duties.” Id. at 694 (emphasis added) (quoting Nixon, 457 U.S. at 752 n.32). That concern necessarily has no salience when the President acts—by his own admission—in an unofficial, private capacity.

b.

As President Trump’s intervention motion in Texas v. Pennsylvania highlights, whether the President speaks (or engages in conduct) on a matter of public concern bears no necessary correlation with whether he speaks (or engages in conduct) in his official or personal capacity. And because it is the latter question that governs the availability of presidential immunity—as a matter both of precedent and of the essential nature of an immunity for (and only for) official acts—we must reject President Trump’s proposed public-concern test as illsuited to the inquiry. [my emphasis; links added]

Remember that time, weeks before the actions alleged in these lawsuits, Srinivasan might have been nudging the six Republican appointees to the Supreme Court, where even Donald Trump admitted that sometimes when the president speaks, he speaks only in his personal capacity?

It was more than that, though, and in ways that might be significant to both the civil cases and Jack Smith’s case.

This was not just Donald Trump acknowledging that, at that moment in December 2020 when he asked the Supreme Court to make him the winner of the 2020 election, he was speaking in his personal capacity. It was John Eastman, Counsel of Record on that motion, who described Trump as such. Eastman filed that motion to intervene, representing Trump in his personal capacity, in a period when he was discussing with Clarence Thomas’ spouse about lawsuits to challenge the results of the election (though she told the January 6 Committee she had no involvement “at all” in Texas v. Pennsylvania). Even Republican members of Congress got into the act, starting with now-Speaker Mike Johnson and including Jim Jordan and Scott Perry.

When Ken Paxton asked the Supreme Court to throw out the votes of four swing states, a bunch of people who would go on to play key roles in the attack on Congress were party to an action in which Co-Conspirator 2 described that Defendant Trump spoke in his personal capacity.

In days ahead, we’ll learn more about how the DC Circuit civil decision being sent back to Amit Mehta will intersect with Tanya Chutkan’s criminal decision that former president Donald Trump is entitled to no immunity as former president. These two decisions may literally and figuratively pass each other in the halls of Prettyman Courthouse, as one decision heads back to the older District chambers and another heads up to the fancier Circuit chambers.

Srinivasan’s opinion is limited, inviting very specific fact-finding.

As I described, in a passage citing the Blassingame decision released just hours earlier, Chutkan very pointedly stopped short of that specificity. She declined to weigh in on whether a former president’s immunity from criminal prosecution would be different if he was acting “within the outer perimeter of the President’s official” duties than if he was engaged in official acts, effectively inviting Srinivasan and his colleagues to do that.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Chutkan’s decision might well be sufficient. There are plenty of things a president might do, claiming to do so in his official capacity, which would also break the law; DOJ raised five pretty familiar looking examples in their response to Trump’s bid for absolute immunity.

DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

[snip]

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

It would be nice if first DC Circuit and then SCOTUS could put this matter to bed, so it stops holding up Trump cases.

But judges like to move cautiously, testing the easy cases before they test the harder ones. With the Srinivasan decision in hand, the DC Circuit might treat the criminal appeal differently than they otherwise might.

For example, they might note, as DOJ did in its response, that five of six Trump described co-conspirators are also private citizens: Trump’s personal attorney Rudy Giuliani, Eastman representing Trump in his personal role, Sidney Powell, whom Trump recent said would be conflicted from representing him personally), Ken Chesebro who also claimed to be representing Trump personally, and Boris Epshteyn, who nominally remained an employee of the campaign.

If invited to do further briefing in light of Srinivasan’s opinion, DOJ might note that after SCOTUS denied Texas v. Pennsylvania cert, Trump’s campaign lawyers gave up the fight, as the January 6 Committee Report describes, ceding the fight to Rudy and the other co-conspirators.

Not everyone on the campaign was eager to pursue the fake elector plan. OnDecember 11th, the U.S. Supreme Court rejected a high-profile lawsuit filedby the State of Texas challenging the election results in Pennsylvania, Georgia, Michigan, and Wisconsin.42 After that decision, the Trump Campaign’s senior legal staffers said that they reduced their involvement in thefake elector effort, apparently because there was no longer a feasible scenario in which a court would determine that President Trump actually won any of the States he contested.43 Justin Clark, who oversaw the Trump Campaign’s general counsel’s office, said that he basically conveyed, “I’mout,” and encouraged his colleagues on the legal team to do the same.44 Findlay told the Select Committee that “we backed out of this thing,” and Morgan, his boss, said he had Findlay pass off responsibility for the electorsas “my way of taking that responsibility to zero.”45

Clark told the Select Committee that “it never sat right with me that there was no . . . contingency whereby these votes would count.”46 “I hadreal problems with the process,” Clark said, because “it morphed into something I didn’t agree with.”47 In his view, the fake electors were “not necessarily duly nominated electors” despite being presented as such.48 Hesaid he believed he warned his colleagues that “unless we have litigationpending like in these States, like I don’t think this is appropriate or, you know, this isn’t the right thing to do.”49

DOJ might also note that, as charged in the indictment, the suit played a specific role in the Georgia allegations, when Chris Carr refused Trump’s request that he join in Texas’ lawsuit, because none of Trump’s claims had merit.

And it’s not just Trump’s personal lawyer co-conspirators. The invocation of Texas v. Pennsylvania even weighs heavily on the role Jeffrey Clark, then serving as Acting Assistant Attorney General at DOJ and so in a far better position to claim to be acting in an official role, played in the alleged conspiracy.

That’s because Trump’s bid to replace Jeffrey Rosen with Clark was directly tied to an effort to get DOJ to file a similar lawsuit. Here’s how Jeffrey Rosen described it to the January 6 Committee.

Q Okay. And want to talk to you also about the December 27th call where | believe you conferenced in Mr. Donoghue. ~ And that involved the President as well. In Mr. Donoghue’s notes, he references John Eastman and Mark Martin and has a note that says: P trusts him.

What do you remember about that aspect of the conversation?

A So I think that day someone had sent over to us a draft Supreme Court brief modeled on the Texas v. Pennsylvania case that the Supreme Court had rejected. And I was I think Rich Donoghue and Steve Engel and I had a meeting that we were there for t0 address an oversight set of issues that had produced some controversy that Members of Congress who – I won’t get nto all that, other than that Mr. Meadows had asserted to me that the thing had – that he and AG Barr had resolved it. But now AG Barr was gone, and it wasn’t resolved, and he wanted to talk to me about getting it resolved.

But at that discussion Mr. Meadows raised with us: ~ Did you guys see the Supreme Courtbrief that was sent over?

And I think we said: Haven’t read it carefully, but it doesn’t look viable.

And he responded in some sense — and, again, I’m paraphrasing, because I don’t I’m repeating the substance rather than the words was: Well, Mark Martin and John Eastman, who are, you know, these great legal scholars, think it’s great idea.

And we said: Well, you know, we’ll get back to you. But preliminary take is it has problems, that it doesn’t look like a good idea to us. But we’ve only had it 2 hours or something like that, you know, whatever the timeframe was, which it was relatively brief.

Trump followed up twice, pushing DOJ to sue as the government.

What I remember better was that, on Wednesday, after the Kurt Olsen incident, I spoke to the President. I think that was just me, or Rich may have been in my office, but I don’t think it was on the speakerphone. Some of these were on speakerphone with me and Rich, and some, it was just me, but Rich could’ve been in my office.

And the way I remember it is, on Wednesday, I wound up telling the President, “This doesn’t work. ~ There’s multiple problems with it. And the Department of Justice is not going to be able todo it” And–

In the same exchange, there was discussion of whether a DOJ attorney, like Jeffrey Clark, could represent the president in his personal capacity.

Q Okay. So is it fair then to say that this was not partof the Department’s official businessatthe time?

A Yes

Q And, to your knowledge, can Jeff Clark as the assistant — Acting Assistant Attorney General for the Civil Division, can he represent the President in a personal capacity while also maintaining his role at the Department of Justice?

A Let me just make sure I understand the question. You’re saying, can he outside of his DOJ role represent the President in a personal capacity? And I’m trying what I’m trying to distinguish is sometimes the President or others get sued in their individual capacity. But they have some form of governmental immunity or the like. And so the government can represent them as individuals. That’s not what you’re getting at. You’re talking about, can a – can someone who’s a government employee, You know, have like a side gig representing a private person?

But then, after Jeffrey Rosen refused to make DOJ Trump’s own personal law firm, Trump took steps to make Jeffrey Clark, who was willing to do that, Acting Attorney General.

This application may even have critical import to the application of 18 USC 1512(c)(2) and (k) to Trump’s actions. Weeks before Trump and Eastman allegedly conspired to obstruct the vote certification on January 6, Eastman described that Trump had “unique and substantial personal interests” in throwing out the votes of four states that voted for Joe Biden. That’s the kind of admission from co-conspirator 2 that would make any analysis of Trump’s corrupt purpose in obstructing the vote certification quite easy.

Srinivasan’s use of Trump’s motion to intervene was, at one level, a very convenient use of Trump’s own legal claims — made before a conservative Supreme Court that will eventually answer both of these questions — against him.

But it maps onto the criminal case, too, in ways that DC Circuit might choose to apply as a way to tiptoe their way into sanctioning the first prosecution of an ex-president for actions he took as an office-seeker, rather than an office-holder.

Update: Ben Wittes and Quinta Jurecic similarly discuss how these two rulings work in tandem.

Twenty-Five: The Trump Family Member and Other Attorney-Client Delusions

On January 9, I did a post noting that at least 25 of the known witnesses or subjects of the January 6 investigation into Trump were attorneys.

In a filing yesterday, DOJ said the same thing: At least 25 witnesses, including one member of Trump’s family, withheld testimony or documents based on an attorney-client claim.

During the course of the Government’s investigation, at least 25 witnesses withheld information, communications, and documents based on assertions of the attorney-client privilege under circumstances where the privilege holder appears to be the defendant or his 2020 presidential campaign. These included co-conspirators, former campaign employees, the campaign itself, outside attorneys, a non-attorney intermediary, and even a family member of the defendant.

To be clear, we’re measuring two different things: for example, while the two Pats — Cipollone and Philbin — as well as Mike Pence’s counsel, Greg Jacob, withheld testimony in their first grand jury appearances, that was based at least partly on an Executive Privilege claim, one prosecutors ultimately overcame, not exclusively on their role as White House lawyers.

And I know I missed a bunch of people who invoked attorney-client privilege. For example, Bernie Kerik — who I didn’t count in my list — withheld documents until forced to share them in the Ruby Freeman lawsuit, based on a claim that his work as a researcher was attorney work product. The Georgia indictment alerted me that I had missed accused Trump co-conspirator Robert Cheeley — and there are probably attorneys in all the other swing states I missed too. I didn’t count the campaign itself. I sure as hell didn’t count any family member (I wonder if the big gap in the January 6 indictment where Ivanka should be is there based off a claim she was acting at the direction of Eric Herschmann, though Herschmann seems to have offered far more cooperation than Ivanka did).

However you count it, though, it’s a breathtaking number, one rarely taken into account by the TV lawyers wailing because it took so long to charge Trump.

And charge Trump alone.

That’s something I kept thinking about as I read this filing: Thus far, not even Trump’s alleged co-conspirators — all of whom might make an attorney-client claim (even Mike Roman might be that non-lawyer intermediary, though I think it more likely Boris Ephsteyn is CC6) have been charged.

The government’s argument itself makes a lot of sense. For example, it enumerates that Trump or his attorneys have claimed they’ll rely on an advice of counsel defense at least seven times.

1 Fox News, Aug. 1, 2023, at minute 3:03, available at https://www.foxnews.com/video/6332255292112.

2 CNN, Aug. 1, 2023, at minute 2:20, available at https://www.youtube.com/watch?v=GW7Bixvkpc0.

3 NPR All Things Considered, Aug. 2, 2023, available at https://www.npr.org/2023/08/02/1191627739/trump-charges-indictment-attorney-jan-6-probe.

4 Meet the Press (NBC), Aug. 6, 2023, available at https://www.nbcnews.com/meet-thepress/meet-press-august-6-2023-n1307001.

5 Face the Nation (CBS), Aug. 6, 2023, at minute 24:11, available at https://www.cbsnews.com/news/face-the-nation-full-transcript-2023-08-06/.

6 CNN, Aug. 6, 2023, at minute 7:58, available at https://www.cnn.com/videos/politics/2023/08/06/sotu-lauro-full.cnn.

7 Donald Trump interview with Tucker Carlson, Aug. 23, 2023, at minute 34:35, available at https://twitter.com/TuckerCarlson/status/1694513603251241143?lang=en.

The government lays out precedent stating that Trump would have to waive privilege over and share communications that support his advice-of-counsel defense, but also communications over which he and the lawyer are currently shielding behind a privilege claim that would undermine it.

In invoking the advice-of-counsel defense, the defendant waives attorney-client privilege on all communications concerning the defense. See White, 887 F.2d at 270; United States v. Crowder, 325 F. Supp. 3d 131, 137 (D.D.C. 2018). Accordingly, once the defense is invoked, the defendant must disclose to the Government (1) all “communications or evidence” the defendant intends to rely on to establish the defense and (2) any “otherwise-privileged communications” the defendant does “not intend to use at trial, but that are relevant to proving or undermining” it. Crowder, 325 F. Supp. 3d at 138 (emphasis in original). See United States v. Stewart Rhodes, 22- cr-15 (D.D.C.), ECF No. 318 at 2 (quoting Crowder); Dallman, 740 F. Supp. 2d at 814 (waiver is for “information defendant submitted to the attorney on which the attorney’s advice is based, the attorney’s advice relied on by the defendant, and any information that would undermine the defense”); United States v. Hatfield, 2010 WL 183522, at *13 (E.D.N.Y. Jan. 8, 2010) (“This disclosure should include not only those documents which support [defendants’] defense, but also all documents (including attorney-client and attorney work product documents) that might impeach or undermine such a defense.”); United States v. Scali, 2018 WL 461441, at *8 (S.D.N.Y. Jan. 18, 2018) (quoting Hatfield).

Given that Trump would have to identify exhibits on which he would rely for an advice of counsel defense by December 18, the government argues, he should have to also identify the specifics of any advice of counsel defense by that date as well.

Given the potential number of attorneys and breadth of advice involved, the defendant’s notice should describe with particularity the following: (1) the identity of each attorney who provided advice; (2) the specific advice given, including whether the advice was oral or written; (3) the date on which the advice was given; and (4) the information the defendant communicated or caused to be communicated to the attorney concerning the subject matter of the advice, including the date and manner of the communication.

It makes this argument while also noting something that doesn’t, per se, support its case: that DOJ has already told Trump what these 25 people — and it invokes John Eastman, the person most often mentioned in Trump’s public claims of a advice of counsel defense, by caption — have identified in privilege logs.

In addition to having publicly advanced the defense, the defendant knows what information the Government has—and does not have—that might support or undermine the defense. The Government produced in discovery the privilege logs for each witness who withheld material on the basis of a claim of privilege on behalf of the defendant or his campaign, and in some cases the defendant’s campaign was directly involved in discussions regarding privilege during the course of the investigation. In other instances, the Government produced court orders requiring the production of material claimed to be privileged. Compelling the defendant to provide notice, and thereby discovery, would be reciprocal of what the Government already has produced. For example, defense counsel publicly identified one attorney on whose advice the defense intends to rely at trial, and the Government has produced in discovery substantial evidence regarding that attorney and his advice, including relevant search warrant returns.8 Any material relevant to that attorney’s advice that remains shielded by the attorney-client privilege should be produced to the Government at the earliest date to avoid disruption of the trial schedule.

8 That same attorney asserted an attorney-client privilege with the defendant and his campaign to shield material from disclosure to Congress. See Eastman v. Thompson, Case No. 8:22-cv-00099 (C.D. Cal.), ECF No. 260 at 15 (“The evidence clearly supports an attorney-client relationship between President Trump, his campaign, and [plaintiff] during January 4-7, 2021.”). [my emphasis]

Whatever else this motion is — and on its face it makes a lot of sense — it would also provide a means for DOJ to sort through some of the privilege logs it is looking at, and at least in the case of Eastman (if Trump indeed invoked his counsel as a defense) to breach those privilege claims and even obtain communications it does not yet have. Particularly given Clarence Thomas’ recusal on Eastman’s recently rejected cert petition, Eastman might have unidentified communications of particular interest.

Advance notice would also force Trump to rule out relying on the advice of others, like Rudy or Sidney Powell, as a defense, something that might make charges against them more viable.

I don’t imagine that DOJ would add any of Trump’s co-conspirators to his indictment so long as Trump’s trial happened before the election. They could always charge others separately, but so long as Trump had a chance of returning to the presidency, the only reason to do so would be if there were a legitimate hope of flipping the person or if it would make Trump’s alleged crimes more damaging politically. Trump has pardoned his way out of problems in the past and DOJ has to assume he would again, given the opportunity.

But in addition to making a solid case that Judge Chutkan should make Trump declare his intentions in December, this filing also admits that attorney-client privilege claims continue to blind DOJ to some of the universe of related communications pertaining to January 6.

The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[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.

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

The Elements of Offense in the Trump January 6 Indictment

In the last day, Maggie and Mike and Devlin and Dawsey came out with twin pieces that purport to assess the legal strength of the indictment against Trump, but instead simply say, “well, Trump believes his bullshit and so do we and so the charged conduct may be First Amendment protected.”

Neither of these articles even mention that 18 USC 371, conspiracy to defraud the US, is about lying to the US, even though one of the lawyers cited by WaPo attempted to explain that to them.

Here’s why all those claims that Trump knew he was lying are in the indictment: because his false claims were the means Trump used to carry out the conspiracy to defraud.

The Defendant widely disseminated his false claims of election fraud for months, despite the fact that he knew, and in many cases had been informed directly, that they were not true. The Defendant’s knowingly false statements were integral to his criminal plans to defeat the federal government function, obstruct the certification, and interfere with others’ right to vote and have their votes counted. He made these knowingly false claims throughout the post-election time period, including those below that he made immediately before the attack on the Capitol on January 6:

This indictment will be measured not by what Maggie and Mike and Devlin and Dawsey claim about legal statutes they haven’t bothered to explain.

It will be measured by whether the government presents evidence to prove the elements of offense for each charge beyond a reasonable doubt.

Here, in abbreviated form, is what the elements of the offense are for the four charged crimes, which is what the jury will be given to judge the former President’s crimes. DOJ will need to prove that Trump entered into three parallel conspiracies with his alleged co-conspirators, then show that they attempted to:

  • Use deceit to undermine the Electoral College Act
  • Prevent the certification of the Electoral votes on January 6
  • Prevent the Biden voters votes in swing states from being counted

Conspiracy

Trump is charged with conspiring with six people: Rudy Giuliani (CC1), John Eastman (CC2), Sidney Powell (CC3), Jeffrey Clark (CC4), Kenneth Chesebro (CC5), and either Boris Epshteyn or Mike Roman (CC6). DOJ did this because to prove the case against Trump, it plans to introduce the words and actions of each of these six people as co-conspirators. To admit that as evidence, DOJ will need to convince Judge Tanya Chutkan that Trump entered into an agreement with each of them to carry out the goal of each of three conspiracies, which are:

  • 18 USC 371: The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified. The government function Trump is accused of seeking to thwart with all his lying is the Electoral Count Act, the means by which the government ascertains the winners of each state’s electoral college votes.
  • 18 USC 1512(k): The purpose of the conspiracy was to corruptly obstruct the vote certification on January 6.
  • 18 USC 241: The purpose of the conspiracy was to prevent people’s votes from being counted, probably best defined as the Biden voters whose votes made him the winner of swing states, with Georgia, Michigan, Nevada, Pennsylvania, and Arizona mentioned explicitly.

The government doesn’t have to prove that all seven of these people sat in a room and made an agreement on November 14, the day after Trump’s campaign conceded Arizona, which is when the alleged conspiracies began. Nor does it have to prove they entered into an explicit agreement. They just need to prove that each of these people agreed to pursue the goal of each conspiracy.

The kinds of things the government will use to prove the co-conspirators joined this conspiracy are:

Rudy: The government will show that on November 14, Rudy took over Trump’s efforts to contest the vote (remember that DOJ subpoenaed whatever legal arrangement he had with Trump, but note that Special Master Barbara Jones appears to have found none of Rudy’s post-election plotting to be privileged). It will show that, acting on Trump’s instructions, Rudy repeatedly contacted both state officials and members of Congress to assert fraud that even he admitted he had no evidence for. “We don’t have the evidence, but we have lots of theories.” It will show that Trump repeatedly publicly ratified Rudy’s lies, often by Tweeting the claims Rudy made, and often by pushing them both with state officials he was personally trying to pressure, but also with US government officials, including DOJ.

John Eastman: The government will show that as Trump tried to find some justification for stealing the election, he turned to Eastman to give it legal cover. It will point to things like the Georgia lawsuit certification Trump signed on December 31 that Eastman acknowledged included false data. It will show Eastman’s calls in support of fake electors. It will rely heavily on the meetings Eastman personally attended in the days leading up to January 6. It will show that Trump decided, after being told repeatedly that Mike Pence wouldn’t throw out the votes, to have Eastman (as well as Rudy) speak at the Ellipse rally.

Sidney Powell: As I noted in this post, the role of Powell as alleged in the conspiracy is actually quite narrow. The indictment shows that on November 16, Trump asked Powell and others to use the Dominion voting machine allegations in lawsuits, and starting on November 25, she did so. Trump ratified her actions, even though Rudy had publicly split from her, on Twitter. One of the lies the indictment claims Trump knowingly told — in addition to very specific lies about swing states he repeated in his Ellipse speech — pertains to the voting machines, and to prove that lie, the government will show Trump knew Powell was batshit crazy but didn’t care.

Jeffrey Clark: The government will show that, starting on December 22, after Bill Barr, Jeffrey Rosen, and Richard Donoghue all debunked Trump’s false claims, Clark had secret communications with Trump that violated DOJ’s contact policy. As a result of those secret communications, Clark drafted a letter he attempted to coerce Rosen and others to sign, endorsing the fake elector scheme. Trump endorsed his actions by attempting to (and briefly at least, in fact replacing) Rosen with Clark so Clark could, “use the authority of the Justice Department to falsely present the fraudulent electors as a valid alternative to the legitimate electors.”

Kenneth Chesebro: The government will show that, acting at the direction of people acting for Trump, Chesebro wrote a series of increasingly radical memos laying out how each swing state ascertained electors and describing how fake electors could attempt to comply with those laws, even while acknowledging that in several states they couldn’t meet the legal requirements. (Here’s the J6C Report on the memos.) The government will show that Chesebro entered into the conspiracy via communications with Rudy and, later, Eastman, not directly with Trump.

Co-Conspirator 6: It’s not yet certain whether CC6 is Boris Epshteyn or Mike Roman. Whoever it is, DOJ will show that CC6 played a key role in recruiting people to implement the fake elector scheme and then was involved in Rudy’s attempts to persuade members of Congress to reject the swing state electoral certificates.

Conspiracy to Defraud the United States

Assuming DOJ can convince Judge Chutkan that each of these people entered into a conspiracy with Trump, it will then use his own actions and theirs to prove the elements of offense for each of the charged conspiracies.

For 18 USC 371, the government needs to prove that Trump and his co-conspirators attempted to use deceit to pretend that Trump had won 306 electoral college votes, rather than Joe Biden. This statute is why the discussion of all the lying is in there.

Notably, assuming Chutkan agrees these are all co-conspirators, DOJ won’t have to rely entirely on Trump’s lies. They’ll also rely on:

  • Rudy’s admission to Rusty Bowers they had no evidence to back their claims
  • Eastman’s admission to Mike Pence his claims about ECA were untested, and his admission to Greg Jacob that SCOTUS would reject them
  • Trump’s description of Sidney Powell’s claims as crazy
  • Jeffrey Clark’s attempts to deceive his bosses about what he was doing with Trump
  • Kenneth Chesebro’s admission that the fake electors in several states could not comply with the law

As I have laid out, DOJ has set up 5 specific lies that Trump recycled in his Ellipse speech after having them repeatedly debunked by Republicans, along with the voting machine lies Sidney Powell told. They have also laid out that Trump lied about what Pence had just told him (and there are contemporary witnesses that it happened before Trump made his false claims about Pence).

Even if jurors believed Trump believed his own bullshit about some or all of the claims about fraudulent votes, DOJ would still have Trump’s lies about Dominion voting machines and Pence to prove that he knowingly defrauded the US.

Obstruction of the Vote Certification

As I have repeatedly noted, for both obstruction counts (charged as a conspiracy and against Trump alone), dozens of other January 6 defendants have already tried the defense that Maggie and Mike and Devlin and Dawsey present (and not for the first time by Maggie and Mike) as if Trump would be making it for the first time.

It didn’t work. I will link, once again, Royce Lamberth’s recent findings of fact in the Alan Hostetter case in the futile hope that Maggie and Mike and Devlin and Dawsey might decide to learn how this statute has already been applied in hundreds of January 6 cases.

To prove that Trump (and his co-conspirators for the 1512(k) charge) obstructed the vote certification, DOJ will need to:

  • Prove that Trump knew the significance of the vote certification (possibly both the December 14 and January 6 ones). DOJ will point to both the effort to get fake elector certificates created on December 14, and Trump’s publicity of January 6 and his repeated public claims that unless Pence intervened, he wouldn’t be President anymore.
  • Prove that Trump took steps to obstruct the certification of the votes. DOJ will point to the pressure on Mike Pence, both covertly in meetings leading up to January 6 and overtly after Pence told Trump he would not reject the certifications. DOJ will also point to things Trump did to ensure that a mob of bodies physically occupied the Capitol, and after they had ,refuse to take steps in response to requests from people like Kevin McCarthy and Pat Cipollone to get them out of there.
  • Prove that Trump had a corrupt purpose in doing all this. As I keep saying, what the standard for corrupt purpose will be is being decided as we speak by the DC Circuit (and yesterday, the effective solicitor general for the mobsters filed for cert at SCOTUS in an attempt to preempt the DC Circuit). It will be some combination of the following:
    • Otherwise illegal acts: DOJ would prove that Trump violated the law to obstruct the vote certification by looking at the fake elector plot and the knowingly illegal order to Pence.
    • Corrupt personal benefit: Among the hundreds of people charged with obstruction, this definition of corrupt purpose is probably easiest to prove for Trump, because he was attempting to remain President after being fired by voters. This is one area where Trump’s awareness that he lost might matter, but ultimately, the Lamberth decision would lay out that even if Trump really believed he won, the means he used to prevent Biden’s vote from being certified were corrupt.

Conspiracy to Prevent Biden’s Voters Votes from Being Counted

After laying out the elements of offense for joining a conspiracy, the jury instructions in the Douglass Mackey case used the following language for the objective of the conspiracy.

The indictment alleges that the objective of the charged conspiracy was to injure, oppress, threaten or intimidate one or more persons in the free exercise and enjoyment of their right to vote. The government must therefore prove beyond a reasonable doubt that the defendant knowingly and intentionally joined the conspiracy with the intent to further that objective. In this case, the government has alleged that the object of the conspiracy was specifically to “injure” one or more persons in the free exercise and enjoyment of their right to vote. I instruct you that the statute covers conduct intended to “obstruct,” “hinder,” “prevent,” “frustrate,” “make difficult or impossible,” “or indirectly rather than directly assault” free exercise of the right. For example, “hinder” is defined as “to make slow or difficult the progress of, to hamper, to hold back, to prevent, to check.”

It does not require the possibility of physical force or physical harm. Thus, conduct that makes the right to vote more difficult, or in some way prevents voters from exercising their right to vote can constitute an “injury” within the meaning of the law.

Here, the object of the conspiracy was twofold: to prevent people from voting, but also to prevent their votes from being counted.

Curiously, the timeline on this conspiracy only starts at November 14, after all the votes were cast.

The indictment notes several instances where Trump intimidated people counting the vote, mentioning the death threats that he caused Al Schmidt and Ruby Freeman and Shaye Moss to suffer. It explicitly states that Trump, “attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.” It describes how the lies (as well of those from Eastman and Rudy) in his Ellipse speech:

gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to fraudulently obstruct the certification

It describes how, after being told of the riot, Trump further inflamed the crowd with a tweet targeting Pence the minute before Pence was evacuated for his safety (thereby shutting down the vote count). It describes how Trump refused the requests of Pat Cipollone, Pat Philbin, Mark Meadows, a Deputy Chief of Staff (possibly Tony Ornato), and Eric Herschmann to tell the rioters to leave. It describes how Trump refused Cipollone’s request that he withdraw his objections to the vote certification.

The comments and actions of both Rudy and John Eastman also nakedly show that the intent was to prevent Joe Biden’s votes from being counted.

Trump Lied and Mike Pence Almost Died

In the wake of yesterday’s indictment, apologists for Donald Trump are out there claiming that he will be able to prove that he really believed he won the election, and therefore sponsoring fraudulent documents and launching an insurrection is totally cool.

It is for this moment that I have been linking so often to the Findings of Fact that Reagan-appointed Judge Royce Lamberth wrote in the Alan Hostetter case. As he wrote, on the same headline charge with which Trump has been charged, 18 USC 1512(c)(2), obstruction, it didn’t matter that Hostetter believed Trump really won the election, because the means Hostetter used to vindicate an election he believed was stolen was unlawful.

Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former policy chief, he still must have known that it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And with Trump, it will be still easier to prove corrupt purpose since his goal had the most lucrative and corrupt personal benefit imaginable, remaining President after being fired by voters.

More importantly, Trump didn’t just lie about the election results. He also lied about Mike Pence.

Trump told two kinds of lies about Pence: first, that Pence had the authority to reject the votes.

96. That same day, the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant’s favor, including issuing the following Tweets:

a. At 11:06 a.m., “The Vice President has the power to reject fraudulently chosen electors.” This was within 40 minutes of the Defendant’s earlier reminder, “See you in D.C.”

[snip]

100. On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the Vice President might do so:

a. At 1:00 a.m., the Defendant issued a Tweet that falsely claimed, “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”

b. At 8:17 a.m., the Defendant issued a Tweet that falsely stated, “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. AH Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage.

Trump may well claim he believed this to be true — though Pence and two other witnesses have testified that Eastman admitted in a meeting with all of them that this was not lawful.

92. On January 4, the Defendant held a meeting with Co-Conspirator 2, the Vice President, the Vice President’s Chief of Staff, and the Vice President’s Counsel for the purpose of convincing the Vice President, based on the Defendant’s knowingly false claims of election fraud, that the Vice President should reject or send to the states Biden’s legitimate electoral votes, rather than count them. The Defendant deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on the Defendant’s false claims of election fraud.

93. During the meeting, as reflected in the Vice President’s contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?” The Defendant and Co Conspirator 2 then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states’ legislatures. When the Vice President challenged Co-Conspirator 2 on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 responded, “Well, nobody’s tested it before.” The Vice President then told the Defendant, “Did you hear that? Even your own counsel is not saying I have that authority.” The Defendant responded, “That’s okay, I prefer the other suggestion” of the Vice President rejecting the electors unilaterally. [my emphasis]

Certainly Eastman knew this was false (and we know there is documentary evidence to back this). He not only admitted this to Greg Jacob, but Jacob also explicitly told Eastman making this false claim would lead to violence.

94. Also on January 4, when Co-Conspirator 2 acknowledged to the Defendant’s Senior Advisor that no court would support his proposal, the Senior Advisor told Co-Conspirator 2, “[Y]ou’re going to cause riots in the streets.” [Eastman] responded that there had previously been points in the nation’s history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was “not going to work.”

95. On the morning of January 5, at the Defendant’s direction, the Vice President’s Chief of Staff and the Vice President’s Counsel met again with Co-Conspirator 2. Co-Conspirator 2 now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states. During this meeting, Co-Conspirator 2 privately acknowledged to the Vice President’s Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court. The Vice President’s Counsel expressed to Co-Conspirator 2 that following through with the proposal would result in a “disastrous situation” where the election might “have to be decided in the streets.”

But that’s not the only lie Trump told about Pence. Trump also falsely claimed that Pence was willing to reject the lawful votes.

7. Also on January 5, the Defendant met alone with the Vice President. When the Vice President refused to agree to the Defendant’s request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him. Upon learning of this, the Vice President’s Chief of Staff was concerned for the Vice President’s safety and alerted the head of the Vice President’s Secret Service detail.

98. As crowds began to gather in Washington and were audible from the Oval Office, the Defendant remarked to advisors that the crowd the following day on January 6 was going to be “angry.”

99. That night, the Defendant approved and caused the Defendant’s Campaign to issue a public statement that the Defendant knew, from his meeting with the Vice President only hours earlier, was false: “The Vice President and I are in total agreement that the Vice President has the power to act.”

[snip]

102. At 11:15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be remove. [my emphasis]

Pence told Trump he wouldn’t reject the votes. Then Trump went out to his mob and claimed Pence had agreed he would.

And there are witnesses. Jack Smith has Pence on the record telling this story. He also has Marc Short learning about it in real time and taking action in response — so Pence’s Secret Service detail will also be able to testify they were alerted to what turned out to be a very real risk to Pence’s life.

And ultimately, this lie, about Pence, was easily one of the most dangerous.

DOJ has statements from dozens — possibly hundreds — of January 6 defendants (including Hostetter) describing that they responded to this lie by targeting the Capitol. This is what led rioters to threaten to hang Pence. It’s what led Jacob Chansley to leave a written threat for Pence on the dais.

This is the lie that almost got Mike Pence, his wife, and daughter killed.

And it’s not a matter of some interpretation of the numbers of mail-in ballots that were counted late on November 3. It’s a matter of his Vice President, repeatedly, telling Trump he refused take this unlawful act.

Jack Smith spent a lot of time in the indictment emphasizing that Trump knowingly lied, including proving that Trump had been told he didn’t win. That will undoubtedly help prove his case. But what he’s doing is showing that the great con man knew how to use lies to achieve a particular result.

And that particular result involved threatening the life of his own Vice President in an attempt to force him to steal the election.

The Structure of the Donald Trump Indictment

It’s late here, so this may be my only analysis before you all wake up.

But I wanted to lay out the structure of the Trump indictment.

The indictment charges him, alone, with four crimes:

  • 18 USC 371 (conspiracy to defraud the US)
  • 18 USC  1512(k) (conspiracy to obstruct the vote certification)
  • 18 USC 1512(c)(2) (obstructing the vote certifcation)
  • 18 USC 241( conspiracy to violate civil rights)

They all are entirely overlapping. That is, Trump’s conduct, and those of 6 alleged co-conspirators, is cited in all those charges.

These are four charges for the same crime. So if the DC Circuit or SCOTUS overturns how DOJ has applied 1512, there are two back stops.

The other most important part of this indictment is who is named as a co-conspirator (and who might well be charged, as far as we know, today, separately by sealed indictment):

  • Co-Conspirator 1, an attorney who was willing to spread knowingly false claims and pursue strategies that the Defendant’s 2020 re-election campaign attorneys would not. [Rudy Giuliani]
  • Co-Conspirator 2, an attorney who devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election. [John Eastman]
  • Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nevertheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation. [Sidney Powell]
  • Co-Conspirator 4, a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud. [Jeffrey Clark]
  • Co-Conspirator 5, an attorney who assisted in devising and attempting to implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. [Kenneth Chesebro]
  • Co-Conspirator 6, a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding. [Mike Roman; update: NYT says it is Boris Ephsteyn]

I will fill in who these people are later. They are uncharged and I want to be fairly sure.

The key detail, though, is that there is a separate conspiracy branching off involving most of them, and many other paragraphs of this indictment.

I argued since April 2022 that DOJ could — and should — charge Trump first and build in the stuff around him. I reiterated that a few weeks ago.

There’s a lot here.

But — with some awesome exceptions, which I’ll come back to — not much beyond what’s in the January 6 Report. Credit where it’s due, much, but not all, of this indictment follows their map.

Update: I’ve added Mike Roman as Co-Conspirator 6. The January 6 Report matches a report from the indictment.

A campaign operative named Michael Roman was also tapped for a major operational role in the fake elector effort. When Findlay sent his email handing off certain responsibilities for the initiative, he also wrote that Giuliani’s team had designated Roman “as the lead for executing the voting on Monday” December 14th.73 Roman was the Trump Campaign’s Director of Election Day Operations (EDO), with team members who specialized in political outreach and mobilization in battleground States wherethe Trump team now urgently needed the fake electors to meet on December 14th. With help from his EDO staff, as well as Giuliani’s team and RNC staffers working alongside the Campaign as part of the Trump Victory Committee, Roman ran an improvised “Electors Whip Operation.”74 For example, Roman sent an email on December 12th directing an aide to create “a tracker for the electors” with tabs for Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, listing contact information, whether they hadbeen contacted, whether they agreed to attend on December 14th, and names of “[s]ubstitute electors” to replace any reticent or unavailable participants as needed.75 Roman referred to others on this email as the “WHIPTEAM” and directed them to fill out the spreadsheet, to update him on “what you have and what you need,” and to plan on a call that evening.76

Evan Corcoran: You’re the Next Contestant on Trump’s Crime-Fraud Reality Show

Multiple outlets are reporting that Judge Beryl Howell, in what may be her last ruling as Chief Judge, has ruled that Evan Corcoran must testify about his conversations with Trump.

This follows the news, from ABC, that Jack Smith’s team is particularly interested in a conversation Trump and Corcoran had on June 24, 2022, after prosecutors sent a subpoena to Trump Organization for surveillance footage that would show Walt Nauta moving boxes out of the storage room where the FBI would later find 70 classified documents. As I noted last year, in the early weeks of Trump’s efforts to stall the investigation, there was a discrepancy about what date this subpoena was served, which I suspected might suggest DOJ had to file subpoenas to two different entities before Trump agreed to comply.

So now we’ve ended up where it was clear we were going to end up in September, with another of Trump’s lawyers whose communications with him are found to be crime fraud excepted.

Corcoran is in good company. He is probably at least the fourth Trump lawyer whose comms were deemed crime-fraud excepted in the last five years. The others are:

Indeed, the first such instance, the conversation Cohen recorded of Trump agreeing to a hush payment, will likely lead to the first (or possibly second, depending on what Fani Willis is doing) indictment of Trump, perhaps early next week.

With both Cohen and Rudy, the lawyers withdrew objections after Special Master Barbara Jones deemed the comms not to be privileged.

Corcoran should feel pretty good, though. He may be the first Trump crime-fraud contestant who manages to avoid legal exposure himself.

That’s got to count for something in the Trump Crime-Fraud Reality Show, right?

 

Trial by Combat: Rudy Giuliani and John Eastman Speeches Included in Ed Badalian Exhibit List

In a pre-trial filing in the case of Ed Badalian — who is charged with conspiring with Michael Fanone’s now admitted assailant, Danny Rodriguez, to obstruct the vote certification — the government identified at least six exhibits pertaining to the events at the Ellipse on January 6 it may introduce at trial.

That includes not just video and a transcript of Trump’s speech, but also of John Eastman and Rudy Giuliani’s speeches.

Exhibit 311 likely references the documentary clip showing Rodriguez, seemingly responding to Trump’s call-out of Pence in his speech, turning to the camera, stating “Joe Biden,” and making a throat-slitting movement several times (See 25:43 in this video).

Focusing on what happened at the Trump rally is unusual in January 6 trials.

Not even with some of the defendants who seemed most enraged by Trump — such as Kyle Fitzsimons — did the government rely on more than a still picture of the Ellipse event. In the Dustin Thompson case, where Thompson had affirmatively claimed that Trump’s speech had authorized him to storm the Capitol (and where Thompson had falsely testified Rudy’s speech had done so too), the government included just a YouTube of Rudy’s speech that had been sent to Thompson. They had Trump’s speech available as an exhibit, but relied, instead, on Thompson’s Uber and GPS records to prove he hadn’t seen Rudy’s speech.

The government has more often than not tried to keep the Ellipse rally out of January 6 trials than include it.

But in this case, the government may be in a position to do something else: to tie Trump, Rudy, and Eastman directly to the violence at the Capitol, to tie Trump directly to the attack that almost killed Michael Fanone.

As DOJ has done with other charged conspiracies, the indictment, Rodriguez’ statement of offense, as well as that of co-conspirator Gina Bisignano trace how the co-conspirators — here, a group of anti-maskers from Southern California — responded to Trump’s call by arming themselves, traveling together to DC, getting riled up at Trump’s speech, then going to the Capitol to engage in some of the most important violence and destruction during the attack.

In response to Trump’s December 19 tweet, for example, someone in the group described that, “Trump is calling on everyone to go to DC Jan 6th.” Two days later, Badalian announced, “we need to violently remove traitors and if they are in key positions rapidly replace them with able bodied Patriots.” On December 29, Rodriguez boasted, “Congress can hang. I’ll do it. Please let us get these people dear God.” Sometime before leaving for DC, Rodriguez told someone else, he would “assassinate Joe Biden” if he got the chance. On January 5, Badalian said, “we don’t want to fight antifa lol we want to arrest traitors.” Also on January 5, Rodriguez promised, “There will be blood. Welcome to the revolution.”

In this case, they also have a remarkable confession. DOJ has Rodriguez explaining to the FBI that he didn’t plan on murdering anyone like Fanone, he just thought there might be casualties because, he believed, he was fighting a civil war.

I kept thinking that we were going to go to, like, a civil war and it’s going to go hot and we’re just — it’s all going to — you know? I don’t know. I didn’t know — we didn’t — nobody knew, so we just thought that it was going to — we were preparing for the — we’re trying to save the country. We thought we were saving the country. I thought I was helping to save the country.

[snip]

A. I didn’t go planning to murder anybody.

Q. I’m not saying that.

A. But I knew that it was a possibility that —

BY AGENT ELIAS: Q. There could be causalities and —

A. There could be causalities. That, like, if this was another civil war, this was another 1776, another 4th of July or something, that that could be a possibility and —

But what they also have are the immediate reactions to Trump’s speech (and perhaps Eastman and Rudy’s, too), that turn to a camera and the show of slitting Biden’s throat. Rodriguez is not the only one who responded to Trump’s incitement by voicing plans to attack the Capitol. Bisignano (who may yet live to regret her nine month effort to renege on her plea deal) also responded directly to Trump’s incitement. “I hope Mike Pence is going to do the right thing,” Trump called out. “I hope so too,” Bisignano responded, “he’s deep state.” And as she marched to the Capitol, Bisignano filmed herself describing that “we are marching to the Capitol to put some pressure on Mike Pence.” Once there, she described, “we are storming the Capitol,” before she, Rodriguez, and Badalian did just that together.

One of the key pieces of evidence Jack Smith’s prosecutors have tying Donald Trump and John Eastman and Rudy Giuliani to the attack on the Capitol are Greg Jacob’s retorts to Eastman that day. “The knowing amplification of [Eastman’s] theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law,” Jacob told Eastman at 3:05 PM on January 6, as he sheltered with the Vice President from Danny Rodriguez and Gina Bisignano and thousands of other attackers, “has led us to where we are.” At 2:14PM, just as attackers broke through a window of the Capitol, Jacob was more succinct: “[T]hanks to your bullshit, we are now under siege.”

An hour after that initial breach, Danny Rodriguez would grab Fanone and, using a taser he was handed inside the Tunnel, tase the officer twice in the neck, leading to a heart attack and other injuries that remain redacted in Rodriguez’ statement of offense. In the morning, Rudy Giuliani called for “trial by combat.” John Eastman told listeners, “We no longer live in a self governing republic” if they couldn’t get Pence to let Republicans investigate further. Trump told his followers that if they didn’t fight, they wouldn’t have a country anymore.

In the morning, Trump’s speech led Rodriguez to imagine knifing Joe Biden, and in the afternoon, Danny Rodriguez almost killed Michael Fanone.

I don’t know if DOJ intends to do this (and as noted in the exhibit list, Badalian wants these exhibits excluded from trial on relevance grounds), but Amit Mehta certainly believed Trump might bear Aid and Abet liability for assaults like the one Rodriguez committed on Michael Fanone.

And in the case where you can draw the clearest line between things that Trump and Rudy and Eastman said at the rally to an assault and other violence at the Capitol, DOJ has laid the ground work to make that case.

Update: Here’s the updated exhibit list for the trial with specific times for the video of Trump and Giuliani’s speeches. The times from the latter are from when Rudy spoke, not John Eastman; it appears to include his “trial by combat” line.

How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, NordeanMay 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHughMay 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, CostianesMay 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022