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Cleta Mitchell Skates

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Judge McBurney has released the report from Fani Willis’ special grand jury.

The grand jury recommended charges against a number of people who weren’t charged. Most attention has focused on the recommendations to charge David Purdue, Kelli Loeffler, and Lindsey Graham. I had always thought that Lindsey wouldn’t be charged because he is protected by Speech and Debate (a judgment that may be supported by the DC Circuit’s still-sealed partial reversal of Beryl Howell’s ruling permitting DOJ to access some Scott Perry records from his phone). But it seemed there was less support for those charges, generally, than for others. On the main RICO charge, four grand jurors voted against charging Purdue, six voted against charging Loeffler, and seven voted against charging Graham. There was broad support for charging Purdue for pressuring GA officials, but one of the grand jurors who voted against charging the GA Senators believed they were simply pandering to their base. And the foreperson said that Lindsey was charming in his grand jury appearance.

Those votes may be a read of how an eventual grand jury would vote on these cases. Only the votes against charging the alternate electors was less supportive.

Which is why I find the Cleta Mitchell recommendations far more intriguing. By wide margins, the grand jury voted to charge Cleta in conjunction with the January 2 call to Brad Raffensperger, the fake electors plot, and the RICO charge. But she — a prominent Georgian — was not charged.

It’s possible that some of Willis’ ultimate decisions were influenced by her perception (or that of her prosecutors) of the political will for charging prominent Georgians. It’s possible she has made charging decisions that limit the amount of institutional GOP pushback. Or it’s possible that Cleta testified in a way that made other charges — potentially including Mark Meadows — viable.

But one of the most toxic Georgians skated on this prosecution.

Update: Corrected spelling of Willis’ first name.

Update: Anna Bower’s review of the report is typically excellent.

Bill Barr Complains that His Special Counsel Was Unable to Match Robert Mueller’s Record of Success

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Even before the Igor Danchenko trial, Billy Barr declared victory in defeat — arguing that if John Durham could just “fill in a lot of the blanks as to what was really happening,” the inevitable acquittal would still give Durham an opportunity to spin fairy tales about what Durham imagines happened.

“What these cases show is that these are difficult cases to win,” Barr said. “There’s a reason it takes so long, and you have to build up the evidence because at the end of the day, you’re going before these juries that aren’t going to be disposed to side with the people they view as supporting Trump.”

Danchenko is slated to go on trial next month on charges of lying to the FBI about the Steele dossier, for which he was the main source. The dossier claimed that Trump and members of his campaign and company had established extensive ties to the Russian government and had colluded during the 2016 election.

The trial is widely expected to be the final criminal prosecution from Durham’s investigation before he submits a report of his findings to Attorney General Merrick Garland.

But despite Durham’s limited success in the courtroom, Barr defended the investigation he ordered, saying the courtroom was allowing Durham to establish a record of what had occurred with the so-called Russiagate investigation.

“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Barr said. “My expectation is … the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted. I hope he’s convicted, but if he isn’t, I still think it provides an avenue to tell the story of what happened.”

Like an obedient puppy, Durham did use the trial as an opportunity to get extraneous details into the public record. On top of the $1 million dollar offer that Brian Auten said, vaguely, Christopher Steele might have gotten if he had corroborated the dosser — which has been treated like an FBI attempt to bribe a source for dirt on Trump and as the most exonerating possible detail, rather than an effort to investigate a real threat to the country — Durham went out of his way to give the full names of people at various meetings so Carter Page and Donald Trump can add them to lawsuits.

Mind you, along the way, the trial also revealed the FBI’s own assessment of Danchenko’s cooperation, which contributed to 25 investigations and which Barr burned to a crisp by exposing him, with Lindsey Graham’s help, as a source in 2020.

Q. And you were concerned, in July of 2020, when you became aware that Attorney General Barr was going to release a redacted version of Mr. Danchenko’s interview in January of 2017?

A. Yes.

Q. You were upset about that?

A. I was.

Q. You found out about that during a telephone conference, right?

A. I did.

Q. And you disagreed with that decision?

A. I did.

Q. The OIG had already completed a report on that investigation, correct?

A. Yes.

Q. And you thought that the release of that document was dangerous?

A. Yes.

Q. You even wrote up a memo of that phone call you were on in July of 2020 where you learned that they were going to publish a redacted version of his interview, correct?

A. I did.

[snip]

Q. And within an hour of Mr. Danchenko’s January interview being released to the senate judiciary committee, the senate judiciary committee, I won’t say who, released it to the public?

A. They did.

[snip]

Q. So, Agent Helson, you wrote in October of 2020 that from 2017 until present day, Mr. Danchenko had provided information on at least 25 FBI investigations assigned to at least six field offices?

A. Correct.

Q. In addition, he aided the United States Government by introducing the United States Government to a sub-source who had provided additional information separate to his report, correct?

A. Correct.

[snip]

Q. And it’s noted that he — his reporting contributed to at least 25 active FBI investigations.

[snip]

Q. In July of 2020 his identity became public after the release of the redacted version of his interview in January of 2017. Since that public disclosure, he has received threatening messages via social media and email. It’s resulted in significant damage to his reputation from false and baseless claims aimed to undermine his credibility. Those are your words, correct?

A. Correct.

Q. The Washington Field Office had assessed that this will have negative ramifications with respect to his ability to provide for his family via personal income for the foreseeable future, correct?

A. Correct.

Q. And while the FBI cannot promise complete anonymity to anyone who provides information, his identity became public only after the decision was made to release the redacted version of his interview, correct?

A. Correct.

Q. As a result of that act, his ability to continue to provide information viable to the FBI is diminished as is his ability to provide financial support to his family.

After the trial, Barr has been spending time on Fox News declaring — as much of the frothy right has — that this record, of how he deliberately harmed national security for revenge, exposed the corruption of what Barr calls “Russiagate,” the moniker frothers use to distract from the real substance of the Russian investigation.

I was disappointed, obviously. I think they did a good job prosecuting the case. Their ability to put evidence on, in a very difficult case, was limited by some rulings, and they weren’t able to get access to some witnesses overseas. So it was a tough — it was a tough case, so this should show people that it’s hard to win these cases, and sometimes it takes time to … to achieve justice. But as people say — I think Andy McCarthy said — the real public interest being served here was exposing the full extent of the corruption that was involved in Russiagate [sic] and the abuse by the FBI in that whole episode. And I think Durham is going to get a report out that’s gonna lay out all the facts.

Barr and everyone else are pointing to the exposures they and Durham made to justify their actions because they didn’t have evidence to support their claims.

Barr is whining that getting false statements convictions is hard. But Robert Mueller was able to prove that:

  • Alex Van der Zwaan lied to cover up his efforts, in conjunction with Konstantin Kilimnik and Rick Gates, to cover up Manafort’s effort to spin Ukraine’s politicized Yulia Tymoshenko prosecution during the 2016 election
  • George Papadopoulos lied to cover up his advance knowledge of the Russian effort to help Trump
  • Mike Flynn lied to cover up his back channel calls with Sergei Kislyak to undermine Obama Administration policy (and also that he was a paid agent of Turkey during the campaign)
  • Michael Cohen lied to hide the secret negotiations he had directly with the Kremlin about an impossibly lucrative real estate deal
  • Paul Manafort conspired to cover up a front organization he set up with Konstantin Kilimnik and (at a preponderance of the evidence standard) lied to cover up his August 2016 meeting with Kilimnik
  • Roger Stone lied and intimidated Randy Credico to cover up his real back channel to the Russian operation

I mean, Robert Mueller had no problem getting convictions, whether from guilty pleas, jury verdicts, or (in the case of Manafort’s lies about the August 2, 2016 meeting) a judge’s ruling.

One reason he had no problem was that these defendants were generally guilty of a lot more than just lying. It’s a lot easier to get Flynn to admit he lied about his back channel discussions with the Russian Ambassador, after all, when he was also on the hook for secretly being an agent of Turkey. It’s lot easier to get Papadopoulos to admit he lied about his advance warning of the Russian operation when he’s trying to stave off foreign agent charges tied to Israel. It’s a lot easier to get a jury verdict against Stone when he spent months plotting out his lies with multiple people on emails.

Mueller wasn’t able to get false statement verdicts from everyone, mind you. For example, because Steve Bannon and Erik Prince deleted their texts from early January 2017, Mueller did not charge them for false statements made to cover up meetings to set up a back channel with UAE and Russia. That’s one lesson that Durham should have taken to heart: Absent the mobile app records from Sergei Millian and Igor Danchenko, he had no way of knowing whether Millian called Danchenko on July 26, 2016.

That’s not the only evidentiary complaint Barr makes here. He’s complaining that Durham was unable to get hearsay admitted against Danchenko. He’s angry that Durham was not permitted to introduce Millian’s wild Twitter boasts as evidence without requiring Millian to show up and make those claims under oath. And he’s complaining that Durham wasn’t able to introduce his pee tape conspiracies without charging it.

But the most alarming of the former Attorney General’s statements — before and after the trial — embrace the notion that it is a proper goal of failed prosecutions to expose information that does not rise to the level of criminality.

As I’ll show in a follow-up, the Durham fiasco is part of a piece of Barr’s larger actions, both his other failed prosecutions — most notably, that of Greg Craig — but also his efforts to undo the convictions for which there was no reasonable doubt of guilt.

It’s not enough to talk about Durham’s unprecedented failure … it’s not enough to note that Durham and his prosecutors repeatedly failed to take basic investigative steps before embracing and charging conspiracy theories that juries didn’t buy … it’s not enough to note how, in an attempt to prove those conspiracy theories, Durham and his prosecutors and abused the prosecutorial system.

Durham’s entire project is a continuation of Barr’s unprecedented politicization of DOJ, one that not only places Republicans attempting to secretly work for hostile nations above the law, but that has made the country far less safe in many other ways.

It’s not just Durham prosecuted two men without any real hope of winning conviction, all to expose things that aren’t crimes. It’s that Billy Barr hired him to do just that.

The Word “Pardon” Doesn’t Appear in the Barr Memo

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As I noted in this post, there’s something missing in this passage — indeed, in the entirety of — the Barr Memo declining prosecution of former President Trump.

We likewise do not believe that the President’s public statements exhorting witnesses like Flynn, Manafort, Stone, or Cohen, not to “flip” should be viewed as obstruction of justice. The Report makes clear that the President equated a witness’s decision to “flip” with being induced by prosecutors to manufacture false evidence against others. We cannot say that the evidence would prove beyond a reasonable doubt that the President’s statements, most of which were made publicly, were intended to induce any of those witnesses to conceal truthful evidence or to provide false evidence. Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the President had committed a crime. The President’s public statements could be viewed as efforts to defend himself from public criticism related to the Special Counsel’s investigation or to discourage the witnesses from making what the President believed might be false statements in exchange for a lesser sentence. Those statements do not warrant a prosecution for obstruction of justice.

The word “pardon.”

That’s important for two reasons. First, Barr said repeatedly, under oath, as part of his confirmation hearing, that trading false testimony for a pardon would be obstruction. Here’s what he said, for example, in response to a question from Lindsey Graham.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Here’s what he said to Patrick Leahy.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

And pardons are a critical part of the discussion in the Mueller Report to substantiate obstruction. The word pardon appears 67 times. Indeed, contrary to the discussion in the Barr Memo that claimed most of Trump’s witness-tampering happened in public, several of the discussions of pardons described in the Mueller Report involved non-public communication.

A voicemail that John Dowd left for Rob Kelner in November 2017 was presented as background to Trump’s public discussion of a pardon for Mike Flynn.

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with . . . the government. . . . [I]f . . . there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests if we can. . . . [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains . . . .835

[snip]

On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement.841 The next day, the President told the press that he was not concerned about what Flynn might tell the Special Counsel.842 In response to a question about whether the President still stood behind Flynn, the President responded, “We’ll see what happens.”843 Over the next several days, the President made public statements expressing sympathy for Flynn and indicating he had not been treated fairly.844 On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”845

Paul Manafort told Rick Gates that Trump was “going to take care of us,” which Gates took to suggest a pardon.

In January 2018, Manafort told Gates that he had talked to the President’s personal counsel and they were “going to take care of us.”848 Manafort told Gates it was stupid to plead, saying that he had been in touch with the President’s personal counsel and repeating that they should “sit tight” and “we’ll be taken care of.”849 Gates asked Manafort outright if anyone mentioned pardons and Manafort said no one used that word.850

And the private comments Robert Costello made to Michael Cohen — again in the context of Trump’s public comments about Cohen not flipping — led him to believe Trump would, at least, pay his defense fees.

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani.1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . . Sleep well tonight[], you have friends in high places.”1027

By issuing his prosecution declination while Trump’s attempted witness tampering was still in progress, Barr ensured that the corrupt trade-off would and could  be completed, at least with Flynn, Stone, and Manafort.

And in doing so, he ensured that ongoing investigations wouldn’t find precisely the evidence he was sure didn’t exist.

Easy Cases: Why Austin Sarat’s Argument That Trump Should Not Be Prosecuted Is Wrong

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Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

Even less famous are words Moss released last Tuesday, now presiding as a judge over a January 6 prosecution, ruling that obstruction, 18 USC 1512(c)(2), clearly applies to the official Congressional proceeding to certify the vote count on January 6, 2021.

Hard cases may make bad law. But easy cases ought not.

For these reasons, the Court rejects Defendants’ contention that the joint session of Congress convened to certify the electoral vote is not a “proceeding before the Congress.”

Those legal documents are all useful background to my response to this Austin Sarat op-ed, opining that DOJ should not prosecute Trump for his actions related to January 6.

I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.

“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”

This difficult judgment does not mean that Attorney General Garland should do nothing.

He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.

First, some background.

Unless you went to Amherst College, you may never have heard of Sarat. He created a Law and Society program there and has served as a Dean. I’ve had conversations a number of prominent and not-so prominent lawyers who graduated from Amherst during Sarat’s tenure — some you’ve heard of!! — who have spoken of the great influence the professor has had on their career. And while I’m not a lawyer, like many of those lawyers, I first learned to read a legal document from Sarat.

Over thirty years ago in a class on how the state regulates sexuality, Sarat assigned me to read Griswold v Connecticut and Roe v Wade alongside Tolstoy and Kiss of the Spider Woman, the latter of which I taught on my own right and included in my dissertation years later. Sarat taught me critical skills you may benefit from at this site.

My complaint with Sarat’s argument is that he violates the rule he taught me so many years ago: He didn’t read the relevant legal documents before writing this op-ed. The sources he links in his op-ed are:

  • Watergate prosecutor Jill Wine-Banks’ MSNBC appearance addressing the issue
  • A column on a June 2021 Rachel Maddow appearance in which she suggested the House could send a criminal referral to DOJ
  • An article about a bunch of people responding to Liz Cheney’s invocation of obstruction (the same statute Moss ruled on), which itself betrays that those people quoted in the article missed how obstruction was already being used in DOJ’s prosecution
  • Lawrence Tribe’s column that is riddled with factual errors that make it clear Tribe is unfamiliar with the public record
  • Mitch McConnell’s speech, justifying why he was voting against impeaching Trump, noting that he could be criminally prosecuted
  • Lindsey Graham’s comments making the same argument: that Trump should not be impeached but could be prosecuted
  • A report on DC District Attorney Karl Racine’s comments that Trump could be charged with a misdemeanor
  • A BoGlo op-ed that calls for prosecution but envisions Trump’s vulnerability with regards to January 6 to pertain to incitement
  • A NY Mag piece that includes obstruction among the possible laws Trump may have broken, but claims that DOJ, “seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump,” which misunderstands how DOJ appears to be using misdemeanor arrests (and indeed, how those witnesses would be necessary to any Trump prosecution)
  • A Ryan Cooper piece that states as fact that Garland’s DOJ, “is enabling Republican lawlessness through its pathetic unwillingness to prosecute Trump and all his cronies for their crimes against democracy;” Cooper makes no mention of the Tom Barrack prosecution, and while he invokes Rudy Giuliani he doesn’t mention the decision — seemingly made in Deputy Attorney General Lisa Monaco’s first days — to seize Rudy Giuliani’s phones and spend 8 months getting a privilege review on the contents of Rudy’s phones right through April 2021
  • A law review article on prosecutorial discretion
  • Robert Jackson’s seminal text about the role of a Federal prosecutor
  • The Bordenkircher precedent on plea negotiations that upholds prosecutorial discretion
  • The quip, “hard cases make bad law”
  • An Eric Posner op-ed published before Trump attempted a coup

Some of these things — the Bordenkircher opinion, McConnell and Graham’s comments suggesting Trump could be prosecuted, and Robert Jackson — are important primary sources. But most of the rest are secondary sources, and many of them — notably Tribe and Cooper — are demonstrably wrong on the facts because they didn’t consult available primary sources.

And as a result of consulting erroneous sources like Tribe, Sarat misunderstands the case before him.

For example, many of Sarat’s sources imagine that Trump’s biggest criminal exposure is in incitement and not the same obstruction charge with which well over 200 insurrectionists have already been charged and to which at least a dozen people have already pled guilty (most of them even before Moss and his colleagues upheld the application in recent weeks). Nine pled guilty to obstruction as part of cooperation agreements and several of those cooperators interacted with Roger Stone in the days and hours leading up to the assault on the Capitol.

Many of Sarat’s sources assume that DOJ couldn’t get to Trump except for the work the January 6 Committee is doing.

In spite of Garland’s repeated claims that his DOJ would pursue the January 6 investigation wherever the evidence leads — including at an appearance where he discussed that famous Moss memo that relies so heavily on that less famous Moss memo — Sarat suggests that Garland would have to launch an investigation, one entirely separate from the investigation already in progress, anew. “Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump.” That is, Sarat treats the question before him as whether Merrick Garland should take to a podium and announce, “we are investigating the former President,” and not whether DOJ should continue the investigation(s) that it already has in progress, working to prosecute organizer-inciters like Alex Jones’ side-kick Owen Shroyer (who helped lure mobsters to the Capitol) and flipping low-level conspirators to build the case against more senior conspirators, conspirators whose ties to Trump associates like Jones and Stone have already been raised in court documents.

The question is not whether DOJ should open an investigation into Donald Trump. The question is whether, if and when DOJ accumulates enough evidence — surely helped by Select Committee efforts but in no way relying entirely on them — to show probable cause that Trump conspired with others to prevent Congress from certifying the vote on January 6, 2021, to charge him like DOJ has already charged hundreds of others.

And that question is significantly a question about equity.

The question is whether, if Paul Hodgkins has to serve eight months in prison for occupying the Senate while waving a Donald Trump flag around (Hodgkins is already three months into that sentence), Donald Trump should be prosecuted as well.

The question is whether, if Jacob Chansley has to serve 41 months in prison (Chansley has been in jail since January 9, 2021) for occupying the Senate dais, in defiance of orders from a cop, with a spear and a blowhorn and leaving a message for Mike Pence reading, “It’s Only A Matter of Time. Justice Is Coming!,” Donald Trump should be prosecuted as well.

The question is whether, if Kevin Fairlamb has to serve 41 months in prison (Fairlamb has been in jail since January 22, 2021) for punching one of the cops protecting the Capitol “with the purpose of influencing, affecting, and retaliating against the conduct of government by stopping or delaying the Congressional proceeding by intimidation or coercion,” Donald Trump should be prosecuted as well.

The question is whether, if Gina Bisignano faces 41 months for traveling to DC boasting, “The insurrection begins,” marching to the Capitol while narrating her actions — “we are marching to the Capitol to put some pressure on Mike Pence” and “I’m going to break into the Capitol” — and then helping to break a window to get into the Capitol, Trump should be prosecuted as well.

The question is whether, if Matthew Greene faces 41 months in prison for — months after Trump instructed the Proud Boys to “stand back and stand by” — joining the Proud Boys in an orchestrated assault on the Capitol in hopes, “that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral College Vote than they would have otherwise,” Donald Trump should be prosecuted as well. Greene has been in jail since April 21, 2021.

The question is whether, if Jon Schaffer faces 41 months for, after learning “that Vice President Pence planned to go forward with the Electoral College vote certification,” forcibly storming the Capitol armed with bear spray, Trump should be prosecuted as well.

The question is whether, if Josiah Colt faces 51 months because, after he, “learned that the Vice President had not intervened to stop the certification of the Electoral College vote,” he stormed the Capitol, broke into the Senate, and then occupied Pence’s chair, Donald Trump should be prosecuted as well.

The question is whether, if Graydon Young faces 63 months because he barged into the Capitol as part of a stack of kitted out militia members with the purpose of “intimidating and coercing government personnel who were participating in or supporting” the vote certification, Donald Trump should be prosecuted as well.

At this point, there’s no way to avoid the things Sarat would like to avoid by merely talking about Trump’s crimes rather than prosecuting them, to say nothing of the way that would violate DOJ rules prohibiting doing so. That’s true, in large part, because Trump is claiming martyrdom for those who did his dirty work. Between right wing lawyers swooping in to push defendants to renege on their guilty pleas, continued efforts by defendants’ co-conspirators to claim they were all set up by the Deep State, and schemes to profit off continued propaganda in support of Trump, every one of these cases involves some of the things that Sarat fears would occur if Trump, too, were prosecuted. Trump has a press conference scheduled for January 6 that will undoubtedly do some of the things Sarat would like to stave off. That din will only get louder as trials start in February. The claims of martyrdom are already baked into this investigation, and so would be better addressed by a direct debunking rather than a belated attempt at avoidance, not least because white terrorists have a history of undermining prosecutions by claiming martyrdom.

But there’s another reason, besides equity, that demands that DOJ prosecute Trump if prosecutors can collect the evidence to do so.

All five of the opinions (Dabney Friedrich, Amit Mehta, Tim Kelly, James Boasberg, plus Moss) upholding the application of obstruction to the vote certification have some discussion of what separates “corrupt” efforts to obstruct the vote count from political lobbying or civil disobedience. The discussion entails whether corruption requires an attempt to corrupt someone else, or whether it only involves corruptness in one’s own actions. A number of these opinions take an easy route, stating simply that the defendants in question are alleged to have broken the law in other ways in their efforts to obstruct the vote count, which gets past corruptness in one’s own actions, so a further analysis of whether legal actions might amount to obstruction is unnecessary as applied to those defendants. That’s an intransitive understanding of the corrupt purpose necessary to obstruction.

All stop short of where James Pearce, the prosecutor guiding this adoption of 1512(c)(2), went in responding to a question from Trump appointee Carl Nichols; Pearce stated that one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” That’s a transitive kind of corruption, an attempt to get someone else to violate their oath. Even some of the confessed obstructors listed here (most notably, the first Proud Boy to plead guilty) were knowingly doing that.

But there’s a third option. In his opinion on the application of 1512(c)(2), somewhat uniquely among the five opinions upholding the application thus far, former OLC head Judge Moss ruled that if the use of illegal activity to interrupt the vote count weren’t enough to distinguish between normal protests and obstruction, then the court could turn to whether the defendants (whom, in this case, you’ve likely never heard of) were attempting to obtain an improper benefit for themselves … or someone else.

To the extent any additional guardrail is necessary, other recognized definitions of the term “corruptly” both fit the context of the obstruction of a congressional proceeding and provide additional guidance. In his separate opinion in Aguilar, for example, Justice Scalia quoted with approval the jury instruction given by the district court in that case: “An act is done corruptly if it’s done voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with a hope or expectation of . . . [a] benefit to oneself or a benefit to another person.” 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part). Because the Aguilar majority ruled on other grounds, it did not opine on the meaning of “corruptly.” Id. at 598–603. But there is no reason to doubt Justice Scalia’s observation that formulations of this type are “longstanding and well-accepted,” id. at 616, and, indeed, the D.C. Circuit cited to a similar definition—“a person acts ‘corruptly’ when taking action ‘with the intent to obtain an improper advantage for [one]self or someone else, inconsistent with official duty and the rights of others’”—in United States v. Pasha, 797 F.3d 1122, 1132 (D.C. Cir. 2015) (quotation marks omitted) (quoting United States v. North, 910 F.2d 843, 882 (D.C. Cir. 1990), opinion withdrawn and superseded in other part on reh’g, 920 F.2d 940 (D.C. Cir. 1990)). In the garden-variety disruption or parading case, in contrast, the government need not prove that the defendant sought unlawfully to obtain a benefit for himself or another person in the proceeding itself. But, because the Court is persuaded that Defendants’ vagueness argument fails even without this refinement, and because the Court has yet to hear from the parties on the proper jury instructions, the Court will leave for another day the question whether this formulation—or a slightly different formulation—will best guide the jury.

This language likely came out of some ill-advised claims from the defense attorneys in question, who claimed there would be no injustice that could result from obstructing the certification of Joe Biden’s vote. The claim was ridiculous. It suggested that nullifying the votes of 81 million people and depriving Biden of his legal victory would create no victims.

But the comment brought the briefing before Moss to where it didn’t go (except to a limited degree before Kelly) in the other challenges.

The obstruction of the vote count on January 6, 2021 was corrupt because people put on body armor, broke into the locked Capitol, and beat up cops in an attempt to obstruct the certification of Biden’s victory — the intransitive corruption of the people who broke other laws to carry it out. It was corrupt because those who carried it out sought to intimidate people like Mike Pence to do what he otherwise refused to. But it was corrupt because the entire goal, shared by all the people charged with obstruction, was to declare Trump the victor in an election he didn’t win.

DOJ should not back off prosecuting Trump along with all those others charged in the same crime, some of whom (I believe DOJ will ultimately be able to prove) are co-conspirators with Trump in a large networked conspiracy, for the crime of trying to obstruct the certification of Joe Biden’s win. Judges, defense attorneys, and defendants themselves — including many of the trespassers — keep insisting that Donald Trump was the key participant in the crime they’re all pleading guilty to.

His improper advantage was undoubtedly the goal.

“What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain,” Jackson told America’s US Attorneys in the famous speech Sarat cited. Those watching the DOJ investigation rather than just the Select Committee or some often ill-informed TV lawyers have raised real questions about whether DOJ has honored that advice, because so many hapless Trump dupes are being prosecuted for their role in attempting to interrupt the peaceful transfer of power (as I have laid out, there appear to be investigative reasons why DOJ has prosecuted the misdemeanants they have). But about one thing, Jackson had no doubt: “In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation.”

As noted above, DOJ has thus far accused 275 people of obstructing the certification of Joe Biden’s victory (a good number of those have been permitted to plead down to a misdemeanor). DOJ has already decided that it will treat obstruction of the vote certification as a crime that endangers our national integrity. Charging Trump with obstruction would amount to holding the guy who stood to benefit to the same standard as those whose corrupt actions attempted to steal for him an improper advantage.

The question is not, as so many commentators who discovered the obstruction application only when Liz Cheney called their attention to it, whether to open an investigation into Trump. 700 people have already been charged in the investigation that might one day charge Trump. The question is whether to hold Trump to the same standard as the hundreds who have gone before him.

Prosecuting Trump may be the only way to confirm that Chansley and Bisignano and Colt and Young aren’t martyrs to Trump’s losing cause.

Other Posts

Because new readers are coming to this site via this post, I wanted to include some other overview posts about January 6 that may be helpful:

A Taxonomy of the [Visible] January 6 “Crime Scene” Investigation: This post explains what I understand the DOJ investigation to have accomplished in a year.

The Pied Piper of Insurrection, and Other Challenges in Charging the January 6 Organizer-Inciters: The 700 arrests thus far have been relatively easy, because everyone arrested was — at a minimum — trespassing on January 6. The next step of the investigation — arresting the organizer-inciters who themselves implemented Trump’s plans — is where DOJ will have to have more evidence of conspiracy or other corrupt mens rea supporting obstruction. This post looks at several of them.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland: I can’t promise you DOJ will prosecute Trump or even Rudy Giuliani and Alex Jones. I can promise that if they were to charge Trump, it wouldn’t be before midterms. Complex investigations of very powerful people simply don’t work that fast. For that reason, among others, those spending their time whinging about Merrick Garland’s purported inaction would be better served finding some other way to save democracy. This post provides ten ways to do that.

The Viral Twitter Thread in Which Darrell Cooper Confesses Republicans Were Pawns of Russian Disinformation

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For some reason, this Twitter thread by a guy named Darrell Cooper, purporting to explain why Trumpsters came to attack the US Capitol, went viral.

I resisted several requests to fact check it. Now, after it has gone even more viral (including on Tucker Carlson’s show), Phil Bump has done a good fact check. As Bump notes, while Cooper accurately lays out that Trump supporters have lost confidence in institutions, Cooper offers an explanation that relies on a series of false claims so as to put the blame on Democrats.

It is indisputably the case that Trump supporters accept claims about election fraud in part because of their diminished confidence in institutions such as government and the media. What is subject to dispute, though, is the cause of that lack of confidence. While Cooper suggests that it’s emergent, it isn’t. While Cooper argues that it’s a function of investigations into Trump, it’s actually a function of partisan responses — largely but not entirely on the right — driven by Trump himself. And, most important, what Cooper presents as the indisputable facts undergirding his argument are often misleading or false and a function of partisan defenses of Trump that are common in conservative media.

Bump then debunks Cooper’s claims that:

  • The FBI spied on the Trump campaign using evidence manufactured by the Clinton campaign
  • We now know that all involved knew it was fake from Day 1 (see: Brennan’s July 2016 memo, etc)
  • The Steele dossier was the sole evidence used to justify spying on the Trump campaign
  • The entire Russian investigation stemmed from the Page investigation and not George Papadopoulos and Paul Manafort
  • Protests planned in case Trump overturned the election were a plan for violence
  • There were legitimate concerns about the election

Bump is absolutely right that Cooper makes false claims to be able to blame Democrats and Bump’s fact checks are sound (and really exhausting that they’re still required). Bump is likewise correct that a false claim about the Steele dossier is central to Cooper’s story.

I’d add that Cooper doesn’t mention that his claims about the problems with the Steele dossier matter primarily to the third and fourth FISA orders against Carter Page, and so happened under the Trump Administration and in three cases, were signed by people Trump either kept (in the case of Jim Comey) or put in place (in the case of Dana Boente and Rod Rosenstein).

But according to Cooper’s logic, if the dossier hadn’t existed, a series of events that followed wouldn’t have happened, and so Republicans wouldn’t have attacked their own government. Thus far it’s a typical right wing attempt to disclaim responsibility for their own actions.

What Bump doesn’t mention, though, is that it is now almost universally agreed upon on among Trumpsters that the dossier was the product of Russian disinformation. Lindsey Graham — who conducted an investigation into the circumstances of the Carter Page FISA — thinks it is. Chuck Grassley — who led the investigation into the dossier — thinks it is. Ron Johnson — who also made a show of investigating these things — thinks it is. Chuck Ross — the chief scribe of the dossier on the right — thinks it is. The high gaslighter Catherine Herridge thinks it is. Fox News and all their favorite sources think it is. WSJ’s editorial page thinks it is. None of these people have thought through the implications of that, but they do all appear to believe that the Russians fed disinformation through the Democratic-funded dossier to the FBI.

So, even setting aside the implications of the possibility that the dossier was Russian disinformation, according to Cooper’s narrative, Trump’s supporters wouldn’t have attacked their own government if it weren’t for Russian disinformation that set off a chain of events that led them to lose confidence in American institutions.

But consider the implications of the dossier as disinformation, implications that are evident largely thanks to sources that right wing figures have made great effort to liberate.

In response to a Trey Gowdy question at an interview by a GOP-led investigation into the dossier, Bruce Ohr explained that on July 30, 2016, Christopher Steele shared three pieces of information with him (later in his interview he would add a fourth, Russian doping): Two details from what we now know to be the dossier, as well as a third — that Oleg Deripaska’s attorney had information about Paul Manafort stealing money from Deripaska.

And then the third item he mentioned was that Paul Hauser, who was an attorney working for Oleg Deripaska, had information about Paul Manafort, that Paul Manafort had entered into some kind of business deal with Oleg Deripaska, had stolen a large amount of money from Oleg Deripaska, and that Paul Hauser was trying to gather information that would show that, you know, or give more detail about what Paul Manafort had done with respect to Deripaska.

Byron York provided more background on Steele’s efforts to share information from Deripaska with Bruce Ohr. The IG Report done in response to GOP requests provided still more. For example, the IG Report revealed that Steele had set up a meeting between Ohr and Oligarch 1, whom we know to be Deripaska, in September 2015 (these claims are consistent with the heavily redacted Ohr 302s liberated by Judicial Watch).

Handling Agent 1 told the OIG that Steele facilitated meetings in a European city that included Handling Agent 1, Ohr, an attorney of Russian Oligarch 1, and a representative of another Russian oligarch. 209 Russian Oligarch 1 subsequently met with Ohr as well as other representatives of the U.S. government at a different location.

[snip]

Ohr and Steele also communicated frequently over the years regarding Russian Oligarch 1, including in 2016 during the time period before and after Steele was closed as an FBI CHS.409 Steele told us his communications with Ohr concerning Russian Oligarch 1 were the result of an outreach effort started in 2014 with Ohr and Handling Agent 1, to approach oligarchs about cooperating with the U.S. government. Ohr confirmed that he and Handling Agent 1 asked Steele to contact Russian oligarchs for this purpose. This effort resulted in Ohr meeting with Russian Oligarch 1 and an FBI agent in September 2015.

The IG Report also revealed that in September 23 (around the same time Deripaska was interviewed by the FBI), Steele passed on a claim that Deripaska wanted to share information about Manafort.

On September 23, 2016, at Steele’s request, Steele met with Ohr in Washington, D.C. Ohr told us they spoke about various topics related to Russia, including information regarding Russian Oligarch 1 ‘s willingness to talk with the U.S. government about Manafort.

Far more consistently than using Ohr as a channel for dossier reports (and for a longer period of time), Steele used his ties with Ohr to advance Oleg Deripaska’s interests. And for the entirety of the time that Steele was feeding the FBI dossier reports, that meant Steele was feeding Ohr claims that not only presented Deripaska as a trustworthy actor, but did so in part by promising Deripaska’s cooperation in a criminal investigation of Paul Manafort. The FBI (and Mueller after that) didn’t investigate Manafort primarily for the stuff Deripaska was trying to feed the FBI, but Deripaska was making great efforts to ensure that the FBI would investigate Manafort. In the aftermath of all this, Trump and Manafort blamed Democrats for all this, but in fact, Deripaska was at least as responsible.

According to footnotes that Graham, Grassley, and Johnson had declassified, before Deripaska first started offering to help DOJ criminally investigate Manafort — before that July 30, 2016 meeting between Steele and Ohr — a Deripaska associate likely learned about the dossier project (the same declassification revealed that two Russian intelligence officers had learned of the project before that meeting which, given the belief that several of Deripaska’s associates were Russian intelligence officers, may be the same report).

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 2016.

In fact, the IG Report completed in response to Republicans’ requests makes it clear: if the dossier was disinformation, that disinformation most likely involved Oleg Deripaska, with whom Manafort was using his position on the Trump campaign in an attempt to patch up financial and legal relations.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

Of course, for months before Deripaska first started offering (through Steele) to cooperate with the FBI against Manafort, Manafort had been trying to exploit his position on Trump’s campaign to ingratiate himself with (among others) Deripaska, in part in hopes to paper over precisely the financial dispute that Deripaska was, through Steele, trying to use to increase Manafort’s legal exposure. Weeks before the July 30 Steele-Ohr meeting, for example, Manafort had offered to brief Deripaska on the Trump campaign.

Immediately upon joining the Campaign, Manafort directed Gates to prepare for his review separate memoranda addressed to Deripaska, Akhmetov, Serhiy Lyovochkin, and Boris Kolesnikov,879 the last three being Ukrainian oligarchs who were senior Opposition Bloc officials. 880 The memoranda described Manafort’ s appointment to the Trump Campaign and indicated his willingness to consult on Ukrainian politics in the future. On March 30, 2016, Gates emailed the memoranda and a press release announcing Manafort’ s appointment to Kilimnik for translation and dissemination.881 Manafort later followed up with Kilimnik to ensure his messages had been delivered, emailing on April 11, 2016 to ask whether Kilimnik had shown “our friends” the media coverage of his new role. 882 Kilimnik replied, “Absolutely. Every article.” Manafort further asked: “How do we use to get whole. Has Ovd [Oleg Vladimirovich Deripaska] operation seen?” Kilimnik wrote back the same day, “Yes, I have been sending everything to Victor [Boyarkin, Deripaska’s deputy], who has been forwarding the coverage directly to OVD.”883

[snip]

The Office also obtained contemporaneous emails that shed light on the purpose of the communications with Deripaska and that are consistent with Gates’s account. For example, in response to a July 7, 20 I 6, email from a Ukrainian reporter about Manafort’ s failed Deripaskabacked investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest. Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

That is, per both Rick Gates and Manafort himself, how Manafort came to meet with Deripaska aide Konstantin Kilimnik on August 2, just three days after Deripaska tried to increase Manafort’s legal exposure via Steele. That’s how — and why! — he provided a briefing on campaign strategy amid a discussion of resolving the debt to Deripaska (as well as a plan to carve up Ukraine), as described by the SSCI Report completed under Chairs Richard Burr and Marco Rubio.

(U) At the meeting, Manafort walked Kilimnik through the internal polling data from Fabrizio in detail.453 According to Gates, Kilimnik wanted to know how Trump could win.454 Manafort explained his strategy in the battleground states and told Kilimnik about polls that identified voter bases in blue-collar, democratic-leaning states which Trump could swing.455 Manafort said these voters could be reached by Trump on issues like economics, but the Campaign needed to implement a ground game.456 Gates recalled that Manafort further discussed the “battleground” states of Michigan, Wisconsin, Pennsylvania, and Minnesota.457 (U) The Committee sought to determine with specificity what information Kilimnik actually gleaned from Manafort on August 2, 2016. Information suggests Kilimnik understood that some of the polling data showed that Clinton’s negatives were particularly high; that Manafort’s plan for victory called for focusing on Clinton’s negatives as much as possible; and that given Clinton’s high negatives, there was a chance that Trump could win. (U) Patten’s debriefing with the SCO provides the most granular account of what information Kilimnik obtained at the August 2, 2016 meeting:

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll,’ were high. Thus, based on this polling there was a chance Trump could win. 458

(U) Patten relayed similar information to the Committee. In particular, he told the Committee that Kilimnik mentioned Manafort’s belief that “because or Clinton’s high negatives, there was a chance, only because her negatives were so astronomically high, that it was possible . to win.”459

[snip]

(U) In addition to Campaign strategy involving polling data and the Ukraine plan, Manafort and Kilimnik also discussed two financial disputes and debts at the meeting. (U) The first dispute involved Deripaska and Pericles.477 Gates recalled that Kilimnik relayed at the meeting that Deripaska’s lawsuit ha’d been dismissed.478 Gates also recalled that Kilimnik was trying to obtain documentation showing the dismissal.479

In short, even without confirmation the dossier was disinformation, it’s clear that Deripaska was playing a vicious double game, using Steele as a channel to increase Manafort’s legal exposure even while using that legal exposure as a way to get an inside track to Trump’s campaign. But if the dossier is disinformation (as Trumpsters seem to universally agree now), it might help explain the dodgy content of the dossier in ways that aren’t important to this post (for example, it might explain why Steele’s sources falsely claimed that Carter Page was Manafort’s liaison with Russia in the same days when Kilimnik flew to the US to offer a pitch to Manafort on Ukraine involving senior Russians).

Now consider one more detail, given that Trumpsters seem to universally agree the dossier was disinformation and the IG Report’s suggestion that the most likely architect of that disinformation was Oleg Deripaska.

On January 8, 2017, Manafort flew to Madrid to meet with a different Deripaska deputy, Georgiy Oganov. As the SSCI Report explained, while Manafort told investigators they discussed the Pericles lawsuit — the same lawsuit Deripaska was using to make Manafort legally insecure — they also discussed stuff that remains almost entirely redacted, but stuff that includes recreating their “old friendship” which (also per the SSCI Report) involved Manafort conducting influence campaigns for Deripaska.

On January 8, 2017, hours after returning to the United States from a trip to ~ to Madrid, Spain.598 Manafort met with Oganov in Madrid during what he claimed was a one-hour breakfast meeting.599 Manafort told the FBI that, at the meeting, Oganov told him that he needed to meet with Deripaska in person to resolve the Pericles matter.600 Manafort agreed but said he would not travel to Ukraine or Russia for the meeting.601

(U) Manafort provided false and misleading information about the purpose, content, and follow-up to the meeting with Oganov to both the Committee and the SCO. In particular, Manafort told the Committee in a written response through counsel that he attended a meeting on or around January 17, 2017, in Madrid with “Georgy Organov.”602 The written response claimed that the meeting was “regarding a private litigation matter involving Oleg Deripaska.”603 Despite admitting his attendance at the meeting to the Committee in May 2017, Manafort initially denied attending the meeting in his interviews with the SCO in the fall of 2018.604 He eventually admitted to attending the meeting with Oganov, and then repeated what he described in his letter to the Committee-that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.605

Manafort’s claims about the meeting were false. As the above messages show, the meeting was not designed to be about Pericles, but was also about recreating the “old friendship” and “global politics.”

Manafort returned to the US on January 12 and, three days later, tried to set up an in-person meeting with KT McFarland.

She checked with Mike Flynn, who told her that the “perception” of meeting with Manafort, “especially now” (this was after Flynn’s own back channels with Russia were beginning to become public) would not be good, so to hold off until they were in the hot seats.

Manafort didn’t meet with Trump’s national security team, but around the same time, per reporting from Ken Vogel, he reached out to Reince Priebus and suggested the errors in the dossier not only discredited it, but also the FBI investigation.

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a person close to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative. [my emphasis]

According to Rick Gates, at some point Manafort asked Kilimnik to obtain more information from his sources about it, including from Deripaska.

Since that suggestion to Priebus — which he made days after his return from a meeting with Deripaska’s associate — Trump has pursued precisely the strategy laid out by Manafort, using the errors in the dossier — the dossier that all Trumpsters now seem to believe was filled with errors by Russian intelligence and possibly by Deripaska associates — to discredit it and with it, the Russian investigation.

That’s the strategy that led Tucker Carlson’s Daily Caller to report on the dossier full time — including forcing the opinion editor at the time to publish a Deripaska column attacking the dossier.

Fusion GPS’s Simpson, in a New York Times op-ed describing his own Judiciary Committee testimony, claimed a neoconservative website “and the Clinton campaign” were “the Republican and Democratic funders of our Trump research.” The Judiciary Committee’s Sen. Dianne Feinstein (D-Calif.) then unilaterally released, over the objection of committee chairman Sen. Chuck Grassley (R-Iowa), Simpson’s testimony to “set the record straight.” Fusion GPS “commended Senator Feinstein for her courage.”

Yet on March 16, 2017, Daniel Jones — himself a team member of Fusion GPS, self-described former FBI agent and, as we now know from the media, an ex-Feinstein staffer — met with my lawyer, Adam Waldman, and described Fusion as a “shadow media organization helping the government,” funded by a “group of Silicon Valley billionaires and George Soros.” My lawyer testified these facts to the Senate Intelligence Committee on Nov. 3. Mr. Soros is, not coincidentally, also the funder of two “ethics watchdog” NGOs (Democracy 21 and CREW) attacking Rep. Nunes’ committee memo.

A former Obama State Department official, Nuland, has been recently outed as another shadow player, reviewing and disseminating Fusion’s dossier, and reportedly, hundreds of other dossiers over a period of years. “Deep State-proud loyalists” apparently was a Freudian slip, not a joke.

Invented narratives — not “of the people, by the people, for the people,” but rather just from a couple of people, cloaked in the very same hypocritical rhetoric of “freedom” and “democracy” that those are actively undermining — impede internationally shared efforts on the world’s most pressing, real issues, like global health, climate change and the future of energy. My own “Mother Russia” has many problems and challenges, and my country is still in transition from the Soviet regime — a transition some clearly wish us to remain in indefinitely.

And that’s the strategy that led Chuck Grassley, Lindsey Graham, and Ron Johnson to spend their time discrediting the dossier rather than conducting oversight of Donald Trump.

That’s the strategy that led Darrell Cooper to believe (or claim to believe) several false claims about the dossier and then use those false claims to excuse the way Trumpsters lost faith in institutions and so attacked the Capitol. In short, the likelihood that the dossier is disinformation — indeed, the likelihood that the guy twisting the nuts of Trump’s campaign manager fed the dossier full of disinformation even while using that pressure to obtain his cooperation — means that (at least if you believe Cooper’s narrative) that disinformation led, through a series of steps, Americans to attack the American Capitol.

Trumpsters appear to love Cooper’s narrative, I guess because it doesn’t hold them responsible for their own gullibility or betrayal of the country. There are other problems with it (including the replication of other claims that Republicans have agreed is Russian disinformation). But ultimately, even with Cooper’s errors, what his narrative amounts to (at least for all the Trumpsters who believe the dossier was disinformation) is a claim that Russia’s 2016 disinformation campaign led Trump supporters to attack the US Capitol.

Update: After I posted some folks in the thread questioned what the point of the disinformation would be. This post lays out a possible logic to it all.

Lev Parnas Wants in on the Rudy Giuliani Warrant Bonanza

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Lev Parnas just submitted a filing in his case — joined by the remaining defendants — asking for a discovery hearing where SDNY will tell them when they will get the evidence seized from Rudy Giuliani and Victoria Toensing that is helpful to their defense. It describes how, after inquiring how the searches on Rudy and Toensing affect them, on May 14, the government explained that Judge Paul Oetken has given the government multiple gags, covering the time through June 30, to delay disclosure.

And it sounds like the government seized material from more than just Rudy and Toensing. At least two sentences of this description of the searches likely doesn’t pertain to them.

Parnas explains that he expects those searches will include materials useful to his defense from:

  • Rudy
  • Toensing
  • “the former President”
  • Billy Barr
  • “high-level members of the Justice Department”
  • Jay Sekulow
  • Jane Raskin
  • Senator Lindsey Graham
  • Congressman Devin Nunes

He expects those materials will reveal “the timing of the arrest and indictment of the defendants as a means to prevent potential disclosures to Congress in the first impeachment inquiry of then-President” Trump. He says he’ll have exceptions to any “potentially applicable privilege.”

He also expects that there may be information that got deleted (the implication is, by him) about “how to address their prior relationships, and the unfolding investigation.”

Update: As a number of people have noted, that big redaction is one of the fake redactions that defense attorneys sometimes disclose sensitive information under. Copy and pasting shows that the following other people were also targeted.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

Several of these people were named in a July 2019 OCCRP story on Parnas and Fruman that the whistleblower included in his complaint against Trump. Which is to say, this is the investigation we would have gotten had DOJ not worked so hard to protect Rudy and, through him, Trump, back in 2019.

“Oversight:” Mike Flynn Lied to Protect Barbara Ledeen, Who Then Fed Disinformation to Sara Carter

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In a footnote to an October 2019 filing, prosecutors in the Mike Flynn case suggested that Sidney Powell was misrepresenting Flynn’s “cooperation and candor” in his first interviews with Robert Mueller’s team, a claim that is consistent with Flynn’s own description of his lawyers’ unhappy review of it. The 302s liberated by BuzzFeed earlier this year show just how ridiculous some of the lies Flynn told in his November 16, 2017 meeting with Mueller’s prosecutors.

For example, in addition to repeating his lies about his conversations with Sergey Kislyak and claiming that he “did not specifically recall conversations regarding Wikileaks” during the campaign, Flynn also claimed that he never had conversations about how to get Hillary’s missing emails.

FLYNN did not recall discussions about a concerted effort to locate [Hillary’s] missing emails.

[snip]

FLYNN never had any conversations about how to get CLINTON’s missing emails. FLYNN did not remember hearing anyone else on the campaign discuss this either. The consensus was that they hoped the emails would be found all of a sudden.

Flynn would go on to unforget all three topics in the weeks and months ahead.

On the topic of searching for Hillary’s emails, however, Flynn was still shading the truth in his final interview before pleading guilty on November 29, 2017. Flynn described that he had met Peter Smith regarding business development in 2015, and described that Smith had emailed during the campaign. But, “FLYNN lost interest in what SMITH sent him because he ‘did not see any there, there’,” per the interview report. As to others who might be involved in the effort, Flynn described that “possibly Barbara LEDEEN” had been a recipient of some of the emails from Smith, though suggested Sam Clovis was a more important player.

It would be six months later, in an interview on May 4, 2018, before prosecutors returned to Flynn’s role in hunting down Hillary’s emails in depth. It appears that, at first, they asked Flynn generally about the Peter Smith effort, and this time, he remembered that “LEDEEN’s role” in the effort “was as a conduit.” Flynn explained that he gave “time and attention” to the effort “out of respect for his friendship with LEDEEN.” It was in that context that Flynn remembered that someone “sent files to FLYNN on one or two occasions,” though even then, he couldn’t remember whether the files were about Benghazi or the missing emails.

The prosecutors started asking Flynn about the actual emails — many of which were liberated in the documents liberated by BuzzFeed.

Prosecutors first asked about an email that the FBI Agent who wrote up the 302 described as a May 24, 2016 email from Ledeen to Flynn. But it’s actually an email Ledeen sent one of the chief purveyors of disinformation about the Flynn case, Catherine Herridge, promising “evidence” (though there are notations on it that may reflect Flynn got a hard copy).

Prosecutors then showed an email Flynn sent to Ledeen on June 16, 2016, in response to Ledeen’s question, “You got the Signal email.”

Flynn’s response reflects him having downloaded and read the report on the effort to obtain the emails. “amazing!” Flynn responded. “I’ll speak more off line with you about it this evening or tomorrow.”

On September 10, 2016, Ledeen wrote Flynn a “TIME SENSITIVE” email, explaining that “we are at the point of rubber hitting the road re the project you know I have been working on.”

In response to Ledeen’s request, the interview suggests, Flynn spoke with someone who had been an early campaign advisor, but he told Mueller’s team that “he did not really remember the details of the conversation.”

He claimed to remember nothing of the October 29, 2016 Hushmail promising a Phase II of the report, however.

“You’ve got me on this one,” Mike Flynn claimed, then described asking Barbara Ledeen, “Can’t you just tell me?” and imagining that, “he became frustrated trying to open the message.”

There was another HushMail on November 3, which Flynn suggested might pertain to Sidney Blumenthal.

But he suggested that “The servers may have been a second set of email messages to FLYNN,” and explained it was all “secret squirrel stuff.”

Flynn’s interview then proceeded to talk about an in-person meeting that Ledeen had set up, apparently with this same person, to discuss microtargeting; the pitch appeared to combine Sidney Blumenthal, servers in Eastern Europe, and microtargeting. It was in this context that, six months after claiming that he never spoke to anyone about getting Hillary’s missing emails, he admitted he actually talked about pursuing the Hillary emails “to anyone he was with on the Trump plane,” including Trump.

FLYNN conveyed to people that people were looking for the missing emails and were confident they would eventually find them. FLYNN would have said this to anyone he was with on the TRUMP plane. FLYNN does not know if specifically said he knew people but he could have. People on the plane include TRUMP. FLYNN did not believe he conveyed to the team information about the servers in the Ukraine or Eastern Europe. FLYNN was not ruling it out but does not recall exactly what he said.

Barbara Ledeen, still a key Senate Judiciary Committee staffer to Senators who have led the effort to undermine the Russian investigation, was right in the thick of all this during the 2016 election: Secret servers in Ukraine, missing emails, and microtargeting. That’s the woman overseeing the investigation into the investigation.

Which makes the other emails liberated in the BuzzFeed release implicating Ledeen all the more important.

It turns out that, before prosecutors asked about all this, they may have been alerted to a text Ledeen sent on May 1, 2018, inquiring about the status of Flynn’s case. Mueller’s team raised the text two weeks after the Peter Smith and microtargeting discussion, on May 17, 2018, when prosecutors focused on Ledeen’s extensive effort to monitor the Russian investigation (starting well before Mueller was appointed).

The backup liberated by Buzzfeed shows that Michael Ledeen inquired about whether he “and Sara” could say that Flynn was getting an immunity for testimony deal on March 31, 2017 (the same way Ledeen’s co-conspirators in Iran-Contra escaped accountability), establishing that the Ledeens funneled stories to Sara Carter.  A year later, Flynn conceded, he may have still been a source for Sara Carter stories via the Ledeens, in this case for a story about Flynn getting discovery.

BARBARA reached out FLYNN but he did not respond to her with anything specific. FLYNN may have told her they received discovery and were reviewing the documents.

FLYNN had many conversations around the time of this article but was never asked if the information could be shared with CARTER, nor did he direct anyone to share it with her.

Prosecutors asked about several other Carter stories, and Flynn’s long-suffering attorney, Rob Kelner, admitted that Carter had reached out several times before the plea deal and that he (Kelner) may have been the source for the detail that Andrew McCabe reached out to Flynn about an interview on short notice.

More interesting, however, are the emails between those Carter stories, which show Michael Ledeen (who, remember, was one of the first people Flynn called before secretly undermining sanctions with Sergey Kislyak in December 2016) reached out on April 17, 2017, telling Flynn, “it’s time…”

Then Michael Ledeen reached out the next day (apparently to a different Flynn email address) to arrange a pastrami dinner with extra pickles, Dr. Brown’s diet soda, and “a message for you.”

The meeting would have been on Monday April 24, 2017. Some of Carter’s scoops have been solid, albeit hyped. Others have been garbage. Her regurgitation of Sidney Powell’s false claims was pure propaganda. But she was also responsible, with John Solomon, for one of the most important unsubstantiated stories of the entire investigation, one that claimed Andrew McCabe had said they were going to “fuck Flynn” in a meeting after Flynn’s interview, an allegation that came up in Flynn’s last interview with Mueller (at a time when Mueller would replicate the two investigations that had been done on this allegation in the past).

The same interview reveals that Barbara Ledeen was responsible for another false claim that never died, that there was some original 302 that said something different from the one that recorded Flynn’s lies.

“Barbara tends to have a ‘big mouth,'” Flynn complained on May 17, 2018, as part of these discussions. But he still did what, according to the same interview report, she kept nagging him to do: withdraw his guilty plea. For a long time, it looked like she was simply protecting her husband Michael’s close friend. But with the backup materials, it seems just as likely that Ledeen’s efforts to undermine the Russian investigation are as much about her own complicity as Flynn’s himself.

A person who had a key role Senate Judiciary Committee oversight of the Russian investigation was sending Hushmail and Signal communications looking for secret servers in Ukraine during the events in question.

Update: Here’s my summary of what each of the 302s included from when they were released in January).

Update: In January, Flynn thought that the April message that Ledeen was passing on may have been from Trump.

Josh Hawley Shocked and Alarmed to Discover the FBI Would Follow the Money behind Right Wing Terrorists

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There wasn’t much useful oversight in the Senate Judiciary Committee hearing with FBI Director Christopher Wray today. Democrats got him to repeat, over and over, that there is no evidence that Antifa or people only pretending to be pro-Trump were behind the January 6 insurrection. But there was almost no mention of Trump as the unifying force behind the disparate groups there. Instead of talking about how the Former President’s lies riled up the insurrection, Ben Sasse focused on people in their mother’s basement and grandmother’s attic.

There was a lot of focus on how a January 5 FBI report predicting that Congress might be targeted got disseminated, but none on why the FBI didn’t know what the rest of us did much earlier than that: that these unhinged terrorists were coming to DC in large numbers. No one raised QAnon until Wray dodged Richard Blumenthal’s questions about whether members of Congress pushing QAnon conspiracies exacerbate the problem.

Lindsey Graham and John Kennedy tried to score points because someone didn’t activate the National Guard in time, all the while pretending not to understand that the single person in DC who had unquestioned authority to order the Guard to the Capitol, but did not, was the Commander in Chief at the time.

Things got really weird when Republicans expressed concern about surveillance.

Mike Lee — who actually is a champion of civil liberties — suggested the only reason why right wingers might have been interviewed by the FBI would be by geolocating those who attended the rallies, even if they didn’t enter the Capitol. Then he bizarrely asked if the legal process behind such surveillance was FISA, which targets foreign threats, or National Security Letters.

Crazier still was Josh Hawley’s follow-up to Mike Lee’s questions.

Hawley, who’s not a champion of civil liberties and normally likes to beat up social media companies, asked a series of questions that seemed utterly ignorant — shocked really — how over the course of arresting almost 300 people, the FBI would show probable cause to obtain geolocation data, metadata, financial data, and social media data.

Hawley: Can I just go back to a series of questions that Senator Lee asked you? He asked you about the geolocation and metadata aspect gathering related to, gathering of metadata, that is, related to your investigation of the January 6 riot. You said you weren’t familiar with the specifics. Can I just clarify your responses to him. So when you say you’re not familiar, are you saying you don’t know whether the Bureau has scooped up geolocation data, metadata, records from cell phone towers. Do you not know. Or are you saying that the Bureau maybe has or hasn’t done it. Just tell me what you know about this?

Wray: So when it comes to geolocation data specifically — again, not in a specific instance, but even the use of geolocation data — I would not be surprised to learn but I do not know for a fact that we were using geolocation data under any situation in connection with the investigation of January 6. But again, we do use geolocation data under specific authorities in specific instances. Because this is such a sprawling, that would not surprise me. When it comes to metadata, which is a little bit different, obviously than geolocation data, I feel confident that we are using various legal authorities to look at metadata under a variety of situations. But, again, the specifics of when, under what circumstances, with whom, that kind of thing, I’m not in a position to testify about with the sprawl and size of the investigation. And certainly not uh in a, you know, Congressional hearing.

Hawley: What authorities do you have in mind? You say that you’re using the relevant authorities, what authorities are they?

Wray: Well, we have various forms of legal process we can serve on companies that will allow us to get acc–

Hawley: And that’s been done?

Wray: We’re using a lot of legal process in connection with the investigation, so, yes.

Hawley: But, specifically, serving, serving process on companies, using, invoking your various legal powers to get that data from companies, that’s been, that’s been done, of gathering this data?

Wray: In gathering metadata? I, I,

Hawley: Yeah.

Wray: Again, I don’t know the specifics, but I feel confident that that has happened because metadata is often something that we look at. And we have a variety of legal tools that allow us to do that under certain circumstances.

Hawley: What about the cell tower data that, uh, was reportedly scooped up by the Bureau on the day, during, in fact, while the riot was underway. What’s happened to, what’s happened to that data? Do you still have it. Has it been retained? Uh, do you have plans to retain it?

Wray: Again: whatever we’re doing with cell phone data, I’m confident we’re doing it in conjunction with our appropriate legal tools–

Hawley: Well, how — here’s what I’m trying to get at, I think it’s what Senator Lee was trying to get at. How are we going to know what you are doing with it, and how are we going to evaluate the Bureau’s conduct if we don’t know what authorities you’re invoking, what precisely you’re doing, what you’re retaining. I mean, this is, you said to him repeatedly you weren’t familiar with the specifics, you’ve now said it to me. I don’t know, I’m not sure how this committee is supposed to evaluate anything that the Bureau is doing — you’re basically saying just “trust us.” I mean, how are we gonna know? Do we have to wait until the end of your investigation to find out what you’ve done?

Wray: Well, certainly I have to be careful about discussing an ongoing investigation, which I’m sure you can appreciate. Uh, but, uh, all the tools that we have done in conjunction with prosecutors and lawyers from the Justice Department. Now, if there’s information we can provide you, before an investigation’s completed that goes through what some of the authorities we have, the tools we have, etcetera we could probably provide some information like that that might be useful to you to help answer the question.

Hawley: That would be helpful. Thank you. I’ll hold you to that. Let me ask you about some other things that have been reported, um in the press, particularly there have been a series of reports that the Bureau has worked with banks in the course of the investigation into the January 6 riot, both before and after, and that some banks, particularly Bank of America, may have handed over data for 200 plus clients who may have used their credit or debit cards to make purchases in the DC area. What do you know about this? Has Bank of America voluntarily turned over information to the Bureau about its customers?

Wray: I don’t know of any of the specifics so I’d have to look into that.

Hawley: And so has the FBI requested similar information from any other companies to your knowledge?

Wray: Again, sitting here right now, I do not know the answer to that question. I do know that we work with private sector partners, including financial institutions in a variety of ways, all the time, in a variety of investigations. But exactly the specifics of what may or may not have happened here? That I don’t know sitting here as we’re talking today.

Hawley: As I’m sure you can appreciate, my concern here is that 12 USC 3403 prohibits financial institutions from turning over confidential client records, unless of course they’ve got reasonable suspicion that there’s a crime being committed. Now the news reports on this have reported that financial institutions were doing this in cooperation with the Bureau without any such indication of a crime, they’re just turning over reams of consumer data. That obviously would be a major legal problem. A major legal concern. Can you try and get me some answers to these questions? I appreciate you say you don’t know today, you’re not aware of what’s going on, but can you look into this and follow-up with me on this?

[Wray acknowledges that the FBI has many authorities]

Hawley: What about the, some of the technology companies, Facebook, Google, Twitter, Apple, Amazon. Has the the FBI had contact with those tech platforms following the events of the Sixth?

Wray: We’ve certainly had contact with a number of the social media companies in connection with the Sixth. So that much I know.

Hawley: Has the Bureau sought to compel any of those companies to turn over user data related to the Sixth?

Wray: Well, again, I can’t tell you the specifics here, but what I will tell you is that we, I feel certain that we have served legal process on those companies which we do with some frequency and we have received information from some of those companies. And whether that’s true from every single one of the companies you listed I can’t say for sure but I suspect it is, because we work with the Social Media companies quite a lot.

Hawley: Are you aware of any of the companies voluntarily turning over data to the Bureau in relationship to the events of the Sixth?

Wray: Sitting here right now, I can’t say for sure.

I knew when I read The Intercept piece making thinly sourced allegations that this would happen, that right wingers trying to protect right wing terrorists and possibly even themselves would profess shock that the FBI used very basic investigative techniques to investigate an attack on the Capitol (Hawley seems to be relying, as well, on Fox News reports, including Tucker Carlson).

But I find it shocking that the former Attorney General of Missouri, with an office full of staffers, can’t review the arrest documents for the 270 people publicly arrested so far to answer these questions. Had he done so, he would have seen that affidavit after affidavit talks about obtaining warrants, including (for non-public data) from Facebook. And the single reference to Bank of America I can think of — describing Kelly Meggs paying for rooms in VA and DC in conjunction with the attack — makes it clear that the FBI used some kind of legal process.

Records obtained from the Comfort Inn in Arlington, Virginia, show that a credit card belonging to Kelly Meggs was used to pay for a room at the hotel on the nights of January 5 and 6, 2021.21 The room, with two queen beds, was booked in the name of a different person suspected of being affiliated with the Oath Keepers.

21 Pursuant to legal process, the government obtained records from Bank of America, which show two charges to the Comfort Inn on January 5, 2021, each for $224. The records also show that on January 7, 2021, Kelly Meggs paid a charge of $302 to the Hilton Garden Inn, located at 1225 First Street NE, Washington, D.C.

A grand jury has already found that these credit card charges — the coordinated spending of people who forced their way into the Capitol wearing tactical gear after providing “security” for right wing figureheads — was evidence of a conspiracy, “to stop, delay, and hinder Congress’s certification of the Electoral College vote.”

And the Senator from Missouri who shared that goal seems awfully concerned that the FBI is using very routine legal process to investigate the larger conspiracy.

Congress versus the Constitution: Merrick Garland’s Second Reconstruction

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Early morning Eastern Time on January 6, I wrote a post arguing that Merrick Garland was a better Attorney General pick than a lot of people assumed. By the end of the day, the January 6 insurrection made him look like an even better pick, based on his successful prosecution of right wing terrorist Timothy McVeigh. When he testified on Monday, Garland surpassed even those expectations, in large part because he described as his mission the same one DOJ had when originally founded 151 years ago: protecting the rights of people of color in the face of right wing terrorism.

Celebrating DOJ’s 150th year reminds us of the origins of the Department, which was founded during Reconstruction, in the aftermath of the Civil War, to secure the civil rights promised by the 13th, 14th and 15th Amendments. The first Attorney General appointed by President Grant to head the new Department led it in a concerted battle to protect black voting rights from the violence of white supremacists, successfully prosecuting hundreds of cases against members of the Ku Klux Klan.

Almost a century later, the Civil Rights Act of 1957 created the Department’s Civil Rights Division, with the mission “to uphold the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.”

That mission remains urgent because we do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.

150 years after the Department’s founding, battling extremist attacks on our democratic institutions also remains central to its mission. From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government. If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.

This mission is all the more important — and optimistic — given the strains on Congress in the wake of January 6.

Given the delay caused by the former President’s attempted coup, impeachment, the delayed Senate organizing resolution, and a recess, this week, kicked off by Garland’s hearing, has been the first week where the 117th Congress has moved to account for the events of January 6. How Congress responds — and its effect on mid-term elections in 2022 — will have a key role in deciding whether the Republic survives Trump’s efforts to steal an election, or whether those events just harbor a decline into white supremacist authoritarianism.

How Congress responds to the events of January 6 is especially critical given disputes about the form of a 9/11 style commission to assess the event. Nancy Pelosi and Mitch McConnell disagree on key details: whether Democrats should have more representatives on the commission, and how broad the scope will be.

Senate Minority Leader Mitch McConnell slammed House Speaker Nancy Pelosi’s draft proposal for a commission to investigate the Jan. 6 attack on the U.S. Capitol, calling it “partisan by design.”

The Kentucky Republican said he agrees the siege on the Capitol warrants a “serious and thorough review,” but said he thinks Pelosi’s proposal falls short of the standard set by the commission established after the Sept. 11, 2001, terrorist attacks, upon which Pelosi said she would model this new panel.

“The 9/11 Commission was intentionally built to be bipartisan, 50-50 bipartisan split of the commissioners was a key feature,” McConnell said Wednesday on the Senate floor. “It both helped the effectiveness of the investigation itself, and help give the whole country confidence in its work, and its recommendations.”

It’s unclear whether the two sides can come up with a plan for a 9/11 type commission, both because there’s virtually no comity between the two parties and because Republicans have prioritized protecting Trump, their party, and the members of Congress who played a role (with another member implicated yesterday by her spouse’s Three Percenter truck decal). I suspect such a commission may have to wait until other events change the GOP’s current commitment to Donald Trump.

One thing that might change the GOP’s current capture by Trump is the DOJ investigation.

While there are some DOJ decisions that raise questions for me and while it is not yet clear how the courts will finally decide to treat January 6, Merrick Garland’s confirmation will presumably only raise confidence in DOJ’s actions. Virtually all members of the Senate Judiciary Committee, for example, praised his role in the prosecution of Timothy McVeigh during his confirmation hearing (see my live tweet here). Unless DOJ really bolloxes key cases — or unless they shy away from witnesses like James Sullivan, Ali Alexander, and Enrique Tarrio, who can tie the insurrection directly to Trump’s close associates — I expect the investigation and eventually prosecution of those responsible will make the GOP’s continued support of Trump far more toxic (as a few of the GOPers who’ve been censured for their vote to convict Trump have suggested will happen).

The prosecution of January 6 will be the easy part.

The real question, I think, is how Garland weathers GOP attempts to demand prosecutions that Billy Barr primed them to expect.

For example, numerous members (especially Lindsey Graham and Chuck Grassley, whose shared staffer Barbara Ledeen and her spouse were implicated in the Russian investigation) demanded that Garland promise to keep John Durham on, citing Barr’s promise to keep Mueller on during his confirmation hearing, at a point when Barr had already made public statements about the investigation while admitted he knew fuckall about the actual facts.

Garland repeated, over and over, that he can’t make such a commitment until he speaks with Durham. No one knows what Durham continues to pursue that has made his investigation last as long as the Mueller investigation. What is known is that Durham hasn’t interviewed key witnesses and his public filings exhibit fundamental misconceptions about the Russian investigation and precisely the kind of bias he purports to be investigating. Garland repeatedly answered that he didn’t know of any reason to remove Durham early. But he also noted that precisely what Graham and others are demanding about Page — some kind of investigation — happened with the Horowitz report. Notably, Garland knew a detail Republicans refuse to acknowledge: that Horowitz’s ongoing investigation into FISA reveals that the problems in the Carter Page Woods file were no different than other FISA applications, and the more general problems may be a pattern as well.

Given Garland’s emphasis on civil rights, I was at least as interested in Republican attempts to undermine such an effort. Most pathetically, John Kennedy engaged in a colloquy about whether systematic racism exists, whether he, himself, can be racist if he doesn’t think he is, “who wins,” as if equality is a zero sum game. Tom Cotton tried to play games about the difference between racial equality and racial equity.

Finally, there will be GOP pressure to either both-sides political violence, equating actions they claim without evidence were perpetuated by Antifa with January 6, or to limit the extent of the prosecution. With regards to the latter, Garland argued that this investigation will proceed like all investigations, working their way up if the evidence dictates it. That is a position utterly consistent with support for prosecuting Trump’s associates, or maybe even Trump.

With regards to efforts to both-sides political violence — which was Trump’s defense to impeachment and has already played a key role in Republican efforts to dodge accountability for their role in January 6 — Garland gave the kind of judicious answer to Josh Hawley that every Democrat should be prepared to offer. The violence in Portland was criminal (and to the extent it was, it was prosecuted). But it was not an attempt to interrupt the processes of government, such as by interrupting trials.

The Republicans have for years successfully pressured DOJ to try to criminalize their political opponents. As DOJ continues its massive investigation into the insurrection, these efforts will grow more urgent.

Merrick Garland will be confirmed without cowing to Republican efforts to equate their own assault on the Constitution with Democratic politics. But such efforts will intensify after he assumes office, particularly if Durham fails to find the crimes that really don’t exist and as DOJ gets closer to Trump or members of Congress. DOJ has about 18 months to right itself after Bill Barr’s damage, and we shall see how long Garland continues to retain the goodwill of Republicans.

Three Things: Eff These Effing Effers

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That mealy-mouthed compromised weasel Lindsey Graham spent a lot of time whining on the Sunday talk show circuit this weekend.

Somebody out there has the dirt on Graham. Just. Spill. It. Find a vehicle to do the job, get yourself clear, and let it rip because all of us, Democrats and Republicans alike, are going to spend too much time mopping up Lindsey’s alligator tears if his personal problem isn’t addressed out in the open.

He wouldn’t be doing all this whining about Democrats and backstabbing his own party if he was hidey-holed trying to lick his wounds. It’s not like he’s got anything to lose in 2022 or 2024 because he was just re-elected, goddamn it all.

Just. Spill. The. Dirt. Lance the festering boil animating Graham. Back up the truck, press DUMP, and run like hell.

~ 3 ~

Until somebody gets smart and dumps the dirt on Graham, we need to regroup and get in gear for 2022. We can’t lose the Senate or we’ll end up with two years of stagnation and worse. If the last two years were bad, an economic depression making the 1930s look like a piece of cake could result from the GOP taking the Senate again.

Here’s the targets of our offense:

State Class III Cook PVI Age Now Open ‘2018 Moscow Convict Trump
Pennsylvania Pat Toomey (R) Even 59 Open N Y
Wisconsin Ron Johnson (R) Even 65   Y N
Florida Marco Rubio (R) R+02 49   N N
Iowa Chuck Grassley (R) R+03 87   N N
North Carolina Richard Burr (R) R+03 65 Open N Y
Ohio Rob Portman (R) R+03 65 Open N N
           
Arizona Mark Kelly (D) R+05 56   N Y
Georgia Raphael Warnock (D) R+05 51   N Y
           
South Carolina Tim Scott (R) R+08 55   N N
Alaska Lisa Murkowski (R) R+09 63   N Y
Missouri Roy Blunt (R) R+09 71   N N
Indiana Todd Young (R) R+09 48   N N
Louisiana John Kennedy (R) R+11 69   Y N
Kansas Jerry Moran (R) R+13 66   Y N
Alabama Richard Shelby (R) R+13 86 Open Y N
South Dakota John Thune (R) R+14 60   Y N
Arkansas John Boozman (R) R+15 70   N N
Kentucky Rand Paul (R) R+15 58   N N
North Dakota John Hoeven (R) R+17 63   Y N
Idaho Mike Crapo (R) R+19 69   N N
Oklahoma James Lankford (R) R+20 52   N N
Utah Mike Lee (R) R+20 49   N N

These are all the GOP seats up for re-election or open in 2022, sorted by their Cook Partisan Voting Index rating. The strongest rated GOP are at the bottom, the weakest at the top.

There are three columns identifying which seats are open, which of these GOP senators went to Moscow on July 4 in 2018, and which ones voted to convict.

Sen. Shelby, one of those who went to Moscow, is 86 years old. He’s likely retiring due to age; it’s not clear why Putin would have ensured he was invited unless he knew something about Shelby not obvious to us. But Shelby is the likely ceiling on Cook PVI at R+13.

I’ve inserted two of the newest Democratic senators in the table, noting their state is rated R+5. This should tell us that every single seat at R+5 to Even is highly gettable with solid organizing on the ground. If you live in one of these states, you should be looking into helping as soon as possible. Those two Democrats, Kelly and Warnock, also need help; they won a special election, but must now fight for the Class III seat for the full six-year term.

Every one of the GOP senators who went to Moscow is vulnerable. Moscow wouldn’t have invited them if they weren’t either compromised, soft and could be compromised, or whatever psychographic and demographic data Putin’s data trolls had pulled together indicated these seats would trend left long before the pandemic.

Louisiana, for example, is increasingly non-white, its population become less white and more non-white at a rate of 1/4% per year. In 2018, the state was 58.4% non-Hispanic white. COVID may have stemmed some of that shift by way of Team Trump’s passive genocide by neglect, but that still means 41.6% of the population is non-white. Strong, effective organizing like that in Georgia this last election season could make Louisiana gettable, and it could explain why Moscow reached out to Sen. Kennedy.

Iowa is gettable for other reasons — the damage Trump did to farmers with his unnecessary trade war, Chuck Grassley’s decrepitude, a strong Democratic candidate pipeline, to name a few. What Iowa will need, though, is to get its act together with regard to its primary process. DNC’s new chair Jaime Harrison may be looking into this early rather than later to assure smooth sailing into 2022.

Speaking of Harrison, all those other less-gettable seats shouldn’t be ignored. Harrison appears ready to reinstitute a 50-state strategy leaving no seat uncontested. Kentucky, for example, shouldn’t be ceded because it’s rated R+15 and McConnell just won re-election there; if Charles Booker was interested in running against Rand Paul, he could stand a decent chance of winning, let alone make Paul work hard for his seat.

Pick a race or two. Get engaged early. Figure out how to help. Do not let the fascist GOP believe it has a chance at continued minority rule.

~ 2 ~

A new conservative party may soon emerge, consisting of more traditional conservatives who identified as Republican and are not Trump supporters.

This is a good move; I hope these folks do all the right things, getting their party formally established and organized in all 50 states. Could these folks peel away a few centrist Democrats? Possibly. But they’re more likely to fragment the power of the existing GOP.

We’d also be closer to a multi-party model than we have been, preventing a far more fascist entity like the Party of Trumpism from taking control of any branch of government.

Many Democrats have been upset about House Speaker Pelosi’s remarks saying this country needs a strong Republican Party:


But I wonder if what she really meant was a the country needs a strong party which believes in a republic — a democratic republic — giving a subtle nod to McMullin and the other breakaway Republicans who are interested in a pro-democracy conservative party.

Consider the timing of her remarks made on Saturday, while McMullin discussed the potential new party on Friday.

~ 1 ~

Of all the whining that pasty, soft-handed, slack-assed Graham did this weekend, this pissed me off the most.

Right, asshole. You want to impeach the first Black-Asian woman VP because she supported First Amendment-protected peaceful protests against racist police brutality while she was a senator? Or are you really just eager to impeach Harris because she’s Black-Asian, woman, and a VP like you will never be?

Go ahead and try it, whiner. You’re only giving every American who is non-white and/or woman impetus to organize even harder to get out the mothertrucking vote.

I really do hope there’s a new pro-democracy conservative party ready to run for Lindsey Graham’s seat in six years. I’d even donate money to them to see them make him whine even harder.

~ 0 ~

If you’re inside the polar vortex, I hope you’re able to stay warm. Reduce your electricity consumption as much as you can tolerate it to keep the load on the grid down. This web site is cheesy looking but it has some decent pointers about keeping warm. If you’re not in the vortex, do some emergency preparedness work because we don’t know with certainty how this or the next vortex will pan out.

And for dogs’ sake, stay off the road if at all possible if you live where snow and ice are rarities.

Oh, and double mask to protect against the newer highly-transmissible UK version of COVID.