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

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

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

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

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

1512(c)(2) reads:

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

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

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

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

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

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

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

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

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

Whatever the DC Circuit decides, it will be appealed.

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

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

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

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

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

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

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

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

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

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

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

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

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

Resources

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

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

Carl Nichols’ interventions:

DC Circuit proceedings

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

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

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

The Thinness of the January 6 Committee’s Obstruction Referral

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

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

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

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

Here’s an example of the former:

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

The J6 Committee Proves Themselves To Be Suspect Media Whores

Well, here it is. J6 Chairman Bennie Thompson, clearly fueled by Liz Cheney, is going to do one of the dumbest things ever.

A “criminal referral” from this Committee means absolutely nothing. The DOJ will prosecute individuals and/or entities on their own. “Referrals” from Thompson, Cheney and the J6 Committee mean less than nothing legally.

It is noise. It is garbage. And worthless except for preening J6 members. They are proving themselves to be the infomercial jokes they are.

Oprah Beats Trump!

Among the factors that helped John Fetterman to pull off a win over Mehmet Oz was a late endorsement from Oprah Winfrey. The endorsement mattered not just because of who she is, but because Oz came to national attention on her show. Which means that in the highest profile Senate race of the night, Oprah’s endorsement proved more valuable than Trump’s.

That was, remarkably, even true of Liz Cheney. Both Democrats she endorsed — Abigail Spanberger and Elissa Slotkin — are projected to win reelection in swing districts. Cheney endorsed far fewer people than Trump, but both endorsees won.

Trump’s record was more mixed — but only JD Vance has yet won a high profile race, beating Tim Ryan in Ohio. Reportedly, Vance did not mention Trump in his victory speech. Ouch.

We won’t know who will win the Senate until at least the results of the Nevada race. The state changed its mail deadline this year, so it’s unclear how many votes will come in from Clark County; on update, Catherine Cortez Masto is behind Adam Laxalt but may make that up in mail-in votes. If CCM does not win, it’ll come down to a December run-off in Georgia.

And as of now, a number of outlets won’t call the House until more races come in. As of 12PM IST, the GOP has 199 seats to Dems’ 178. It’s even still possible Dems will retain control. Even Lauren Boebert’s seat is still too close to call, but it looks increasingly likely Adam Frisch will unseat her.

Except for perhaps Pennsylvania, Democrats had their best results in Michigan. Along with Gretchen Whitmer, Attorney General Dana Nessel, and Secretary of State Jocelyn Benson all winning reelection, it appears Dems have flipped both houses of the legislature. And in addition to Slotkin, Hillary Scholten, a former DOJ immigration lawyer, beat John Gibbs in my own district, MI-3. Dems were helped mightily by the abortion referendum on the ballot, which handily won. This result was also made possible by a neutral redistricting measure passed in 2018. What has happened in MI in recent years may be a model for democratic renewal. And it certainly positions “Big Gretch” well going into 2024.

Florida and New York have been (thus far) the bright spots for Republicans, with Ron DeSantis and Mario Rubio winning by comfortable margins and Republicans flipping Dem seats in a New York after Dems totally botched redistricting.

There were other key Trump candidates who also lost, including (if AZ results hold), all the election-denying Secretary of State candidates in swing states.

So where does that leave us? A 50-50 Senate and House. If Dems win one or both, their superior discipline and the advantage of the Presidency will make it possible to get things done. If Republicans win the House, I expect endless chaos. No Republican — and certainly not Kevin McCarthy — has the leadership to manage a virtually tied House. (Mitch McConnell could undoubtedly make the most of a 51-49 Senate, however.

The more important factor is within the Republican Party. Republicans may finally have to face what an electoral disaster Trump is for them. He has never won a majority, and under his leadership, the Republicans have lost the House, the Senate, the Presidency, and a mid-term election in which they should have flooded Dems. The GOP lost this time by running a bunch of MAGAt candidates who were far easier for Democrats to defeat And DeSantis’ strong win will set up a natural conflict between the two men in Florida.

The tension between those two — as well as the tension between Trump and McCarthy or McConnell (Trump has, perhaps cynically, endorsed both continuing on as leaders) — may shift the internecine war from one that pits Trumpist Republicans against the country to one that pits Trumpist Republicans against those who would like to move on. It is possible that by setting up a war (or wars) within the GOP, this result will have the effect of suffocating the MAGAt flame.

It’s never a good idea to rule Trump out. But this election gives the Republicans an opportunity to rip the bandaid of Trumpism off. DeSantis is no better as a person (he’s the competent authoritarian everyone has warned about, but he is nowhere nearly as charismatic as Trump). But tensions between the two of them may serve to give Democrats time to maneuver.

This post was updated at 12:00 IT/7AM ET.

Trump Subpoena: The Revolution Will Not Be Signaled

The January 6 Committee has released the subpoena it sent to the former President.

It requires document production by November 4 and a deposition starting on November 14. Notably, the first deadline is before the election.

It focuses not just on Trump’s attempt to overturn the election, summon mobsters, and raise money off of it. There are several questions focused on obstruction: both document destruction and witness tampering.

The witness tampering one reads:

All documents, including communications sent or received through Signal or any other means, from July 1, 2021, to the present, relating or referring in any way to the investigation by the Select Committee and involving contacts with, or efforts to contact: (1) witnesses who appeared or who were or might be expected to appear before the Select Committee, including witnesses who served as White House staff during your administration, who served as staff for your 2020 campaign, and who served or currently serve in the United States Secret Service; or (2) counsel who represented such witnesses. The documents referenced in (1) and (2) include but are not limited to any communications regarding directly or indirectly paying the legal fees for any such witnesses, or finding, offering, or discussing employment for any such witnesses, and any communications with your former Deputy Chief of Staff Anthony Ornato or any employee of the Secret Service with whom you interacted on January 6, 2021.

The subpoena mentions Signal at least 13 times. Which strongly suggests the President was in direct communication with some of the coup plotters via the mobile app.

The Trump associates named in the subpoena include:

  • Roger Stone
  • Steve Bannon
  • Mike Flynn
  • Jeffrey Clark
  • John Eastman
  • Rudy Giuliani
  • Jenna Ellis
  • Sidney Powell
  • Kenneth Chesebro
  • Boris Epshteyn
  • Christina Bobb
  • Cleta Mitchell
  • Patrick Byrne

The subpoena even asks him for communications involving the Oath Keepers, Proud Boys, “or any other similar militia group or its members” from September 1, 2020 to the present.

The subpoena also asks the former President for all communications devices he used between November 3, 2020 and January 20, 2021. In the Stone trial, there were about nine devices identified on which he may have received a call during the 2016 election, and there are several others — such as that of his then bodyguard Keith Schiller — who weren’t discussed in the trial. Tony Ornato also receives a close focus in this subpoena; I wonder if he was receiving calls for the then-President on the Secret Service phone that has since been wiped.

 

On Trump’s Subpoena and Marc Short’s Testimony

The January 6 Committee conducted what may be the last of their hearings (barring new disclosures from witnesses they intend to recall, including, implicitly, Tony Ornato and Robert Engel) by voting to subpoena Trump, for both documents and testimony. The subpoena was proposed by Liz Cheney, who learned a thing or two about bureaucratic genius from her father.

I think the most likely outcome of that will be the expiration of the subpoena with the next Congress. With the likelihood Republicans will take the House, it will not be renewed. It will, however, give the Committee opportunity to package up their findings against Trump in something that’s not a referral.

And the full House may have to vote on the subpoena before the expiration of this Congress.

The subpoena is more interesting, in my opinion, for the way it might intersect with other investigations. For example, a subpoena to Trump for January 6 documents might cover some of the documents initially seized on August 8. As I have noted, there appear to be documents in both the materials already returned to Trump and those currently under dispute before Raymond Dearie that pertain to Trump’s big lies pertaining to Georgia.

There are documents in both Category A and Category B that may be responsive to subpoenas from the January 6, the DOJ investigation, and Fani Willis’ Georgia investigation.

The December 31, 2020 email from Kurt Hilbert pertaining to Fulton County lawsuits is likely the one investigators turned over to the filter team on September 26 (which Trump’s lawyers claim is privileged).

For some unknown reason (probably that it was sent to the White House, which DOJ considers a waiver of privilege), DOJ put it in Category A.

There are several uninteresting Georgia-related documents included among Category B documents — the Civil Complaint in Trump v. Kemp, retainer agreements pertaining to various Fulton County lawsuits, a retention agreement with Veen, O’Neill, Hartshorn, and Levin, along with another folder with retention agreements pertaining to Fulton County. But this file, including a letter to Kurt Hilbert with a post-it note from Cleta Mitchell, might be more interesting.

There’s also a document pertaining to Joe DiGenova regarding appointing a Special Counsel (as well as might be an effort to get Pat Cipollone to complain about Saturday Night Live’s taunts of Trump).

The DiGenova document might pertain to any number of topics, but like Cleta Mitchell, he has been named in DOJ subpoenas on election fraud.

A subpoena for these documents may change the legal status of them — and Trump’s hoarding of them at his beach resort. It may also make them easier for others to obtain.

As it happens, though, the subpoena news also came on the same day that Marc Short testified to a grand jury about topics he (and his Executive Authority maximalist lawyer Emmet Flood) originally declined to answer.

A former top aide to Vice President Mike Pence returned before a grand jury Thursday to testify in a criminal probe of efforts to overturn the 2020 election after federal courts overruled President Donald Trump’s objections to the testimony, according to people familiar with the matter.

In a sealed decision that could clear the way for other top Trump White House officials to answer questions before a grand jury, Chief U.S. District Judge Beryl A. Howell ruled that former Pence chief of staff Marc Short probably possessed information important to the Justice Department’s criminal investigation of the Jan. 6, 2021, attack on the Capitol that was not available from other sources, one of those people said.

[snip]

According to people familiar with the matter, Short had appeared before a grand jury in downtown Washington in July, but declined to answer certain questions after Flood argued the communications of top White House advisers are protected — and presented written documentation from Trump’s lawyers that they were asserting executive privilege.

The Justice Department asked the court to intervene, urging Howell to override Trump’s claim and to compel Short to answer questions about his communications with Trump, one person said. After arguments Sept. 22, Howell granted the government’s motion, the people said, but because the investigation and an appeal are ongoing, it is unclear if or when a redacted opinion will become public.

Short and Windom were spotted at court again on Thursday, as was former Trump national security and defense aide Kash Patel.

SCOTUS has already ruled against Trump’s Executive Privilege claims before the January 6 Committee. If they were able to obtain his testimony — or if DOJ took his 14-page conspiratorial rant authored by former OAN hostess as a false statement to Congress — then it would create interesting tension between these two investigations.

As DOJ gets testimony from Short and, after him, others who invoked Executive Privilege, this subpoena to Trump will be in the background, a (very distant) possibility that Trump would be required to testify — as a witness, as opposed to the subject Trump is in the DOJ investigation — to the very same topics that his top aides are now testifying to.

It’s one more moving part that may get increasingly difficult to juggle.

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

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

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

Here’s my thread from watching the hearing.

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

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

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

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

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

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

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

[describing Bannon predicting that Trump would declare victory]

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

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

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

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

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

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

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

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

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

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

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

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

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

With this speech (and the imagery), Cheney attempted to invoke the mantle of Reagan, her party’s (and our shared generation’s) political icon. In doing so, she attempted to make democracy a religion again, something worth defending.

At the very least, she provided some mythology on which she will rebuild her party.

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

Mr. Passantino declined to comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

{video}

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

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

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

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

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

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

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

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

Pat Cipollone Predicted the Obstruction and ConFraudUS Prosecutions

This morning, for the second time in two weeks, Liz Cheney called out former White House Counsel Pat Cipollone, by name, to cooperate with the January 6 Committee.

Yesterday’s testimony from Cassidy Hutchinson revealed one reason why his testimony would be so important. He predicted — on January 3 or 4th — that Trump might be prosecuted under the very same crimes DOJ has been charging for well over a year: conspiracy to defraud the United States and obstruction of the vote certification.

Cheney: We understand, Ms. Hutchinson, that you also spoke to Mr. Cipollone on the morning of the Sixth, as you were about to go to the rally on the Ellipse. And Mr. Cipollone said something to you like, “make sure the movement to the Capitol does not happen.” Is that correct?

Hutchinson: That’s correct. I saw Mr. Cipollone right before I walked out onto West Exec that morning and Mr. Cipollone said something to the effect of, “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.”

Cheney: And do you remember which crimes Mr. Cipollone was concerned with?

Hutchinson: In the days leading up to the sixth, we had conversations about obstructing justice of defrauding the electoral count.

Cheney: Let’s hear about some of those concerns that you mentioned earlier in one of your interviews with us.

{video clip}

Hutchinson: … having a private conversation with Pat on the after noon of third or fourth, um, that Pat was concerned it would look like we were obstructing justice, or obstructing the electoral college count. I apologize for probably not being very firm with my legal terms here.

Or rather, Cipollone didn’t predict Trump would be charged with ConFraudUS and obstruction. He predicted “we” would, presumably including himself and even Hutchinson.

Here I’ve thought I was ahead of the curve by predicting — last August — that if Trump were prosecuted, it would be for those crimes. It turns out that Trump’s White House Counsel was way ahead of me, predicting the same even before the insurrection!

Cipollone’s recognition of this legal exposure is important for a number of reasons. First, it validates DOJ’s approach — and does so in advance of the DC Circuit’s consideration of DOJ’s appeal of Carl Nichols’ outlier opinion rejecting such an application.

Those are also the crimes named in the warrant served on Jeffrey Clark last week.

But Cipollone’s awareness of this exposure also may explain why Cipollone has been reluctant to testify (though it’s possible he has testified with DOJ and simply doesn’t want that to be public). Hutchinson laid out a number of things that Cipollone did on January 6 that made it clear he was not willingly going along with Trump’s actions, most notably his efforts to get Trump to call off his mob before Trump re-ignited them with his 2:24 text attacking Mike Pence again. If there was a conspiracy to obstruct the vote certification, he took overt acts to leave that conspiracy before and during the conspiracy on January 6.

By that point, however, it may have been too late for Cipollone to avoid all exposure to Trump’s corrupt actions. That’s because Cipollone would have been involved in the pardons of those — Cheney focused on Roger Stone and Mike Flynn last night, but Bernie Kerik and Paul Manafort also got pardons — who would go on to play key roles in Trump’s insurrection. (I assume Cipollone was not involved in the Bannon pardon that came after the attack, and I noted in real time that Cipollone likely prevented a bunch of other pardons that would have made obstruction more likely.) That is, Cipollone might have exposure for obstruction for actions already taken by January 3 or 4 when he explained this legal exposure to Hutchinson.

Even Bill Barr said that rewarding false testimony with a pardon would be obstruction. And Roger Stone, Mike Flynn, and Paul Manafort all delivered on that quid pro quo.

For all Liz Cheney’s specific exhortations, Cipollone may know better than to testify to Congress. Because without testifying to DOJ, first, that may cause him more legal trouble than his current (presumed) silence.

Update: As a number of people in comments noted, the Committee has formally subpoenaed Cipollone.