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Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

In this post, I described that DOJ would be smarter to charge Mark Meadows with obstruction for his destruction of records relevant to an ongoing investigation than to charge him for misdemeanor criminal contempt of Congress. That’s because obstruction, a felony, would pose the risk of real jail time, which would be more likely to convince Meadows to cooperate with investigators and explain what he did as part of an attempt to steal the election.

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

When I’ve pointed this explanation out to those wondering why DOJ has yet to (visibly) act on the Meadows contempt referral the January 6 Select Committee the House sent over on December 14, they ask why DOJ can’t just charge Meadows with contempt now and then follow up with obstruction charges later.

The answer is clear. Doing so will make any ongoing investigation far more difficult.

We can see why that’s true from the Bannon case. Bannon has already used his contempt prosecution as a means to obtain evidence about an ongoing obstruction investigation implicating Trump.

In these two posts, I described what we know about DOJ seizing the call records for Robert Costello, the lawyer for both Steve Bannon and Rudy Giuliani, who is someone who has been at the center of Trump’s pardon dangling for years. There’s a full timeline here, but for the purposes of this post, the key details are:

  • On September 23, the House subpoenaed Bannon.
  • Around October 5, the lawyer for Bannon and Rudy started speaking with a lawyer for Trump, Justin Clark, about how to avoid responding on Bannon’s behalf.
  • Between then and Bannon’s deadlines, Costello twice invoked Trump to avoid complying (in an interview with DOJ, Costello admitted that, “CLARK would not identify for COSTELLO what would be covered under Executive Privilege” and “refused to reach out to the Committee on behalf of COSTELLO or BANNON,” though, “CLARK informed COSTELLO not to respond to item 17” (involving communications Bannon had with Rudy, Sidney Powell, and Mike Flynn).
  • Costello claimed he did not know the lawsuit Trump filed on October 18 was coming and also claims he had a draft in process to blow off another October 19 contempt deadline, but on the evening of October 18, he told a J6 staffer that Bannon would not show up.
  • Over the next three days, the J6 Committee went through the process of holding Bannon in contempt, completing the process on October 21.
  • On November 3, Costello met with the investigative team, ostensibly to persuade them not to indict Bannon; in the process, Costello made claims about his communications with Trump’s lawyers (as well as those for Meadows, Dan Scavino, and Kash Patel) that materially conflicted. In response, DOJ sought Costello’s call records, ultimately obtaining records dating back to the last act Costello did on Bannon’s behalf in the Build the Wall prosecution, March 5, 2021, thereby reflecting an interest in Costello’s actions that significantly precede the J6 Committee actions.
  • On November 12, DOJ indicted Bannon. At first, just Evan Corcoran and David Schoen (the latter of whom represented the former President in his January 6 related impeachment) filed notice as Bannon’s lawyers.
  • On December 2, Costello informed DOJ he would file a notice to join the Bannon defense team (he may have been tipped off by his firm that DOJ had asked for his call records for his business phone). DOJ noted that if Costello represented Bannon, it might impact Bannon’s ability to claim an Advice of Counsel defense. On December 8, Costello filed his notice of appearance on Bannon’s team.
  • On January 4, DOJ provided Bannon 790 pages of call records data pertaining to Costello (including from his law firm).

In the early appearances after Bannon’s indictment, DOJ said it wanted to go to trial immediately and believed the trial could take a matter of hours. Bannon, by contrast, wanted a fall trial, and believed the trial could take weeks. Carl Nichols, the Trump appointee who had a key role in the Harriet Miers contempt conflict who is presiding over the case, split the difference on time, and has otherwise seemed unconvinced by Bannon’s maximalist challenges to the indictment.

Nevertheless, because the trial did not happen immediately, until Bannon does go to trial (currently scheduled in July), then DOJ will be obliged to provide him a range of information that would be (as the Costello records clearly are) relevant to an ongoing obstruction investigation implicating Trump personally. And until DOJ has reason to claim a conflict has arisen between Costello’s representation of Rudy and Bannon (which would effectively tip Rudy off that he’s being investigated for January 6), anything shared with Bannon’s defense team will be shared with Rudy’s defense team (and probably, through Schoen, Trump’s).

Those wailing for immediate action got an indictment of Steve Bannon … which will, at most, lead to his jailing for a few months.

And in exchange, Bannon got records that suggest that DOJ treated his attorney as a suspect in a conspiracy to obstruct this (and the J6) investigation. Bannon got records that suggest that DOJ is investigating his lawyer’s activities going back at least to March 5. He was able to see some of the evidence DOJ has obtained in that ongoing investigation.

Until something resets the current status, the contempt prosecution of Bannon is far more useful to Bannon as a means to monitor the ongoing investigation into him and his co-conspirators than it is for DOJ. And DOJ is likely now limiting investigative steps into Bannon and Costello, accordingly, to avoid triggering a discovery obligation to share information with Bannon.

There are a whole lot of really good reasons why DOJ probably hasn’t acted on the Meadows referral yet — most notably that Judge Nichols, who would likely preside over a Meadows case as a related prosecution, has made it clear he believes criminal contempt is used only for those whom DOJ has no hope of coercing cooperation. If they charge Meadows with contempt, per Nichols, they have foresworn any hope of getting his cooperation.

Given what Meadows has already done, DOJ surely views the potential of Meadows’ cooperation as more useful than a time-consuming and restrictive contempt prosecution.

And that’s true, first and foremost, because charging Meadows with contempt now would further limit their ability to shield parts of their investigation from the suspected co-conspirators.

Update: Corrected the Build the Wall reference to mention Bannon, not Meadows.

Steve Bannon’s Lawyer Made Himself a Witness and Now Wants To Be Just a Lawyer

Last night, along with a previously scheduled Motion for Discovery, Steve Bannon filed a Motion to Compel disclosure regarding some records requests DOJ made targeting Bannon’s attorney, Robert Costello. In it, he revealed that the government had obtained phone and Internet toll records (that is, metadata, not content) of his attorney spanning the period between the last event in Bannon’s prosecution in the Build the Wall fraud case, March 5, 2021, through the day he was indicted, November 11, 2021.

Predictably, the filing wails a lot about his lawyer being spied on and misrepresents what happened.

While Bannon included two exhibits with his Motion to Compel (a letter asking for information about the Costello material and the government response), Bannon included the most important information pertaining to the Costello records with his Motion for Discovery, not his Motion to Compel: reports of two interviews (302s) he did with DOJ and FBI, one on November 3 and the other on November 8, 2021.

At the time Costello gave the interviews, his representation of Bannon before the January 6 Select Committee was ended and Bannon had not yet been indicted. And as the first 302 notes, “there were no agreements or conditions governing the conversation between COSTELLO and representatives of USAO-DC or FBI.” Effectively, those interviews made Costello a voluntary fact-witness in the criminal case against Bannon, one exacerbated when Bannon belatedly added Costello to his criminal defense team and grew squishy about whether Bannon would invoke Costello’s advice in his own defense.

And Costello made so many contradictory claims in his 302s (to say nothing of providing evidence that Bannon knew well he had no privilege claim with which to refuse to testify entirely), that it is unsurprising that the FBI made records requests to test whether Costello lied in those interviews to the FBI. Among the claims Costello made about communications he had or did not have are:

  • J6 sent the subpoena to Costello (on September 23) before he had been able to consult with Bannon
  • Costello did not know who was representing the other people subpoenaed — Dan Scavino, Kash Patel, Mark Meadows, or Donald Trump — at the time of the subpoena
  • Through the entire subpoena response, Bannon and Costello have “operated independently of the others subpoenaed”
  • Costello was not told who was representing Trump, Meadows, or the others subpoenaed, but he found out on his own who represented Trump and Meadows
  • Costello sent the subpoena to Bannon to review
  • Costello’s advice to Bannon that he didn’t have to respond was verbal
  • Costello was sure he sent the J6 letters to Bannon; he wasn’t sure whether Bannon read the letters but Costello did quote lines from the letters to him
  • Costello sent Bannon an email that he ended with the word BEWARE because defying the subpoena could result in a referral to DOJ
  • Costello’s only contact with J6 Chief Counsel Kristin Amerling came the day before and the day of the subpoena service [the record shows she sent him at least one letter after that]
  • Costello tried to contact the attorney he believed was representing Trump (whom he didn’t name) but that attorney referred Costello to Justin Clark
  • Costello reached out to Clark a few days before October 6, though their first substantive conversation came when Clark responded
  • Costello did not provide any documents to attorneys for Trump for an Executive Privilege review
  • Justin Clark was vague but Costello was sure Trump asserted Executive Privilege with regards to Bannon
  • Clark would not ID for Costello what would be covered under Executive Privilege
  • In spite of Costello’s claims not to have consulted with any Trump lawyer, he also claimed that Clark told him not to respond to item 17 on the subpoena (covering Mike Flynn), because lawyers like Rudy Giuliani might have been present when Bannon communicated with Flynn
  • In spite of his admitted conversations with Justin Clark, Costello claimed he had not had communications with attorneys for Trump prior to October 18, 2021 (when Trump filed a lawsuit challenging the privilege waivers on materials from the Archives)
  • Costello had “an email or two” with Clark, who he believed filed the lawsuit, but he did not learn until later that Jesse Binnall filed the lawsuit
  • Costello sent copies of Bennie Thompson’s letters to the VA lawyer representing Trump (probably Binnall)
  • Costello had no advance knowledge of Trump’s lawsuit and would have handled things differently if he had
  • Attorneys representing Trump (Costello doesn’t name him or describe when this was) told him everyone who got a subpoena would get Executive Privilege
  • Costello did not talk about “disposing of any documents requested in the … subpoena with any attorneys who represented former President TRUMP”
  • Costello said he’d sent to USAO all memorializations of communications he had with the Committee, Clark, and Trump’s attorneys

Effectively, these claims only make any sense if he had extended discussions with an attorney who did not represent Donald Trump, on whose representation he advised Bannon that Trump wanted Bannon to invoke Executive Privilege. But even there, there are still all sorts of temporal problems with Costello’s claims (and probable inconsistencies regarding the timing of events on October 18, though I need to unpack what those are further).

Costello’s interviews were all over the map on other topics as well, topics that affect both Rudy Giuliani (whom Costello also represents) and Bannon: that he could and could not claim Executive or Attorney Client privilege over certain topics, that he advised or did not advise Bannon to do so, that he admits that Bannon provided no response about issues — most damningly, his public podcasts — that could in no way be covered by Executive Privilege.

But the key detail is that Costello’s claims about communications he had and did not have defy belief and (particularly with regards to Justin Clark) may be physically impossible.

So, in response to these interviews (and probably in possession of contradictory evidence from J6), DOJ obtained all the records they would need to test Costello’s claims.

As I’ve noted, Costello has played a key role in past obstruction efforts, going back to 2018. It’s certainly conceivable DOJ has an open investigation into Costello (and Rudy) for those activities.

Whether or not they already did, Costello gave them far more reason to question his role in obstructing investigations into Donald Trump in his two interviews.

Update: Here’s Bannon’s subpoena (h/t Kyle Cheney). It confirms that Item 17, which Clark told Costello to tell Bannon not to respond to, included Mike Flynn.

Timeline

March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)

September 22: First contact between J6 and Bannon

September 23: Bannon subpoena

September 24: Costello accepts service

October 6: Costello claims Clark invoked privilege

October 7, 10AM: Original deadline for document production

October 7, 5:05PM: Costello letter claiming Trump invoked privilege

October 8: Thompson letter to Bannon rejecting non-compliance

October 13: Second Costello letter, demanding accommodation with Trump

October 14, 10AM: Original date for Bannon testimony

October 15: Letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM

October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues

October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt

October 20: Rules committee meeting to hold Bannon in contempt

October 21 Bannon held in contempt

October 28: Matthew Graves confirmed as US Attorney

November 2: Kristin Amerling interview

November 3: First interview with Robert Costello

November 5: Matthew Graves sworn in as US Attorney

November 8: Second interview with Robert Costello

November 11: Subpoena to Internet provider

November 12: End date for Costello records request

November 12: Indictment

November 15: Bannon arrest; David Schoen and Evan Corcoran file notices of appearance

November 18: At status conference, government says there are just 200 documents of discovery

December 2: Costello moves to appear PHV; Government asks if Bannon intends to rely on advice of counsel defense

December 7: Returns on Internet provider (623 pages)

December 7 to 16: Bannon refuses to submit joint status report

January 4: DOJ turns over 790 pages of records from Costello

January 6: Bannon request for more information on Costello

January 7: Government response to Bannon request

January 14: Bannon discovery request letter; Bannon motion to compel regarding Costello

January 28: Government response to discovery demand

February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello

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

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

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

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

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

That let Dawsey off easy.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

h/t unhuh who first focused on this paragraph

Bennie Thompson to Ivanka: Come In from the Conspiracy

Even though you read this site, you may not recognize the names Brad Smith or Marshall Neefe. Even though I’ve focused some attention to his case, you may not remember the significance of Ronnie Sandlin. You might not even remember that the Oath Keeper conspiracy was named after retired Navy officer Thomas Caldwell before he was spun off into the sedition conspiracy named after Stewart Rhodes.

But those are all references of import to understand this footnote in the letter Bennie Thompson sent to Ivanka Trump, inviting her to testify voluntarily.

The Select Committee is aware of the motivation of many of the violent rioters from their posts on social media, from their contemporaneous statements on video, and from the hundreds of filings in federal court.11

11 For example, many defendants in pending criminal cases identified President Trump’s allegations about the “stolen election” as a motivation for their activities at the Capitol; a number also specifically cited President Trump’s tweets asking that supporters come to Washington, D.C. on January 6th. See, e.g., United States of America v. Ronald L. Sandlin https://www.justice.gov/opa/page/file/1362396/download: “I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” United States of America v. Marshall Neefe and Charles Bradford Smith https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download: “Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” United States of America v. Caldwell et al. https://www.justice.gov/usao-dc/case-multi-defendant/file/1369071/download: “Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”

The Select Committee could have chosen any number of individual defendants to support the claim that Trump was the motivating force for the participants of the mob that stormed the Capitol on January 6.

It did not.

Instead, without saying that it had, it cited three conspiracy indictments: a conspiracy that involved totally random guys who met online coming armed to DC and assaulting officers to break open the East doors and break into the Senate chamber, a conspiracy where guys armed themselves to come to DC based on a motivation that, “Why shouldn’t we be the ones” to kick off war, and a conspiracy that has now officially been charged as sedition.

What the Select Committee just said to Ivanka, very subtly (and without the hotlinks to these court filings to make it easy) is that multiple organizers across multiple conspiracies — all involving arming themselves before traveling to DC — acted on Trump’s comments in December and January as instructions.

What the Select Committee has laid out in this footnote is that key members of conspiracies that led to violent assaults on January 6 entered into an agreement with Donald Trump to engage in violence.

Other coverage of this letter has focused on the many other scathing details included in it:

  • Proof that Trump knew he was making an illegal request of Mike Pence (and that Ivanka knew such pressure was wrong)
  • Proof that multiple people attempted to get Trump to call off the violence (and that staffers repeatedly asked Ivanka to intercede to get him to do so)
  • Proof that advisors including Kaleigh McEnany and Sean Hannity attempted to get Trump to disavow these efforts

In response to the letter, Ivanka issued a statement making it clear that on January 6 she disavowed the violence caused by her father.

Ivanka Trump just learned that the Jan. 6 Committee issued a public letter asking her to appear. As the Committee already knows, Ivanka did not speak at the January 6 rally. As she publicly stated that day at 3:15pm, “any security breach or disrespect to our law enforcement is unacceptable. The violence must stop immediately. Please be peaceful.”

But that doesn’t account for another detail of the letter that has gotten far less attention than the eye-popping new details about Trump’s actions: Chairman Thompson reminded Ivanka (in a paragraph that seemingly addresses another topic) not just of the requirements of the Presidential Records Act, but also that she got formal notice of those requirements in 2017.

The Select Committee would like to discuss this effort after January 6th to persuade President Trump not to associate himself with certain people, and to avoid further discussion regarding election fraud allegations. We also wish to share with you a memorandum from former White House Counsel Donald McGahn (attached), regarding the legal requirements on White House personnel to turn over to the National Archives any work-related messages from personal devices. We wish to be certain that former White House staff are fully aware of these obligations.

Ivanka, of course, is not just the former President’s daughter. She’s also someone legally obliged to share all the communications conducted while performing whatever role it is she played in the White House — up to and including begging her Daddy to call off a violent mob — with the National Archives.

Thompson would not have mentioned this if the committee had been able to obtain Ivanka’s side of many of these communications from the Archives (or at least seen them in documents Trump was attempting to claim privilege over). Thompson seems to know that Ivanka is not in compliance with the Presidential Records Act specifically as it pertains to her role on January 6.

Here’s the thing about conspiracies. Once you join them, you’re in them — you’re on the hook for what all other co-conspirators do, from acquiring weapons to bring to DC, to assaulting cops, to planning to overthrow the government — unless you make an affirmative effort to leave the conspiracy.

Ivanka might well point to that comment in her statement — The violence must stop immediately — as an effort to leave a conspiracy.

Except if she is covering up some of the things she knows by withholding records from the Archives, she’s going to have a hard time arguing that she didn’t remain in the conspiracy with all those people plotting violence by helping to cover it up.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

These are all parts of a much bigger conspiracy.

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

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

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

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

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

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

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

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

It was worth a shot!

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

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

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

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

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

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

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

Select Committee Witness Requests

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

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 Trump to Willard War Room to Militia Connection

The name Roger Stone does not appear in the Guardian story reporting that the January 6 Committee will soon seek more information on Trump’s calls to the Willard Hotel late on January 5 and on January 6, as he faced the prospect that Mike Pence would not violate his oath and fail to certify the legitimate winner of the election.

Congressman Bennie Thompson, the chairman of the House select committee investigating the Capitol attack, has said the panel will open an inquiry into Donald Trump’s phone call seeking to stop Joe Biden’s certification from taking place on 6 January hours before the insurrection.

The chairman said the select committee intended to scrutinize the phone call – revealed last month by the Guardian – should they prevail in their legal effort to obtain Trump White House records over the former president’s objections of executive privilege.

“That’s right,” Thompson said when asked by the Guardian whether the select committee would look into Trump’s phone call, and suggested House investigators had already started to consider ways to investigate Trump’s demand that Biden not be certified as president on 6 January.

Thompson said the select committee could not ask the National Archives for records about specific calls, but noted “if we say we want all White House calls made on January 5 and 6, if he made it on a White House phone, then obviously we would look at it there.”

Instead, the story lists a bunch of people who have been even less cooperative with the Jan 6 investigation than Stone.

The former president’s remarks came as part of wider discussions he had with the lieutenants at the Willard – a team led by Trump lawyers Rudy Giuliani, John Eastman, Boris Epshteyn and Trump strategist Steve Bannon – about delaying the certification, the sources said.

The story also mentions that the Jan 6 Committee is finally considering a subpoena to Rudy Giuliani — a subpoena that will hit just as debates over crime-fraud excepted conversations start to appear on the SDNY docket.

A spokesperson for the select committee declined to comment about what else such a line of inquiry might involve. But a subpoena to Giuliani, the lead Trump lawyer at the Willard, is understood to be in the offing, according to a source familiar with the matter.

The underlying Guardian story had noted that the calls to the Willard proved a direct tie between the White House and the war room.

Trump’s remarks reveal a direct line from the White House and the command center at the Willard.

The reason I raise Stone is that the repeated reports from Joshua James to Oath Keeper field commander Mike Simmons about a VIP disgruntled about his shoddy treatment — a VIP that is almost certainly Stone — show there was a direct tie from the Willard to one of several militias who were instrumental in breaching the Capitol from multiple points.

Particularly given the confirmation that the government believes he was lying, I’d like to point to some redacted references to a VIP that Joshua James was guarding who was bitching that he wasn’t getting VIP treatment.

This is likely Roger Stone. That’s true because — as Dan Friedman reported — James was “guarding” Stone that day (and Simmons guarded Stone the previous day), the name seems to fit, and Stone has publicly complained about his treatment that day.

While exchanging calls with Simmons, James traveled from the Willard Hotel, in downtown Washington—where he had been leading a security detail guarding Stone—to the Capitol.

What appears to be the first reference to this person also seems to fit the name, which would be the full name, Roger Stone, on first reference. Roberto Minuta, Jonathan Walden, and the now-cooperating Mark Grods were also guarding Stone.

Which brings us to the middle reference. Simmons claims that James called him every time his VIP moved.

Only, if that VIP was Roger Stone, he didn’t move. By his own account he stayed at the Willard before taking his bruised ego and leaving town.

If that’s right, it means Simmons was trying to explain multiple calls with James, and to do so, he offered the bullshit excuse that Stone, who by his own account never left the Willard, kept moving.

These reports in on said VIP’s non-movement would have taken place the morning before the assault on the Capitol, during the same period when, the Guardian reports, Trump alerted the Willard war room that Pence was likely going to put his duty to the Constitution over his fealty to Donald Trump.

The Guardian reports that Thompson may go this route to increase pressure on the people who were privy to the contents of those calls. That pressure could work in multiple directions. If it coughed up evidence from a less-damning non-privileged call, it might help SDNY in battles to access such materials from Rudy’s phones. It might increase pressure on John Eastman, a lawyer who has only inconsistently claimed privilege for his conversations with Trump. Or it might cause one or another of Trump’s bottom-feeders — Stone and Steve Bannon — to take the other out.

Even just identifying the times of such calls, though, would provide a way to understand how White House input into the Willard intersected with Willard communications with the Oath Keepers, Willard directions to Congress, and White House pressure on Congress intersected.

Finally, Everyone Is Talking about Trump’s Obstruction on January 6

Twice in the last 24 hours, Liz Cheney has read from texts that Mark Meadows already turned over to the January 6 Committee, showing that everyone from Sean Hannity to Don Jr were desperately contacting Meadows begging him to get Trump to do something to halt the assault on the Capitol.

After reading the names of all the people who’ve protected Trump since, Cheney then described that Meadows’ testimony is necessary to determine whether Trump, “through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes.”

Hours passed without necessary action by the President. These privileged texts are further evidence of President Trump’s supreme dereliction of duty during those 187 minutes. And Mr. Meadows’ testimony will bear on another key question before this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?

With her forceful comments Cheney was, as TV lawyers have finally discovered, invoking the clause of the obstruction statute that DOJ has used to charge hundreds of the most serious January 6 rioters. Liz Cheney was stating that Trump’s actions on January 6 may demonstrate that he, along with hundreds of people he incited, had deliberately attempted to prevent the vote count.

Even as she was doing that a second time today, the judge presiding over most of the Proud Boys cases, Tim Kelly joined his colleague Dabney Friedrich in rejecting the challenge that Ethan Nordean had taken to that same application.*

Again, this issue is not over. There are 2 other ripe challenges to the application, and plenty more pending.

But for the moment, it seems that all three branches of government — prosecutors charging obstruction, judges affirming the viability of the application, and senior members of Congress invoking it as part of the January 6 investigation — agree that the events of the day may amount to obstruction.

Back when I begged TV lawyers to start focusing on this application, I laid out the things that Trump had or may have done, that might be proof of obstruction.

  • Agreeing (and ordering subordinates) to plan and participate in an effort to obstruct the vote certification
  • Encouraging the Proud Boys to believe they are his army
  • Personally sowing the Big Lie about voter fraud to lead supporters to believe Trump has been robbed of his rightful election win
  • Asking subordinates and Republican politicians to lie about the vote to encourage supporters to feel they were robbed
  • Encouraging surrogates and campaign staffers to fund buses to make travel to DC easier
  • Using the January 6 rally to encourage as many people as possible to come to DC
  • Applauding violence in advance of January 6 and tacitly encouraging it on the day
  • Recruiting members of Congress to raise challenges to the vote count
  • Asking members of Congress to delay evacuation even as the rioters entered the building, heightening the chance of direct physical threat (and likely contributing to Ashli Babbitt’s death)
  • Asking Mike Pence to do something unconstitutional, then targeting him after he refused, virtually ensuring he would be personally threatened
  • Possibly muddling the line of command on which civilian agency would coordinate response, ensuring there would be none
  • Possibly taking steps to delay any Guard response at the Capitol
  • Possibly ignoring immediate requests from help from leaders of Congress

The January 6 Committee has already collected evidence demonstrating many of these issues, for example, the efforts to sow the Big Lie, including coordination with Congress, reveling in the collecting mobs, directing Guard deployment in ways that would support the insurrection, the unbelievable pressure on Mike Pence to violate his oath to the Constitution. In the interim four months, the press and Committee have identified other potential means of obstruction, such as ordering Alex Jones to bring his mob to the Capitol.

This is not a guarantee that Trump will be prosecuted. But all three branches of government now agree on the framework with which he might be held accountable.

*As I now understand it, Kelly announced yesterday that he will be denying the motion to dismiss later this week. He has not done so formally yet, but announced it yesterday in conjunction with his denial of renewed bail motions from three defendants.

Bennie Thompson Will Need to Bill FBI for the Affidavits He’s Writing for Them

Before Mark Meadows decided to renege on his partial cooperation with the January 6 Committee, according to a letter Chairman Bennie Thompson wrote his lawyer, George Terwilliger, Meadows had already turned over the following:

  • A number of emails sent from Meadows’ personal email account, as well as a privilege log withholding “several hundred” documents from his email account citing Executive, Attorney-Client, or other privileges. Those emails include:
    • A November 7, 2020 email discussing the appointment of alternate slates of electors as part of a “direct and collateral attack” after the election
    • A January 5, 2021 email about a 38-page PowerPoint briefing entitled, “Election Fraud, Foreign Interference, & Options for 6 JAN” that was to be shared “on the hill”
    • A January 5, 2021 email about having the National Guard on standby
  • Some text messages Meadows retained before he got rid of his personal phone while a criminal investigation was pending, as well as a privilege log invoking Executive, Attorney-Client, and other privileges withholding over 1,000 texts. The texts turned over include:
    • A November 6, 2020 text with a Member of Congress about appointing alternate electors as part of a plan that the Member acknowledged would be “highly controversial” about which, Meadows said, “I love it”
    • A January 2021 text message with an organizer of the January 6 rally at the Ellipse
    • Text messages about the need for the former President to issue a public statement that could have stopped the January 6th attack on the Capitol

According to Thompson, having turned over some fairly damning stuff, Meadows reneged on cooperating for two reasons: First, because the Committee intended to force him to invoke individualized privilege claims in response to questions. And perhaps even moreso, because the Committee filed a subpoena with Meadows’ cell phone carrier for “call data records.”

Indeed, a lawsuit Meadows filed after negotiations broke down yesterday is particularly concerned about the subpoena to Verizon, which he describes this way:

The Verizon subpoena, issued by the Select Committee on November 22, 2021, instructs Verizon to produce subscriber information and cell phone data associated with Mr. Meadows’s personal cell phone number. The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon subpoena requested all Mr. Meadows’ personal cell phone data for four months: from October 1, 2020 and January 31, 2021.

Meadows says that, given his provision of texts and a privilege log, the only thing that Verizon subpoena would show is his IP logins.

The Verizon subpoena seeks Mr. Meadows’ cell phone metadata, despite the fact that he has already provided the Select Committee with his responsive text messages, emails, and the metadata attached thereto.

The only additional information that could be gleaned by the Verizon subpoena is either privileged or concerns Mr. Meadows’ internet protocol and data-connection detail records.

It’s only true that the Verizon subpoena would show nothing other than what Meadows provided if Meadows included all his communications, either handed over or in the privilege log. But if he deliberately left stuff out, the subpoena would make that clear.

Meadows goes on at length in his lawsuit about how subpoenas from the January 6 Committee are invalid and how their refusal to accept a former President’s invocation of Executive Privilege for things his Chief of Staff wrote about in a book and on his personal cell phone.

So, as a result of that, Chairman Thompson and Vice Chair Liz Cheney have announced, they’re still going to go ahead and refer Meadows to DOJ for criminal contempt.

I’m going to hazard a guess and say that DOJ will not charge Meadows for contempt. But it’s not for the reason you think.

It’s because, first of all, DOJ has just gotten a record of enough suspicious behavior that they will use it (if they haven’t already) to get the very same call records Meadows is desperate to withhold from Congress. DOJ only needs to show relevance to their investigation to obtain those records, and Verizon will and has been, for other subjects of the January 6 investigation, gag the request to protect the ongoing investigation.

And by the time the Committee and Congress approve of a full report supporting contempt — Steve Bannon’s report was 26 pages — DOJ would have analyzed those call records to see which other January 6 suspects Meadows was in contact with, undoubtedly one of the things he was attempting to hide with his partial compliance and the replacement of his phone during a criminal investigation. And that would provide some evidence to support probable cause warrants for the content Thompson has just explained is available at Verizon and Google. The materials Meadows did turn over — particularly any gaps not covered by Meadows’ privilege logs — would provide further basis to support probable cause warrants. The apparent fact that Meadows was conducting official business on his phone and his Gmail account — but his emails!!! — would be further basis for probable cause. The likelihood, raised by Thompson, that Meadows failed to turn over records to the National Archives that he is now claiming to be covered by Executive Privilege, in violation of the Presidential Records Act, would be further basis for probable cause. And the circumstances of Meadows’ book publication — including any failures to undergo a full prepublication review, something that Trump attempted to prosecute John Bolton for — would be more.

Meadows’ actions thus far have provided a good deal of evidence that DOJ could use to obtain probable cause warrants for his phone and Gmail content, as well as (if they were prepared to do an overt search) the backed up material they know he retained from his old phone. They would have a privilege log for a filter team (though DOJ would be better served by asking a Special Master to check those privilege claims, because they’re probably bogus). And since Biden has already waived privilege over anything covered by the Committee request, DOJ would not have to worry about getting a separate Executive Privilege waiver for any content they obtained.

Thompson and Cheney may well refer Meadows for contempt. But by the time that happens, what Thompson has already made public will give DOJ plenty to kickstart an investigation into why Meadows is so obviously covering up some of his actions relating to January 6.

Rinse, repeat. The obstruction of John Eastman and Jeffrey Clark will likewise go some way to giving DOJ what they need to advance their investigation (though with Clark, DOJ may already have that from the DOJ IG Report). Similarly, once Ali Alexander finishes telling lies that DOJ has already debunked, it will provide DOJ ample cause (on top of what might be probable cause of wire fraud) to advance the investigation into him.

The collective wail from Meadows and Eastman that Congress might get their call records only makes it more likely that DOJ will get those very same call records, for which they need show only relevance. And Bennie Thompson’s transparency about that certainly makes FBI’s job easier.


Because it’s interesting, I’m going to include the list of things (per the lawsuit) that the January 6 Committee asserts could in no way be privileged.

  1. Messaging to or from the White House, Trump reelection campaign, party officials, and others about purported fraud, irregularities, or malfeasance in the November 2020 election. This includes, but is not limited to, Mr. Trump’s and others frequent use of the “Stop the Steal” slogan, even after lawsuits, investigations, public reporting, discussions with agency heads, and internally created documents revealed that there had not been widespread election fraud
  2. White House officials’ understanding of purported election-related fraud, irregularities, or malfeasance in the November 2020 election.
  3. Efforts to pressure federal agencies, including the Department of Justice, to take actions to challenge the results of the presidential election, advance allegations of voter fraud, interfere with Congress’s count of the Electoral College vote, or otherwise overturn President Biden’s certified victory. This includes, but is not limited to, Mr. Trump’s and others’ efforts to use the Department of Justice to investigate alleged election-related conduct, file lawsuits, propose that state legislatures take election-related actions, or replace senior leadership. It also includes similar efforts at other agencies such as the Department of Homeland Security, the Department of Defense, and, among others, the Cybersecurity and Infrastructure Security Agency.
  4. Efforts to pressure state and local officials and entities, including state attorneys general, state legislators, and state legislatures, to take actions to challenge the results of the presidential election, advance unsubstantiated allegations of voter fraud, interfere with Congress’s count of the Electoral College vote, de-certify state election results, appoint alternate slates of electors, or otherwise overturn President Biden’s certified victory. This includes, but is not limited to, an Oval Office meeting with legislators from Michigan, as well as a January 2, 2021 call with, among others, state officials, members of Congress, Mr. Trump, and Mr. Meadows.
  5. Theories and strategies regarding Congress and the Vice President’s (as President of the Senate) roles and responsibilities when counting the Electoral College vote. This includes, but is not limited to, the theories and/or understandings of John Eastman, Mark Martin, former Vice President Pence, and others.
  6. Efforts to pressure former Vice President Pence, members of his staff, and members of Congress to delay or prevent certification of the Electoral College vote. This includes, but is not limited to, meetings between, or including, the former Vice President, Mr. Trump, aides, John Eastman, members of Congress, and others.
  7. Campaign-related activities, including efforts to count, not count, or audit votes, as well as discussions about election-related matters with state and local officials. This includes, but is not limited to, Mr. Meadows’ travel to Georgia to observe vote counting, as well as his or Mr. Trump’s communications with officials and employees in the Georgia Secretary of State’s Office. This also includes similar activities related to state and local officials in Michigan, Wisconsin, Nevada, Arizona, and Pennsylvania.
  8. Meetings or other communications involving people who did not work for the United States government. This includes, but is not limited to, an Oval Office meeting on December 18, at which Mr. Trump, Michael Flynn, Patrick Byrne, and others discussed campaign-related steps that Mr. Trump purportedly could take to change the outcome of the November 2020 election and remain in office for a second term, such as seizing voting machines, litigating, and appointing a special counsel. It also includes communications with organizers of the January 6 rally like Amy Kremer of Women for America First.
  9. Communications and meetings with members of Congress about the November 2020 election, purported election fraud, actual or proposed election-related litigation, and election-related rallies and/or protests. This includes, but is not limited to, a December 21, 2021 meeting involving Mr. Trump, members of his legal team, and members of the House and Senate, during which attendees discussed objecting to the November 2020 election’s certified electoral college votes as part of an apparent fight “against mounting evidence of voter fraud.”
  10. Efforts by federal officials, including White House staff, Mr. Trump, the Trump reelection campaign, and members of Congress to plan or organize rallies and/or protests in Washington, D.C. related to the election, including, but not limited to, the January 6 rally on the Ellipse.
  11. Advance knowledge of, and any preparations for, the possibility of violence during election-related rallies and/or protests in Washington, D.C.
  12. Events in the days leading up to, and including, January 6. This includes, but is not limited to, campaign-related planning and activities at the Willard Hotel, planning and preparation for Mr. Trump’s speech at the Ellipse, Mr. Trump and other White House officials’ actions during and after the attack on the U.S. Capitol, and contact with members of Congress, law enforcement, the Department of Defense, and other federal agencies to address or respond to the attack.
  13. The possibility of invoking martial law, the Insurrection Act, or the 25th Amendment based on election-related issues or the events in the days leading up to, and including, January 6.
  14. The preservation or destruction of any information relating to the facts, circumstances, and causes relating to the attack of January 6th, including any such information that may have been stored, generated, or destroyed on personal electronic devices.
  15. Documents and information, including the location of such documents and information, that are responsive to the Select Committee’s subpoena. This includes, but is not limited to, information stored on electronic devices that Mr. Meadows uses and has used.
  16. Topics about which Mr. Meadows has already spoken publicly. This includes, but is not limited to, Mr. Meadows’ February 11, 2021, appearance on the Ingraham Angle show to discuss the January 6 attack on the U.S. Capitol, Mr. Trump’s reactions to the attack, and the National Guard.

Donald Trump Would Withhold Evidence about Whether Enrique Tarrio Really Did Visit the White House Last December

One of the most dramatic events of 9/11 came when Dick Cheney authorized the shootdown of United flight 93, and only afterwards contacted President Bush to confirm the order.

At some time between 10:10 and 10:15, a military aide told the Vice President and others that the aircraft was 80 miles out.Vice President Cheney was asked for authority to engage the aircraft.218 His reaction was described by Scooter Libby as quick and decisive, “in about the time it takes a batter to decide to swing.” The Vice President authorized fighter aircraft to engage the inbound plane. He told us he based this authorization on his earlier conversation with the President.The military aide returned a few minutes later, probably between 10:12 and 10:18, and said the aircraft was 60 miles out. He again asked for authorization to engage.TheVice President again said yes.219

At the conference room table was White House Deputy Chief of Staff Joshua Bolten. Bolten watched the exchanges and, after what he called “a quiet moment,”suggested that theVice President get in touch with the President and confirm the engage order. Bolten told us he wanted to make sure the President was told that the Vice President had executed the order. He said he had not heard any prior discussion on the subject with the President.220

The Vice President was logged calling the President at 10:18 for a two-minute conversation that obtained the confirmation. On Air Force One, the President’s press secretary was taking notes; Ari Fleischer recorded that at 10:20, the President told him that he had authorized a shootdown of aircraft if necessary.221

The revelation was an early warning about Cheney’s willingness to assume the power of the President. But identifying it also allowed the government to consider tweaking presidential authorities and improving communications for such moments of crisis.

We know this happened, as laid out in the 9/11 Report, based on Switchboard Logs that recorded Cheney’s call to Bush, the Presidential Daily Diary recounting the President’s and Vice President’s actions, and Press Secretary Ari Fleischer’s notes.

218.White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

219. For Libby’s characterization, see White House transcript, Scooter Libby interview with Newsweek, Nov. 2001. For the Vice President’s statement, see President Bush and Vice President Cheney meeting (Apr. 29, 2004). For the second authorization, see White House notes, Lynne Cheney notes, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001.

220. Joshua Bolten meeting (Mar. 18, 2004); see also White House notes, Lewis Libby notes, Sept. 11, 2001 (“10:15–18:Aircraft 60 miles out,confirmed as hijack—engage?VP:Yes.JB [Joshua Bolten]:Get President and confirm engage order”).

221. For the Vice President’s call, see White House record, Secure Switchboard Log,Sept.11,2001; White House record, President’s Daily Diary, Sept. 11, 2001;White House notes, Lewis Libby notes, Sept. 11, 2001. Fleischer’s 10:20 note is the first mention of shootdown authority. See White House notes, Ari Fleischer notes, Sept.11,2001; see also Ari Fleischer interview (Apr. 22, 2004).

These are precisely the kinds of records that, according to a declaration from the White House Liaison with the National Archive, Donald Trump wants to withhold from the January 6 Select Committee, including from Committee Co-Chair Liz Cheney. The declaration was submitted in support of a filing opposing Trump’s effort to invoke privilege over such files. Politico first reported on the filing.

According to NARA’s Liaison John Laster, Trump is attempting to invoke privilege over precisely the analogous records from during the January 6 terrorist attack: presidential diaries, switchboard records, and Press Secretary Kayleigh McEnany’s records.

32. First Notification: The First Notification includes 136 pages of records transferred to NARA from (i) the files of Chief of Staff Mark Meadows, (ii) the files of Senior Advisor to the President Stephen Miller, (iii) the files of Deputy Counsel to the President Patrick Philbin, (iv) the White House Daily Diary, which is a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities, (v) the White House Office of Records Management, and (vi) the files of Brian de Guzman, Director of White House Information Services.

31. President Trump made particularized assertions of executive privilege over 46 of these 136 pages of records (including seven pages of records that, as noted above, had been removed as non-responsive). He asserted privilege over: (i) daily presidential diaries, schedules, appointment information showing visitors to the White House, activity logs, call logs, and switchboard shift-change checklists showing calls to the President and Vice President, all specifically for or encompassing January 6, 2021 (30 pages); (ii) drafts of speeches, remarks, and correspondence concerning the events of January 6, 2021 (13 pages); and (iii) three handwritten notes concerning the events of January 6 from Mr. Meadows’ files (3 pages).

32. Second Notification: The Second Notification includes 742 pages of records transferred to NARA from: (i) the files of Chief of Staff Mark Meadows; (ii) the White House Office of the Executive Clerk; (iii) files from the White House Oval Office Operations; (iv) the files of White House Press Secretary Kayleigh McEnany; and (v) Senior Advisor to the President Stephen Miller.

33. President Trump made particularized assertions of executive privilege over 656 of these 742 pages of records. He asserted privilege over: (i) pages from multiple binders containing proposed talking points for the Press Secretary, interspersed with a relatively small number of related statements and documents, principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election (629 pages); (ii) presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally, including January 6 (11 pages); (iii) draft text of a presidential speech for the January 6, 2021, Save America March (10 pages); (iv) a handwritten note from former Chief of Staff Mark Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues (2 pages); and (v) a draft Executive Order on the topic of election integrity (4 pages).

34. Third Notification: The Third Notification includes 146 pages of records transferred to NARA from (i) the White House Office of the Executive Clerk and (ii) the files of Deputy White House Counsel Patrick Philbin.

35. President Trump made particularized assertions of executive privilege over 68 of these 146 pages of records. He asserted privilege over: (i) a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails from the files of the Office of the Executive Clerk (53 pages); and (ii) records from the files of Deputy White House Counsel Patrick Philbin, including a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won (4 pages), an email chain originating from a state official regarding election-related issues (3 pages), talking points on alleged election irregularities in one Michigan county (3 pages), a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions (3 pages), and notes apparently indicating from whom some of the foregoing were sent (2 pages). [my emphasis]

While the (very good) DOJ filing describes that Trump is withholding documents that prior Presidents had shared, it doesn’t provide examples of the how useful this information had been in understanding past terrorist attacks.

And these documents aren’t even the potentially most damning documents, either.

Because the committee request asks for communications referring to the Proud Boys’ and election results and includes Enrique Tarrio on a list of enumerated individuals covered by the request, the response from NARA might reveal whether the Proud Boys’ leader was telling the truth when he claimed to visit the White House on December 12, or whether the White House truthfully reported that he had simply joined a tour of the building.

All documents and communications referring or relating to QAnon, the Proud Boys, Stop the Steal, Oath Keepers, or Three Percenters concerning the 2020 election results, or the counting of the electoral college vote on January 6, 2021.

From April 1, 2020, through January 20, 2021, all documents and communications concerning the 2020 election and relating to the following individuals:

[snip]

Enrique Tarrio,

[h/t miladysmama for this observation]

The attempt to withhold basic White House documents about who showed up when is not, just, an obvious attempt by Donald Trump to cover up his own crimes. It’s not just an attempt to hide how, in contrast to Dick Cheney, he did nothing as the nation’s capital was attacked.

It’s also an attempt to hide whether Trump invited the terrorists inside the White House to plot the event.