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The “Escalating,” “Aggressive,” “Intensifying” Step of Subpoenaing Key Witness Mark Meadows

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CNN and WSJ have reported, using all the typical hype words (see this thread for a collection of similar bullshit language), that Jack Smith’s team has subpoenaed Mark Meadows. But neither has included the most important information about the subpoena: what they’re really looking for.

They report only that Smith wants documents and testimony pertaining to January 6.

Special counsel Jack Smith’s office is seeking documents and testimony related to January 6, and Meadows received the subpoena sometime in January, the source said.

Neither Meadows’ attorney, the very good George Terwilliger, nor DOJ commented on this news, meaning it almost certainly came from one of the Trump lawyers who feeds all these stories, possibly even with the inflammatory adjectives.

It is not “aggressive” to subpoena one of the centrally important witnesses. It was not “aggressive” for the January 6 Committee to subpoena Meadows among their first investigative steps. It was not “aggressive” for Fani Willis to subpoena Meadows.

What is unusual is subpoenaing someone who is likely a key subject if not a target of the investigation, two years into the investigation, especially after he spent at least nine months trying to retroactively comply with the Presidential Records Act by providing the Archives communications he should have preserved in the first place, after which prosecutors obtained the communications from the Archives directly.

Indeed, DOJ’s Justice Manual requires specific approvals before subpoenaing someone if the person is a target.

If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a “target,” careful attention will be paid to the following considerations:

  • The importance to the successful conduct of the grand jury’s investigation of the testimony or other information sought;
  • Whether the substance of the testimony or other information sought could be provided by other witnesses; and
  • Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege.

Mind you, DOJ’s investigation, going back long before Smith joined it, has had to reach this bar on the testimony or legal process covering others by dint of various privileges, including attorney-client, executive, and speech and debate. But thus far, DOJ has usually used warrants, not subpoenas, with people who might be subjects or targets of the investigation.

There’s one known exception, of a person at the center of suspected crimes who nevertheless received a subpoena: Rudy Giuliani, in November (the CNN report on the subpoena emphasized the request for documents, but Reuters’ coverage said the subpoena asked for testimony as well). Notably, though, given how centrally involved Rudy was in suspected crimes leading up to the coup attempt, that subpoena asked for documents pertaining to the potential criminal behavior — the misspending of money raised by Save America PAC — of others. Indeed, DOJ seems to be treating subpoenas about discreet topics individually, meaning a witness who might have a good deal of exposure in one area may nevertheless be asked to testify about another area.

Something similar could be true here.

Trump’s PAC gave Meadows’ NGO, Conservative Partnership Institute, $1 million long after January 6, and CPI received the bulk of the money spent by the PAC.

Trump’s Save America PAC on July 26 gave $1 million to the Conservative Partnership Institute, the group where Meadows is a senior partner.

The donation came less than four weeks after the House voted to establish a select committee to investigate the January 6, 2021, insurrection at the US Capitol. In December, the House voted to recommend that the Department of Justice pursue criminal charges against Meadows for refusing to cooperate with the committee’s probe.

Trump’s political organization has amassed $122 million in cash reserves, his team announced Monday.

The $1 million to Meadows’ non-profit made up most of the $1.35 million in donations that Trump’s PAC disbursed to political organizations and candidates in the second half of 2021.

Since then, the organization has been described as the “insurrectionists’s clubhouse,” the key player in efforts to push the Republican Party even further right, including during Kevin McCarthy’s fight to be Speaker.  The policies pursued by Meadows’ organization are not, on their face at least, criminal; they would be protected by the First Amendment. But Trump’s decision to fund it using funds raised promising the money would be used for something else might be.

Who knows? Maybe the subpoena seeks information more central to the events leading up to January 6. Perhaps it’s an effort to obtain Signal texts that Meadows didn’t otherwise turn over to the Archives. Perhaps Terwilliger is just that good, and Meadows is out of legal danger for his role in stoking a coup attempt.

But the most interesting detail of this subpoena is not that DOJ sent it, but that someone so obviously exposed himself would get one.

Update: Roger Sollenberger, one of the best campaign finance reporters, has a long discussion of how Trump laundered money from the Save America PAC through other entities, including CPI.

Trump’s National Security Adviser Responded to an Attack on the Capitol by Sending Personal Tweets

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As former National Security Adviser Robert O’Brien tells it — or told it, in his August 2022 interview with the January 6 Committee — he responded to an attack on the Capitol by sending personal tweets.

CNN reported last week that O’Brien will soon have the opportunity to tell a more credible story to both of Special Counsel Jack Smith’s grand juries, which is why I decided to read the transcript of O’Brien’s interview with the January 6 Committee.

Presumably, Smith wants to ask O’Brien about Trump’s firing of people who questioned his authority to invoke the Insurrection Act, a topic that like recent witness Johnny McEntee, O’Brien addressed in his January 6 interview. Perhaps Smith wants him to explain the plot to seize voting machines and other details surrounding the December 18 meeting, which recent witness Ken Cuccinelli addressed. O’Brien may be asked about his challenge to Cassidy Hutchinson’s credibility in his own January 6 testimony, perhaps the only person who has questioned her testimony who hasn’t since been discredited.

Given the CNN report that he would testify before both the January 6 and the stolen document grand juries, he may be asked about his knowledge of plans to take documents pertaining to topics Trump obsessed about, not just the Russian investigation (which O’Brien calls, “Russiagate hoax documents”), but also specific intelligence about Venezuela; O’Brien claims not to remember anything about the efforts to declassify documents to take.

But the most striking aspect of O’Brien’s transcript was his admitted failure to do much of anything as the Capitol was attacked.

To be fair, the appearance of O’Brien’s almost complete inaction as the Capitol was attacked stems, in part, from his own forgetfulness. He claims to remember only one interagency planning meeting in advance of January 6, even though other witnesses testified to several. He only recalls a concern about threats to the White House in advance, not the Capitol. He doesn’t recall briefing the President, the Chief of Staff, or the White House Counsel of intelligence in advance of the attack. He doesn’t recall any talk of Trump marching to the Capitol.

He recalls speaking to Mike Pence during the attack, but can’t recall most details about the conversation.

He recalls speaking to Biden National Security Adviser Jake Sullivan, who would not assume power for another two weeks. But he can’t recall whether he spoke to Chief of Staff Mark Meadows during the attack.

He recalls that his Deputy Matthew Pottinger called him and told him he had to resign, but can’t recall that he did so specifically in response to Trump’s text targeting Mike Pence.

He’s certain he made no effort to speak to the President as a mob of his supporters attacked a co-equal branch of government. He did not do so, he explained, because he was in Miami and wanted to speak to the President in person.

The story O’Brien told of his actions leading up to and on January 6 was of breath-taking dereliction of duty.

When asked specifically how he responded to learning that the President’s supporters were attacking the Capitol, he explained he sent some personal Tweets.

Q Okay. All right. So let’s talk about then what you did after receiving that information. What steps did you take now that you’re aware of this violence at the Capitol and had this conversation with the [Vice, sic] President? What did you do next?

A So I did a couple of things. I’m not sure the exact order in which I did them.

Q Okay.

A One is I put out a series of tweets on my personal Twitter account.

[snip]

Q Okay. All right. So, again, you didn’t take any action in particular response to this [Trump’s tweet].

Your tweets don’t start until a bit later, your personal tweets that you sent out.

A Yeah, I’m not sure what time my tweets came out, but I wouldn’t say it’s in direct response to this, but I did tweet that I thought the Vice President was courageous.

Q Yeah, you did.

[snip]

All right. The next one up says, “My first experience in government was serving as an intern for Senator Hayakawa of California. What the mob did to our Senate chamber today was an utter disgrace.”

Again, what motivated you to put that out? And do you remember roughly when that was?

A So, again, I don’t recall — and I don’t have a time or a date stamp on this. I think that was the first tweet that I put out on my personal account.

Q I think this is — you’re right — from your personal account, not the official NSA account.

A Correct. And I wanted to get some tweets out on my personal account because I didn’t have to go through a White House clearance process or get others involved. I wanted to try and act, you know, somewhat quickly and make sure the people that — to the extent anyone followed it or was interested, that was my view.

There were some other calls — to Mike Lee and Mitt Romney, for example. But seemingly no coordination of any response. Just tweets about the internship he had when he was 14.

There are certainly reasons to doubt his forgetfulness. At other times, he uses other tactics to avoid discussing whether he had direct contacts with Trump or anyone else of substance, like invoke Executive Privilege over his own feelings.

Q Were you frustrated, Ambassador O’Brien, with the President’s conduct on January 6th?

Mr. Larson. I think this starts to get into — invariably gets into communications with the President and impressions of the President and all that. So I’m going to assert executive privilege here.

And there’s good question of how diligently O’Brien searched for communications relevant to his testimony.

For example, there was a damning document: a draft concession speech that O’Brien wrote for Trump on December 21. O’Brien sent it from his home email account to his White House email account — because maybe his printer was out of paper, he mused.

Q 9 o’clock at night on the 21st.

A Yeah. So I was obviously at home. I probably sent it because I didn’t have a printer. I probably didn’t want to print it or didn’t have a printer at home or it may have been out of paper or something.

And this is something I did on what I considered was my own time. I thought it was — I think by this time the electoral college had already voted, and I think that the primary lawsuits that the President’s legal team had brought had been decided. You know, I can’t be certain, but I’d probably seen that on the news.

And I thought it would be — I thought I’d draft up what was in essence a concession speech, but put it in language that might appeal to the President and I thought might be something that the President could — the type of speech that the President would feel comfortable giving, but at the same time would convey the message that he conceded the election. And I thought it would be good for him and for the country.

O’Brien claims the only one he shared it with at the White House was his own Chief of Staff, not Trump’s or not Trump himself.

Q Did you share this with anyone after you sent it to your own official White House account?

A Yes.

Q With whom?

A I believe I shared it with Alex Gray, my chief of staff.

Q Your chief of staff. I see.

A Right.

Q How about Mark Meadows or the President himself?

A No. I don’t believe I did.

What’s interesting is not just that O’Brien sent it, but that he didn’t turn over an email sent from his own account in his production to the committee. The document should have been turned over to the committee by both O’Brien himself and the Archives. The committee only got the Archives copy

Q Okay. Let me show you another exhibit, this is No. 9, that is an email from your personal account to your official account. I don’t recall if this came from your production or from the Archives.

A I think this came from your production.

Q Yeah. I think that’s right. This is a record produced by the National Archives.

O’Brien wasn’t giving anything up.

And that’s why I find this exchange showing the National Security Adviser — the National Security Adviser!!! — explaining how he was doing business on Signal and WhatsApp and no, he’s not entirely sure whether all his texts got archived properly so suspect.

Q Ambassador O’Brien, how about any other messaging applications, like Signal or Telegram or WhatsApp? Did you use any of those platforms to conduct any official business when you were National Security Advisor?

A I did.

Q Okay. Which of those platforms did you use?

A I think I received some messages from people on WhatsApp and on Signal.

Q All right. And again, tell us what the circumstances would be that would trigger the use of those platforms versus the White House email account or your official device.

A So on the official devices, there was no ability, I don’t think, to put on Signal or any of the other applications.

There were some foreign ambassadors or foreign ministers that would want to get in touch with you and they tended to us Signal or WhatsApp.

[snip]

Q  I’m just wondering sort of the general circumstances that would cause you to go to WhatsApp or Signal. Was it just, hey, it’s a foreign leader, so that’s the platform that he or she uses? Or would you, beyond that, use it for other reasons as well?

A Yeah. So I’m not a consumer of social media or those sorts of applications for the most part. There were some foreign leaders that asked for my cell phone number so that they could connect via Signal, because I think some foreign leaders from time to time would reach out and they were concerned about intercept and they felt there was some safety — that was their opinion — there was some safety. My opinion was different. But they wanted to communicate by Signal or WhatsApp, but it was on rare occasions.

Q I see. Okay. And beyond that, Ambassador O’Brien, would you use WhatsApp or Signal to talk to someone on a personal matter or campaign related or things that you wanted to ensure were kept off of the official government channel?

A Yeah, not that I recall. That was not my practice.

Given how little else he recalls about his job, suffice it to say this “do not recall” whether he used Signal or WhatsApp for other purposes deserves some skepticism, particularly given that everywhere he relies on the committee to pull up call records. Especially given his lackadaisical attitude about preserving whatever Signal texts he sent, at least with foreign ambassadors.

Q Got it. All right. Now, on the subject of these personal devices or accounts, did you provide all [inaudible] with the official communications from these personal accounts to the National Archives when you completed your tenure as National Security Advisor?

A So I don’t know if I had any information on those devices. I do know that when I left the job at the State Department there were some conversations I took screenshots of and I left those behind for the State Department for my files. So that was my practice there.

When it comes to the leaving as NSA, I may have had — you know, I don’t recall, I don’t recall if I screenshotted. I know I screenshotted a few things. I don’t know if they were left behind for the Archives. That would have been my practice. But again, I can’t recall.

It is undeniably true that Robert O’Brien responded to an attack on the Capitol by Tweeting, on his personal account, that Mike Pence was courageous.

But it is also the case that there’s a whole lot of forgetting going on here that looks more like a gap in communications records than anything else.

Which may be on of the biggest things for which Jack Smith would like to get O’Brien on the record.

Trump Worked with People Who Allegedly Worked with the Proud Boys to Obstruct the Peaceful Transfer of Power

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By my count, at least 14 people are known to have pled guilty to some kind of conspiracy on January 6, with four more cooperating against them. Another four were found guilty of one or more conspiracy in November’s Oath Keeper verdict. Eighteen people, in one way or another have been convicted of conspiring to prevent the peaceful transfer of power on January 6, most by obstructing the vote certification.

Trump played a key part in all those conspiracies.

Ronnie Sandlin, for example, first started planning to go, armed, to DC in response to Trump’s December 19 tweet, posting on December 23 that he planned to “stop the steal and stand behind Trump when he decides to cross the rubicon.” After he watched Trump’s speech on January 6, Sandlin did a live stream where he said, “I think it is time to take the Capitol.” Once he arrived at the Capitol, Sandlin and co-conspirator Nate DeGrave participated in tactically critical assaults on cops in two places, the East door and the door to the Senate gallery. After Sandlin helped him get into the gallery, Josiah Colt then rappelled from the gallery to the Senate floor.

Like Sandlin, Brad Smith started arming himself and planning to come to DC in response to Trump’s December 19 tweet.

The call to action was put out to be in DC on January 6th from the Don himself. The reason is that’s the day pence counts them up and if the entire city is full of trump supporters it will stop the for sure riots from burning down the city at least for awhile.

By December 31, Smith predicted, “Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.” Smith and his co-conspirator, Marshall Neefe, participated in an assault on cops using an 8′ by 10′ Trump sign. And after the attack he boasted that the mission was successful because “we literally chased them out into hiding. No certification lol.”

Trump played a slightly different role in the Oath Keepers conspiracy. The Oath Keepers — Stewart Rhodes above all — viewed Trump as a means to prevent Biden’s election, because as President he could invoke the Insurrection Act and with it (the Oath Keepers believed) make the militias a legal arm of the state, defending Trump. Rhodes repeatedly called on Trump to invoke the Insurrection Act — on November 9, December 12, December 23, and January 6.

He dictated a note to Trump after January 6 asking him to call on the militias as his army to stop Biden from taking power.

For the most part, none of the channels via which Rhodes tried to speak directly to Trump (including Kellye SoRelle’s attempt to work through Rudy Giuliani’s son) are known to have reached Trump.

One of his attempted interlocutors, though, undoubtedly had access to Trump: Roger Stone, on whose Friends of Stone list Rhodes was sharing his plans for insurrection shortly after the election.

DOJ has exploited at least four phones owned by members of the Friends of Stone list: Rhodes and SoRelle, Owen Shroyer, and Enrique Tarrio. Probably DOJ asked for content from Ali Alexander as well (though he disclaimed having any Signal texts to the January 6 Committee).

While a jury found all the Oath Keepers guilty of obstructing the vote certification, with the key exception of Kelly Meggs (who was also in contact separately with the Proud Boys, Roger Stone, Ali Alexander, and alleged 3 Percenter Jeremy Liggett, who in turn had ties to the MAGA Bus Tour) as well as Jessica Watkins, it found the greater part of their conspiracy either overthrowing the government or interfering with with official duties: not obstructing the vote count. Their larger plan to keep Trump in power used different means than Trump used.

That’s not true of the Proud Boy Leaders, who are three days into their trial.

Not only did the Proud Boys allegedly pursue the same plan that Trump was pursuing — obstructing the vote certification on January 6 — but they were in communication with people who were in communication, and central to, Trump’s plan: most notably, Alex Jones, Ali Alexander, and Roger Stone. They were in communication with people who were in communication with people close to Trump during the attack.

Even their telephony records show that Enrique Tarrio, Joe Biggs, and Ethan Nordean were in contact with Alex Jones and Owen Shroyer during the period.

Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Given the known communication habits of the men, it’s possible there are Signal or Telegram communications that were unavailable to the J6C as well.

Alex Jones and Ali Alexander knew in advance they would lead the mob to the Capitol (the January 6 Report offers an unpersuasive explanation that the request came exclusively from Caroline Wren). Roger Stone had planned to join them, probably until he got cranky about being denied a speaking role on the morning of January 6. Mike Flynn wanted to latch on, as well, until the General got too cold and had to go back to his posh hotel room. “Hell no,” he said, according to Caroline Wren. “It’s freezing.”

Meanwhile, even as Shroyer was in touch with Biggs, Alexander was in touch with Caroline Wren, who remained at the Ellipse, and asked for 5-minute updates on the Trump’s progress to the Capitol (the text in question appears to have come from Wren, but may not have been provided in Alexander’s production).

The communication between Proud Boys and Jones in real time is critical because once the riot police showed up and slowed the attack, the Proud Boy leaders pulled up, effectively waiting until Jones appeared. And after Jones did appear, he told the mob following him that Trump was coming to give another speech — something Alexander, and so almost certainly Jones — knew to be false because Wren had told Alexander. Nevertheless, Jones led his mob to the East steps, riled them up with a 1776 chant, and left them there, where they were soon joined by the Oath Keepers (led by Kelly Meggs, who also was in touch with Alexander) and Joe Biggs and some other Proud Boys (including one who had been directing traffic). That collective mob breached the East door of the Capitol, opening a second major front on the Capitol and adding to the invasion of the Senate chamber.

There are rioters who were sentenced to two months in jail because they followed Alex Jones credulously to the top of those steps and joined the mob storming the Capitol.

And it wasn’t just Jones and Alexander who were in touch with Trump’s handlers.

Mark Meadows was, per Cassidy Hutchinson, in communication with Stone about his plans for January 6, at a time when Stone still planned to march to the Capitol with Jones and Alexander.

LIZ CHENEY: Thank you, Mr. Chairman. Before we turn to what Ms. Hutchinson saw and heard in the White House during the violent attack on the Capitol on January 6th, let’s discuss certain communications White House Chief of Staff Mark Meadows had on January 5th. President Trump’s associate, Roger Stone, attended rallies during the afternoon and the evening of January 5th in Washington, DC On January 5th and 6th, Mr. Stone was photographed with multiple members of the Oath Keepers who were allegedly serving as his security detail.

As we now know, multiple members of that organization have been charged with or pled guilty to crimes associated with January 6th. Mr. Stone has invoked his Fifth Amendment privilege against self-incrimination before this committee. General Michael Flynn has also taken the Fifth before this committee. Mr. Stone previously had been convicted of other federal crimes unrelated to January 6th.

General Flynn had pleaded guilty to a felony charge, also predating and unrelated to January 6th. President Trump pardoned General Flynn just weeks after the Presidential election, and in July of 2020, he commuted the sentence Roger Stone was to serve.

The night before January 6th, President Trump instructed his Chief of Staff Mark Meadows to contact both Roger Stone and Michael Flynn regarding what would play out the next day. Ms. Hutchinson, Is it your understanding that President Trump asked Mark Meadows to speak with Roger Stone and General Flynn on January 5th?

CASSIDY HUTCHINSON: That’s correct. That is my understanding.

LIZ CHENEY: And Ms. Hutchinson, is it your understanding that Mr. Meadows called Mr. Stone on the 5th?

CASSIDY HUTCHINSON: I’m under the impression that Mr. Meadows did complete both a call to Mr. Stone and General Flynn the evening of the 5th.

In an earlier interview, when she was still represented by Stefan Passantino, she had attributed the idea for this call to Peter Navarro or a Navarro staffer; the Navarro staffer who had let Mike Flynn into the White House on December 18, Garrett Ziegler, was another White House contact of Ali Alexander’s, in addition to Wren.

All this matters because of the way conspiracy law works, as laid out in the bullet points from Elizabeth de la Vega that I always rely on.

CONSPIRACY LAW – EIGHT THINGS YOU NEED TO KNOW.

One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!

Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.

Three: All co-conspirators have to agree on at least one object of the conspiracy.

Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.

Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.

Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.

Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.

Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

Co-conspirators don’t all have to meet in a room together and agree to enter a conspiracy. That can happen (and did, in the Oath Keepers’ case) via a series of communications which networks everyone.

The demonstrative exhibit prosecutors used in the Oath Keeper trials showed how the various communications channels included everyone, even if some members of the conspiracy only interacted with a limited group of other co-conspirators.

I circled Rhodes and SoRelle in pink to show that even in the Oath Keeper trial, prosecutors treated the Friends of Stone list part of the communications infrastructure of the conspiracy.

Here’s what the larger conspiracy looks like, reflecting  the known communications between Rhodes, Meggs, Tarrio, Biggs, and Nordean and Jones and Stone, and the known communications between Jones and Stone and Alexander with Trump or his handlers, like Meadows, Wren, and Ziegler by way of Navarro.

The numbers and letters in parentheses come from one or another of the indictments charging conspiracy. As you can see, Trump’s known actions map onto the known, charged overt acts of various conspiracies to obstruct the vote count like a mirror.

Obviously, the pink part of this table has not been charged (yet). And it may not be unless prosecutors win guilty verdicts in the Proud Boys case. It also may not be if the obstruction charge gets narrowed on appeal.

For reasons I laid out here, the Proud Boys trial is far more complex than the Oath Keepers trial. And in the Proud Boys trial, like the Oath Keepers trial, prosecutors don’t have a clear map showing that the plan was to occupy the Capitol; instead they have testimony that Biggs and Nordean kept consulting, and everyone took orders from them, and those orders had the effect of sending cells of Proud Boys off to breach parts of the building. So it is not at all certain that prosecutors will win convictions of the men — Tarrio, Biggs, and Nordean — who were working with people who were working with Trump and his handlers.

But this is one of the means via which DOJ has been working to hold Trump accountable since just months after the attack (I first laid this out in July 2021, long before most commentators understood how DOJ was using obstruction).

Even with the disorganized conspiracy (Sandlin and friends), prosecutors have carefully shown how the men took Trump’s December 19 tweet as an explicit instruction, took instructions from a WildProtest flyer put out by Ali Alexander, believed Trump had ordered them to march to the Capitol. There are hundreds more rioters who took Trump’s December 19 tweet as an instruction, though in the case of Sandlin and his co-conspirators, they took steps that were critical to the occupation of the Capitol and the Senate chamber in response.

But with the Proud Boys, to an extent thus far only seen with Oath Keeper Kelly Meggs, the communication ties, via a two step network, to Trump’s own actions and directions. And with the Proud Boys, that coordination builds off years-long relationships, particularly between Biggs and Jones and Stone, and through them, to Trump.

Everyone was working towards the same goal: to prevent Congress from certifying Joe Biden’s victory. There were, in various places, explicit agreements made. There were, as with Trump’s Stand Back and Stand By comment that prosecutors used to kick off this trial, more implicit agreements as well.

And DOJ is now at the point where it is beginning to show how those agreements, explicit and implicit, all worked together to make the assault on the Capitol successful.

Conspiracy guilty verdicts

Oath Keepers Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Kelly Meggs, Mark Grods, Caleb Berry, James Dolan, Joshua James, Brian Ulrich, Todd Wilson (11 conspiracy verdicts)

Proud Boys Matthew Greene, Charles Donohoe, Jeremy Bertino, with Isaiah Giddings, Louis Colon, and James Stewart cooperating (3 known conspiracy verdicts)

Disorganized Militia Ronnie Sandlin, Nate DeGrave, with Josiah Colt cooperating (2 conspiracy verdicts)

“Patriots” Marshall Neefe and Charles Smith (2 conspiracy verdicts)

Proving Trump’s Corrupt Purpose: The Forgotten Unpermitted March

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It’s an object of blind faith among TV lawyers that DOJ must prove that Donald Trump knew he lost the election to be able to charge him under 18 USC 1512(c)(2). That blind faith seems to come from several places. It was part of David Carter’s opinion — which applied 9th Circuit precedent — finding that Trump and John Eastman had the corrupt intent necessary such that Eastman’s communications about efforts to pressure Trump were crime-fraud excepted.

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute.222 However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,”223 meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c). President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent,224 the Select Committee points to numerous executive branch officials who publicly stated225 and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence,227 noting that they made “strained legal arguments without merit and speculative accusations”228 and that “there is no evidence to support accusations of voter fraud.”229 President Trump’s repeated pleas230 for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”231 Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

Many TV lawyers seem to exist in a Green Room bubble, largely insulated from familiarity with the actual DOJ investigation, where they reinforce each other’s blind faith. Stunningly, few of these actual lawyers have paid attention to the long debate over obstruction as DOJ has actually applied it to January 6, not even the December 12 DC Circuit hearing on DOJ’s appeal of a Carl Nichols opinion sharply limiting its application. The TV lawyers rely far more on the Carter opinion than on the Amit Mehta one that — while applying a lower civil standard and addressing an earlier and therefore thinner body of claims — nevertheless was written by a judge who had already written a long 1512 opinion directly relevant to January 6. That is, most TV lawyers’ analysis of any potential case against Trump largely stems from a Ninth Circuit standard, not the hotly debated standard specifically addressing January 6, and largely stems from the white collar crimes Trump is alleged to have committed with John Eastman, not any of his other potential criminal exposure.

It will likely be a few weeks before we learn how the DC Circuit will rule, but my read of the hearing is that Trump appointee Greg Katsas was strongly opposed to DOJ, Trump appointee Justin Walker started out not quite as strongly opposed, but seemed to grow increasingly peeved by defense attorney Nick Smith’s minimization of the uniqueness of January 6, and Biden appointee Florence Pan (who presided over her share of January 6 cases before being elevated to the DC Circuit) favored DOJ’s views. But it’s more complex than that: The Republican judges seemed inclined to overturn DOJ not on the basis before them — whether 1512(c)(2) had to have a documentary component — but on the definition of corrupt purpose, precisely the basis on which TV lawyers rely on Carter’s opinion. Anything could happen: Katsas and Walker could rule against DOJ on the Nichols appeal, only to have DOJ appeal to the full DC Circuit. While procedurally unusual, Katsas and Walker suggested they might remand to Nichols to consider the corrupt purpose definition, in which case it’ll come back on appeal. Or Walker and Pan could rule narrowly for DOJ, with the defendants appealing, possibly directly to the Trump-heavy SCOTUS.

As I alluded in this post, no matter how the DC Circuit rules, it’s likely the ruling would still permit charges against Trump, even while roiling all the cases against the mobsters. That’s because with Trump, there’s a documentary component to his obstruction of the vote certification — the fake elector certificates that Trump associates were flying into DC — that is more attenuated for the mobsters; Trump would meet Nichols’ standard even while the mobsters arguably would not. And with Trump, if Walker were to write an opinion that sided with Pan on the documentary issue but argued for a much more stringent standard on corrupt purpose, requiring a personal benefit to the corruption, it would still apply to Trump. There’s no more obvious example of corruptly chasing a personal benefit than trying to remain President by obstructing the votes from being counted even though Joe Biden had received more votes. It’s probably in this latter scenario where the blind faith claim by TV lawyers that DOJ needs to prove that Trump knew he lost would come into play; because DOJ would likely appeal such an outcome in any case, it’s still more likely that DOJ would be dealing with the standard that most DC District judges have adopted.

That’s why I often return to Dabney Friedrich’s standard, because it is fairly stringent — starting from an analysis of whether someone engaged in otherwise illegal activity. It’s a higher standard than Judge Carter used, but not unlikely to be where we end up for the application of obstruction to January 6.

There are still multiple ways to get there with Trump:

  • Conspiring to making false statements (or even a forgery) to the Federal government with the fake elector certificates, which would require proving that Trump knew of the efforts to deliver those certificates
  • Ordering Mike Pence to do something Trump knew to be illegal, rejecting the certified votes, which would require proving Trump knew the request was illegal
  • Aiding or abetting the violence on January 6, an allegation bolstered by J6C’s focus on Trump’s awareness that his mob was armed when he told them to march on the Capitol
  • Conspiring to obstruct the vote certification by occupying the Capitol, which would require showing that Trump entered into an agreement with people like Alex Jones and Ali Alexander and through them with the Proud Boys and others or by treating his multiple calls to the mob as entering into a conspiracy and his tweet targeting Pence during the riot as ratification of it

The latter description is one of the ways that Judge Mehta ruled that Trump might have conspired with the mob on January 6.

But, as I laid out here, Mehta focused on another element to get to find it plausible that Trump bore responsibility for the attack, which is a fifth way Trump might have exposure: the unpermitted march.

President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”).

[snip]

[T]he President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.”

[snip]

That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands “to fight like hell” immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.

Absent a claim of incitement, asking his followers to march to the Capitol would, generally, be legal. But even before you include the incitement, if Trump knew that he was asking his followers to do something that was not permitted, it would add one more prong showing corrupt purpose.

Mehta relies on this part of his judgment on Bennie Thompson’s own complaint, citing parts of the amended complaint filed in April 2021.

69. After Defendant Trump decided he would speak at the Save America rally on January 6, he became more actively involved in decisions concerning the event, including the speaking lineup and even the music that would be played. Defendant Trump and his campaign proposed that the rally include a march to the Capitol. An organizer of the Save America rally later told reporters he was surprised to learn that the even would involve a march from the Ellipse to the Capitol. Before the White House became involved, he said, the plan had been to stay at the Ellipse until the counting of the Electoral College votes was completed.

[snip]

90. The permit obtained for the Save America rally expressly provided: “This permit does not authorize a march from the Ellipse.” Defendant Trump nevertheless instructed the angry crowd to march from the Ellipse to the Capitol for the purpose of “fight[ing] like hell,” and therefore directed the crowd to take action outside the bounds of what the permit authorized.

That complaint was written in April, before J6C was constituted, much less before it got a ton of witness testimony about how the march came about.

The January 6 Report focuses on the march — particularly, in other sections, on Trump’s desire to participate in it — but it only addresses the issue of permitting of the march (as opposed to other events) in an appendix. [links added]

Within a few days, the White House began to take a more direct role in coordinating the rally at the Ellipse.421 In a December 29th text to Wren, Caporale wrote that after the President’s planned speech there “maybe [sic] a call to action to march to the [C]apitol and make noise.”422 This is the earliest indication uncovered by the Select Committee that the President planned to call on his supporters to march on the U.S. Capitol. But it wasn’t the last. On January 2nd, rally organizer Katrina Pierson informed Wren that President Trump’s Chief of Staff, Mark Meadows, had said the President was going to “call on everyone to march to the [C]apitol.”423 Inside the White House, the President’s intent was well-known. CassidyHutchinson, an aide to Meadows, recalled in her testimony that she overheard discussions to this effect toward the end of December or early January. One such discussion included an exchange between Meadows andRudolph Giuliani that occurred on January 2nd.424 Hutchinson understood that President Trump wanted to have a crowd at the Capitol in connection with what was happening inside—the certification of the electoral count.425 Hutchinson also recalled that President Trump’s allies in Congress were aware of the plan. During a call with members of the House FreedomCaucus, the idea of telling people to go to the Capitol was discussed as a way to encourage Congress to delay the electoral college certification and send it back to the States.426 On January 4th, WFAF’s Kylie Kremer informed Mike Lindell, the CEO of MyPillow and an ally of President Trump, that “POTUS is going to have us march there [the Supreme Court]/the Capitol” but emphasized that the plan“stays only between us.”427 The “Stop the Steal” coalition was aware of the President’s intent. OnJanuary 5th, Ali Alexander sent a text to a journalist saying: “Ellipse thenUS capitol [sic]. Trump is supposed to order us to the capitol [sic] at the end of his speech but we will see.”428

6.14 “WELL, I SHOULD WALK WITH THE PEOPLE.”

President Trump wanted to personally accompany his supporters on the march from the Ellipse to the U.S. Capitol. During a January 4th meeting with staffers and event organizer Katrina Pierson, President Trump emphasized his desire to march with his supporters.429 “Well, I should walk with the people,” Pierson recalled President Trump saying.430 Though Pierson said that she did not take him “seriously,” she knew that “he would absolutely want to be with the people.”431 Pierson pointed out that President Trump “did the drive-by the first time and the flyover the second time”—a reference to the November and December 2020 protests in Washington, DC.432 During these previous events, President Trump made cameo appearances to fire up his supporters. Now, as January 6th approached, the President again wanted to be there, on the ground, as his supporters marched on the U.S. Capitol. The President’s advisors tried to talk him out of it. White House Senior Advisor Max Miller “shot it down immediately” because of concerns about the President’s safety.433 Pierson agreed.434 But President Trump was persistent, and he floated the idea of having 10,000 National Guardsmen deployed to protect him and his supporters from any supposed threats by leftwing counter-protestors.435 Miller again rejected the President’s idea, saying that the National Guard was not necessary for the event. Miller testified that there was no further conversation on the matter.436 After the meeting, Miller texted Pierson, “Just glad we killed the national guard and a procession.”437 That is, President Trump briefly considered having the National Guard oversee his procession to the U.S. Capitol. The President did not order the National Guard to protect the U.S. Capitol, or to secure the joint session proceedings. Although his advisors tried to talk the President out of personally going, they understood that his supporters would be marching.438 Pierson’s agenda for the meeting reflected the President’s plan for protestors to go to the U.S. Capitol after the rally.439 But President Trump did not give up on the idea of personally joining his supporters on their march, as discussed further in Chapter 7.

[snip]

At no point was any permit granted for a march from the Ellipse to the Capitol. The President planned to announce that march “spontaneously.”114

422. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Justin Caporale, (Mar. 1, 2020), p. 44; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0644 (December 29, 2020, text messages with Justin Caporale).

423. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 79-82; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0181 (January 2nd email from Katrina Pierson to CarolineWren and Taylor Budowich).

424. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 32-33, 41; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), pp. 107-08, 135.

425. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), p. 42.

426. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 44-45, 47, 52-54; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), p. 87.

427. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Kylie Kremer Production), KKremer5447, p. 3 (January 4, 2021, text message from Kylie Kremer to Mike Lindell at 9:32 a.m.).

428. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Ali Alexander Production), CTRL0000017718, p. 41 (January 5, 2021 text message with Liz Willis at 7:19 a.m.).

429. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 120-21.

430. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

431. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

432. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

433. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Max Miller, (Jan. 20, 2022), pp. 91-92.

434. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 123.

435. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 121-26.

436. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Max Miller, (Jan. 20, 2022), pp. 98-99.

437. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Max Miller Production) Miller Production 0001, p. 1 (January 4, 2021, text message from Max Miller to Katrina Pierson).

438. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 121.

439. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), p. 95; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Katrina Pierson Production), KPierson0180, at 180, 196-97 (January 4, 2021, President TrumpMeeting Agenda).

While the report shows that Trump was directly involved in several meetings about plans to march to the Capitol, it doesn’t address whether he was told that there not only wasn’t a permit for the march, but that the National Park Service had specifically prohibited such a march. And several people did know that.

Justin Caporale, the guy at Event Strategies whom the report describes the White House selecting to put on the event, described the decision not to formally plan for the march this way.

Q Understood, and I appreciate that. Let’s move on. Mr. Caporale, during the planning for the January 6th event, did you hear anyone suggest that rally-goers should march or walk to the Capitol following the President’s speech?

A In the early days of the planning around that end-of-December timeframe, you know, it was discussed that it would include a march. And after consulting and working with the National Park Service, we decided not to move forward with planning, you know, a march from the Ellipse to anywhere.

Q When you say “it was discussed,” who were those discussions with?

A The National Park Service.

Q Sorry, it sounded like you said it was discussed that there might be a march, and then you had consultations with the Park Service. Were there discussions about a march before you brought it up with the Park Service?

A There were — I don’t recall the exact discussions, no. But I remember talking with the Park Service about it during the permit and application process under the general question of, you know, what is the vision for your event.

Q Let’s go ahead and take a look at exhibit 3, and this might refresh your recollection a little bit. Exhibit 3 are your text messages with Caroline Wren. And if we go to page 7, she sends you an image with a question right there in the middle. And we can zoom in a little bit. This is December 29th, about 2:00 in the afternoon. She writes, any updates from WH on your end? And you write back later that evening, schedule proposal will work its way around tomorrow. Noon seems to be a good time. Then maybe a call to action to march to the Capitol and make noise. Did you have conversations with people in the White House about having a call to action to march to the Capitol and make noise? A No, not to my recollection.

Q So where did you get this information that you sent to Caroline Wren about a call to action to march to the Capitol and make noise?

A I would really view my response at 10:50 as two separate conversations. 14 So, the scheduling proposal will work its way around about noon, noon seems to be a 15 good time, that was in reference to any updates from the White House on your end. 16 And then maybe a call to action to march to the Capitol and make some noise is referring 17 to the discussions we as planners were having with the National Park Service to see if that 18 would be something that would even be possible given the timeframe that we had to 19 plan. 20 Q So my question is, whose idea was it to have a march to the Capitol and 21 make noise?

A I don’t recall whose idea it came from. It was, again, conversations with 23 the client at that point. You know, their event was branded, March for Trump, and it 24 had been for the year leading up to it. So, it was part of those natural discussions, well, 25 should we, you know, submit a permit for a march and coordinate that end of things.

Q I think we’ve established that by this point you had been in touch with folks 2 from the White House. That text message you sent to your parents was December 27th, 2 days before, and this is the same day, December 29th, that you’re texting Max Miller about Women for America First submitting the permit for the Ellipse. Was anybody in5 the White House conveying to you plans about having a call to action to march to the Capitol and make noise at this time?

A No, sir.

Q Why don’t we take a look then at exhibit 15. This is from — this is a text message that you produced. KP is Katrina Pierson, and the other person on the thread is Taylor Budowich. And on January 3rd, at 10:10 in the morning, Ms. Pierson texts, 11 “WH has not approved these speakers. I was asked to modify, and I’ll send over a new draft to you guts” — I think it’s a typo for “guys” — “and POTUS.” And then she writes, “POTUS expectations are intimate and then send everyone over to the Capitol.” So by this time, were you aware that the White House, or representatives from the White House, were considering sending rally-goers to the Capitol following the President’s speech?

A My awareness was limited to, you know, receiving a text message like this. But I was, you know, never given official instructions by my client or anybody to coordinate a march, to plan a march, and we didn’t.

Q Okay. You say you were never given any instructions from your client to plan or coordinate a march?

A No.

Q So what was the December 29th message to Caroline Wren about a call to action to march to the Capitol and make noise about?

A I’m sorry, if I can, let me be a little bit more clear. So in the text message that you’re referring to earlier in late December, that’s when the conversations were happening between myself and the client, is do we want to include a request for a march in our permit process. During that late December time period, we would host calls with National Park Service every morning that included, you know, members of Metro PD and Park Police, all the relevant authority members in the permitting process. Sometime in that late December, I don’t remember the exact date, it became very clear that, given the timeframe we had to plan, you know, the manpower that it would take and the resources that it would take, that we — we were not going move forward with planning a march. So in that time period, you know, we decided, the client decided that they no longer wanted to pursue that, and that we would focus our attention on the event on the Ellipse and in our permitted area. And that’s what we did.

As the report noted, Caporale redacted his own December 29 description of a call to action in a text to Caroline Wren.

One of his close friends and contacts at the White House who was present for a January 2 meeting between Katrina Pierson and Mark Meadows at which the possibility of using 10,000 National Guards to make the march possible was floated and rejected claimed he simply didn’t hear that part of the conversation. He and Caporale are both among the Trumps staffers represented by former Acting Attorney Matt “Big Dick Toilet Salesman” Whitaker’s law firm, a topic about which one of the attorneys in question got really confrontational.

It’s unclear whether Caporale’s reference to a client was to Caroline Wren or Kylie Kremer, but the latter specifically said she chose not to apply for a permit for a march because she couldn’t do it truthfully.

Now, I think that that is important because when I had this conversation and took over the permitting process for January 6th, Marissa made it very clear that if you are putting something on a document that you know to be invalid, that’s a major issue because this is a Federal Government form that you’re filling out and you’re willingly putting something that is not truthful. So I was horrified when I found that out because it was the opposite of what Cindy had told me, and that’s one of the main reasons that we decided from that point not to pursue the marching permit because there was no way, whatever those current COVID restrictions were — I don’t know if it was 50 people or 500 people — whatever they were at that time, there was no way that I was going to put our organization’s name and my name on a permit that I knew would greatly exceed that number and then face potential ramifications.

[snip]

Q So was the plan at this point — and I know I’ve asked this before. I’m going to ask you probably each iteration. Was there a plan to march to SCOTUS or the Capitol Grounds at this point when you were planning at the Ellipse?

A I don’t believe so because I believe before I filed those permits, the numbers that were used were as accurate and the best of my ability, and that is when I told you that I believe I was told by Marissa, I guess it could have been Deborah Deas, but I believe it was Marissa telling me specifically about the numbers and how, you know, you can’t lie on an application like that even knowing which was a red flag to me because, clearly, she probably told Cindy that too.

Here’s how she explained a text to Mike Lindell confiding there would be a march but asking him to keep it under wraps.

Q I know this jumps ahead of where we just were, Ms. Kremer, so I’ll give you a second to read this message, the longer one that you sent Mr. Lindell on January 4th of 2021. The part that I’m going to ask you specifically about is where you say: This stays only between us. We’re having a second stage at the Supreme Court after the Ellipse. POTUSs going to have us march there, the Capitol. It can also not get out about the march because I will be in trouble with the National Park Service and all agencies, but POTUS is going to call for it in quotes – it looks like, unexpectedly. Only myself and Katrina know full story of what is actually happening, and we’re having to appease many by saying certain things.

So the first question is, how did you know that President Trump was going to have people march to the Capitol after his speech at the Ellipse?

[snip]

A Because — right. Because I – I, we, Women for America First, are not responsible and giving people the directive to go and march. People are able to do whatever they want. So, if they want to come to the Ellipse and come to the event that is presented by Women for America First and then they want to go to an event with, let’s say, Jericho March or “Stop the Steal” or whatever, people are free to make their own decisions. And that was a conversation that had continuously been had with NPS, that other events were being permitted and that we could not control any sort of, you know, when do you leave, when do you stay because that was something that was discussed about an exit plan, right, of how do we talk – or how do we plan to get all of these people that are coming to D.C., what is the plan for them to leave? And so that was something that was confusing in the process to me too,

Wouldn’t it make it easier if there was a permit to march because then things could be more controlled? There could be more law enforcement, and NPS and whoever these different agencies that I was speaking with, both on Zoom calls and then also individual conversations that were being had, it did not make sense to me. But I was being continuously told by NPS that we could not have a permit to march, and if we did or promoted a march, then the Ellipse permit would be revoked, or we would not officially get the final one.

Here’s how she tried to claim she learned about the march from social media.

So, when I’m talking about that and saying about social media, it’s not specifically from Trump social media that the President and/or his staff were tweeting out. It was social media of people from anywhere talking about what had previously happened. Obviously, there was going to be a joint session in Congress. It doesn’t take a rocket scientist to figure it out, if the first event is at the Ellipse, that they’re going to go to the second location, putting pressure on Members of Congress to say: Hey, we’re here. We’re watching. I mean, the fact that this is news that NPS and everybody else were putting pressure on me, saying there should be no marching, I mean, I had this conversation with them multiple times. It was obvious what was going on

Q Ms Kremer

A and that people were going to go and leave.

Later in her testimony, she specifically denied learning from Pierson — who had just met with Trump and Mark Meadows the day before — that Trump would call for a march.

So, Ms. Kremer, we know that Katrina Pierson spoke with folks at the White House, including Mark Meadows, on January 2nd, which is days before the text message we are looking at that you sent to Mr. Lindell, about the President’s participation in the Ellipse rally. We know that she received guidance about what the President hoped would happen at the Ellipse rally. And we know that that guidance included that the President wanted to send people from the Ellipse to the Capitol. In that text message, you say, “only me and Katrina know the real plan or know the truth about what we tetyingto do. So, when you say that the President is going to announce unexpectedly, encourage people, in quotes, “unexpectedly” to go down to the Capitol, that’s because: Katrina told you that, right?

A No a

Q So Katrina never told you that the President had hoped to send people to the White House before you sent this text message to Mr. Lindell?

A I–to my best recollection, I do not believe that that specific directive was told to me via Katrina.

There’s good reason to believe that the reference to the Guard — Trump’s proposal that 10,000 National Guard could protect him and his followers — was actually pitched as a solution to the one the Park Service kept raising: there was no way to properly staff a march of this size, short of Trump calling out an army.

This is not an issue the available evidence clarifies. It raises more questions about the veracity of certain witnesses than others.

But it is squarely among the things that recent subpoenas sought to address.

 

December 27: The January 6 Committee’s Blind Spots

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The January 6 Committee Report is out.

As many people have pointed out, the report focuses on Donald Trump, telling the story about how he riled up a mob with The Big Lie and then did nothing as they launched a terrorist attack on the Capitol and those within in, especially Trump’s Vice President.

But even in telling a story about Donald Trump, the report has glaring blind spots. Some of those blind spots were created by the limits on the Committee’s investigative authorities, some were created by the Committee’s (perhaps resultant) limited understanding of the attack.

To demonstrate those blind spots, I wanted to show what the report includes in the body of the report about December 27 (some of these may be out of order and I need to clean it up, but this will be a useful demonstration). Here are things that happened on December 27, 2020:

  • Bernie Kerik publicly attacks Pat Toomey for opposing fraud (the Report ties this attacks to physical threats against officials opposed to Trump’s fraud)
  • Mark Meadows continues to pressure Georgia
  • Doug Mastriano speaks to Trump and feeds members of Congress bullshit
  • Trump attempts to get Jeffrey Rosen and Richard Donoghue to endorse his fraud message and — failing that — threatens to replace Rosen
  • With Trump’s blessing, Louie Gohmert files suit against Mike Pence
  • Trump pardons Stone and they talk about January 6
  • Trump gets more involved in planning January 6, which leads to a plan to have his supporters march on the Capitol and then a plan for him to march
  • The FBI creates a system to collect threats related to the “election certification” on January 6 by using a tag, “CERTUNREST

Some of these events (such as the Louie Gohmert lawsuit) were obviously in the work before December 27, but this provides a good read of where the parallel strands of the attack were on that particular day.

But given what we know, the far most important event of the day was the increased involvement by the White House in January 6. This was the moment the plans for January 6 started becoming a plan for a coup.

As you look at what gets included in the report, however, you get a sense of how little the Committee learned about how that happened.

In one section, the report notes that that’s the day Trump pardoned Roger Stone and — probably at the same face-to-face meeting at Mar-a-Lago — discussed plans for January 6, including a plan for Trump to speak.

In another section, the report notes that a former staffer named Justin Caporale was asked to get involved in planning the day and also that during a dinner with Jr and Kimberly Guilfoyle, Guilfoyle called Carolyn Wren and learned about the busses and other plans for the day. That’s what led to an increased White House focus on January 6. But because the Committee couldn’t get the comms from key participants, they can’t tell you how much planning happened or with whom.

The report doesn’t provide a timeline for how those three events happened: Stone, Caporale, Wren (indeed, this is one area where the report’s selectivity about when to include metadata for communications and when not to is infuriating, because we can’t even make that timeline now). We learn only that Wren texted Guilfoyle at 7:10PM. That obscurity is especially troubling, because Wren was in touch with people who were in touch with Stone, and the report actually relies on a story about Stone for part of its narrative about the Guilfoyle-Wren conversation. (The report’s discussion of the ties between Alex Jones, Wren, the militias, and Stone, is particularly weak; while that is no doubt a reflection of the limited tools the committee had to obtain materials from those who did not cooperate, the committee also eschewed primary sources that would have provided background that would be critical to that story.) It admits that non-cooperation from Meadows, Dan Scavino, and Caporale thwarted the Committee’s own efforts to build out this timeline. Elsewhere, it calls into question of the key witnesses involved, including both Max Miller and Tony Ornato, on whose its awareness of expanded planning relies.

We simply don’t know how it happened that the plans for January 6 began to focus much more on an attack on the Capitol.

We do know the FBI finally recognized it as a threat. We do know that members of Congress were overtly attacking the election (and Pence), in the form of the lawsuit against Pence.

And we know that the most important detail of the longest passage involving December 27 (as well as significant focus in the executive summary), of the discussions between Trump and top DOJ officials, involved the instruction, “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.” He said that, though, on a day when people like Kerik were beginning to ratchet up the pressure, with implicit threats, against GOP members of Congress who would refuse to go along.

The report focuses far more on proving that Trump was pushing fraudulent claims than laying out how Trump’s plans turned to a coup.

All that work on the Big Lie is important (and accessible to a committee without the ability to serve warrants for content). It is largely a measure of the cooperation the committee got — from Jeffrey Rosen but not from Stone, access to Cassidy Hutchinson’s second-hand knowledge of these events because Caporale was limiting his own cooperation and Meadows and Scavino provided none.

But it should come with a focus on the blind spots that remain, which happen to be the blind spots about the people who could have coordinated Trump’s own plans with those of the armed mob.

Update: This, from the deposition of Robert Peede, describe the calls referred to in the report. Peede was with Trump in Mar-a-Lago at the time of these calls.

5:16PM: Robert Peede to Max Miller (10 minutes)

5:51PM Trump tweet

6:19PM: Peede to Miller (3 minutes)

6:22?PM: Miller to Justin Caporale (<10 minutes)

Miller to Peede (2 minutes)

Peede to Ornato (3 minutes)

7:10: Wren to Guilfoyle text

Bernie Kerik attacks a Member of Congress opposed to Trump’s fraud

On December 27th, Kerik suggested that Senator Pat Toomey (R-PA) was “corrupt” and said that “for any Pennsylvania official to certify their vote, it’s malfeasance and criminal.”290 That was entirely consistent with Kerik’spast tweets about the election, one of which apparently called public officials “who betrayed” President Trump “spineless disloyal maggots.”291 It wasn’t just rhetoric, however, because, as described below, people showed-up outside certain officials’ home—sometimes menacingly—and, of course, showed up at the Capitol on January 6th.

[snip]

Mark Meadows pressures Georgia

Four days later, Meadows texted Deputy Secretary of State Fuchs, in which he asked, “[i]s there a way to speed up Fulton county signature verification in order to have results before Jan 6 if the trump campaign assist[s] financially.”242 Fuchs wrote in response that she “Will answer ASAP.”243

[snip]

Doug Mastriano feeds bullshit to Trump and others in Congress

Mastriano also sent emails indicating that he spoke with President Trump on December 27th, 28th, and 30th, along with files that President Trump had requested or that he had promised to him.267

[snip]

Trump attempts to get Jeffrey Rosen and Richard Donoghue to buy his fraud message and — failing that — threatens to replace Rosen

On December 27, 2020, President Trump called Acting Attorney General Rosen once again. At some point during the lengthy call, Rosen asked that Acting Deputy Attorney General Donoghue be conferenced in.116 According to Donoghue’s contemporaneous notes, Trump referenced three Republican politicians, all of whom had supported the President’s election lies and the“Stop the Steal” campaign.117 One was Representative Scott Perry. Another was Doug Mastriano, a State senator from Pennsylvania who would later beon the grounds of the U.S. Capitol during the January 6th attack.118 President Trump also referenced Representative Jim Jordan from Ohio, praising him as a “fighter.”119 Representatives Perry and Jordan had often teamed up to spread lies about the election. The two spoke at a “Stop the Steal” rally in front of the Pennsylvania State capitol in Harrisburg, just days after the November election.120 The pair also pressed their conspiratorial case during interviews with friendly media outlets.121

President Trump made a “stream of allegations” during the December 27th call.122 As reflected in his notes, Donoghue considered the call to be an“escalation of the earlier conversations,” with the President becoming more adamant that “we weren’t doing our job.”123 President Trump trafficked in “conspiracy theories” he had heard from others, and Donoghue sought to “make it clear to the President these allegations were simply not true.”124 Donoghue sought to “correct” President Trump “in a serial fashion as he moved from one theory to another.”125

The President returned to the discredited ASOG report, which former Attorney General Barr had already dismissed as complete nonsense. ASOG had claimed—based on no evidence—that the Dominion voting machines in Antrim County, Michigan had suffered from a 68 percent error rate. As noted above and in Chapter 1, that was not close to being true.

Bipartisan election officials in Antrim County completed a hand recount of all machine-processed ballots on December 17, 2020, which should have ended the lies about Dominion’s voting machines.126 The net difference between the machine count and the hand recount was only 12 out of 15,718total votes.127 The machines counted just one vote more for former Vice President Biden than was tallied during the hand recount.128 Donoghue informed the President that he “cannot and should not be relying on” ASOG’s claim, because it was “simply not true.”129 This did not stop the President from later repeating the debunked allegation multiple times, including during his January 6th speech at the Ellipse.130

Acting Deputy Attorney General Donoghue debunked a “series” of other conspiracy theories offered by President Trump during the December 27th call as well. One story involved a truck driver “who claimed to have moved an entire tractor trailer of ballots from New York to Pennsylvania.”131 There was no truth to the story. The FBI “interviewed witnesses at the front end and the back end of” the truck’s transit route, “looked at loading manifests,” questioned the truck driver, and concluded that there were no ballots in the truck.132

President Trump then returned to the conspiracy theory about voting inDetroit. Former Attorney General Barr had already debunked the claim that a massive number of illegal votes had been dumped during the middle of the night, but the President would not let it go. President Trump alleged that someone “threw the poll watchers out,” and “you don’t even need to look at the illegal aliens voting—don’t need to. It’s so obvious.”133 The President complained that the “FBI will always say there’s nothing there,”because while the Special Agents (“the line guys”) supported him, the Bureau’s leadership supposedly did not.134 This was inconsistent with Donoghue’s view.135 But President Trump complained that he had “made some bad decisions on leadership” at the FBI.136

President Trump also “wanted to talk a great deal about Georgia, [and] the State Farm Arena video,” claiming it was “fraud staring you right in the face.”137 President Trump smeared Ruby Freeman, a Georgia election worker who was merely doing her job, as a “Huckster” and an “Election scammer.”138 President Trump said the “networks,” meaning the television networks, had “magnified the tape and saw them running them [ballots] through repeatedly.”139 The President repeated the lie that Democrats had “[c]losed the facility and then came back with hidden ballots under thet able.”140 He suggested that both Rosen and Donoghue “go to Fulton County and do a signature verification.” They would “see how illegal it is”and “find tens of thousands” of illegal ballots.141

President Trump “kept fixating” on the supposed suitcase in the video.142 But Acting Deputy Attorney General Donoghue debunked the President’s obsession. “There is no suitcase,” Donoghue made clear.143 Donoghue explained that the DOJ had looked at the video and interviewed multiple witnesses. The “suitcase” was an official lock box filled with genuine votes.144 And election workers simply did not scan ballots for former Vice President Biden multiple times.145 All of this was recorded by security cameras.146

In response to what President Trump was saying during the conversation, Rosen and Donoghue tried to make clear that the claims the President made weren’t supported by the evidence. “You guys must not be followingthe internet the way I do,” the President remarked.147 But President Trump was not finished peddling wild conspiracy theories.

The President pushed the claim that Pennsylvania had reported 205,000more votes than there were voters in the state.148 “We’ll look at whether we have more ballots in Pennsylvania than registered voters,” Acting AttorneyGeneral Rosen replied, according to Donoghue. They “[s]hould be able to check that out quickly.”149 But Rosen wanted President Trump to “understand that the DOJ can’t and won’t snap its fingers and change the outcome of the election. It doesn’t work that way.”150 “

I don’t expect you to do that,” President Trump responded. “Just say the election was corrupt and leave the rest to me and the Republican Congressmen.”151

Donoghue explained this “is an exact quote from the President.”152

“We have an obligation to tell people that this was an illegal, corrupt election,” President Trump told the DOJ team at another point in the call.153 President Trump insisted this was DOJ’s “obligation,” even though Rosenand Donoghue kept telling him there was no evidence of fraud sufficient tooverturn the outcome of the election. “We are doing our job,” Donoghue informed the President. “Much of the info you’re getting is false.”154

The call on December 27th was contentious for additional reasons. President Trump did not want to accept that the Department of Justice wasn ot an arm of his election campaign. He wanted to know why the Department did not assist in his campaign’s civil suits against States. There was asimple answer: There was no evidence to support the campaign’s claims of fraud.155

Donoghue and Rosen also “tried to explain to the President on this occasion and on several other occasions that the Justice Department has a very important, very specific, but very limited role in these elections.”156 The States “run their elections” and DOJ is not “quality control for the States.”157 DOJ has “a mission that relates to criminal conduct in relation tofederal elections” and also has “related civil rights responsibilities.”158 But DOJ cannot simply intervene to alter the outcome of an election or support a civil suit.159

When President Trump made these demands on December 27th, it wasalready crystal clear that the Department of Justice had found no evidence of systemic fraud.160 The Department simply had no reason to assert that the 2020 Presidential contest was “an illegal corrupt election.”161

“People tell me Jeff Clark is great” and that “I should put him in,” President Trump said on the call. “People want me to replace the DOJ leadership.”162 Donoghue responded “[S]ir, that’s fine, you should have the leadership you want, but understand, changing the leadership in the Department won’t change anything.”163

The President did not really care what facts had been uncovered by theDepartment of Justice. President Trump just wanted the Department to saythe election was corrupt, so he and the Republican Congressmen could exploit the statement in the days to come, including on January 6th. Andwhen Rosen and Donoghue resisted the President’s entreaties, he openly mused about replacing Rosen with someone who would do the President’s bidding. 4.8

CONGRESSMAN SCOTT PERRY CALLS DONOGHUE

Toward the end of the December 27th call, President Trump asked Donoghue for his cell number.164 Later that day, Representative Perry called Donoghue to press the President’s case.165

[snip]

Donoghue took notes during his conversation with Representative Perry and provided those notes to the Select Committee.169 The notes reflect that when Representative Perry called Donoghue on December 27th, Representative Perry explained that President Trump asked him to call and that he, Representative Perry, did not think DOJ had been doing its job on the election.170 Representative Perry brought up other, unrelated matters and argued that the “FBI doesn’t always do the right thing in all instances.”171 Representative Perry also brought up Jeff Clark. He said he liked him andthought that Clark “would do something about this,” meaning the electionfraud allegations.172

On the evening of December 27th, Representative Perry emailed Donoghue a set of documents alleging significant voting fraud had occurred inPennsylvania.173 One document asserted that election authorities had counted 205,000 more votes than had been cast.174 Representative Perry also shared this same claim on Twitter the following day.175 President Trump kept raising the same claim. Sometimes there was an alleged discrepancy of 205,000 votes, other times it was supposedly 250,000 votes.176 Either way, it was not true.

Acting Deputy Attorney General Donoghue forwarded Representative Perry’s email to Scott Brady, who was the U.S. Attorney for the Western District of Pennsylvania at the time.177 As Brady soon discovered, there wasno discrepancy.178 President Trump’s supporters came up with the claim by comparing the Pennsylvania Secretary of State’s website, which reportedthe total number of votes as 5.25 million, to a separate State election registry, which showed only 5 million votes cast.179 The problem was simple: Pennsylvania’s election site had not been updated.180 The totals for four counties had not yet been reported on the election site. Once those votes were counted on the site, the totals matched. This was simply not an example of fraud, as President Trump, Representative Perry and others would have it.

With Trump’s blessing, Louie Gohmert files suit against Mike Pence

One of President Trump’s congressional allies, Representative Louie Gohmert (R–TX), pushed a version of Eastman’s theory in the courts. OnDecember 27, 2020, Representative Gohmert and several of the Trump Campaign’s fake electors for the State of Arizona (including Republican Party Chair Kelli Ward) filed suit against Vice President Pence in the U.S. District Court for the Eastern District of Texas.67 As Ward explained to Marc Short in a phone call the day the suit was filed, President Trump was aware of the lawsuit and had signed off on it: “We wouldn’t have done that without the president telling us it was okay,” she told him.68

In the suit, the Plaintiffs alleged that there were “competing slates” of electors from five States.69 They asked the court to rule that portions of theElectoral Count Act of 1887 were unconstitutional and that “the TwelfthAmendment contains the exclusive dispute resolution mechanisms” for determining an objection raised by a Member of Congress to the electors submitted by any State.70 Essentially, Representative Gohmert was askingthe court to tell Vice President Pence that he was prohibited from followingthe procedures set forth in the Electoral Count Act. Much like Eastman’s theory, the Gohmert plaintiffs asserted that the Vice President has the “exclusive authority and sole discretion” to determine which electoral votes to count.71

Although the Gohmert suit was premised on the same theory Eastman advocated, Eastman did not agree with the decision to file suit. Eastman argued that filing a suit against the Vice President had “close[ ] to zero” chance of succeeding, and there was a “very high” risk that the court would issue an opinion stating that “Pence has no authority to reject the Bidencertified ballots.”72

Trump pardons Stone and they talk about January 6

In July 2020, President Trump granted Stone clemency after he was convicted of lying to Congress and other charges.243 Then, on December 23rd, President Trump pardoned Stone.244 Several days later, at a dinner onthe evening of December 27th, Stone thanked President Trump. In a post on Parler, Stone wrote that he “thanked President Trump in person tonight forpardoning me” and also recommended to the President that he “appoint a special counsel” to stop “those who are attempting to steal the 2020 election through voter fraud.” Stone also wrote that he wanted “to ensurethat Donald Trump continues as our president.”245 Finally, he added: “#StopTheSteal” and “#rogerstonedidnothingwrong.”246 The Select Committee has learned that Stone discussed the January 6th event with the President, likely at this same dinner on December 27th.247 The President told Stone he “was thinking of speaking.”248

Trump gets more involved in planning January 6

On the evening of December 27th, President Trump boosted the upcoming event on Twitter: “See you in Washington, DC, on January 6th. Don’t miss it. Information to follow!”415 The Select Committee learned that this tweet came after the White House spoke with a former Trump staffer, Justin Caporale, who was asked to help produce the Ellipse rally.416 That same evening, the President had dinner with Donald Trump, Jr., and his girlfriend Kimberly Guilfoyle,417 who spoke with rally organizer Caroline Wren during the meal.418 Wren also texted Guilfoyle talking points that described her ambitions for the event, saying that “buses of people are coming in from all over the country to support you. It’s going to be huge, we are also adding in programming the night of January 5th.”419

After Guilfoyle’s call with Wren, there was a series of calls among the senior White House staff,420 likely underscoring the seriousness of the White House’s interest in the event.

Within a few days, the White House began to take a more direct role incoordinating the rally at the Ellipse.421 In a December 29th text to Wren, Caporale wrote that after the President’s planned speech there “maybe [sic] a call to action to march to the [C]apitol and make noise.”422

This is the earliest indication uncovered by the Select Committee that the President planned to call on his supporters to march on the U.S. Capitol. But it wasn’t the last. On January 2nd, rally organizer Katrina Pierson informed Wren that President Trump’s Chief of Staff, Mark Meadows, had said the President was going to “call on everyone to march to the [C]apitol.”423

Inside the White House, the President’s intent was well-known. Cassidy Hutchinson, an aide to Meadows, recalled in her testimony that she overheard discussions to this effect toward the end of December or early January. One such discussion included an exchange between Meadows andRudolph Giuliani that occurred on January 2nd.424 Hutchinson understood that President Trump wanted to have a crowd at the Capitol in connection with what was happening inside—the certification of the electoral count.425 Hutchinson also recalled that President Trump’s allies in Congress were aware of the plan. During a call with members of the House FreedomCaucus, the idea of telling people to go to the Capitol was discussed as a way to encourage Congress to delay the electoral college certification and send it back to the States.426

On January 4th, WFAF’s Kylie Kremer informed Mike Lindell, the CEO of MyPillow and an ally of President Trump, that “POTUS is going to have us march there [the Supreme Court]/the Capitol” but emphasized that the plan“stays only between us.”427

The “Stop the Steal” coalition was aware of the President’s intent. OnJanuary 5th, Ali Alexander sent a text to a journalist saying: “Ellipse thenUS capitol [sic]. Trump is supposed to order us to the capitol [sic] at the endof his speech but we will see.”428

290. Bernard B. Kerik (@BernardKerik), Twitter, Dec. 27, 2020 11:53 a.m. ET, available at https:// twitter.com/bernardkerik/status/1343238609768501253. 291. Bernard B. Kerik (@BernardKerik), Twitter, Dec. 13, 2020 1:05 a.m. ET, available at https:// twitter.com/bernardkerik/status/1338001989846888448.

[snip]

242. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM014152 (December 27, 2020 text message at 5:18 p.m. from Mark Meadows to Jordan Fuchs). 243. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM014153 (December 27, 2020 text message at 5:20 p.m. from Jordan Fuchs to Mark Meadows).

[snip]

117. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events07282021-000735. 118. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events07282021-000735; Ryan Deto, “Sen. Mastriano and Former State Rep. Saccone among TrumpSupporters who Occupied U.S. Capitol,” Pittsburgh City Paper, (Jan. 6, 2021), available at https://www.pghcitypaper.com/pittsburgh/sen-mastriano-and-former-state-rep-sacconeamong-trump-supporters-who-occupied-us-capitol/Content?oid=18690728; Erin Bamer, “Mastriano Defends Protest Appearance; Other GOP Lawmakers Say Little,” York Dispatch, (Jan. 7, 2021), available at https://www.yorkdispatch.com/story/news/2021/01/07/ mastriano-at-no-point-did-he-storm-us-capitol/6579049002/. 119. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 47-50; see also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021- 000735.

120. Dan Geiter, “Rally to ‘Stop the Steal’ of the 2020 Election” PennLive, (Nov. 5, 2020) availableat https://www.pennlive.com/galleries/J3FJ24LCKVCT5OW3U2TJ6BV4RE/. 121. See, e.g., Scott Perry for Congress, “#StopTheSteal,” Facebook, November 6, 2020, available at https://www.facebook.com/watch/?v=406418637058079. 122. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 47-48, 53.

123. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 124. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 125. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 126. “Hand Audit of All Presidential Election Votes in Antrim County Confirms Previously Certified Results, Voting Machines Were Accurate,” Michigan Secretary of State, (Dec. 17, 2020), available at https://www.michigan.gov/sos/resources/news/2020/12/17/hand-audit-of-allpresidential-election-votes-in-antrim-county-confirms-previously-certified-result. 127. “Hand Audit of All Presidential Election Votes in Antrim County Confirms Previously Certified Results, Voting Machines Were Accurate,” Michigan Secretary of State, (Dec. 17, 2020), available at https://www.michigan.gov/sos/resources/news/2020/12/17/hand-audit-of-allpresidential-election-votes-in-antrim-county-confirms-previously-certified-result. 128. “Hand Audit of All Presidential Election Votes in Antrim County Confirms Previously Certified Results, Voting Machines Were Accurate,” Michigan Secretary of State, (Dec. 17, 2020), available at https://www.michigan.gov/sos/resources/news/2020/12/17/hand-audit-of-allpresidential-election-votes-in-antrim-county-confirms-previously-certified-result. 129. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of RichardPeter Donoghue, (Oct. 1, 2021), p. 60; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwrittennotes from Richard Donoghue about call with President Trump). 130. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6th?path=/browsecommittee/chamber/house/committee/january6th. 131. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of RichardPeter Donoghue, (Oct. 1, 2021), p. 60. 132. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of RichardPeter Donoghue, (Oct. 1, 2021), p. 60; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwrittennotes from Richard Donoghue about call with President Trump). 133. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 55; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 134. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 55; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 135. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 55. 136. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 55-56; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 137. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 138. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 54; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 139. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 54; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 140. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 54; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump).

141. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 64; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000741 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 142. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 60. 143. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 60. 144. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 60-61. 145. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 60-61. 146. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 60-61. 147. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54-55; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 148. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54, 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737, HCOR-Pre-Certification-Events-07282021-000738 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 149. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54, 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737, HCOR-Pre-Certification-Events-07282021-000738 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 150. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 54, 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000737, HCOR-Pre-Certification-Events-07282021-000738 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 151. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 58; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000738, HCORPre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes fromRichard Donoghue about call with President Trump). 152. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 58. Trump also mentioned the possibility of the DOJ saying the “election is corrupt or suspect or not reliable” during a public press conference. “We told him we were not going to do that,” Donoghue explained. Id. at p. 59.

153. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000740 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 154. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 60; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000739, HCORPre-Certification-Events-07282021-000740 (December 27, 2020, handwritten notes fromRichard Donoghue about call with President Trump). 155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 61. 156. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 157. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 158. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 159. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 160. Donoghue testified before the Select Committee: “There were isolated instances of fraud. None of them came close to calling into question the outcome of the election in any individual state.” Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 23, 2022), available at https://www.govinfo.gov/committee/house-january6thSelect. 161. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000740 (December 27, 2020, handwritten notes from Richard Donoghue about call with President Trump). 162. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62. 163. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 62. 164. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 65. 165. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-75. 166. Dan Gleiter, “Rally to ‘Stop the Steal’ of the 2020 Election,” Penn Live, (Nov. 5, 2020), available at https://www.pennlive.com/galleries/J3FJ24LCKVCT5OW3U2TJ6BV4RE/. 167. Letter from the Office of Rep. Lance Gooden and Signed by 26 other Members of Congress to the President of the United States, Dec. 9, 2020, available at https://www.politico.com/ f/?id=00000176-4701-d52c-ad7e-d7fdbfe50000.

168. Motion for Leave to File Amicus Brief by U.S. Representative Mike Johnson and 125 other Members, Texas v. Pennsylvania, 592 U.S. ____ (Dec. 10, 2020) (No. 155, Orig.), available at https://www.supremecourt.gov/DocketPDF/22/22O155/163550/ 20201211132250339_Texas%20v.%20Pennsylvania%20Amicus%20Brief%20of%20126%20 Representatives%20–%20corrected.pdf. 169. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCOR-Pre-CertificationEvents-07262021-000706, (Dec. 27, 2020, handwritten notes). Donoghue’s handwritten notes from the call are dated Dec. 28, 2020, but he confirmed the call took place on Dec. 27. 170. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCOR-Pre-CertificationEvents-07262021-000706, (Dec. 27, 2020, handwritten notes). 171. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 72-73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCOR-Pre-CertificationEvents-07262021-000705, (Dec. 27, 2020, handwritten notes). 172. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), p. 73; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents-07262021-000705, HCORPre-CertificationEvents-07262021-000706, (Dec. 27, 2020, handwritten notes). 173. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents06032021-000001 – HCOR-Pre-CertificationEvents-06032021-000018. 174. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Department of Justice Production), HCOR-Pre-CertificationEvents06032021-000008. 175. RepScottPerry (@RepScotPerry), Twitter, Dec. 28, 2020 6:01 p.m. ET, available at https:// twitter.com/RepScottPerry/status/1343693703664308225. 176. See Chapter 1. 177. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 74-75. 178. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 75-76. 179. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Richard Peter Donoghue, (Oct. 1, 2021), pp. 75-76.

[snip]

67. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. 68. Mike Pence, So Help Me God (New York: Simon & Schuster, 2022), p. 443. 69. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. 70. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. 71. Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1.

[snip]

244. Amita Kelly, Ryan Lucas, and Vanessa Romo, “Trump Pardons Roger Stone, Paul Manafort And Charles Kushner,” NPR, (Dec. 23, 2020), available at https://www.npr.org/2020/12/23/ 949820820/trump-pardons-roger-stone-paul-manafort-and-charles-kushner. 245. PatriotTakes[American flag] (@PatriotTakes), Twitter, Dec. 28, 2020 3:50 a.m. ET, available at https://twitter.com/patriottakes/status/1343479434376974336. 246. PatriotTakes[American flag] (@PatriotTakes), Twitter, Dec. 28, 2020 3:50 a.m. ET, available at https://twitter.com/patriottakes/status/1343479434376974336; See also Ali Dukakis, “Roger Stone Thanks President Trump for Pardon in Person,” ABC News, (Dec. 28, 2020), available at https://abcnews.go.com/Politics/roger-stone-president-trump-pardon-person/story?id= 74940512. 247. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Kristin Davis, (August 2, 2022), p. 41; Documents on file with Select Committee to Investigate the January 6th Attack on the United States Capitol, (Kristin Davis Production), CTRL0000928609, p. 7 (December 30, 2020, text message from Kristin Davis toChris Lippe at 6:05 p.m.). 248. Documents on file with Select Committee to Investigate the January 6th Attack on the United States Capitol (Kristin Davis Production), CTRL0000928609, p. 7 (December 30, 2020, text message from Kristin Davis to Chris Lippe at 6:05 p.m.).

[snip]

415. Donald J. Trump (@realDonaldTrump), Twitter, Dec. 27, 2020 5:51 p.m. ET, available at https://www.thetrumparchive.com (archived). 416. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Justin Caporale, (Mar. 1, 2022), pp. 20-21. 417. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Donald Trump, Jr., (May 3, 2022), p.30; Anthony Man, “At Trump Golf Club in West Palm Beach, Roger Stone Thanks President for Pardon,” Orlando Sun Sentinel, (Dec. 28, 2020), available at https://www.sun-sentinel.com/news/politics/ elections/fl-ne-roger-stone-thanks-trump-pardon-20201228-2ejqzv6e7vhyvf26cxz6e6jysastory.html. 418. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (AT&T Production, Dec. 17, 2021). 419. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_000444, pp. 1-3 (December 27, 2020, text message from Caroline Wren to Kimberly Guilfoyle at 7:10 p.m.). 420. As revealed in the phone records for the personal cell phones of Max Miller and Anthony Ornato. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Verizon Production, Dec. 17, 2021); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Verizon Production, Sep. 23, 2022). The Select Committee also subpoenaed the phone records for the personal cell phones of Robert Peede, Mark Meadows, Dan Scavino, and Justin Caporale. They each filed lawsuits to block the respective phone companies’ production of the phone records, which were still pending at the time of writing. Thus, there may have been additional relevant phone calls among or involving these four of which theSelect Committee is not aware. 421. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Max Miller, (Jan. 20, 2022), pp. 36-37. 422. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Justin Caporale, (Mar. 1, 2020), p. 44; Documents on file with the Select Committeeto Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0644 (December 29, 2020, text messages with Justin Caporale). 423. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Katrina Pierson, (Mar. 25, 2022), pp. 79-82; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Caroline Wren Production), REVU_0181 (January 2nd email from Katrina Pierson to CarolineWren and Taylor Budowich). 424. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 32-33, 41; Select Committee toInvestigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), pp. 107-08, 135. 425. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), p. 42.

426. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 44-45, 47, 52-54; Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), p. 87. 427. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Kylie Kremer Production), KKremer5447, p. 3 (January 4, 2021, text message from Kylie Kremer to Mike Lindell at 9:32 a.m.). 428. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Ali Alexander Production), CTRL0000017718, p. 41 (January 5, 2021 text message with Liz Willis at 7:19 a.m.).

[snip]

41. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Briefing by Steve Jensen, (Nov. 18, 2021). In an email sent by the FBI to the Select Committee on November 8, 2021, the FBI stated that on December 27, the FBI created a system to collect threats related to the “election certification” on January 6 by using a tag, “CERTUNREST.” Despite making multiple requests for the number of guardians that were tagged prior to January 6, the FBI did not provide a precise number. The FBI identified several dozen guardians opened in advance of January 6th that included a reference to January 6, Washington D.C., and either the U.S. Capitol or a specific threat of violence.

 

NARA May Have Pre-Existing Legal Obligations with Respect to Documents Covered by Aileen Cannon’s Order

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On Monday, Aileen Cannon told the government that it can only access 11,282 documents legally owned by the National Archives and currently possessed by DOJ to do an assessment of the damage Trump did by storing those records in a poorly-secured storage closet and desk drawer.

We’ll learn more in coming days about how the government will respond to Cannon’s usurpation of the President’s authority over these documents.

But I want to note that there may be competing legal obligations, on NARA at least, that may affect the government’s response.

NARA has been responding to at least four pending legal obligations as the fight over Trump’s stolen documents has gone on:

  • A series of subpoenas from the January 6 Committee that the Supreme Court has already ruled has precedence over any claims of privilege made by Trump
  • Two subpoenas from DOJ’s team investigating January 6, one obtained in May, covering everything NARA has provided to the J6C, and a second one served on NARA on August 17; these subpoenas would also be covered under SCOTUS’ ruling rejecting Trump’s privilege claims
  • Discovery in Tom Barrack’s case, whose trial starts on September 19 (DOJ informed Barrack they had requested Trump White House materials from NARA on April 5)
  • A subpoena from Peter Strzok in his lawsuit over his firing and privacy act violations

For all of them, NARA has a legal obligation that precedes Judge Cannon’s order. So if any of the material owned by NARA that Cannon has enjoined for Trump’s benefit is covered by these subpoenas and the Barrack discovery request, it will give NARA an additional need to intervene, on top of the fact that Cannon has made decisions about property owned by NARA.

I don’t hold out hope that the August 8 seizure has much pertaining to either January 6 investigation. Given that none of the boxes include clippings that post-date November, its unlikely they include government documents from the same period.

 

Plus, given the timing, I suspect the more recent subpoena from Thomas Windom to NARA pertains to materials turned over to NARA by Mark Meadows after the Mar-a-Lago search. Because Meadows originally turned those communications over to J6C directly, they would not have been covered by the prior subpoena, which obtained everything NARA turned over to J6C, which wouldn’t have included Meadows’ texts.

Meadows’ submission to the Archives was part of a request for all electronic communications covered under the Presidential Records Act. The Archives had become aware earlier this year it did not have everything from Meadows after seeing what he had turned over to the House select committee investigating January 6, 2021. Details of Meadows’ submissions to the Archives and the engagement between the two sides have not been previously reported.

“It could be a coincidence, but within a week of the August 8 search on Mar-a-Lago, much more started coming in,” one source familiar with the discussions said.

The second subpoena would have been served days after Meadows started providing these texts.

The possibility that some of the documents seized on August 8 would be discoverable in Barrack’s case is likely higher, particularly given the news that Trump had hoarded at least one document about “a foreign government’s nuclear-defense readiness.” Barrack is accused of working to influence White House policy on issues pertaining to UAE, Saudi Arabia, and Qatar that might be implicated by classified documents. If the date of clippings in a particular box reflect the age of the government documents also found in that box, then about 18 boxes seized in August (those marked in purple, above) include records from the period covered by Barrack’s superseding indictment.

That said, whether any such materials would count as being in possession of DOJ is another issue. They are currently in possession of team at DOJ that significantly overlaps with the people prosecuting Barrack for serving as an Agent of the Emirates without telling the Attorney General.

Strzok’s subpoena may be the most likely to cover materials either turned over belatedly or seized on August 8 (though his subpoena was scoped, with DOJ involvement, at a time after the FBI was aware of Trump’s document theft). It asks for:

  1. Records concerning Sarah Isgur’s engagement with reporters from the Washington Post or New York Times about Peter Strzok and/or Lisa Page on or about December 1 and 2, 2017.
  2. Records dated July 1, 2017 through December 12, 2017 concerning or reflecting any communications with members of the press related to Peter Strzok and/or Lisa Page.
  3. Records dated July 1, 2017 through December 12, 2017 concerning or reflecting text messages between Peter Strzok and Lisa Page.
  4. Records dated July 1, 2017 through August 9, 2018 concerning Peter Strzok’s employment at the FBI.

That materials covered by this subpoena made their way at some point to Mar-a-Lago is likely. That’s because of the obsession with records relating to Crossfire Hurricane in the days when Trump was stealing documents — virtually all of those would “concern” Strzok’s FBI employment.

In Mr. Trump’s last weeks in office, Mr. Meadows, with the president’s blessing, prodded federal law enforcement agencies to declassify a binder of Crossfire Hurricane materials that included unreleased information about the F.B.I.’s investigative steps and text messages between two former top F.B.I. officials, Peter Strzok and Lisa Page, who had sharply criticized Mr. Trump in their private communications during the 2016 election.

The F.B.I. worried that releasing more information could compromise the bureau, according to people familiar with the debate. Mr. Meadows dismissed those arguments, saying that Mr. Trump himself wanted the information declassified and disseminated, they said.

Just three days before Mr. Trump’s last day in office, the White House and the F.B.I. settled on a set of redactions, and Mr. Trump declassified the rest of the binder. Mr. Meadows intended to give the binder to at least one conservative journalist, according to multiple people familiar with his plan. But he reversed course after Justice Department officials pointed out that disseminating the messages between Mr. Strzok and Ms. Page could run afoul of privacy law, opening officials up to suits.

None of those documents or any other materials pertaining to the Russia investigation were believed to be in the cache of documents recovered by the F.B.I. during the search of Mar-a-Lago, according to a person with knowledge of the situation.

Side note: NYT’s sources are blowing smoke when they suggest DOJ under Trump would avoid new Privacy Act violations against Strzok and Page; a set of texts DOJ released on September 24, 2020 as part of Jeffrey Jensen’s effort to undermine the Mike Flynn prosecution had already constituted a new Privacy Act violation against them.

Notably, Strzok has been pursuing records about a January 22, 2018 meeting Jeff Sessions and Matt Whitaker attended at the White House.

Hours after that meeting (and a half hour call, from 3:20 to 3:50, between then Congressman Mark Meadows and the Attorney General), Jeff Sessions issued a press release about Strzok and Lisa Page.

Discovery has confirmed that the Attorney General released a press statement via email from Ms. Isgur to select reporters between 5:20 and 8:10 PM on January 22, roughly three hours after Attorney General Sessions returned from the White House. The statements promised, “If any wrongdoing were to be found to have caused this gap [in text messages between Mr. Strzok and Ms. Page], appropriate legal disciplinary action measure will be taken” and that the Department of Justice would “leave no stone unturned.” (See, e.g., Exhibit F). Based on Mr. Strzok’s review of the documents, it does not appear that this statement was planned prior to the January 22 White House meeting. It is not apparent from the documents produced in this action what deliberation lead to the issuance of that statement. For example, Mr. Strzok has not identified any drafts of the press release.

Any back-up to the White House side of that meeting — whether it has made its way back to NARA or not — would be included within the scope of Strzok’s subpoena. And even if NYT’s sources are correct that no Crossfire Hurricane documents were included among those seized in August (an uncertain claim given how much lying to the press Trump’s people have been doing), records covering Strzok’s firing would be broader than that.

The red rectangles, above, show the 17 documents seized in August for which the clippings would be in the temporal scope of Strzok’s subpoena.

I have no idea what happens if some of the boxes seized on August 8 include material responsive to these legal demands on NARA.

But if those boxes do include such materials, then it presents a competing — and pre-exisitng — legal obligation on the lawful owner of these records.

Update: Viget alerted me that I had not put an “X” by the leatherbound box reflecting its classified contents. I’ve fixed that!

“The President Was … Working in a Filing Room”

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The unredacted part of the affidavit for Trump’s search shows that it incorporated a “statement” Trump put out on February 18, in an attempt to rebut the report that the Archives provided Carolyn Maloney about what was discovered in the 15 boxes Trump finally returned. In a redacted part of the affidavit, there’s something that looks like a second post of some kind, which appears at the end of a nine-paragraph section describing the Archives’ fight to get the boxes back. One possibility is that it’s a second statement Trump issued before the other one.

I’d like to look at the two statements he put out in February, the one that might be that second post, and the one that is included in the affidavit but was illegible in the rendering of it on PACER. Here’s the first one:

The first attacks Maggie Haberman’s story about flushing documents (but is limited just to White House toilets; she has since reported he flushed stuff while traveling as well).

It also falsely claims that “the papers were given easily and without conflict and on a very friendly basis.” Whatever the seven redacted paragraphs in the affidavit about the fight to get the documents back includes, it would show that that claim was utterly false.

But the statement does claim that “I have been told I was under no obligation to give this material back based on various legal rulings.” We know Trump was told this after the documents were returned. As CNN reported, Judicial Watch’s Tom Fitton was telling Trump just that, citing a ruling pertaining to Bill Clinton.

Not long after the National Archives acknowledged in February that it had retrieved 15 boxes of presidential records from former President Donald Trump’s Mar-a-Lago residence in Florida, Trump began fielding calls from Tom Fitton, a prominent conservative activist.

Fitton, the longtime head of the legal activist group Judicial Watch, had a simple message for Trump — it was a mistake to give the records to the Archives, and his team should never have let the Archives “strong-arm” him into returning them, according to three sources familiar with the matter.

Those records belonged to Trump, Fitton argued, citing a 2012 court case involving his organization that he said gave the former President authority to do what he wanted with records from his own term in office.

The Judicial Watch president suggested to Trump that if the Archives came back, he should not give up any additional records, according to sources with knowledge of their conversations, which have not been previously reported.
While Trump continued to publicly tout his cooperation with the Archives, privately the former President began obsessing over Fitton’s arguments, complaining to aides about the 15 boxes that were handed over and becoming increasingly convinced that he should have full control over records that remained at Mar-a-Lago, according to people with knowledge of his behavior at the time.

Trump even asked Fitton at one point to brief his attorneys, said a person familiar with the matter.

“The moment Tom got in the boss’ ear, it was downhill from there,” said a person close to the former President, who spoke on the condition of anonymity to discuss internal matters.

If Trump’s statement was a reference to Fitton’s advice, it may suggest that advice started even before the Archives publicly confirmed returning the documents (or that Fitton immediately got inside Trump’s head).

What I was most interested in, however, was Trump’s description that the “boxes [] contained letters, records, newspapers, magazines, and various articles,” suggesting that all this excitement was just a fight over 15 boxes of shit.

In fact, the affidavit reveals the initial Archives referral explained, those boxes did contain a lot of shit. But intermixed with all that shit were “a lot of classified records.”

The NARA Referral stated that according to NARA’s White House Liaison Division Director, a preliminary review of the FIFTEEN BOXES indicated that they contained “newspapers, magazines, printed news articles, photos, miscellaneous print-outs, notes, presidential correspondence, personal and post-presidential records, and ‘a lot of classified records.’ Of most significant concern was that highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified.”

As I understand it, the description that this was “unfoldered” means it had been separated from a classified cover sheet that the government uses to highlight that the document enclosed is classified (they’re color-coded so a person can readily see how secret something is). When people try to hide that they’ve got classified information, one of the first things they do is rip off that cover sheet because it’s such a dead giveaway (which is, after all, the point). As I’ve said elsewhere, the FBI found such cover sheets in Joshua Schulte’s shredder when they did the search of his apartment, which they used to suggest, fairly or not, that Schulte was trying to hide things in the wake of the Vault 7 release.

As Elizabeth de la Vega noted when reading the affidavit, newspaper articles and magazines are the kinds of things that white collar criminals use as filler to try to obscure their crimes.

Trump claimed that the boxes were full of things that might appear worthless, and when the Archives opened them up and looked more closely, that’s precisely what they were full of, aside from the classified documents stripped of their cover sheets. But in a public statement the day after the investigation was announced, Trump tried to insist it was just filler, as if that were going to confuse the FBI or even a building full of committed archivists.

And that’s one reason the second post — the one that we know appears in the affidavit — is so interesting.

Unsurprisingly, Trump pitched the discovery of classified documents in a continuity with his past investigations — Russia, Ukraine Impeachment, January 6 Impeachment.

Trump’s statement said the same thing when the search broke on August 8.

Since then, however, Kash Patel, in a column cited in the affidavit, has given us reason to believe that the real continuity is that (at least some of) the documents Trump had stolen were about the Russian investigation or the Ukraine impeachment.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

And Paul Sperry revealed that one reason Trump was withholding these records was because of the ongoing investigation(s) into January 6.

I guess, if you refused to turn over records regarding past investigations, wailing that this is just a continuation of those past investigations is a good way to inoculate your mob for scandalous new disclosures about those past investigations.

But I’m most interested that Trump’s response deflects by complaining,

The Fake News is making it seem like me, as the President of the United States, was working in a filing room.

In fact, there was a public report that had emphasized Trump’s role in packing up the boxes before they got sent to the Archives, one of the WaPo stories that really led the way on this story in February.

At one point, Archives officials threatened that if Trump’s team did not voluntarily produce the materials, they would send a letter to Congress or the Justice Department revealing the lack of cooperation, according to a third person familiar with the situation.

“At first it was unclear what he was going to give back and when,” said one of these people, who, like the others, spoke on the condition of anonymity to share candid details of a sensitive situation.

Trump was noticeably secretive about the packing process, and top aides and longtime administrative staffers did not see the contents, the people said.

That entire article — which includes details about Trump trying to get the Archives to issue false claims about his cooperation with the investigation — seems to be closely aligned with the kinds of sources that the FBI seems to have subsequently developed.

But the allegation Trump was attempting to rebut — that he personally was involved in packing boxes — has since been matched. The NYT cited multiple sources describing Trump going through the boxes to be returned to the Archives personally.

Mr. Trump went through the boxes himself in late 2021, according to multiple people briefed on his efforts, before turning them over.

More recently (and possibly part of an attempt to blame Mark Meadows for all this) the NYT described how stuff that had accumulated on the dining room table of the White House where he worked was not only getting dumped into two dozen boxes that would not get sent to the Archives, but staffers were bringing additional documents into him there, including the Kim Jong Un letters that — because the Archives knew to go looking for them — have served as a beacon for the stolen documents throughout this story.

Papers he had accumulated in his last several months in office had been dropped into boxes, roughly two dozen of them, and not sent to the National Archives. Aides had even retrieved letters from Kim Jong-un, the North Korean leader, and given them to Mr. Trump in the final weeks, according to notes described to The New York Times.

[snip]

Although the White House Counsel’s Office had told Mark Meadows, Mr. Trump’s last chief of staff, that the roughly two dozen boxes worth of material in the residence needed to be turned over to the archives, at least some of those boxes, including those with the Kim letters and some documents marked highly classified, were shipped to Florida. There they were stored at various points over the past 19 months in different locations inside Mar-a-Lago, Mr. Trump’s members-only club, home and office, according to several people briefed on the events.

Whether the first of these two posts is the redacted one or not, both times the Archives issued a public statement, Trump issued public, false, denials (and, according to the contemporaneous WaPo story, attempted to get the Archives to do the same).

At that level, then, the statements feel familiar from the Russian investigation, Trump’s well-studied ability to flood the zone with bullshit.

But buried in the two, together, seems to tie closer to actions — Trump’s personal involvement in stuffing the boxes full of shit under which to hide damning documents — that would go some distance to prove deliberate obstruction.

The Known and Likely Content of Trump’s Search Warrant

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Yesterday, Magistrate Judge Bruce Reinhart found that, “the Government has not met its burden of showing that the entire [Trump search warrant] affidavit should remain sealed.” He ordered DOJ to provide a sealed version of proposed redactions for the warrant affidavit for Trump’s search by August 25 at noon.

Two days after the search of Mar-a-Lago I did a post laying out the likely content of what’s in that search warrant (which pretty accurately predicted what we’ve seen since). Because a warrant affidavit is one of the best ways to show how DOJ and the FBI think of the events of the last 18 months, I wanted to do a second version including all the things we have learned since.

For comparison, here are the warrants for Reality Winner and Josh Schulte, both of which were also, at least in part, warrants for a 793 investigation. Here are warrants to search Roger Stone and Oath Keeper Jeremy Brown’s houses, both Federal searches in Florida related to investigations conducted in DC (the search of Brown’s house even found allegedly classified documents, albeit only at the Secret level). Stone’s showed probable cause for a different part of the obstruction statute. Here’s the warrant Robert Mueller’s team used to get Michael Cohen’s Trump Organization emails from Microsoft.

Cover Sheet to Warrant Application

[link]

This cover sheet shows that DOJ swore out the affidavit to Magistrate Judge Bruce Reinhart over WhatsApp, who signed it on August 5.

It describes applying for a warrant to search for evidence of crimes and for contraband (a reference to the illegally possessed Presidential records). It doesn’t permit the seizure of property used in the commission of a crime so, unsurprisingly, the FBI didn’t have authority to seize Mar-a-Lago.

The cover sheet describes the three crimes under investigation this way.

The Search Warrant

[link]

The search warrant notes the docket number 22-mj-8332 that the entire country has been watching for 10 days now.

The search warrant authorizes the FBI to conduct a search of 1100 S. Ocean Blvd., Palm Beach, FL.

It was signed by Reinhart, who was the Duty Magistrate, at 12:12PM on August 5.

The warrant gave the FBI two weeks, until August 19, to conduct the search and limited the search to daytime hours (defined as 6AM to 10PM, which Trumpsters often complain amounts to a pre-dawn raid).

Attachment A

[link]

Attachment A describes Mar-a-Lago as a “resort, club, and residence” with approximately 58 bedrooms and 33 bathrooms. The warrant permitted the FBI to search all parts of Mar-a-Lago accessible to Trump (whom they refer to as FPOTUS) and his staff, except those currently occupied (at the time of the search) by Members or guests. It mentioned the “45 Office” explicitly and storage rooms, but did not describe the storage room at the center of much reporting on the search.

Attachment B

[link]

Attachment B authorized the FBI to seize “documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” in violation of 18 USC 793, 18 USC 2071, or 18 USC 1519.

This post describes the search protocol authorized in Attachment B, with nifty graphic.

Return

Search warrant forms have a return form (describing what was seized) included in them. But here, the FBI provided that list to Trump in the form of two receipts, one signed by a Supervisory Special Agent, and one signed by a Special Agent; I’ve dubbed the latter the “CLASS receipt,” because all the classified documents described are included on that one.

The receipt lists:

  • 27 boxes, one of which is described as leatherbound; 11 are described to contain documents marked classified
  • Executive grant of clemency for Roger Stone
  • Potential Presidential record
  • 2 binders of photos
  • Handwritten note
  • Other documents catalogued on the SSA receipt

See these two posts for more on the significance of the two different receipts.

Christina Bobb signed for both receipts at 6:19PM on August 8.

Affidavit

This would start with:

  • Several paragraphs describing the affiant’s background and training
  • An assertion that the affiant believed there was probable cause that the FBI would find evidence of violations of 18 USC 793, 18 USC 2071, and 18 USC 1519 at Mar-a-Lago.

Particularly given the novel legal issues implicating a search of the former President, I think there’s likely a section describing the statutes involved. It’s likely to include:

Note: If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing, particularly if it implied that Trump was under investigation for stealing nuclear documents. But they might be unwilling to do that if they’re not yet sure they’ve gotten all known nuclear documents back. 

Then there’d be a section describing who was involved (the Roger Stone warrant has such paragraphs). There will be a paragraph about Trump that looks like:

Donald J. Trump (Former President of the United States, FPOTUS) is a businessman who owns and resides at 1100 S. Ocean Blvd., Palm Beach, FL. From January 20, 2017 at 12:00PM until January 20, 2021 at 12:00PM, he was the President of the United States. He ceased exercising the constitutional authorities of the President at 12:00PM on January 20, 2021. On February 5, 2021, the current President of the United States, Joe Biden, discontinued classified briefings for FPOTUS.

In addition, there are likely descriptions of the National Archives and its statutory duties.

There may be descriptions of Patrick Philbin, Pat Cipollone, Mark Meadows (all of whom were involved in negotiations with NARA over retrieving the documents), anyone caught on surveillance video entering or exiting the storage closet, of Kash Patel and John Solomon (including past security concerns raised about both), and the Trump lawyers involved in the June meeting.

There may be a paragraph describing MAL in more depth. It might describe the SCIF used during Trump’s presidency and its apparent removal. It might describe the arrest and prosecution of Yujing Zhang, who breached MAL and might include other known foreign intelligence targeting of MAL. It might describe Trump’s refusal to use secure facilities at MAL, including a 2017 meeting with Shinzo Abe, though it would likely rely on public reports for this, not classified intelligence. It might describe the tunnels underneath and — and the public availability of historic diagrams of them. It might describe the known employees at MAL, including any foreign citizens. Finally, it might describe both the terms of membership and the ease with which others could access the golf club.

Timeline

The rest is probably a timeline of the investigation. The following known details are likely to appear.

On December 30, 2020, DOJ provided Trump a binder of material from the Russian investigation.

On January 8, 2021, Mike Ellis attempted to retain a compartmented NSA report for White House archives, initially refusing efforts to return it.

On January 14, 2021, the White House returned the compartmented NSA report to NSA.

On January 17, 2021, the FBI provided a list of continuing objections to Trump’s declassification of Crossfire Hurricane materials.

On January 19, 2021, via letter to Archivist of the United States David Ferriero, FPOTUS designated (among others) Pasquale (Pat) Cipollone and Patrick Philbin as his representatives with the NARA.

On January 19, 2021, FPOTUS wrote a letter authorizing the declassification of records pertaining to FBI’s investigation into Russian ties with FPOTUS’ campaign that had not yet been declassified. Patel later described the materials to include:

transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

Patel’s description appears to conflict with Trump’s order, which explicitly, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court.”

On January 20, 2021, Meadows sent “The Attorney General” a memo, citing the January 19 order from FPOTUS, ordering “the Department must expeditiously conduct a Privacy Act review under the standards that the Department of Justice would normally apply, redact material appropriately, and release the remaining material with redactions applied.”

On January 20, 2021, FPOTUS ceased exercising the authorities of the President of the United States.

On January XX, records deemed to be the final production of Presidential Records arrived at NARA.

The affidavit would describe the inventorying process and then describe known documents that were not included.

  • Love letters from Kim Jong Un
  • Altered map of Hurricane Dorian

It would also include a description of evidence of document destruction, including any evidence those records pertained to a Congressional investigation, impeachment, or a criminal investigation.

Starting on May 6, 2021, NARA General Counsel Gary Stern communicated with Philbin regarding the missing records. [This will cite the date of each communication and quote anything that captures Trump’s refusal to return the documents.]

Having not secured identified records, starting in Fall 2021, Stern communicated with Trump attorney (probably Cipollone) to arrange turning over the records.

October 18, 2021: Trump sues to prevent the Archives from complying with January 6 Committee subpoena.

November 10, 2021: Judge Tanya Chutkan denies Trump’s motion for an injunction against NARA. (While it wouldn’t appear in the affidavit, in recent days Paul Sperry has claimed that Trump withheld documents to prevent NARA from turning them over to the January 6 Committee.)

On December XX, 2021, XX informed NARA certain missing records had been located.

December 9, 2021: DC Circuit upholds Judge Chutkan’s decision releasing Trump records to the January 6 Committee.

On January 17, 2022, NARA retrieved 15 boxes of Records from 1100 S. Ocean Blvd, Palm Beach, FL.

January 19, 2022: SCOTUS upholds Chutkan’s decision.

On January 31, 2022, NARA completed an initial inventory of the retrieved documents. It discovered over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) material.

On February xx (possibly February 8), 2022, NARA reported FPOTUS’ failures to comply with the Presidential Records Act to the Department of Justice and requested an investigation.

DOJ and FBI likely conducted interviews between February and May, which would be listed.

On April 11, 2022, Biden’s White House Counsel instructed NARA provide FBI access to the 15 boxes of materials returned from Mar-a-Lago.

On April 12, 2022, NARA instructed the Trump team of that decision, and informing him that the FBI would start to access the documents on April 18.

On April XX, Trump’s attorneys ask the White House counsel for more time before the review of the documents; Biden extends the date to April 29.

On May 5, 2022, Corcoran proposed reviewing the records at NARA.

On May 5, 2022, Kash Patel made public claims that the contents of materials returned to NARA had been declassified, describing that FPOTUS wanted to release,

information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.

FBI conducted early interviews during this period, likely including Philbin, Scott Gast, Derek Lyons, and Cipollone, and possibly Mark Meadows. Philbin and Cipollone would have described their own inspections of records, including their knowledge that identified missing records had been at MAL when they had conducted records searches.

FBI would include multiple interviews of people describing Trump saying the Presidential Records belonged to him.

On May 10, 2022, Acting Archivist informed Evan Corcoran the FBI would get access to the records on May 12.

On May 11, 2022, FBI subpoenaed Trump for documents remaining at Mar-a-Lago bearing classification marks.

On May 12, pursuant to a subpoena, FBI accessed the 15 boxes turned over in January.

From May 16-18, FBI conducted a preliminary review of. the documents and discovered:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Documents marked HCS, FISA, ORCON, NOFORN, and SI
  • Handwritten notes

On May XX, 2022, DOJ subpoenaed FPOTUS for any remaining documents bearing classification marks.

Surveillance video from this period, later obtained with a subpoena, showed people moving documents in and out of the storage room. The people and dates would be included.

On June 3, 2022, Jay Bratt and three investigators met with Evan Corcoran and Christina Bobb to collect the subpoenaed materials.

  • FPOTUS joined the meeting and acknowledged the effort to retrieve classified materials.
  • Bobb and Corcoran provided XX documents marked with classification marks.
  • One of the lawyers signed an attestation that all classified documents had been turned over.
  • Bratt informed Bobb and Corcoran all records covered by the Presidential and Federal Records Act were US government property.
  • Bratt informed Bobb and Corcoran about the regulations guiding storage of classified records.
  • Bratt and investigators inspect storage facility, find storage facility fails to meet required standards for storage.

On June 8, Bratt emailed Corcoran. He said, in part, that,

We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice

It’s likely either at the meeting on June 3 or in the email, Bratt also informed Corcoran that the storage closet did not comply with CFR guidelines.

On June 9, Corcoran wrote saying only, “I write to acknowledge receipt of this letter.”

On June 19, FPOTUS sent a letter to NARA designating Patel and Solomon as representatives to access “Presidential records of my administration.”

NARA, possibly Gary Stern, likely informed DOJ of the designation of Patel and Solomon and (probably) Trump’s reference to “Presidential records,” generally, not records at NARA.

On June 22, DOJ subpoenaed surveillance video of the storage closet for a 60-day period. Analysis of the video showed uncleared people entering in and out of the storage closet.

DOJ likely had follow-up interviews after the Bratt meeting and the surveillance video return, in part to identify who had access to the storage closet and to identify documents believed to remain outstanding.

The affidavit would include a description of known documents that remain extant, including documents that were altered or mutilated (perhaps transcripts of Trump’s meetings with Russia) and known classified documents, including those pertaining to nuclear weapons. 

Finally, the affidavit would include a conclusion stating that all this amounts to probable cause that Trump was in possession of documents that were covered by the PRA, some subset of which were believed to be classified and some other subset of which had either been hidden or damaged in an effort to obstruct either this or other investigations.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

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Last December, when the DC Circuit ruled that the Archives should share Donald Trump’s materials relating to January 6 with the January 6 Committee, it emphasized the “rare and formidable alignment of factors supports the disclosure of the documents at issue.”

On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.

It likewise pointed to the careful attention (and month-long reviews) the Biden White House gave to each tranche of materials at issue.

Still, when the head of the Executive Branch lays out the type of thoroughgoing analysis provided by President Biden, the scales tilt even more firmly against the contrary views of the former President.

Judge Patricia Millet’s opinion even found that the due consideration Biden exercised was enough to reject Trump’s claim that the Presidential Records Act had given him “unfettered discretion to waive” his own Executive Privilege claim.

Lastly, former President Trump argues that, to the extent the Presidential Records Act is construed to give the incumbent President “unfettered discretion to waive former Presidents’ executive privilege,” it is unconstitutional. Appellant Opening Br. 47. There is nothing “unfettered” about President Biden’s calibrated judgment in this case.

Citing Mazars, the opinion also noted SCOTUS’ deference to information-sharing accommodations between the Political Branches, the Executive and Legislative Branches.

Weighing still more heavily against former President Trump’s claim of privilege is the fact that the judgment of the Political Branches is unified as to these particular documents. President Biden agrees with Congress that its need for the documents at issue is “compelling[,]” and that it has a “sufficient factual predicate” for requesting them. First Remus Ltr., J.A. 107; see also Third Remus Ltr., J.A. 173. As a result, blocking disclosure would derail an ongoing process of accommodation and negotiation between the President and Congress, and instigate an interbranch dispute.

The Supreme Court has emphasized the importance of courts deferring to information-sharing agreements wrestled over and worked out between Congress and the President. See Mazars, 140 S. Ct. at 2029, 2031.

In other words, the request of a coequal branch of government, made with the assent of the incumbent President, presented a very powerful legal case for sharing Trump’s January 6 records with Congress.

When the Supreme Court considered the question, only Ginni Thomas’ spouse disagreed (Brett Kavanaugh did attempt to limit the decision).

The courts may well have come to this same conclusion had Merrick Garland’s DOJ subpoenaed records from the Archives for its own investigation of Donald Trump directly. A “subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding” is one of the three exceptions the Presidential Records Act makes to the parts of the law that restrict access to the materials for a period after the President’s Administration.

But constitutionally, it would have been a very different legal and political question.

Importantly, the only way to obtain a privilege waiver from Biden in that situation would be to violate DOJ’s Contacts Policy that firewalls the White House from ongoing criminal investigations, and so the request would either have lacked that waiver from the incumbent President, or would risk politicizing the DOJ investigation.

The Biden White House’s strict adherence to that Contacts Policy is what allowed Karine Jean-Pierre to make a categorical denial of any advance warning of the search on Trump’s home and to use that as a reaffirmation of the rule of law last week.

She’ll probably get similar questions today, and make the same categorical denial of any White House knowledge.

All that is the predictable background to the NYT report that, after the January 6 Committee subpoenaed these records, and after the Archives gave both Presidents an opportunity to weigh in, and after the DC Circuit and Supreme Court ruled against Trump’s complaints, DOJ subpoenaed all the same material from the Archives themselves.

Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.

The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

While the NYT doesn’t say it, it seems likely that the Archives gave these already privilege-reviewed documents to prosecutor Thomas Windom with nary a squeak, and we’re just learning about it — indeed Trump may have just learned about it, which is where the subpoena probably came from — four months later. We’re just learning about it, importantly, after the FBI seized another 27 boxes of documents that Trump had refused to turn over to the Archives, including records (if you can believe Paul Sperry) pertinent to January 6.

When I predicted this would happen in December, I went out of my way to ask constitutional lawyers if they had another solution to the puzzle of getting Trump’s documents without violating that Contacts Policy, and no one even engaged with a question — how to overcome Executive Privilege — that had been a real problem for Robert Mueller, when he was investigating Donald Trump.

People will wail about the timing of this request and others, including the NYT, will falsely claim this is proof that DOJ is following the January 6 Committee.

Asking the National Archives for any White House documents pertaining to the events surrounding Jan. 6 was one of the first major steps the House panel took in its investigation. And the grand jury subpoena suggests that the Justice Department has not only been following the committee’s lead in pursuing its inquiry, but also that prosecutors believe evidence of a crime may exist in the White House documents the archives turned over to the House panel.

There were covert steps taken before that, including the (admittedly belated) request for call records at least a month earlier.

In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter.

And we’ve already seen proof that the fake electors investigation, at least, has pursued leads that the Committee had not yet made public before DOJ was including them in subpoenas.

Furthermore, the subpoena was issued before the Committee started its public hearings on June 9.

There are a couple of other notable details about this timing.

First, in addition to coming after the SCOTUS decision, this subpoena came after Mark Meadows and Ivanka made efforts to comply with the Presidential Records Act by providing the Archives copies of official business they conducted on their own email and Signal accounts. It also came after any responsive documents from the 15 boxes of records that Trump did provide to the Archives earlier this year were identified. DOJ made its request at a time when the Archives were more complete than they had been when the Committee started identifying big gaps in the records.

The only thing we know remains missing from those Archives (aside from documents seized last week) is Peter Navarro’s ProtonMail account, which DOJ sued to obtain earlier this month.

The Archives’ request also came after Trump had largely given up the effort to fight individual releases.

As NYT correctly noted, DOJ only issued this subpoena at a time when it was issuing other subpoenas (the fact of, but not the substance, of Brandon Straka’s cooperation had been made public in January, and Ali Alexander’s excuses for his actions at the Capitol had already been debunked in January after Owen Shroyer, who was arrested a year ago, made the very same excuses).

The subpoena was issued to the National Archives around the same time that it became publicly known that the Justice Department was looking beyond the rioters who were present at the Capitol and trying to assess the culpability of people who had helped organize pro-Trump rallies in Washington on Jan. 6. In the spring, for instance, Mr. Windom issued a grand jury subpoena to Ali Alexander, a prominent organizer of “Stop the Steal” events who complied by submitting records to prosecutors and testifying before the grand jury.

We don’t know what steps DOJ took before May (aside from those that have shown in cases like Straka’s). We do know that at that point, DOJ started taking overt steps that would build on previous covert ones. We also know that we keep learning about steps that DOJ took months ago, when people were wailing that they would know if DOJ had taken such steps.

I can’t prove that this was always the plan from the time, 375 days ago, when I first observed how DOJ was getting privilege waivers from Biden without violating their new Contacts Policy. I can’t prove it was the plan when I wrote an entire post in December about the puzzle of Executive Privilege waivers. I had no idea that DOJ was issuing that subpoena when I stated that it was probably doing so in May, the month it occurred.

We should assume the same kind of [synthesis with a Congressional investigation as happened with Mueller] is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

What I can say with no doubt, though, is that Merrick Garland’s DOJ solved one of the most challenging constitutional problems facing an investigation of a former President. And it solved that problem months ago.

And no one knew about it.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

DOJ Is Suing Peter Navarro (But Not Ivanka or Mark Meadows)

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Yesterday, DOJ filed suit against Peter Navarro for violating the Presidential Records Act by failing to provide the National Archives with the contents of his personal ProtonMail account on which he did official business.

It’s a nifty lawsuit. After laying out that he’s a Covered Person under the Presidential Records Act for the entirety of the Trump Administration, then laying out the requirement that copies of any presidential business conducted on non-official accounts be shared with the Archives, it then describes how Navarro didn’t comply with the PRA specifically as regards (at least) a ProtonMail account he used.

6. While serving in the White House, Mr. Navarro used at least one non-official email account—an account hosted by the non-official service ProtonMail—to send and receive messages constituting Presidential records.

7. Mr. Navarro did not copy each email or message constituting Presidential records that was sent or received on his non-official account or accounts to his official government email account.

8. Following the end of the Trump Administration, the Archivist, through the General Counsel of the NARA, attempted to contact Mr. Navarro to secure the Presidential records that Mr. Navarro had not copied to his government email account. Mr. Navarro did not respond to NARA’s communications.

9. Prior to filing this suit, in an effort to avoid litigation, Department of Justice counsel contacted Mr. Navarro by email and United States mail to secure the Presidential records that Mr. Navarro had not copied to his government email account. Discussions with Mr. Navarro’s counsel to secure the return of Presidential records ultimately proved unsuccessful. Mr. Navarro has refused to return any Presidential records that he retained absent a grant of immunity for the act of returning such documents.

DOJ is very coy about the timing of all this. Possibly, when they asked Navarro to comply, they didn’t know about the ProtonMail account. But since then — and since the time Navarro very loudly lawyered up after being charged in contempt — DOJ asked Navarro for the material he hadn’t shared.

And Navarro, now represented by counsel, responded that he wouldn’t share the emails unless DOJ immunized him for any criming he did on ProtonMail. In response to which, DOJ very politely informed Navarro that by law, those ProtonMails, including any evidence of criming he did on them, are the property of the Federal Government.

The PRA is notoriously toothless for forcing your Navarro or Ivanka or Jared or Meadows types who refuse to use official accounts for Federal business. (Though Andrew McCabe made sure to apply some teeth to the PRA with Jared and Dan Scavino within days after the Biden inauguration; records were not archived properly for others, including Kellyanne Conway and Kayleigh McEnany.) It is toothless, that is, until such time as the affirmative refusal to comply with it could be deemed obstruction of a criminal investigation, the kind of criminal investigation that Navarro may have specifically in mind when he demanded immunity for giving what DOJ maintains is Federal property to the people who own it.

Maybe Navarro, now represented by counsel, thinks that whatever criming he did on his ProtonMail account carries a greater criminal penalty than obstruction would.

This lawsuit is similar to a lawsuit against Steve Wynn to get him to register under FARA, but one on which the legal issues are likely to be much clearer. If and when DOJ wins the lawsuit, they can then charge the person with violating the underlying law, which in the Wynn case might have real teeth.

But they may not have to wait that long with Navarro. They’ve laid a case that Navarro is withholding materials in an effort to withhold evidence of criming from NARA. Who knows? Perhaps his new lawyer will rethink the wisdom of demanding immunity.

As interesting as the fact that DOJ sued Navarro is, it is just as interesting that they have not, yet, sued Ivanka and Mark Meadows, both of whom had similarly failed to turn over the contents of their personal accounts to NARA by the time the January 6 Committee came looking for them. Unlike Navarro, though, both showed signs of trying to comply last year.

The fact that DOJ hasn’t sued Ivanka and Meadows may suggest that a great deal of incriminating data for DOJ’s investigation of January 6 has now been delivered to NARA, where DOJ can obtain it with covert warrants that shield its investigation.