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The Eight Month Investigation into the January 6 Investigation Didn’t End in March

I was going to hold off responding to this Spencer Ackerman op-ed in the NYT — which attempts to superimpose conclusions of his book onto ensuing events that have disproven some of his predictions — until I finish a half-written review of the book itself (tl;dr: it’s a great history of the war on terror, but entirely unpersuasive as to its main argument and especially sloppy when it attempts to discuss politics). But I got a bit fed up by the way he claims to be speaking about the response to January 6 with an op-ed that doesn’t incorporate anything more recent than March.

“Eight months later, there is no political response to the insurrection at all,” — Spencer claims, linking an article dated March 26 reporting, “Dem Hearings Bend Over Backward to Ignore GOP Complicity in Capitol Riot –“only a security response aimed at its foot soldiers.” That’s his most recent reference in the entire op-ed, as demonstrated by the links he uses:

Elissa Slotkin: 2/1/21

Somali plot: 1/25/19

Somali plot: 10/14/16

Mike Flynn: 7/9/16

Trump on terrorism: 8/15/16

Trump’s birtherism: 9/19/15

How the January 6 insurrectionists saw themselves: 1/5/21

Veterans: 2/4/21

Non-veteran Mariposa Castro declaring war: 1/21/21

Describing the Jan 6 investigation based on what Michael Sherwin’s comments about sedition, while ignoring what he said about holding everyone accountable: 1/13/21

[Sherwin’s resignation: 3/23/21]

Trump sent them: 1/9/21

Opting against 14A: 2/3/21

Dems on empowering the FBI: 2/5/21

DOJ seeking new domestic terror powers: 2/26/21

Slotkin again on monitoring domestic extremists: 3/23/21

“I am not a terrorist:” 1/13/21

Spencer makes no mention of any of the developments you’d look at to understand how the Biden Administration was responding to January 6, including:

  • A new domestic terrorism response that includes social media monitoring of the sort that might have prevented the attack on the Capitol, but few of the other things Spencer and others have never stopped predicting since January 6.
  • A discussion of the actions of the January 6 Select Committee, on which committee Elissa Slotkin (the Democrat Spencer quoted twice and on whom his book focuses) doesn’t sit. The committee has provided a way around the need to placate Republicans trying to avoid angering Trump, to say nothing of committees (like the House Oversight Committee) packed with key figures in the events of January 6. The committee has already moved to obtain the records of the people that Spencer claims have escaped accountability.
  • A description of Merrick Garland’s repeated comments, starting in his February 22 confirmation hearing and continuing since, that DOJ would go where the evidence leads, including to those who incited it. Garland’s DOJ has also found important ways to avoid sheltering Mo Brooks (and by association all other people who were Federal employees the day of the riot, as Trump was), and to waive executive privilege to allow multiple investigations into Trump’s actions to proceed.
  • How DOJ under Merrick Garland and Lisa Monaco has approached the January 6 investigation, notably with its use of the unpoliticized obstruction statute to charge felonies rather than (thus far at least) sedition, the use of interlocking conspiracies that have already started incorporating some organizers and which could easily be used with Trump and his flunkies, and the possibility of terrorism enhancements that would be decided at sentencing, by judges, rather than by categorical application at the start of investigation.

There are definitely ways that the two decade war on terror played a big role on January 6.

More important than the 22 veterans charged by early February is which figures in the organizing conspiracies applied their military experience to ensuring the success of the operation. Key among those is former Staff Sargeant Joe Biggs, who served in both Iraq and Afghanistan before he went on to play a key propaganda role in the 2016 election; as I’ve described, Biggs was at the head of both major fronts (East Side, West Side) of the attack, and his network incorporates the key organizers of the larger event. Charles Donohoe, Dominic Pezzola, Gabriel Garcia, Jessica Watkins, and Joshua James are other veterans who allegedly turned their war on terror training to play key roles leading an attack on the Capitol. The second front of the attack on the Capitol that Biggs seemed to have anticipated was opened — either coincidentally, or not — by a bunch of Marines, including one on active duty.

If you’re going to talk about the import of the war on terror on January 6, you also have to talk about the mental scars that veterans have brought back. That was made spectacularly clear by Landon Copeland’s PTSD-driven meltdown in a detention hearing. But even Jacob Chansley’s mental illness has ties to his service. These two are not alone among the men and women whose service scars led them to embrace the false promises Donald Trump was offering.

In his book, Spencer rightly complains about the Wanted Dead or Alive rhetoric motivating the War on Terror. He also complains about an, “obsession with the baroque, fragmentary details of what became #Russiagate,” (mistaking the equally baroque counter-propaganda hashtag for those focusing in varying degrees of obsessiveness on the investigation itself) that nevertheless ended with Bill Barr corruptly intervening to protect Trump. But Spencer apparently feels the best way to deal with something else — a plodding, but ambitious, attempt to conduct a law enforcement investigation from the attack itself to its kingpins — is to largely ignore it even while claiming to speak for it.

The January 6 investigation, even in conjunction with the Select Committee, will not fix all the problems with the War on Terror. The two together may not hold the most powerful culprits for January 6 accountable — but that’s not for lack of ambition to do just that. But — in large part because this is an investigation of mostly-white people, which goes to the core of how America’s racism and other demons almost brought down its democracy and still could — it looks more like how the US should have responded to the 9/11 attack and not the caricature that Spencer arrives at by ignoring the last six months.

Following 600 cases as DOJ meticulously obtains the camera footage to see how Alex Jones lured unwitting participants to a second front or attempts to document whether key militia members made an attempt on Nancy Pelosi’s life is not sexy. But it’s what Spencer claims we should have done in response to 9/11.

How a Trump Prosecution for January 6 Would Work

Jeffrey Toobin wrote a shitty piece arguing — seemingly based exclusively on Trump’s request to Jeffrey Rosen to delegitimize the election results in Georgia and Trump’s January 6 speech — that Merrick Garland should not prosecute Trump.

Toobin’s piece sucks for the same reason that all the mirror image articles written by TV lawyers, the ones explaining how DOJ might prosecute Trump, also suck: because none exhibit the least familiarity with how DOJ is approaching January 6, much less what allegations it has already made in charging documents. They are, effectively, nothing more than throwing a bunch of laws at the wall to see whether any stick (and in Toobin’s estimation, none do).

Almost none of these TV lawyers engage with how DOJ is applying obstruction as the cornerstone of its January 6 prosecutions. For example, Toobin considers whether Trump obstructed justice, but he only analyzes whether, when, “Trump encouraged the crowd to march to Capitol Hill but he did not explicitly encourage violence,” Trump obstructed the vote certification. Of around 200 January 6 defendants charged with obstruction, I can think of few if any against whom obstruction has been charged based solely on their actions on the day of the riot, and Trump is not going to be the exception to that rule. As with other January 6 defendants, DOJ would rely on Trump’s words and actions leading up to the event to prove his intent.

In this post, I want to lay out how a DOJ prosecution of Trump for January 6 would work. I’m not doing this because I’m sure DOJ will prosecute. I’m doing it to make the commentary on the question less insufferably stupid than it currently is.

Assumptions

The piece makes three assumptions.

First, it assumes that DOJ’s current application of 18 USC 1512(c)(2) to cover the vote certification survives judicial review. It’s not at all clear it will, either because the courts (this will go to SCOTUS) don’t believe Congress intended to include Constitutionally-mandated official proceedings like the vote certification in a law covering official proceedings, because the courts will decide that rioters had no way of knowing that interrupting Constitutionally-mandated official proceedings was illegal, or because courts will decide that rioters (all of them, as opposed to one or another making a compelling case to a jury) did not have the requisite corrupt purpose. There are currently at least nine challenges to the application of the law (at least two more have been raised since Judge Randolph Moss had prosecutors put together this list). If TV lawyers want to argue about something, this might be a more productive use of their time than arguing about whether Trump can be prosecuted more generally, because the question doesn’t require knowing many actual facts from the investigation.

This piece also assumes that DOJ would apply two things they asserted in a filing pertaining to Mo Brooks to Trump as well. That filing said that the scope of federal office holder’s job excludes campaign activity, so any campaign activity a federal office holder engages in does not count as part of that person’s duties.

Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ also said that conspiring to attack your employer would not be included in a federal office holder’s scope of employment.

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c).

These two principles, taken together, would get beyond some of the challenges involved in investigating someone covered by Executive Privilege and making orders as Commander-in-Chief. Importantly, it would make Trump’s activities in conjunction with the January 6 rally subject to investigation, whereas they broadly wouldn’t be if they were done in Trump’s official capacity.

Finally, if DOJ were to charge Trump, they would charge him in a conspiracy to obstruct the vote count that intersected with some of the other conspiracies to obstruct the vote count, possibly with obstruction charges against him personally. In general, I don’t think DOJ would charge most of Trump’s discrete acts, at least those conducted before January 20, as a crime. There are two possible exceptions, however. His call to Brad Raffensperger, particularly in the context of all his other efforts to tamper in the Georgia election, would have been conducted as part of campaigning (and therefore would not have been conducted as President). It seems a clearcut case of using threats to get a desired electoral outcome. It’s unclear whether Trump’s request that Mike Pence to commit the unconstitutional action — that is, refusing to certify the winning electoral votes — would be treated as Presidential or electoral. But that demand, followed closely with Trump’s public statements that had the effect of making Pence a target for assassination threats, seems like it could be charged on its own. Both of those actions, however, could and would, in the way DOJ is approaching this, also be overt acts in the conspiracy charged against Trump.

The other conspiracies

If DOJ would only charge Trump in the context of a conspiracy to obstruct the vote (with whatever other charges added in) that intersects with some or all of the other conspiracies charged, it helps to understand what DOJ has done with those other conspiracies. Here’s what the currently charged conspiracies look like:

DOJ has been treating the multiple Proud Boy conspiracies as one (about which Ethan Nordean is complaining); I think they’re doing that — and excluding other key players who could be in one of the conspiracies, including all the most serious assaults committed by Proud Boy members — as a way to show how the cell structure used on the day worked together to serve a unified purpose, while also managing visibility on different parts of their ongoing investigation. For my purposes here, I’ll focus on the Leadership conspiracy, with the understanding that (notwithstanding Nordean’s complaints) DOJ credibly treats the others as the implementation of the conspiracy the Proud Boy Leaders themselves have laid out.

All of these conspiracies, as well as a disorganized militia conspiracy DOJ has been saying they’ll charge, share the same object: to stop, delay, or hinder Congress’ certification of the Electoral College win. Basically, all these conspiracies, as well as a hypothetical one that DOJ might use against Trump, would involve ensuring that he still had a route to remain in power, that he lived to fight another day. By themselves they did not involve a plan to remain in power (though Trump could be charged in a broader conspiracy attempting to do that, too).

They also all allege common Manners and Means (to be clear, these defendants are all presumed innocent and I’m speaking here of what DOJ claims it will prove). Those include:

  • Agreeing to plan and participate in an effort to obstruct the vote certification
  • Encouraging as many people as possible, including outside their own groups, to attend the operation
  • Funding the operation
  • Preparing to make participants in the operation as effective as possible, in all cases including communication methods and in most cases including some kind of defensive or offensive protections
  • Illegally entering the Capitol or its grounds and occupying that space during the period when Congress would otherwise have been certifying the vote

While all of those conspiracies follow the same model, there are some unique characteristics in four that deserve further mention:

Proud Boy Leaders Conspiracy: Operationally, those charged in the Proud Boy Leaders conspiracy managed to assemble a mob, including Proud Boy members (many organized in sub-cells like the Kansas City cell Billy Chrestman led), fellow travelers who met up and marched with the Proud Boys that morning, and those who knew to show up at 1PM (while Trump was still speaking). With apparent guidance from the charged co-conspirators, the Proud Boys managed to kick off the riot and — in the form of the Proud Boy Front Door co-conspirator Dominic Pezzola wielding a stolen shield — break into the building. Thus far (probably in part because Enrique Tarrio is not currently charged in this or any conspiracy), the government has been coy about what evidence it has of coordination with others, including at a December MAGA March in DC. Key planning steps, however, involve deciding not to show Proud Boy colors the day of the riot and fundraising to buy gear and support travel (Christopher Worrell got to DC on a bus paid for by the Proud Boys but that has not yet been charged in any conspiracy). On top of radios and blow horns, two Telegram channels — the larger of which had 60 members — appear to have played key roles in organizing events the day of the riot. To the extent that Proud Boys came armed, they appear to have done so individually, and thus far, DOJ has not included the worst assaults committed by Proud Boys in any of the conspiracies. Several of the charged co-conspirators started talking about war in the days and weeks after the election and those who gathered with the Proud Boys on the morning of the riot skipped Trump’s rally, making their focus on the vote certification much clearer than many others that day.

Oath Keeper Conspiracy: The indictment alleges this conspiracy started on November 9 with a plan both to use Antifa as a foil to excuse violence and in expectation that that violence would be Trump’s excuse to invoke the Insurrection Act and/or respond to that call. The conspiracy used the promise of serving as security — both at the rally and for Roger Stone and other “dignitaries” — to recruit people to come to DC, and in fact a number of the charged co-conspirators were present with Stone the morning of the riot. In addition to kitting out in various Oath Keeper gear at different events on the day of the event, the militia had a serious stash of weapons at the Ballston Comfort Inn in case things did turn violent. The key thing, operationally, this conspiracy achieved was to provide organized brawn to an effort to open a second front to the attack via the East Door of the Capitol. The nominal head of this conspiracy, Florida State head Kelly Meggs, claimed to have set up an alliance with other militias in Florida (he first made the claim a day after the militia had provided “security” for Stone at an event in Florida). Over the course of the investigation, the government has also gotten closer to alleging that Meggs expressed the desire to and took steps to target Nancy Pelosi personally while inside the Capitol.

3%er Southern California Conspiracy: The men charged in this conspiracy — who occupy the overlap between 3%ers and the anti-mask community in Southern California — organized themselves and others to come armed to the Capitol. As alleged, they started organizing formally in explicit response to Trump’s December 19 advertisement for the event. Both online and in an appearance by Russell Taylor at the rally on January 5, they called for violence. They organized in advance via Telegram chat and on the day with radios. Operationally, these men personally participated in the fighting on the west side of the Capitol (most never went in the building but the government contends they were in restricted space outside). But from a larger standpoint, these men form one intersection between the more formal Trump organization behind the rallies and a group of radicalized Trump supporters from across the country.

Disorganized Conspiracy: You’ve likely never heard of Ronnie Sandlin and Nate DeGrave, nor should you have. Their conspiracy (DOJ has not yet charged it but has been planning to do so since April) started when Sandlin responded to Trump’s calls for people to attend the event on December 23 and started looking online to join up with others. “Who is going to Washington D.C. on the 6th of January? I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.” They’re an excellent example of a bunch of guys — along with Josiah Colt, who entered into a cooperation agreement against the other two — who got radicalized via a messy stew of ideologies online, armed themselves for insurrection, raised money and traveled to DC together planning for violence, and allegedly engaged in assaults at two key points inside the Capitol that allowed the occupation of the Senate chamber, and in Colt’s case, Mike Pence’s chair itself. Here’s a video of the two (in orange and all black) fighting to get into the Senate just released today:

Colt has admitted (and may have GoPro video showing) that the three went from learning that Pence had refused Trump’s demand — the government doesn’t say whether they learned this via Trump’s tweet — to forcibly occupying the Senate in response. So while you haven’t heard of them and they’re not members of an organized militia, they still played a tactically critical role in forcibly occupying the Capitol in direct response to Trump’s exhortations.

Questions

There are still a slew of questions about Trump’s actions that have — publicly at least — not been answered. Some that would be pertinent to whether he could be charged with conspiracy include:

  • When Trump said, “stand back and stand by” to the Proud Boys on September 29 — after they had already threatened a Federal judge to serve Trump’s interest, and whose threats had been dismissed by Bill Barr as a technicality — did he intend to signal some kind of relationship with the Proud Boys as the Proud Boys in fact took it to be? Was this part of an agreement to enter into a conspiracy?
  • When both the Proud Boys and the Oath Keepers started planning their January 6 operation in the days after the election, speaking already then of being called by the President to commit violence, was that based on any direct communications, or was it based on things like the earlier Proud Boys comment?
  • When Proud Boys and Oath Keepers who would later lead the operation on January 6 formed an alliance to keep Trump in office in December at an event with Roger Stone, was Stone involved?
  • What conversations did Trump and Stone have about his pardon even as these militia plans were being put in place?
  • What evidence does DOJ have about the Proud Boys’ decision — and their communication of that decision to at least 60 people — not to attend the Trump speech but instead to form a mob that would later march on the Capitol and lead the breach of it while Trump was still speaking?
  • Did Trump time the specific lines in his speech to the Proud Boys’ actions, which were already starting at the Capitol?
  • What orders were given to the Park Police about various crowd sizes and planned events that explains their failure to prepare?
  • Trump told Acting Secretary of Defense Christopher Miller to use the National Guard to protect his protestors on January 3. On January 6, some Proud Boys expressed surprise that the Guard was not protecting them. Did the Proud Boys have reason to believe the Guard would not protect the Capitol but instead would protect them? Why was the Guard delayed 4 hours in responding? Why was there a 32 minute delay during a period when the Proud Boys and Oath Keepers were considering a second assault in relaying an order from Miller to the Guard Commander who had the Guard in buses waiting to deploy? Did the militias call off their second assault based on advance information that the Guard was finally being deployed?
  • Both Rudy and Trump made calls to Members of Congress on January 6 making specific asks for delays at a time when the rioters had already breached the building. Did that include a request to Paul Gosar, and did that result in the delay in evacuating the House side that led to Ashli Babbitt’s death, which Gosar (and Trump) have been key figures in celebrating? Would DOJ be able to get either Gosar or Tuberville’s testimony (they already have the voice mail Rudy left for Tuberville, and because Rudy’s phones have otherwise been seized, if they can show probable cause they have access to anything on his phone).
  • Rudy had texts from a Proud Boy affiliate within 9 days after the riot about implementing a plan to blame it all on Antifa. That guy  had, in turn, been in contact with at least six people at the riot. Were they in contact before and during the riot? Again, DOJ has the phones on which Rudy conducted those conversations, and they happen to have his cell location for other purposes, so the question is do they have probable cause to get the same data for the Jan 6 operation?

What a Trump conspiracy might look like

Even without answers to those questions, however, there are a number of things that Trump did that might form part of a conspiracy charge against him (this timeline from Just Security has a bunch more, including magnifying threats from people who would later take part in the insurrection). The Manners and Means would mirror those that appear in all the charged conspiracies:

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

DOJ knows exactly what happened with Trump’s requests that DOJ serve as the civilian agency to lead response on Janaury 6, and some of the witnesses have given transcribed interviews to Congress and probably DOJ IG. Some details about which there remain questions — who delayed the National Guard — would be available to subpoena. The big question, and it’s a big one, is what kind of communications Trump had with members of Congress to ensure there was maximal conflict and physical risk on that day.

But much of this, including the illegal request of Mike Pence and the specific targeting of him in the aftermath, which directly affected the actions of the disorganized conspiracy, are already public. Both the computer Enrique Tarrio brought to DC and Rudy’s phones have been accessible if DOJ wanted to obtain a warrant for them.

None of this addresses the complexities of whether DOJ would charge a former President. None of this guarantees that DOJ will get key charged defendants to flip, whose cooperation might be necessary to move higher in the conspiracy.

I’m not saying DOJ will charge Trump.

But if they were considering it, it’s most likely this is how they would do so.

Update: Per Quake’s suggestion I’ve added the funding of buses.

Update: Reuters reports that FBI has found “scant” evidence of central coordination in the attack, specifically naming Stone.

Why Did DOJ Delay Seven Months before Letting Jeffrey Rosen Testify?

On January 22 — after Jeffrey Rosen was no longer Acting Attorney General but before Trump’s second impeachment trial — Katie Benner published a story describing Trump’s efforts to get Jeffrey Bossert Clark to undermine those at DOJ, including Rosen and Acting Deputy Attorney General Richard Donoghue, who refused to endorse Trump’s lies about the election.

As I noted the other day, that story included all the details that have been dribbling out from the House Oversight Committee in recent weeks: Trump’s efforts to get DOJ to intervene in Georgia, Rosen and Donoghue’s refusal, followed by Trump’s effort to put Clark in charge at DOJ on January 3. Benner had all that nailed in January.

The day after Benner’s January 22 story, the holdover members of the Senate Judiciary Committee sent a letter to DOJ citing the story and asking for documents behind it.

On January 22, The New York Times reported astonishing details about an alleged plot between then-President Donald Trump and then-Acting Assistant Attorney General of the Civil Division Jeffrey Bossert Clark to use the Department of Justice to further Trump’s efforts to subvert the results of the 2020 presidential election.[1]  These efforts culminated on January 6, when Trump incited a violent mob that attacked Congress as it counted the electoral votes and prepared to affirm President Biden’s victory.  The information revealed by this story raises deeply troubling questions regarding the Justice Department’s role in Trump’s scheme to overturn the election.

The Senate Judiciary Committee will conduct vigorous oversight of these matters.  As a first step, we seek your immediate assurance that the Department will preserve all relevant materials in its possession, custody, or control.  Please also produce the following materials as soon as possible, but no later than February 8, 2021:

  • All documents and communications, including emails, text messages, and calendar entries, referring or related to the reported December 15 meeting between then-President Trump and then-Acting Attorney General Jeffrey Rosen and reported follow-up calls and meetings between President Trump and Mr. Rosen;
  • All documents and communications, including emails, text messages, and calendar entries, referring or related to reported complaints President Trump made to Justice Department leaders regarding then-U.S. Attorney Byung J. Pak prior to Pak’s resignation;
  • All documents and communications, including emails, text messages, and calendar entries, regarding a reported draft letter that Mr. Clark prepared and requested be sent to Georgia state legislators; and
  • All documents and communications, including emails, text messages, and calendar entries, involving the reported January 3 White House meeting involving Mr. Clark and Mr. Rosen.

That letter set a deadline of February 8, over a month before Merrick Garland was confirmed and over 70 days before Lisa Monaco was confirmed.

In May, House Oversight Chair Carolyn Maloney sent Rosen a request (which hasn’t been made public) for a transcribed interview.

Seemingly in response to that — though the letter cites both the January request and the May one — DOJ (in the guise of Bradley Weinsheimer, who was elevated from NSD to DOJ’s institutional accountability role at Associate Deputy Attorney General by Jeff Sessions, and so was a colleague of those DOJ officials), wrote Rosen and five other former top DOJ officials permitting them to testify about a carefully defined set of events. The testimony is basically limited to, “any efforts by President Trump or any DOJ officials to advance unsubstantiated allegations of voter fraud, challenge the 2020 election results, stop Congress’s count of the Electoral College vote, or overturn President Biden’s certified victory.” It is limited to events that happened after Attorney General Barr resigned on December 14. The letter specifically prohibits discussing any prosecutorial decisions the men made, or discussing investigations that were ongoing when they left.

Discussion of any pending criminal cases and possible charges also could violate court rules and potentially implicate rules of professional conduct governing extra-judicial statements.

But within that scope, the letter permits these former DOJ officials to answer questions that would otherwise be covered by executive privilege.

[T]he Department authorizes you to provide unrestricted testimony to the Committees, irrespective of potential privilege, so long as the testimony is confined to the scope of the interviews as set forth by the Committees and as limited in the penultimate paragraph below.

Of particular note, DOJ asked President Biden — via the White House Counsel — whether he wanted to invoke privilege; he chose not to.

Because of the nature of the privilege, the Department has consulted with the White House Counsel’s Office in considering whether to authorize you to provide information that may implicate the presidential communications privilege. The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews, notwithstanding the view of former President Trump’s counsel that executive privilege should be asserted to prevent testimony regarding these communications. See Nixon v. Administrator of General Servs., 433 U.S. 425, 449 (1977) (“[I]t must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.” see also id. (explaining that the presidential communications privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic”) (internal citation omitted).

As Benner wrote in a story offering details of Jeffrey Rosen’s testimony, Rosen has been trying to get permission to testify for “much of the year.” As soon as DOJ gave it, he rushed to testify before Trump could intervene.

Mr. Rosen has spent much of the year in discussions with the Justice Department over what information he could provide to investigators, given that decision-making conversations between administration officials are usually kept confidential.

Douglas A. Collins, a lawyer for Mr. Trump, said last week that the former president would not seek to bar former Justice Department officials from speaking with investigators. But Mr. Collins said he might take some undisclosed legal action if congressional investigators sought “privileged information.”

Mr. Rosen quickly scheduled interviews with congressional investigators to get as much of his version of events on the record before any players could ask the courts to block the proceedings, according to two people familiar with those discussions who are not authorized to speak about continuing investigations.

He also reached out directly to Michael E. Horowitz, the Justice Department’s inspector general, and pledged to cooperate with his investigation, according to a person briefed on those talks.

The question is why. After all, these events were knowable to DOJ since they happened, and for the entirety of that time, DOJ has been conducting an investigation into efforts to obstruct the vote count. For some of that period, in fact, Rosen himself was in ultimate charge of the investigation, and he could have ordered or authorized himself to testify.

Benner didn’t specify whether Rosen might have been interviewed by the FBI, though the implication is he has not been asked.

Similarly, DOJ IG has been investigating related issues since then as part of a specific investigation into the BJ Pak firing and a general investigation into January 6. While Michael Horowitz could not subpoena Rosen, he could simply have asked Rosen to provide testimony. But Benner is quite clear that Rosen has not yet testified even to Horowitz.

During that period, too, there was an instance where DOJ IG asked someone for an interview, but the person quit to avoid the testimony.

During the course of an ongoing administrative misconduct investigation, the Department of Justice (DOJ) Office of the Inspector General (OIG) informed a then senior DOJ official, who was a non-career member of the Senior Executive Service, that the senior DOJ official was a subject in the investigation and that the OIG sought to interview the senior DOJ official in connection with the investigation. After several unsuccessful attempts to schedule a voluntary interview with the senior DOJ official, the OIG instructed the senior DOJ official to appear for a compelled interview and informed the senior DOJ official that neither the answers the senior DOJ official provided nor any evidence gained by reason of those answers could be used against the senior DOJ official in a criminal proceeding. The senior DOJ official failed to appear for the compelled interview and resigned from Department employment shortly thereafter.

The OIG concluded that the senior DOJ official violated both federal regulations and DOJ policy by failing to appear for a compelled OIG interview while still a DOJ employee. The OIG offered the senior DOJ official the opportunity to cure that violation by participating in a voluntary interview after leaving the Department, but the senior DOJ official, through counsel, declined to do so. The OIG has the authority to compel testimony from current Department employees upon informing them that their statements will not be used to incriminate them in a criminal proceeding. The OIG does not have the authority to compel or subpoena testimony from former Department employees, including those who retire or resign during the course of an OIG investigation.

Those events were reported on April 19.

There are two more dates of interest. First, DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

[snip]

Second, the Complaint alleges that Brooks engaged in a conspiracy and incited the attack on the Capitol on January 6. That alleged conduct plainly would not qualify as within the scope of employment for an officer or employee of the United States, because attacking one’s employer is different in kind from any authorized conduct and not “actuated . . . by a purpose to serve” the employer. Id. § 228(1)(c). Brooks does not argue otherwise. Instead, he denies the Complaint’s allegations of conspiracy and incitement. The Department does not address that issue here because the campaign-related nature of the rally independently warrants denial of certification, and because the Department is engaged in ongoing investigations into the events of January 6 more generally. But if the Court were to reject our argument that the campaign nature of the January 6 rally resolves the certification question, the Court should not certify that Brooks was acting within the scope of his office or employment unless it concludes that Brooks did not engage in the sort of conduct alleged in the Complaint. [my emphasis]

It’s possible that this seven month delay is inexcusable.

It’s also possible that it reflects the time DOJ took to come to other determinations about whether privileged information could be used to investigate a former President and if so how to obtain it.

Update: On both June 24,

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

And July 6,

The Attorney General and Deputy Attorney General encouraged the team to continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

Garland made statements reiterating his commitment to charge all perpetrators against whom the evidence supported charges.

The Available Evidence Says Merrick Garland *Is* Prosecuting Controversial Cases from Trump Years

I’m waiting for the arraignment hearing for the Chair of the former President’s Inauguration Committee, which I thought would be a good time to respond to this Jennifer Rubin column that starts by discussing whether DOJ will rule that Mo Brooks’ actions related to the insurrection are his job (and therefore DOJ must substitute themselves for Brooks as a defendant); as Michael Stern laid out, that question is actually a complex one legally.

But Rubin goes from there, a civil lawsuit, to conclude that that Merrick Garland is “determined to sweep” Trump’s misconduct around January 6 “under the rug.” She goes from there to conclude that Garland is “refusing prosecution of controversial cases from the Trump years.”

We are not talking only about Trump’s actions on Jan. 6 or about possible misconduct (e.g., obstruction of justice, misleading courts) in the Justice Department that Garland seems determined to sweep under the rug. Trump’s attempts to strong-arm Michigan and Georgia election officials after he lost the 2020 election were not only a violation of his oath but also may have violated state and federal law prohibiting election fraud and manipulation.

In the case of Georgia, we have Trump on tape telling the secretary of state to “find” enough votes for him to win. What stronger indication of a serious election crime could possibly exist? So far the Justice Department seems to have left any investigation to the Fulton County prosecutor, who unsurprisingly has more pressing priorities. There is no legitimate reason for the feds’ refusal to investigate and, if warranted, prosecute Trump for conduct that no other president in history ever contemplated. If any other American’s participation in this set of facts would prompt a serious federal investigation, Garland must not exempt the former president. That is the meaning of “no one is above the law.”

Garland may think he is attempting to avoid politics by refusing prosecution of controversial cases stemming from the Trump years. If so, he has it backward. If the current president wants to pardon individuals from the previous administration for political reasons, that is his prerogative — not Garland’s. Especially when it comes to any post-election conduct abetting sedition and attempting to corrupt the ballot tabulation, we need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted. If not, Garland would have inadvertently affirmed Trump’s argument that he was above the law.

As noted above, I’m on hold awaiting the arraignment for Tom Barrack, believed to be worth around a billion dollars and someone whose business ties to Trump go back four decades, on charges that he served as an agent (not a lobbyist!) for the United Arab Emirates to change the policy of the United States to benefit that country.

Now’s a good time to respond to this column, I guess, and all the hundreds like it, not least because it’s insane to say that Garland is refusing controversial prosecutions when he is prosecuting this one (and investigating Rudy Giuliani, in spite of serving as the former President’s lawyer while he was President).

Not only is the fact that this case is being prosecuted evidence that Garland is not shying away from such prosecutions, but it tells us two more things about any hypothetical controversial prosecutions.

First, even for a prosecution that was largely set to go over a year ago, those cases might not be charged — for whatever reason — yet, 137 days into Garland’s tenure. (It’s worth noting that grand juries have been backed up on account of COVID.) So it’s too early to say whether Garland is refusing to prosecute other controversial cases, in addition to this one, because for any such prosecution that wasn’t all wrapped up in a bow over a year ago, it might still take some investigative work.

Additionally, this case didn’t leak!! Unlike Billy Barr’s hyper-politicized DOJ, we’re not getting leaks about what’s coming via Sidney Powell or other Fox News talking heads.

So even if there were ten more similarly controversial prosecutions coming down the pike, we might not know about them. Which is how it’s supposed to be.

Both item one — prosecutions take time — and item two — with the exception of Michael Sherwin’s public support for sedition charges, in response to which Garland referred him to OPR for investigation, Garland’s DOJ is not leaking like a sieve — presumably also apply to any investigations involving Trump and those close to him that didn’t take place 4 years ago.

What I do know is that Garland has repeatedly told prosecutors to go wherever the evidence leads on January 6. What I also know is that the complex militia conspiracy cases most likely to lead in that direction (as well as the one defendant who was discussed by the President’s lawyer) are making progress, in the Oath Keeper case, at a faster clip than many of the other prosecutions. What I also know is that complex conspiracy cases take time, more than seven months.

I get that people have gripes about the decisions Garland made about sustaining the Barr DOJ’s position on civil cases. But you simply cannot draw conclusions from that about whether Garland is opposing certain prosecutions. The only evidence we have so far — in cases taking aggressive actions against the former President’s lawyer and the former President’s long-time friend — is that Garland is happy to let prosecutors pursue cases for which they have evidence.

Update: I want to add one more point because people seem to believe that unless Garland appoints a Special Counsel, there’s no way DOJ is investigating the controversial cases. That misunderstands why Special Counsels get appointed: not because cases are important, but because DOJ or a particular prosecutor has a conflict that must be managed in some other way. There’s no known conflict for any potential Trump investigations, so we shouldn’t expect a Special Counsel.

Update: Thanks to those who pointed out I had made Rudy Trump’s client instead of his lawyer.

Update: Because a bunch of people on Twitter appear to continue to believe the false claim that Garland declined Wilbur Ross’ prosecution for lying to Congress, I’m going to link to this post noting that the declination happened under Billy Barr and also noting that DOJ IG likely had their own investigation into the allegations the outcome of which is not yet public.

On the Missing Inspector General Report[s] about Wilbur Ross’ Lies

There was a big news blitz yesterday on the news that the Commerce Department’s Inspector General had concluded Wilbur Ross twice misled Congress about the rationale for including a citizenship question in last year’s census.

The claim was based off a letter from Inspector General Peggy Gustafsonwho was nominated under President Obama — explaining what had become of a 2019 request to investigate whether Ross had lied. In her letter, which was publicly released, Gustafson revealed the outcome of her investigation.

Our investigation established that the then-Secretary misrepresented the full rationale for the reinstatement of the citizenship question during his March 20, 2018, testimony before the House Committee on Appropriations and again in his March 22, 2018, testimony before the House Committee on Ways and Means. During Congressional testimony, the then-Secretary stated his decision to reinstate the citizenship question was based solely on a DOJ request. That request memorandum was signed by the DOJ on December 12, 2017. However, evidence shows there were significant communications related to the citizenship question among the then-Secretary, his staff, and other government officials between March 2017 and September 2017, which was well before the DOJ request memorandum. Evidence also suggests the Department requested and played a part in drafting the DOJ memorandum. Further, the then-Secretary sent a memorandum to the Department on June 21, 2018, clarifying his deliberations regarding adding a citizenship question to the Decennial Census. In this memorandum, the then-Secretary stated he began considering the content of the 2020 Census, to include reinstating the citizenship question, soon after his appointment to Secretary.

This investigation was presented to and declined for prosecution by the Public Integrity Section of the DOJ’s Criminal Division.

She sent the report to Congress along with her letter. But the report itself has not been released publicly or, best as I can tell, even leaked with those who wrote stories on the letter.

Reports on DOJ’s declination created a great deal of outrage that Merrick Garland had declined to prosecute the case. Only, as an AP correction revealed, Garland’s DOJ hadn’t declined prosecution. Barr’s DOJ did.

This story has been corrected to reflect that the decision not to prosecute Ross was made by the Department of Justice during the Trump administration, not the Biden administration.

But corners of the media blitz left out a lot more details about the context of the original request. It came after a Republican strategist, Thomas Hofeller, died, leaving his Democratic daughter to go through his papers, only to discover he, and very racist plans for gerrymandering, were behind the census question. After that smoking gun was discovered, House Oversight (starting under Elijah Cummings before he died) did more investigation and then a bunch of Senators asked for an investigation.

And after DOJ kept appealing a District Court ruling on the question in NY, even the Supreme Court found that Commerce had misrepresented the reason for the question.

Finally, we have recognized a narrow exception to the general rule against inquiring into “the mental processes of administrative decision-makers.” Overton Park, 401 U. S., at 420.

On a “strong showing of bad faith or improper behavior,” such an inquiry may be warranted and may justify extra-record discovery. Ibid. The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record. Recall that shortly after this litigation began, the Secretary, prodded by DOJ, filed a supplemental memo that added new, pertinent information to the administrative record. The memo disclosed that the Secretary had been considering the citizenship question for some time and that Commerce had inquired whether DOJ would formally request reinstatement of the question. That supplemental memo prompted respondents to move for both completion of the administrative record and extra-record discovery. The District Court granted both requests at the same hearing, agreeing with respondents that the Government had submitted an incomplete administrative record and that the existing evidence supported a prima facie showing that the VRA rationale was pretextual.

[snip]

That evidence showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process. In the District Court’s view, this evidence established that the Secretary had made up his mind to reinstate a citizenship question “well before” receiving DOJ’s request, and did so for reasons unknown but unrelated to the VRA. 351 F. Supp. 3d, at 660.

John Roberts laid out the evidence that Commerce’s IG must also have relied on.

[I]t was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data. The December 2017 letter from DOJ drew heavily on contributions from Commerce staff and advisors. Their influence may explain why the letter went beyond a simple entreaty for better citizenship data—what one might expect of a typical request from another agency—to a specific request that Commerce collect the data by means of reinstating a citizenship question on the census. Finally, after sending the letter, DOJ declined the Census Bureau’s offer to discuss alternative ways to meet DOJ’s stated need for improved citizenship data, further suggesting a lack of interest on DOJ’s part.

Altogether, the evidence tells a story that does not match the explanation the Secretary gave for his decision. In the Secretary’s telling, Commerce was simply acting on a routine data request from another agency. Yet the materials before us indicate that Commerce went to great lengths to elicit the request from DOJ (or any other willing agency). And unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA enforcement rationale—the sole stated reason—seems to have been contrived.

After SCOTUS ruled Commerce could not include a citizenship question in the census, the plaintiffs asked the judge to sanction DOJ and Commerce officials who made misrepresentations to the court. Judge Jesse Furman made the government pay fees but did not further sanction the government witnesses in question.

That is, the underlying record has been known for some time. The only thing new in the record, as far as we know, is that — after a bunch of Senators asked for an investigation into this — the Commerce IG agreed with John Roberts and referred Ross for prosecution, only to have Barr’s hyper-politicized DOJ — a DOJ that was itself caught making untrue statements to the District Judge in the NY case — decline prosecution.

Which makes it all the more curious that Commerce didn’t publicly release the report along with the letter. The report is done. Why not release it publicly, as past derogatory reports about Ross were released?

One more detail that may explain DOJ’s silence in response to this news. The original letter from a bunch of Senators requesting the investigation wasn’t addressed just to Commerce. It was also addressed to Michael Horowitz, DOJ’s Inspector General. There’s no sign of such an investigation on their site (and I have thus far gotten no response to a question about this from them) — but they don’t include all their investigations.

But these stories are only about what the result of the Commerce Inspector General investigation was, and how Bill Barr’s DOJ responded. They’re not about whether there was an investigation at DOJ, and what happened if that investigation ended under Merrick Garland. They’re not about what a DOJ that has put great emphasis on voting rights has done with all this.

Tucker Carlson Burns FBI or NSA Intercepts Regarding His 30-Month Pursuit of Face-Time with Vladimir Putin

Last week, I suggested that one possible explanation for Tucker Carlson’s claim to have been spied on by NSA is that he had a back channel with Russian operatives and was trying to get ahead of allegations that he was coordinating with Russian agents.

Particularly if the communications implicating Carlson were damning and potentially illegal, leaking them to him would be an easy way to flip the story, and accuse NSA of spying rather than Carlson of coordinating with Russian agents. Again, that’s all just a hypothetical that might explain Carlson’s claims.

Overnight, Jonathan Swan — who’s a political reporter, not a surveillance reporter — described that sources claimed authorities had obtained communications from Tucker Carlson’s efforts to get an interview with Vladimir Putin. Swan describes that Tucker had two intermediaries with Russia, but they live in the US. (I had hypothesized these might be Ukrainian sources, but Swan suggests they’re Russians.)

Two sources familiar with Carlson’s communications said his two Kremlin intermediaries live in the United States, but the sources could not confirm whether both are American citizens or whether both were on U.S. soil at the time they communicated with Carlson.

Swan doesn’t note that if the surveillance happened in the US, it would have formally been an FBI intercept, not an NSA one (just as the intercepts showing Mike Flynn’s secret back channel with Russia were collected by the FBI). But he does a good job of laying out the most likely ways this happened, which is that the NSA or FBI were surveilling the kind of people they’re supposed to surveil: Russian agents, whether overt or covert.

  • The first — and least likely — scenario is that the U.S. government submitted a request to the Foreign Intelligence Surveillance Court to monitor Carlson to protect national security.
  • A more plausible scenario is that one of the people Carlson was talking to as an intermediary to help him get the Putin interview was under surveillance as a foreign agent.
  • In that scenario, Carlson’s emails or text messages could have been incidentally collected as part of monitoring this person, but Carlson’s identity would have been masked in any intelligence reports.
  • In order to know that the texts and emails were Carlson’s, a U.S. government official would likely have to request his identity be unmasked, something that’s only permitted if the unmasking is necessary to understand the intelligence.

The import of the agency involved — FBI or NSA — is that “unmasking” works quite differently for the FBI, which has a duty to guard against spying in this country. FBI agents tracking a known Russian agent might review such communications to find out if a high profile US journalist was being recruited by a known Russia spy. And if this was the FBI, it might explain how it recently became known: because Merrick Garland’s DOJ is trying to disclose all the tracking of journalists that took place under the Trump Administration.

This entire faux scandal feels just like ones that Devin Nunes has twice sown, first when Republican members of Congress got picked up undermining US policy with Bibi Netanyahu, and then again when Trump’s Transition team set up a secret back channel meeting with UAE. Each time Nunes has done this, it was with the seeming intent of flipping the scandalous efforts of Republicans to undermine US policy.

That’s consistent with Tucker’s claim that his source is “in a position to know.”

The whistleblower, who’s in a position to know, repeated back to us information about a story we are working from that could have only come directly from my texts and emails. There’s no other possible source for that information, period. The NSA captured that information without our knowledge and did it for political reasons.

But it also means that, if true, then Tucker and his source — whom Tucker himself suggests had a need to know — just burned intercepts on legitimate surveillance targets from a hostile country.

Plus, there’s a far bigger problem with Tucker’s currently operative story. Jason Leopold liberated Tucker’s FOIA request to obtain what he claims would be proof of this spying. Whether intentionally or because of incompetence, the FOIA was written in such a way that it is guaranteed to fail to find anything, because it uses language that NSA would understand to mean communications targeting Tucker (and, specifically, communications obtained from physical possession of Tucker’s phone).

More interesting than the failure by design is the scope. Tucker believes these sensitive communications — ostensibly a recent effort to set up an interview with Vladimir Putin — extend from January 1, 2019 until June 28, 2021, the date he first revealed this.

That’s thirty months he has been working with Russian back channels, purportedly to set up a meeting with Putin.

That, by itself, may explain why the communications generated further attention (if indeed they did). Thirty months isn’t the pursuit of an interview, it’s a long term relationship. This would look like a recruitment effort, not journalism.

It also explains why, even though Tucker himself is the person who leaked these details (again, burning what by all accounts are legitimate intercept targets), he claims it was an effort to take him off the air. If the FBI believes that Tucker really was pursuing a long-term relationship with Russian agents, then even Fox News might rethink giving him a platform. But that wouldn’t be the content of the communications, per se, but the fact that they appear to have been going on for thirty months.

The Hundred-Plus January 6 Defendants Accused of Assault

Yesterday, Merrick Garland marked two milestones in the January 6 investigation: 500 arrests, of which 100 were for assaulting police.

The Department of Justice reached several benchmarks in our investigation into the January 6th attack on the U.S. Capitol.

We have now crossed the threshold of 500 arrests, including the 100th arrest of a defendant on charges of assaulting a federal law enforcement officer. This morning, we arrested our first defendant on charges that include assaulting a member of the news media.

I could not be more proud of the extraordinary effort by investigators and prosecutors to hold accountable those who engaged in criminal acts that day. Particular credit goes to those serving as prosecutors and agents in Washington, D.C., as well as those in FBI field offices and U.S. Attorney’s Offices across the country, and with the Department’s National Security Division.

Our efforts to bring criminal charges are not possible without the continued assistance of the American public. To date, we have received their more than 200,000 digital tips.

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

I’ve been tracking the charged assaults (and a few related crimes). Here’s my list, which includes several people who really resisted arrest (but got charged under 18 USC 111). Note this list also tracks how the FBI identified the defendant, which shows that FBI has been relying on “Be On the Lookout” photos to identify assailants. As of right now, all these defendants have pled NOT guilty and are assumed innocent. [fixed typo]

As you read this list, keep in mind that FBI has released 410 BOLOs, most for assault, and well over 200 of those people remain at large. And of course, the FBI has not yet apprehended the pipe bomber.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Michael Alberts, who was arrested for gun possession the day of the riot but who had an assault charge added in a superseding indictment
  4. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  5. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  6. Thomas Ballard, who used a police baton and threw a table in the Lower West Terrace. BOLO 325
  7. Logan Barnhart, who pulled one of the cops out of the Capitol.
  8. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  9. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  10. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  11. Michael Brock, who hit two cops with a four-foot rod. BOLO 319
  12. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  13. Benjamin Burlew, who participated in a 6-person assault on an AP journalist.
  14. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  15. Alan Byerly, who allegedly beat up a cop and then beat up an AP cameraman. BOLO 193
  16. Daniel Caldwell, who was filmed macing 15 cops. SM
  17. Steven Cappuccio, who pulled Daniel Hodge’s gas mask and beat him with his own baton. BOLO 123
  18. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  19. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  20. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  21. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  22. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  23. Lance Copeland, who admitted to fighting with cops on the barricades.
  24. Matthew Council, who was arresting for shoving cops the day of the riot.
  25. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  26. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  27. Matthew DaSilva, who fought over shields with cops in the Lower West Terrace. BOLO 230
  28. James Davis, the Proud Boy with a big stick who charged some cops.
  29. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  30. David Dempsey, a Proud Boy with a history of assaulting anti-Trump protestors who used a crutch to assault police in the Tunnel. Sedition Hunters
  31. Josh Doolin, who is part of Johnny Pollack’s cell that assaulted multiple cops. Network Pollack
  32. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  33. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  34. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  35. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  36. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  37. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  38. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  39. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  40. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  41. Brian Gunderson, charged with assault while committing a felony on a superseding.
  42. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  43. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  44. Uliyahu Hayah, who was in the vicinity of Ashli Babbitt’s death and shoved a cop on his way out. NM
  45. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  46. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  47. Joseph Hutchison, who is part of Johnny Pollack’s group, but who was caught via his own BOLO. BOLO 320
  48. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  49. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  50. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  51. Taylor Johnatakis, charged with 111.
  52. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  53. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  54. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  55. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  56. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  57. Nicholas Languerand, accused of throwing a bollard, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  58. Samuel Lazar, who was caught on video spraying chemicals and cops and claimed to be the tip of the spear.
  59. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  60. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  61. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  62. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  63. Logan McAbee, who was part of a gang assault on a cop pulled out of the Capitol.
  64. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  65. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  66. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  67. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  68. David Mehaffie, who directed the assaults in the Tunnel
  69. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  70. Jalise Middleton
  71. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  72. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  73. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  74. Jordan Mink, who used a pole to assault the police.
  75. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  76. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  77. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  78. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  79. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  80. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  81. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  82. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  83. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  84. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  85. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  86. Michael Perkins, who is part of the Pollack group. Network Pollack
  87. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM and BOLO 43
  88. Johnny Pollack, who serially assaulted cops and then went on the lam. BOLO 144
  89. Olivia Pollack, Johnny’s sister who also allegedly punched a cop. Pollack network
  90. Mark Ponder, filmed repeatedly attacking cops with poles.
  91. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  92. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  93. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  94. Edward Rodriguez, who sprayed pepper spray at cops while wearing a suit. Sedition Hunter-based reporting
  95. Greg Rubeacker, Tip SM
  96. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  97. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  98. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  99. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  100. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  101. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  102. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  103. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  104. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  105. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  106. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  107. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  108. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  109. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  110. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  111. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  112. Tristan Stevens, who fought cops with a shield and baton. Video
  113. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  114. Andrew Taake, who is accused to have used a metal whip and pepper spray against the cops. Tip SM
  115. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  116. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  117. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  118. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  119. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  120. Ricky Willden, who allegedly sprayed cops with a chemical.
  121. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  122. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  123. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  124. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.

Tea Leaves on the Garland-Monaco DOJ and the Stay in Andrew McCabe’s Lawsuit

The effort to figure out precisely why moderate Merrick Garland and career DOJ employee Lisa Monaco are having the Department of Justice sustain shitty positions adopted under Bill Barr has reached a fever pitch. In my piece on Monaco, I noted one thing — her presumed approval, on her first day in the job, of a raid on Rudy Giuliani — that suggests some people are mistaking a likely effort to sustain DOJ as an institution for an effort to protect Trump.

I’d like to point to another tea leaf — something that happened (perhaps coincidentally) on Monaco’s third full day on the job. That’s when the two sides in Andrew McCabe’s lawsuit moved to stay discovery pending an effort to settle the case.

The parties jointly move this Court to stay all discovery in this proceeding, for 45 days after this motion is granted, and to extend all previously set case deadlines and events by 45 days. The parties request this relief so that they may explore the possibility of settlement.

Good cause exists for the requested relief, because the stay and extension would allow the parties to focus their efforts on discussing settlement expeditiously, free from any competing obligations and ongoing disputes related to discovery, and without burdening the Court with potentially unnecessary discovery disputes. The parties propose to update the Court two business days before the stay’s expiration about whether a further stay and extension is warranted.

On its face, a settlement with McCabe would look like a stark reversal of a Trump policy. Top levels of Trump’s DOJ signed declarations swearing that McCabe’s firing was for cause. At that level, the interest in settling the lawsuit looks like a pretty serious reversal.

That said, depending on how broadly Judge Randolph Moss ruled discovery must extend (an issue that is still pending), McCabe’s lawsuit could seriously embarrass DOJ. Even just his case in chief, in which DOJ IG and OPR ignored the testimony of key witness, FBI press person Michael Kortan (with whom McCabe’s office worked on the story that DOJ claims he was trying to hide), full discovery could badly embarrass DOJ. Still more so if the extent to which DOJ pushed to indict McCabe, allegedly after the grand jury rejected charges against him, became public. By the end of Barr’s tenure, DOJ had altered a McCabe document and submitted it to Emmet Sullivan, another potentially damaging revelation (though one probably outside any imaginable scope of discovery).

And that’s just what we know about. In the weeks leading up to McCabe’s testimony before the Senate Judiciary Committee, DOJ was refusing to share documents that McCabe needed to adequately prep for his appearance.

I’m not sure what this particular move suggests about DOJ. But I know that full exposure of the witch hunt against McCabe would badly damage DOJ, including some career employees who served Barr’s whims. But a settlement would also damage the Trump DOJ, because it would prove that Trump politicized his entire DOJ to take out perceived enemies.

That is, amid all the other tea leaves, what happens with the McCabe suit may indicate which damage to DOJ the Garland-Monaco DOJ seems most intent on avoiding.

Update: The two sides just filed an update: No settlement has been reached, but they remain in talks.

Consistent with their April 23, 2021 Joint Motion to Stay Discovery and Extend All Case Deadlines (Dkt. 56), the parties submit this joint notice regarding the current stay of litigation.

On April 27, 2021, this Court granted the parties’ joint motion for a 45-day stay of all discovery so that the Parties could focus on exploring the possibility of settlement. No settlement has been reached, but the parties are continuing their discussions. In the event that they agree that a further stay is warranted, they will so notify the Court by filing another joint motion to extend the stay and related deadlines.

Welcome to Lisa Monaco’s DOJ, E Jean Carroll Lawsuit Edition

During Lisa Monaco’s confirmation hearing, several people joked about how few questions she was getting. Because Vanita Gupta had been targeted by Republicans, Monaco was left for broad swaths of the hearing, a spectator to that effort.

There were some good exchanges. In addition to complaining about DOJ’s refusal to respond to questions from Democratic members of Congress, Sheldon Whitehouse asked about OLC, to which Monaco provided an anodyne answer that was enough for Whitehouse, who was going to vote for Monaco one way or another. Josh Hawley asked some legitimately good questions, including about end-to-end encryption. To those questions, Monaco hewed a middle ground and an adherence to the laws on the books. John Cornyn asked the same question Republicans harped on with Merrick Garland, whether she would let John Durham finish his work, to which she responded that her job is to make sure he has the resources to do so, which (while more nuanced that it sounded) shut down that line of questioning.

It was a testament to how shallowly Republican staffers interpreted Lisa Monaco’s long career that Chuck Grassley asked Monaco whether she had involvement in Crossfire Hurricane — the answer was obviously no, given her White House role at the time. But Grassley didn’t ask whether her position at the nexus of Mike Flynn’s efforts to obtain information from the Obama White House in advance of making calls with Sergey Kislyak that Flynn lied to hide would affect her view of the Russian investigation. Perhaps only Susan Rice was more personally betrayed by Mike Flynn’s outreach to Russia, and yet Republicans seemed to not even realize that Flynn and KT McFarland sent Tom Bossert to query Monaco in advance of Flynn’s covert call with Russia, making her the Obama person most directly victimized by Flynn’s underhandedness.

That blithe ignorance of how Monaco’s personal history might affect her tenure extended beyond the Senate Judiciary Committee. For example, while every Assange supporter has targeted Biden and Garland for their pleas to drop the Assange prosecution, none have thought about the fact that Monaco was in charge of the response to the 2016 Russian interference campaign that led even WikiLeaks sympathizers in the Obama Administration to completely reconsider Assange’s game and his longterm relationship with Russia (then again, Assange supporters, almost to a one, have convinced themselves to believe bullshit propaganda about that decision being made under Trump).

Most people have failed to ask these questions about Monaco’s career experiences, even though as Deputy Attorney General, Monaco runs DOJ on a day-to-day basis and makes a lot of these decisions and serves as a key advisor to Garland where she doesn’t.

As a result of the very surface approach to Monaco’s career, there were a whole slew of questions in her confirmation hearing that should have been asked (and should be asked before Monaco’s close associate Matt Olsen is confirmed as National Security Division head), but were not. When Lisa Monaco was Robert Mueller’s top advisor in 2006, for example, what role did she play legalizing the phone dragnet aspiring to collect the phone records of all Americans under FISA’s Section 215? Given her past failures to fulfill promises of transparency, specifically as it relates to FISA, what can she do to ensure she will deliver on such transparency as Deputy Attorney General? What was her role in the execution of Anwar al-Awlaki, and what does that say about her willingness to support unfettered executive authority? With the value of hindsight, does Monaco believe that she was suckered into continuing John Brennan’s permissive approach to drone strikes as White House Homeland Security Advisor, and if so what would she do to give herself the leverage to actually change bad policies baked in by her predecessors?

Don’t get me wrong: Monaco has almost unparalleled qualifications to be Deputy Attorney General, she brings a lot of great qualities to the job, and I’m sure she’s a lovely person. But there was almost no consideration about what affect her long tenure at DOJ and in National Security roles would have on her view towards Presidential authority and DOJ institutional precedent before she was confirmed.

Indeed, in perhaps the question that got closest to asking how she would treat initiatives from career DOJ officials already in place, Monaco explained to Amy Klobuchar that she viewed her job as to empower the people at DOJ she believed operated from an inherently unpartisan stance.

Klobuchar: After the last four years where civil servants withstood political interference, what do you see your role is as restoring the trust in the Department of Justice?

Monaco: Well Senator, as I said in my opening remarks, I think that the career men and women of the Justice Department are its backbone. They’re the people that enforce the law independently, faithfully, fairly, impartially, without any consideration of improper motive. I think they simply want to do their job. They want to do their job with the resources and the tools to keep the American people safe, to prosecute violent crime, to administer justice with compassion, and with humility, as Judge Garland talked about before this committee. And they want to see equal justice under law, and they want to do the work that this Committee has done on a bipartisan basis to administer criminal justice reform. And so I think my role is to ensure that they’ve got the tools and resources to do their job and to protect them from improper influence, any partisan motive, because I think they just want to do their job.

This is the belief system that leads Monaco to respond to a question about career DOJ prosecutor John Durham’s clearly politicized investigation by saying that her job is to make sure he has the resources he wants to continue that investigation.

In her role at DOJ, Monaco has overseen some key wins: with the announcement yesterday that FBI had seized much of the ransomware payment that Colonial pipelines had paid Dark Side hackers, with her quiet presence on the public line listening as Paul Hodgkins made the first pure guilty plea of the January 6 investigation, with the decision — on her first full day in office — to let SDNY resume its investigation into Rudy Giuliani’s foreign influence peddling.

But also under her leadership, DOJ has delayed notice to NYT about an effort to get their Internet records in a clearly politicized investigation. DOJ has moved to hide the contents of a Bill Barr memo that clearly abused his authority and the role of OLC (and with that decision, protected career employees who were making similarly dubious claims when Monaco ran the National Security Division). DOJ has defended a lot of legal stances that were obviously political on their face, most recently and egregiously by sustaining DOJ support to give Trump immunity from suit in his attack on alleged rape survivor, E. Jean Carroll. That is, as she did before with Cheney’s Stellar Wind and Brennan’s drone program, Monaco seems to have chosen not to make a clean break from the horrible policies of her predecessors, choosing instead to ensure the continuity of the institution.

Again, Lisa Monaco oozes intelligence and competence; she’s undeniably qualified to be where she’s at. But she also got where she’s at by cleaning up the messes left by Stellar Wind, the torture program, and John Brennan’s drone program by improving those shitty policies without demanding any accountability for the abuse of DOJ and presidential authority they entailed. Plus, as a career DOJ official, she’s going to defend professionals who did stupid things on the orders of a deeply politicized boss.

Particularly in the wake of the decision to defend Trump against Carroll’s suit, people are wondering how Merrick Garland could make such a horrible decision. My suspicion is they would be better asking what Lisa Monaco’s role was in the decision.

Merrick Garland Agreed He Would Go after January 6 Kingpins, if Evidence Merits

There continue to be questions about how we’ll ever get accountability for January 6 without a January 6 commission to do that work.

In an exchange yesterday, for example, Bart Gellman asked what questions we’d most want a January 6 commission to answer, and I responded, “Why there’s such a broad belief that a criminal investigation won’t answer those questions.” In response, NYT’s Alan Feuer speculated that,

DOJ’s 500ish criminal cases will not ultimately touch the potential liability in 1/6 of political figures including but not restricted to the former president.

This prosecution writ large is (speculation alert) likely to be restricted to verifiable perpetrators, not possible instigators. The range of crimes (s.a.) are likely to include the known ambit: obstruction, assault, civil disorder, trespass etc. Sedition may not be charged.

Things can change. Evidence can emerge. But after five months, it seems unlikely (speculation alert) that DOJ is assuming the responsibility for searching out root causes as opposed to building demonstrably provable cases.

I think Feuer’s is a fair observation, though I disagree that holding “instigators” accountable is at all the same as “searching out root causes.”

In my opinion, it is way too premature to judge where a complex investigation will lead after only five months, which is an infancy in terms of such things (it took almost exactly a year from the time that FBI got the tip about George Papadopoulos until he was arrested, the first arrest of the Mueller investigation, which itself was lightning fast). And while it is true that the current universe of charges includes those crimes Feuer lays out — obstruction, assault, civil disorder, trespass — even that list leaves out conspiracy. The boilerplate description DOJ uses to describe the complexity of the investigation notes that such a list (which includes conspiracy) is non-exclusive.

The spectrum of crimes charged and under investigation in connection with the Capitol Attack includes (but is not limited to) trespass, engaging in disruptive or violent conduct in the Capitol or on Capitol grounds, destruction of government property, theft of government property, assaults on federal and local police officers, firearms offenses, civil disorder, obstruction of an official proceeding, possession and use of destructive devices, and conspiracy.

Importantly, if we believe Merrick Garland’s response to a Sheldon Whitehouse question in his confirmation hearing, the Attorney General is committed to let the investigation proceed wherever the evidence leads, specifically to include “funders, organizers, ring leaders” and even any kingpins to this insurrection.

Whitehouse: With respect to January 6, I’d like to make sure that you are willing to look upstream from the actual occupants who assaulted the building, in the same way that in a drug case, you would look upstream from the street dealers to try to find the kingpins, and that you will not rule out investigation of funders, organizers, ring leaders, or aiders and abettors who were not present in the Capitol on January 6. Fair question?

Garland: Fair question. And again, your law enforcement experience is the same as mine, investigations — investigations, you know, I began as a line Assistant US Attorney and was a supervisor, we begin with the people on the ground and we work our way up to those who were involved and further involved. And we will pursue these leads wherever they take us. That’s the job of a prosecution.

That’s why I wrote these three posts:

Together, those posts argue that if any kingpins will be held accountable, it will be through a conspiracy prosecution. I note that one of the conspiracies has already reached back to the Willard Hotel, where Roger Stone was staying and where the call patterns suggest possible consultation with people present at the hotel. And I suggest that not only will there will be further conspiracies (I’m pretty confident about that prediction) but there may be more complex prosecutions tied to people who were involved in the rallies rather than the riot or who were discussed explicitly with Rudy Giuliani (I’m far less confident about that possibility).

That doesn’t mean Donald Trump, or even Roger Stone or Rudy Giuliani, are going to prison. It’s not clear what kind of evidence is out there. It’s not clear how loyal these famously paranoid people will be without the constant dangle of pardons that Trump used to buy silence during the Mueller investigation.

But even in what we’ve seen, we’ve seen a focus on who paid for things (such as the payment to Joshua James’ wife tied to “protecting” Roger Stone), who organized buses (there are at least four defendants involved with such things) or otherwise funded transportation, as well as media promotion both before and media communications while at the insurrection worked. Thus far, Charles Donohoe is the primary person who was charged in an organizational role but who didn’t enter the Capitol, but the Proud Boys and Oath Keeper conspiracies seem pretty focused on Enrique Tarrio and Stewart Rhodes (I’m not sure how useful Rhodes would be to map out the larger conspiracy).

And that’s just what we’ve seen. We recently learned that the President’s own lawyer still doesn’t know that the investigation of Michael Cohen had started eight months before he got involved in an effort to dangle pardons, long after Mueller had already obtained Cohen’s Trump organization emails. We have no idea whose lives the FBI are unpacking with warrants that are not showing up in arrest affidavits. Certainly, the FBI and DOJ are getting far more thoughtful about what gets shared publicly when.

My point is assuredly not to promise that Roger Stone and Rudy Giuliani will go to prison. But the question of the possible scope of the January 6 investigation, as distinct from the likely one, is dictated primarily by the structure of the conspiracy uniting people who legitimately entered into an agreement with each other to achieve the goal that every currently charged conspiracy shares: to obstruct the certification of the vote count on January 6. If Trump’s associates entered into an agreement with the Proud Boys and Oath Keepers, if there’s evidence of them doing so, and if marginally credible witnesses are willing to trade cooperation for less time in prison, then some kind of accountability is possible, albeit still highly unlikely.

That probably does rule out some accountability, even assuming a best case scenario. For example, with a few possible exceptions, I see no way that the conduct of members of Congress would get beyond Speech and Debate protections. Similarly, I don’t see how any conspiracy investigation would work its way up from the crimes at the Capitol to incorporate anyone at DOD stalling the National Guard response.

But as I noted to Gellman, I want to know the basis for certainty about what the investigation might discover. Because the investigation is already just two degrees of separation from Donald Trump via both Rudy and Stone, and that’s just what we can see looking at what prosecutors have been willing to share.