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Trump’s Means of Bullying and His Co-Conspirator Volunteer Lawyers

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There were three developments in the dispute over the protective order in Trump’s January 6 indictment yesterday.

Trump’s team filed their response to Judge Tanya Chutkan’s order and the government’s motion for a protective order, including not just a redline of the government’s proposed protective order, but also a rant claiming that Dark Brandon made public comments about Trump’s indictment he did not.

The government’s reply used John Lauro’s five Sunday show appearances to demonstrate that Trump is explicitly demanding to try this case in the public sphere rather than the courtroom.

Then Judge Chutkan issued an order that they find time for a hearing on this this week.

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of the government’s 10 Motion for Protective Order and Defendant’s 14 Response, as well as the government’s 15 Reply, the court will schedule a hearing on the parties’ respective proposals. The court will waive the requirement of Defendant’s appearance. Accordingly, it is hereby ORDERED that no later than 3:00 PM on August 8, 2023, the parties shall meet and confer and file a joint notice of two dates and times on or before August 11, 2023 when both parties are available for a hearing. Signed by Judge Tanya S. Chutkan on 08/07/2023.

Both linked filings are worth reading, but I want to focus on two minor details in the government’s filing.

The method of Trump’s bullying madness

The government pitches their argument as one of regular order, about trying the case in the courtroom rather than the public. It is about John Lauro’s stated goals, not Donald John Trump’s.

The defendant’s proposed order would lead to the public dissemination of discovery material. Indeed, that is the defendant’s stated goal; the defendant seeks to use the discovery material to litigate this case in the media. But that is contrary to the purpose of criminal discovery, which is to afford defendants the ability to prepare for and mount a defense in court—not to wage a media campaign.

[snip]

Defense counsel’s stated goal—to publicly disseminate and discuss discovery materials in the public sphere—is contrary to the general principle against pretrial publicity and inconsistent with this District’s local rule regarding conduct of attorneys in criminal cases, and the Court should not enter a protective order that permits such harmful extra-judicial publicity. As an initial matter, the Court can and should exercise its discretion, with respect to the protective order, to prevent dissemination of discovery material that could prejudice the jury. Accord Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (“a trial judge has an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.”); United States v. Brown, 218 F.3d 415, 423 n.8 (5th Cir. 2000) (“Other principal dangers [of pretrial publicity] include disseminating to the press inadmissible evidence, the exclusion of which at trial ‘is rendered meaningless when news media make it available to the public,’ as well as creating a ‘carnival atmosphere,’ which threatens the integrity of the proceeding.” (quoting Shepherd v. Maxwell, 384 U.S. 333 (1966)).

This District’s rules prohibit defense counsel from doing precisely what he has stated he intends to do with discovery if permitted: publicize, outside of court, details of this case, including the testimony of anticipated witnesses. Local Criminal Rule 57.7(b) provides that it is the duty of attorneys in criminal cases not to publicly disseminate “information or opinion” regarding, among other things, “[t]he existence or contents of any . . . statement given by the accused” or “[t]he identity, testimony, or credibility of prospective witnesses.” This is because such statements risk tainting the jury pool with inadmissible evidence or otherwise harming the integrity of these proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991) (“Because lawyers have special access to information, through discovery and client communications, their extrajudicial statements pose a threat to the fairness of a pending proceeding since lawyers’ statements are likely to be received as especially authoritative.”). The Court should not grant a protective order that would allow defense counsel or the defendant to disseminate evidence such as snippets of witness interview recordings—no matter how short, misleading, or unlikely to be admissible at trial under the Federal Rules of Evidence—and claim that it supports some position the defendant later may make in pre-trial motions or at trial. Such conduct has the potential to unnecessarily inflame public opinion short of all relevant facts, intimidate witnesses, pollute the jury pool, and in general degrade the integrity of proceedings in this Court. See Bridges v. California, 314 U.S. 252, 271 (1941) (“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”). The goal of the defendant’s proposed protective order—prejudicial publicity—is antithetical to the interests of justice.

[snip]

The Government has proposed a standard, reasonable order that will streamline the flow of discovery to the defendant while preserving the integrity of these proceedings. The defendant has proposed an unreasonable order to facilitate his plan to litigate this case in the media, to the detriment of litigating this case in the courtroom. Normal order should prevail.

As many people have noted, however, as an aside to the description of Lauro’s press blitz over the weekend, the government included this reference to Trump’s attack on Mike Pence.

1 The defendant himself has made a number of additional social media posts related to this case since the Government filed its motion for a protective order. For example, the day before his counsel made comments about Mr. Pence, the defendant posted the following to social media: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!”

Nevertheless, the government doesn’t address whether this tweet violates Trump’s release condition, which would prohibit him from talking to Mike Pence about the case.

Given the inclusion of that tweet, though, I’m more interested in this note addressing one of Trump’s requested changes. It describes why Trump’s lawyers should have to inspect Trump’s own notes of discovery to make sure he’s not taking notes about specific witnesses.

In paragraph 10, the defendant seeks to prohibit his counsel from confirming that his notes do not contain personally identifying information subject to Federal Rule of Criminal Procedure 49.1. But this condition—which is included in the protective order on which the defense claims to model its proposal—is particularly important here because of the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals. See, e.g., ECF No. 1, Indictment, at ¶¶ 26, 32, 42, 44, 97.

DOJ justifies having Trump’s lawyers babysit his own note-taking because of “the defendant and his co-conspirators’ practice, as described in the indictment, of publicly targeting individuals.”

It then cites as examples the following paragraphs of the indictment:

  • The death threats that followed Rudy Giuliani’s baseless accusations against Ruby Freeman and Shaye Moss.
  • Trump’s accusation that Brad Raffensperger “has no clue” after he refused to find Trump 11,780 votes.
  • The death threats that followed Trump’s public attack on Al Schmidt.
  • Trump’s retweet of a tweet attacking PA GOP legislative leaders for stating that they could not throw out the popular vote in PA.
  • In response to Mike Pence telling Trump he would not throw out the vote certification, Trump telling Pence he would have to publicly criticize him.

It’s the last one I find so interesting. DOJ does not cite the various tweets Trump sent on January 6 or the revisions addressed to Pence Trump made sure to include in his Ellipse speech — comments that led directly to death threats targeted against Pence. Rather, DOJ pointed to what must rely on Pence’s testimony, of Trump telling Pence he would send those tweets and make those public comments.

Thus far, DOJ has steered well clear of focusing on Trump’s potential violation of release conditions (perhaps wisely wanting to forestall Trump’s attempt to turn this into more victimhood). It has also steered clear, in the indictment, of claiming Trump incited death threats against everyone from Ruby Freeman to Mike Pence and thousands of people in between.

But in this citation, it has suggested that a method of this conspiracy was to trigger death threats against those unwilling to bow to Trump’s demands.

Trump’s non-attorney of record consigliere

Another specific objection — one of several objections to Trump’s attempts to expand the circle of people with whom he can share discovery — pertains to the definition of lawyers permitted to obtain discovery. In a wildly pregnant comment, DOJ notes that “several” co-conspirators are IDed as attorneys.

In paragraph 2, the defendant proposes including “other attorneys assisting counsel of record.” Without a clearly defined relationship of employment or privilege, this language is boundless. For example, several co-conspirators are identified as attorneys, whom the defense might interpret as “other attorneys assisting counsel of record.” The Court should not accept the edit.

In fact, four people are identified as attorneys in the indictment’s description of them: Rudy, John Eastman, Sidney Powell, and Kenneth Chesebro.

This post has led me to notice that the indictment doesn’t identify Jeffrey Clark as an attorney (perhaps because, while undoubtedly an attorney, he never had an attorney-client relationship with Trump during the conspiracy). Though he is obviously an attorney.

And then there is co-conspirator 6, described in the indictment as a political consultant and so someone who could be either Mike Roman (who does not have a JD) or Boris Epshteyn (who does). One reason it is not confirmed which of these two men it was is both were closely involved in the December recruitment of fake electors, the indictment’s primary focus on CC6’s activities. (The one other overt act was to help Rudy chase down contact information for Senators on January 6.)

As it happens, though, Epshteyn is not just someone who is known to have been closely involved in the fake elector conspiracy, but he is someone who in the stolen document case served as an “other attorney assisting counsel of record.” Crazier still, Epshteyn shares an attorney with Trump: Todd Blanche, who represents Trump in the Alvin Bragg case, the stolen documents case, and now the January 6 case. Epshteyn, who has never filed a notice of appearance for Trump, has followed him around to his various arraignments as if he is family.

If DOJ has a specific concern about Trump sharing discovery with Epshteyn — who has been centrally involved in Trump’s efforts to combat his legal jeopardy by attacking rule of law — this is the kind of objection they might raise.

Trump’s Family Is Not in His Prosecution

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Chris Hayes made a salient observation yesterday: None of Trump’s family members have accompanied him to attend one after another arraignment.

It’s notable that he’s alone. There’s no posse and there’s no retinue and there’s no family. I would hope if I were to go through the ordeal that this man is currently facing, in my darkest hours, my wife and my kids, my loved ones and my friends, that I would have a crew, people that were standing with me. There’s — his wife is not there, I can’t see any of his kids, his daughter, who worked for him. No one! The guy is alone!

With two of those arraignments book-ending a persistent campaign from the far right, boosted by an A1 story in the NYT, politicizing Joe Biden’s decision to not to recognize Hunter’s illegitimate child until after the contentious paternity suit was settled, Hayes may be the first person in the press to note that Trump’s family has failed to attend his court hearings.

Sure, Eric and Don Jr are making speeches to rile up the base.

But why won’t Melania support her spouse as he faces three — and soon to be four — criminal prosecutions?

Are Ivanka and Jared too busy gulping down Saudi blood money to support their former boss?

Has Boris Epshteyn, who attended at least two of three arraignments and who is one of two likely candidates to be co-conspirator 6 in the January 6 indictment, become Trump’s symbolic son?

The failure of a single family member to accompany Trump to an arraignment — and the general silence on it — matches another detail of this latest prosecution.

A female Trump family member makes a cameo appearance in his stolen documents indictment, instructing Walt Nauta that there’s no space in the plane headed to Bedminster for all of Trump’s boxes.

On May 30, 2022, at 12:33 p.m., a Trump family member texted NAUTA:

Good afternoon Walt,

Happy Memorial Day!

I saw you put boxes to Potus room. Just FYI and I will tell him as well:

Not sure how many he wants to take on Friday on the plane. We will NOT have a room for them. Plane will be full with luggage. Thank you!

NAUTA replied:

Good Afternoon Ma’am [Smiley Face Emoji]

Thank you so much.

I think he wanted to pick from them. I don’t imagine him wanting to take the boxes.

He told me to put them in the room and that he was going to talk to you about them.

Whichever female family member this was will not have to testify. Nauta’s own words will be admissible at trial. And they’re in the indictment primarily to situate where the documents were: in “Potus room.”

But, unless I’m missing it, the January 6 indictment doesn’t include references to family members — not Don Jr or Eric, who both gave speeches, not Jared, who was involved in some campaign-related events.

And especially not Ivanka.

There are two key parts of the indictment where Ivanka should show up.

First, the indictment describes the call Trump made to Pence the morning of January 6, while hanging around the Oval Office with his family, Eric Herschmann, and Keith Kellogg, this way.

102. At 11: 15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be removed.

The January 6 Committee spent a great deal of investigative focus obtaining witnesses who heard Trump’s side of the call. Keith Kellogg and Eric Herschmann (the latter of whose presence in the “family” meeting raises such interesting questions) both told part of the story. One of the most useful, it turns out, was Ivanka’s Chief of Staff, Julie Radford, who told the committee how Ivanka returned from that meeting deeply upset because Trump had called Mike Pence something like a “pussy.”

In fact, in their referrals section, the J6C Report specifically noted that Ivanka’s version of this story was so much less credible than Radford’s.

But in this telling, the indictment relies — appropriately, from an evidentiary standpoint — solely on Mike Pence, the only person, besides Trump, involved in both sides of the conversation.

There’s another passage where Ivanka was far more directly involved: in the efforts to get Trump to call off the rioters.

This passage describes that “his most senior advisors,” including Pat Cipollone, Pat Philbin, Mark Meadows, probably Dan Scavino, and almost certainly Eric Herschmann, tried to get Trump to write a tweet directing the mob to vacate the building.

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor. Instead, the Defendant issued two Tweets that did not ask rioters to leave the Capitol but instead falsely suggested that the crowd at the Capitol was being peaceful, including:

a. At 2:38 p.m., “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!”

b. At 3:13 p.m., “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!” [my emphasis]

These statements are another thing on which J6C focused a lot of attention, particularly the first. And they obtained a good deal of evidence about how Herschmann had come to Ivanka’s office and brought her to the Dining Room to get her help in convincing Trump to release the 2:38PM tweet.

Indeed, Sarah Matthews was quite certain that the language about “staying peaceful” — the language the indictment includes among Trump’s many false claims — came from Ivanka.

Yet even though Ivanka was, in the Trump White House, every bit as important an advisor to Trump as Pat Cipollone, Pat Philbin, Mark Meadows, Dan Scavino, and Eric Herschmann, she’s not mentioned, neither as “his daughter,” nor as “Assistant to the President,” her formal title.

Just 15 minutes after the “stay peaceful” tweet, Don Jr also attempted to get Dad to call off the mob, but there’s no mention of that in this indictment either.

But the silence about Ivanka’s even more central role in all this is really telling given the recent NYT report — posted just over two weeks before the grand jury voted out this indictment — that she had never been asked to testify to the grand jury (technically this does not exclude an interview).

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Trump is alone at the defendant’s table, with none of his family members.

But even more striking, Trump is alone in his indictment, without any of the key roles played, including by his daughter and most trusted advisor, laid out in the overt acts.

Trump Lied and Mike Pence Almost Died

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In the wake of yesterday’s indictment, apologists for Donald Trump are out there claiming that he will be able to prove that he really believed he won the election, and therefore sponsoring fraudulent documents and launching an insurrection is totally cool.

It is for this moment that I have been linking so often to the Findings of Fact that Reagan-appointed Judge Royce Lamberth wrote in the Alan Hostetter case. As he wrote, on the same headline charge with which Trump has been charged, 18 USC 1512(c)(2), obstruction, it didn’t matter that Hostetter believed Trump really won the election, because the means Hostetter used to vindicate an election he believed was stolen was unlawful.

Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former policy chief, he still must have known that it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And with Trump, it will be still easier to prove corrupt purpose since his goal had the most lucrative and corrupt personal benefit imaginable, remaining President after being fired by voters.

More importantly, Trump didn’t just lie about the election results. He also lied about Mike Pence.

Trump told two kinds of lies about Pence: first, that Pence had the authority to reject the votes.

96. That same day, the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant’s favor, including issuing the following Tweets:

a. At 11:06 a.m., “The Vice President has the power to reject fraudulently chosen electors.” This was within 40 minutes of the Defendant’s earlier reminder, “See you in D.C.”

[snip]

100. On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the Vice President might do so:

a. At 1:00 a.m., the Defendant issued a Tweet that falsely claimed, “If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!”

b. At 8:17 a.m., the Defendant issued a Tweet that falsely stated, “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. AH Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage.

Trump may well claim he believed this to be true — though Pence and two other witnesses have testified that Eastman admitted in a meeting with all of them that this was not lawful.

92. On January 4, the Defendant held a meeting with Co-Conspirator 2, the Vice President, the Vice President’s Chief of Staff, and the Vice President’s Counsel for the purpose of convincing the Vice President, based on the Defendant’s knowingly false claims of election fraud, that the Vice President should reject or send to the states Biden’s legitimate electoral votes, rather than count them. The Defendant deliberately excluded his White House Counsel from the meeting because the White House Counsel previously had pushed back on the Defendant’s false claims of election fraud.

93. During the meeting, as reflected in the Vice President’s contemporaneous notes, the Defendant made knowingly false claims of election fraud, including, “Bottom line-won every state by 100,000s of votes” and “We won every state,” and asked-regarding a claim his senior Justice Department officials previously had told him was false, including as recently as the night before-“What about 205,000 votes more in PA than voters?” The Defendant and Co Conspirator 2 then asked the Vice President to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states’ legislatures. When the Vice President challenged Co-Conspirator 2 on whether the proposal to return the question to the states was defensible, Co-Conspirator 2 responded, “Well, nobody’s tested it before.” The Vice President then told the Defendant, “Did you hear that? Even your own counsel is not saying I have that authority.” The Defendant responded, “That’s okay, I prefer the other suggestion” of the Vice President rejecting the electors unilaterally. [my emphasis]

Certainly Eastman knew this was false (and we know there is documentary evidence to back this). He not only admitted this to Greg Jacob, but Jacob also explicitly told Eastman making this false claim would lead to violence.

94. Also on January 4, when Co-Conspirator 2 acknowledged to the Defendant’s Senior Advisor that no court would support his proposal, the Senior Advisor told Co-Conspirator 2, “[Y]ou’re going to cause riots in the streets.” [Eastman] responded that there had previously been points in the nation’s history where violence was necessary to protect the republic. After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was “not going to work.”

95. On the morning of January 5, at the Defendant’s direction, the Vice President’s Chief of Staff and the Vice President’s Counsel met again with Co-Conspirator 2. Co-Conspirator 2 now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states. During this meeting, Co-Conspirator 2 privately acknowledged to the Vice President’s Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court. The Vice President’s Counsel expressed to Co-Conspirator 2 that following through with the proposal would result in a “disastrous situation” where the election might “have to be decided in the streets.”

But that’s not the only lie Trump told about Pence. Trump also falsely claimed that Pence was willing to reject the lawful votes.

7. Also on January 5, the Defendant met alone with the Vice President. When the Vice President refused to agree to the Defendant’s request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him. Upon learning of this, the Vice President’s Chief of Staff was concerned for the Vice President’s safety and alerted the head of the Vice President’s Secret Service detail.

98. As crowds began to gather in Washington and were audible from the Oval Office, the Defendant remarked to advisors that the crowd the following day on January 6 was going to be “angry.”

99. That night, the Defendant approved and caused the Defendant’s Campaign to issue a public statement that the Defendant knew, from his meeting with the Vice President only hours earlier, was false: “The Vice President and I are in total agreement that the Vice President has the power to act.”

[snip]

102. At 11:15 a.m., the Defendant called the Vice President and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning-falsely claiming that the Vice President had authority to send electoral votes to the states-but that advisors had previously successfully advocated be remove. [my emphasis]

Pence told Trump he wouldn’t reject the votes. Then Trump went out to his mob and claimed Pence had agreed he would.

And there are witnesses. Jack Smith has Pence on the record telling this story. He also has Marc Short learning about it in real time and taking action in response — so Pence’s Secret Service detail will also be able to testify they were alerted to what turned out to be a very real risk to Pence’s life.

And ultimately, this lie, about Pence, was easily one of the most dangerous.

DOJ has statements from dozens — possibly hundreds — of January 6 defendants (including Hostetter) describing that they responded to this lie by targeting the Capitol. This is what led rioters to threaten to hang Pence. It’s what led Jacob Chansley to leave a written threat for Pence on the dais.

This is the lie that almost got Mike Pence, his wife, and daughter killed.

And it’s not a matter of some interpretation of the numbers of mail-in ballots that were counted late on November 3. It’s a matter of his Vice President, repeatedly, telling Trump he refused take this unlawful act.

Jack Smith spent a lot of time in the indictment emphasizing that Trump knowingly lied, including proving that Trump had been told he didn’t win. That will undoubtedly help prove his case. But what he’s doing is showing that the great con man knew how to use lies to achieve a particular result.

And that particular result involved threatening the life of his own Vice President in an attempt to force him to steal the election.

“Conspiracy Shit Beamed Down from the Mothership:” The Prehistory of Trump’s Ellipse Lies

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In Jack Smith’s statement announcing the Trump indictment yesterday, he emphasized how Trump’s lies “fueled” the attack on the Capitol.

The attack on our nation’s capital on January 6, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.

The men and women of law enforcement who defended the U.S. Capitol on January 6 are heroes. They’re patriots, and they are the very best of us. They did not just defend a building or the people sheltering in it. They put their lives on the line to defend who we are as a country and as a people. They defended the very institutions and principles that define the United States.

For each sub-section in the section of the indictment that lays out Trump’s pressure on states, the indictment shows how Trump repeated false claims on January 6 that he had been told were false. While the indictment doesn’t cite the actual language that would appear in Trump’s Ellipse speech, it invokes these five lies (it doesn’t include the lies he told about Nevada):

In the state of Arizona, over 36,000 ballots were illegally cast by non-citizens. Two thousand ballots were returned with no address. [cited here]

[snip]

Over 10,300 ballots in Georgia were cast by individuals whose names and dates of birth match Georgia residents who died in 2020 and prior to the election. [cited here]

[snip]

That’s Detroit. One hundred and seventy-four thousand ballots were counted without being tied to an actual registered voter. Nobody knows where they came from. [cited here]

[snip]

There were over 205,000 more ballots counted in Pennsylvania. Think of this, you had 205,000 more ballots than you had voters. That means you had two. Where did they come from? You know where they came from? Somebody’s imagination, whatever they needed. [cited here; also cited in January 4 meeting with Pence]

[snip]

In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes. [cited here]

With each of these lies, the indictment shows when he was told these claims were false (Arizona, Georgia, Michigan, Pennsylvania, Wisconsin). In several cases, the indictment also shows DOJ officials telling Trump those lies were false (Georgia, Michigan, Pennsylvania, Wisconsin).

The actual citations from Trump’s Ellipse speech, which appears in the section on his pressuring of Mike Pence, focus on that — his false claims about what Pence could do (and the indictment describes Rudy Giuliani and John Eastman’s speeches as further effort to pressure Pence).

But before that, the indictment tracks the lies in the speech that Trump used to mobilize the mob.

How and Why to Charge Trump First

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In the wake of the news of Trump’s target letter in the January 6 investigation, journalists have found no Trump associate willing to admit, on the record, to having received a target letter themselves, leading to questions about whether Jack Smith might charge Trump and only later add co-conspirators.

In this thread, I suggested there might be (unusual) merit to charging Trump — the head of the conspiracy — first, then add in everyone else. A bunch of people asked what I meant — so this post attempts to explain my thinking.

It builds on this post, written before the first January 6 Committee hearings. That post relied on three judge’s opinions conceiving Trump’s role in the January 6 attack:

  • Amit Mehta’s opinion sustaining the lawsuits against Trump for January 6
  • David Carter’s opinion finding crime-fraud exception for some John Eastman’s email
  • Reggie Walton’s opinion that proving Trump’s effect on the rioters must stem from the Trump communications the rioters actually knew of, including Trump’s December 19 tweet announcing the event and (for those who watched) his Ellipse speech; the Proud Boys are a special case because of Trump’s September 29 debate comment and because almost all Proud Boys skipped Trump’s speech

I used those opinions to lay out what the judges — two who were familiar with January 6, one who relied on J6C’s representations about it — viewed as evidence supporting that Trump committed a crime. Once you understand that the bodies at the Capitol were a key way Trump obstructed the vote certification (something included in Judge Carter’s opinion but often overlooked), then the import of Trump’s impact on rioters becomes more clear. It narrows the evidence needed to prove Trump’s obstruction beyond what most people understand — and very nearly maps the dozens of successful obstruction prosecutions DOJ already obtained, which I first started mapping out in August 2021.

This table updates my earlier one (and remains mostly a talking document — there’s a lot missing). It adopts the two most likely standards for “corrupt purpose” that the DC Circuit might adopt in the Thomas Robertson appeal. And it includes a number of details — largely focused on Mike Pence — on which both J6C and the investigation have focused for over a year.

My argument is that, to prosecute Trump, you need to obtain proof of the stuff highlighted in yellow, largely focused on his effect on Pence and on the mob. To prosecute Trump’s lackeys, you need to collect a lot more information and, likely, will need to flip some people. The rest of the table shows what it would take to include the others.

Jack Smith obviously thinks he has the evidence to charge Trump (though the circus involving Will Russall yesterday could have created a few hurdles).

With the obstruction charge — assuming the reports of a “witness tampering” charge really refer to 18 USC 1512(c)(2) — Smith has obviously already secured almost all the Pence-related people whose testimony really matters, including Pence himself. Two key exceptions are Rudy Giuliani and John Eastman. But the testimony of the former was locked in in a two-day proffer a few weeks ago and the testimony of the latter was locked in in sworn testimony in Eastman’s disbarment trial in the same time period.

The one other exception I can think of is Ivanka.

With regards to the mob, Smith can rely on the statements of offense of hundreds of convicted defendants, including people who had a key role in the attack, including the Proud Boys and even some others who played a key role in specific breaches.

That’s my understanding of how you could charge Trump (at least with obstruction) before charging a bunch of his lackeys: the evidence requires less proof of the conspiring on comms that may still be in filter reviews.

Why is another matter.

First, if you’re going to charge Trump you need to do so as soon as possible, because of the election. If you charge Trump alone (though it’s not clear that’s really happening), you might be able to get to trial before August 2024.

Another reason to charge Trump is that it undercuts his ability to buy silence from other witnesses. If people are no longer protecting Trump, they may be less willing to add to their own legal jeopardy by lying.

It’s possible, too, that some of the charges would be prophylactic. If Smith were charging Trump as well for attempting to tamper with Cassidy Hutchinson’s testimony to J6C — something about which we know she gave testimony last September — it might give Trump somewhat more caution before tampering with the testimony of others.

If Smith charged Trump with attempting to discount Black and Latino voters, as opposed to just all Biden voters, it might raise the stakes on Trump’s efforts to disenfranchise minority voters in 2024.

In both cases, such charges might give prosecutors cause to include specific prohibitions in release conditions (though Trump will undoubtedly still be released).

It’s still not clear what conduct Smith would charge as a conspiracy (18 USC 371). It could be attempting to install Jeffrey Clark to aid his attempts to discredit the election (privilege reviews for which started in May 2022). It could be the fake electors plot (though I’m not convinced that Smith has locked in the testimony of all relevant witnesses yet). But here, too, charging Trump with conspiracy while identifying as-yet uncharged co-conspirators might lead them to hesitate before helping Trump.

I think, in general, anxious commentators underestimate the degree to which Smith is going to want to lock in each and every witness before charging a certain part of this larger conspiracy. J6C’s delay in releasing transcripts actually contributed to the difficulty, and probably added several months of delay in January and February. But if Smith were to charge obstruction on a narrowly targeted Pence-and-the-mob charge, then it would limit the necessary evidence to testimony and evidence DOJ already spent years collecting.

Update: Very belatedly fixed Will Russell’s last name.

James Boasberg Likens Trump’s Demands on Pence to a Bribe

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“There is no dispute in this case that Pence lacked the authority to reject certified electoral votes, [redacted].”

That’s the foundational principle of the opinion DC Chief Judge James Boasberg wrote on March 27, finding that just a limited number of topics about which DOJ wanted to question Mike Pence were covered by Speech and Debate.

Boasberg unsealed the ruling on Friday.

Trump had no standing in this dispute — his ability to prevent Pence’s testimony was limited to Executive Privilege claims, which had already decided months earlier with Pat Cipollone and others. So on the matter of whether Pence had any authority to reject the certifications, the two parties before Boasberg were always in agreement.

From that agreement, then, Boasberg treated Trump’s pressure on Pence to do so anyway as akin to the bribe at issue in US v. Brewster, a 1972 ruling that held that a conversation in which a Senator accepted a bribe was not protected under Speech and Debate Clause.

Brewster reflects the commonsense proposition that the Clause does not protect conversations whose principal purpose is to convince a Member to do something the Member cannot lawfully do.

[snip]

The bottom line is that conversations exhorting Pence to reject electors on January 6th are not protected. They fall under Brewster‘s rule that communications urging a legislator to act unlawfully or ultra vires are not preparatory — or at most are only incidentally so — to a legislative function.

That thinking is in no way controversial (unless you adhere to John Eastman’s unmoored theories about the Electoral College Act).

But the means by which Boasberg came to this decision are important for another reason.

That’s because “otherwise unlawful act” is a key part of the debate — currently before the DC Circuit — about the meaning of “corrupt purpose” in 18 USC 1512(c)(2), particularly as it applies to January 6. Conservatives on the court want to adopt a rule saying that an act is only “corrupt” if someone is seeking a personal benefit — a definition that would apply to Trump far more easily than the hundreds of other January 6 suspects charged with obstruction. Liberals want to adopt a rule saying something is corrupt more broadly. But the happy middle, a stance first adopted by Trump appointee Dabney Friedrich in December 2021, would hold that an action to obstruct the vote certification is “corrupt” if it is otherwise illegal, one of two decisions on which Boasberg built his own decision upholding the obstruction statute for January 6.

And Boasberg’s decision builds off the premise that Trump’s demands asked Pence to do something he couldn’t lawfully do.

Akin to bribe.

It’s just a small part of the many pieces that will go into a potential Trump charge. But an important one.

The DC Chief Judge has treated Trump’s demands that Pence reject the vote certifications as an otherwise illegal act.

This Indictment Will Likely Come Too Early for Trump to Consolidate the Party

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After Trump propagandaist John Solomon published that Trump had been told he was a target of the Espionage Act investigation that has targeted him since last August, Trump did a post on his failing social media site. I’ve edited it down to the key bits:

Trump’s first response to the first public confirmation that he will soon be charged was not, as it turned out, to bellow, “Lock him up!” or even reconsider his past obstruction, but instead demand that the insurrectionists in Congress do something.

His first response was to demand that Republicans turn their focus — as they have for much of the last five years — on defending him at all costs, to the detriment of anything that better serves their interests (to say nothing of the interests of their constituents).

I’m not surprised. At some point, I will finally write a post describing how brilliantly Trump used the Russian investigation — assisted by a great deal of Russian disinformation — to successfully demand GOP loyalty to him over country. In the end, the Russian investigation was a tremendous tool Trump used to accrue power, all the while doing grave damage to the US.

His response to the public report he’ll soon be indicted was to attempt to do the same thing: make his own legal woes those of the entire GOP.

But this indictment — if it indeed gets filed in the next two weeks or so — may come too early for Trump.

That’s because, as I laid out here, there’s still plenty of time in the GOP primary for other Republicans to take advantage of Trump’s legal woes. Republicans seem to be sensing this opportunity. Chris Christie kicked off his undoubtedly doomed presidential race by focusing on Trump’s epic corruption. Mike Pence kicked off his equally doomed presidential run by emphasizing that he did his duty on January 6, unlike Trump (the presence of his brother Greg at the event undermined that message, because even after Trump almost got both he and the Vice President killed, Greg still challenged the election and voted against impeaching Trump). Asa Hutchinson called on Trump to step aside, noting he may be charged with Espionage [Act violations].

The point is not that these men will win the election. It’s that they’re using their candidacy to oppose Trump at a time when Christie and Pence and Hutchinson can anticipate that Jack Smith will soon give each a lot of material to work with. Many — not most, but many — Republicans are looking for permission to break with Trump and the timing of a potential indictment and the primary may give a way to do it.

Meanwhile, Joe Biden’s success at giving Kevin McCarthy a way out of the hostage situation he was forced to create just before the US credit rating was affected is having a remarkable effect on the House GOP.

Insurrectionists in Congress, who briefly considered trying to replace McCarthy, seem to have realized they don’t have the votes, and so have been trying to do something — anything — to look like they are tough. But it has only made them, and Republicans, look more ridiculous.

There are increasing reports that less radical Republicans want nothing to do with this chaos.

Greg Sargent wrote up what he describes as Biden’s deliberate attempt to marginalize the MAGAts, which is a good way of understanding it.

[I]n promising to restore “the soul of the nation” in the face of this threat, Biden has continually distinguished between MAGA Republicans and more conventional ones. This approach has been criticized by those of us who see much of the GOP as extreme and dangerous — after all, many elected Republicans helped whitewash Trump’s insurrection — and think Biden’s characterization of non-MAGA Republicans plays down that broader threat.

But Biden’s reading served him well in the debt limit standoff. Contrary to much criticism, Bidenworld believes that refusing to negotiate at the outset was key: It forced Republicans to offer their own budget, which created an opening to attack the savage spending cuts in it.

Notably, Biden and other Democrats relentlessly characterized those cuts as destructive and dangerous in the MAGA vein. Bidenworld did believe that some MAGA Republicans were willing to default and force global economic cataclysm to harm the president’s reelection, a senior Biden adviser tells me, but also that many non-MAGA Republicans ultimately could be induced not to go that far.

There’s no guarantee it’ll work. There’s no way to prevent some of the damage that Marjorie Taylor Greene, Matt Gaetz, Jim Jordan, and James Comer intend to do.

But there’s always the threat that if ten Republicans decide they’ve had enough of this chaos, it creates the opportunity for a Fred Upton or similar to come in to lead a House that will function as a legislative body again.

If Trump weren’t indicted until September or October — still a realistic timeline for January 6, particularly if interim charges must occur first — Trump might have had an opportunity to seal the GOP primary and force the GOP to defend whatever crimes he gets charged with, to own and normalize those crimes as their own, as the GOP has chosen to do for the past six years.

But at the moment, there are hints of a mood change, one in which at least a critical handful of Republicans will choose against the chaos they’ve been gripped by for six years.

Update: Added the Hutchinson tweet. h/t.

Where the Trump Investigations Stand: The January 6 Conspiracies

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As noted in this post, I started to write short summaries of where the three main investigations into Trump stand, but they turned into posts. So I’m posting them serially. I wrote about the Georgia investigation here and the stolen documents investigation here.

On Thursday, Mike Pence testified to the January 6 grand jury for over five hours. Many commentators have suggested — and I agree — that was one of the last major testimonial steps Jack Smith would need to take before deciding whether and if so how to charge Trump for inciting a mob to threaten to assassinate his Vice President.

But — in addition to Smith’s efforts to obtain recordings from Rudy Giuliani and others that former Fox producer Abby Grossberg has in her possession (which are going to make great evidence at trial) — there are still a few pieces that Smith’s prosecutors seem to be working on.

The most important of those may be continued appellate uncertainty regarding the law that Smith is likely to use to charge Trump and others in conjunction with January 6, obstruction of the vote certification, 18 USC 1512(c)(2), a charge successfully used against dozens of other January 6 defendants already. The DC Circuit will have a hearing on that, in an appeal former Virginia cop Thomas Robertson made of his obstruction conviction, on May 11.

To understand its import, let me explain how I think the various things Smith is investigating fit together. I think it likely that, in addition to some charges relating to the obstruction of this or the January 6 Committee’s investigation, Smith’s team is pursuing:

  • Conspiracy to defraud the United States for submitting fake elector certificates to the Archives (18 USC 371)
  • Obstruction of the vote certification and conspiracy to obstruct (18 USC 1512(c)(2) and (k))
  • Conspiracy to commit wire fraud (18 USC 1343; 1349)
  • Aiding and abetting assault (18 USC 111(b) and 2)

This differs from the January 6 Committee’s referrals in that I’ve included wire fraud, for which they provided abundant evidence, in an appendix, but did not include in their referrals. Also, I believe Smith would charge conspiracy tied to January 6 under 1512(k) rather than 371, as DOJ has been doing for over a year, not least because it provides stiffer sentences and more flexibility at sentencing. And I’ve suggested DOJ might use aiding and abetting of Michael Fanone’s assault based off Amit Mehta’s ruling addressing it and the evidence DOJ used in the Ed Badalian trial. I think that’s more likely than a charge for incitement of insurrection (18 USC 2383) unless DOJ built upwards off of still-hypothetical guilty verdicts in the Proud Boys case, but it might take time. I frankly think adding seditious conspiracy charges would be more likely than incitement of insurrection, if one spent the time to build up the intervening case, but that’s highly unlikely for constitutional reasons.

The way these three main charges — conspiracy to defraud tied to the fake elector certificates, conspiracy to obstruct the vote certification, and wire fraud — intersect likely provide some prosecutorial tools for the same reason that some Georgia Republicans are now turning on other ones.

While the fake electors case may seem like a slam dunk, the criminal exposure it presents is quite uneven.

Part of that stems from the fact that the extent to which a fake certificate was fraudulent is tied to state law about the requirements for elector ascertainment. On December 9, 2020, campaign lawyer Kenneth Cheesebro wrote down (!!) where such efforts would be less and more problematic.

Many of the States contested by the Trump team had laws that specified requirements for electors to validly cast and transmit their votes—and the December 9, 2020, memo recognized that some of these criteria would be difficult, if not impossible, for the fake electors to fulfill. (As described later, most were not fulfilled.) For example, Nevada State law required that the secretary of state preside when Presidential electors meet,16 and Nevada Secretary of State Barbara Cegavske, a Republican, had already signed a certificate ascertaining the Biden/Harris electors as the authorized, winning slate.17 Several States also had rules requiring electors to cast their votes in the State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot were unavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognized that these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

That memo marks the moment when Trump’s official campaign lawyers like Justin Clark and Matt Morgan started to distance themselves from the campaign efforts, to be replaced by Rudy Giuliani and his band of merry warriors.

Something similar happened at the states, as smarter people insulated themselves from this stupid legal move. The fake electors in New Mexico and Pennsylvania included caveats that likely protects them from legal exposure; in other states (notably, Wisconsin) the fake electors credibly believed that the certificates would only be used if a court ruled that there was some remaining legal dispute. Fourteen fake electors refused to participate, several of whom had very useful things to say about its dubious legality even to the January 6 Committee.

While there’s lots of documentary record reflecting that Trump approved the plan, proving his knowledge of the legal problems with the fake certificates themselves would likely require witnesses who saw him do so after having been advised of the legal sketchiness of it all (that may have been among the things the two Pats, Philbin and Cipollone, were asked about in their grand jury testimony in December). To include Trump in these charges, you need witnesses. His call to Brad Raffensberger and his assent to a lawsuit using numbers known to be dodgy are related; his pressure on electors to participate is part of the same conspiracy; but to charge him with the conspiracy itself you need those direct witnesses (in addition to the two Pats, Jason Miller, Rudy, Mark Meadows, Epshteyn, and John Eastman are likely those witnesses).

By last June, the subpoenas DOJ sent out asking for communications with those deeply implicated reflected this differential exposure. So do the phone seizures of Mike Roman and Epshteyn in September, both of whom were key gatekeepers of this process. This post shows how the investigation proceeded from there. In other words, the parts of the fake elector investigation we can see reflect awareness from before the first J6C hearing that the scam implicated differential legal exposure.

That kind of differential exposure is the same thing that Fani Willis is using to secure cooperating witnesses in Georgia.

While I’ll come back to it, the same kind of differential exposure exists with the wire fraud case. Just as one example, while Justin Clark claims to have distanced himself from the obviously illegal fake elector scam, he remained in Trump’s employ as he spent the money earned from making false claims about voter fraud between November and January. He already would have had an incentive to provide evidence to prosecutors that he had no part of the fake electors scheme. His incentive to do so increases to the extent that he benefitted from fraudulent fundraising and spending.

But first I want to explain one thing Smith may be waiting on: A clear sense of how the DC Circuit will define “corrupt purpose” under 18 USC 1512(c)(2).

If he charges it, Smith will likely prove that Trump obstructed the vote certification by:

  • Asking Mike Pence to take action to delay the certification that Trump had been told was illegal (Greg Jacob, Mark Short, the two Pats, and Pence are witnesses to this, all of whom have now made Executive Privilege-waived grand jury appearances)
  • Falsely leading the mob to believe that Pence could take that action (changes Trump made to his speech, about which Stephen Miller was likely asked by the grand jury this month, and his tweets are evidence of this)
  • After Pence refused to take that action, using the mob to try to pressure him to take it anyway or to otherwise disrupt the certification (DOJ has spent two years obtaining evidence that this was, in fact, why many people rioted, with specific evidence tied to Danny Rodriguez)

Contrary to what a million TV lawyers have told you, to prove obstruction, Smith won’t have to prove Trump knew he lost. DOJ has repeatedly won convictions of other January 6 defendants who tried to use that as a defense.

DOJ will need to prove he had corrupt purpose in attempting to obstruct the vote certification. And what that means in the DC Circuit won’t be decided until after May 11.

This post provides both a summary of the debate as it existed in January. This post describes how a DC Circuit panel of Florence Pan, Justin Walker, and Greg Katsas ruled that 1512(c)(2) does apply to the vote certification and that obstruction can extend beyond documentary obstruction. It also explains how none of the three of them could agree on what “corrupt purpose” means, from which some January 6 defendants have tried to argue (unsuccessfully in at least two cases) that Walker’s preferred meaning should apply.

Wildly simplified, the three main definitions of what corrupt purpose might mean are:

  • Corrupt benefit
  • Using otherwise illegal means, which in the case of other January 6 defendants has meant trespass or assault
  • Aiming to obtain an unlawful benefit

On May 11, a DC Circuit panel including Pan, Poppy Bush appointee Karen Henderson, and Obama appointee Cornelia Pillard will consider whether former Virginia cop Thomas Robertson had the corrupt purpose required to be convicted of obstruction. As part of that, they’ll decide whether the earlier ruling decided the issue of what corrupt purpose is, and if not, what it is.

As I wrote, to the extent that Smith has proof Trump knew the fake elector certificates were fraudulent, 1512 should apply to Trump in every imaginable case, far more easily than it does with rioters. The attempted delivery of the fake elector certificates to Pence constitutes a documentary attempt to obstruct the vote certification. Trump’s illegal request to Pence, as well as the knowingly fraudulent lawsuit in Georgia and the effort to pressure Raffensperger, to say nothing of any incitement or aid-and-abet liability in the assaults, are illegal means he used to stop the vote certification. And Trump, more than anyone else involved in efforts to obstruct the vote certification on January 6 was seeking an unlawful personal benefit, the ability to remain in power for another term. Mitch McConnell protégé Walker clearly laid out that basis for that case in his concurring opinion in Fischer.

But former Trump White House counsel Katsas didn’t necessarily view the continued election of Donald Trump to be such an advantage, at least not for those accused of assault before him. He sought a stricter definition of “financial, exculpatory, or professional” gain.

Which brings me (back) to the wire fraud investigation, something that DOJ has been investigating since at least September and in which CNN reported DOJ got cooperators after January 6.

[T]he financial investigation has sought information about Trump’s post-election Save America PAC and other funding of people who assisted Trump, according to subpoenas viewed by CNN. The financial investigation picked up steam as DOJ investigators enlisted cooperators months after the 2021 riot, one of the sources said.

Wire fraud charges would closely resemble the successful Build the Wall prosecution for which Steve Bannon’s co-conspirators just got four year sentences (he was pardoned in for it in one of Trump’s last pardons but faces trial for the same scam in New York State in November). It would follow a similar wire fraud investigation of Sidney Powell that dates back to before September 2021.

If you think of these three prongs of the investigation, the wire fraud prong serves two purposes. First, many of the people who were witnesses but not subjects of the events leading up to January 6 might be subjects of the wire fraud investigation. As I noted, it may provide a tool to get cooperators.

Just as importantly, even under the most constrained definition of corrupt purpose for obstruction, grifting off false claims of election fraud would qualify.

That is, for Trump, a prosecutor should be able to prove corrupt purpose regardless of any conceivable standard that the DC Circuit or even a conservative SCOTUS would adopt, because he attempted to obstruct the vote certification so that he could remain President after losing the election.

But even if you don’t believe getting Trump elected provides an unlawful benefit to his supporters (or, to put it another way, disqualifying the votes of 81 million other Americans so yours counts more), disseminating false claims about voter fraud to get rich and then cashing in on that Big Lie for years afterwards is a different kind of corrupt purpose, the kind of financial corrupt purpose that Katsas is looking for.

If you riled up tens of thousands of Trump supporters who went on to attack the Capitol just so you could benefit financially, you’ve realized the kind of corrupt financial benefit from the riot that would seem to meet Katsas’ most constrained definition of corrupt purpose.

So it’s not just that the wire fraud part of the investigation is a crime that should, like all the other ways Trump and his flunkies have exploited his credulous followers, be prosecuted. It’s a important complement to the two other conspiracies, both because it’s likely to motivate more cooperators, but also because it helps to prove corrupt purpose for all the people who profited off the fraud.

And that may have an impact on the timing.

As I’ve noted, Trump should qualify under the definition of corrupt purpose no matter what the DC Circuit decides, though some of his flunkies might not. And so on top of whatever continued investigation Smith has to do on the wire fraud prong, he may want to wait until at least after that hearing before he makes final charging decisions.

Lots of people are impatient that neither Trump nor his flunkies have been charged thirty months after their crimes. But the likely charge hasn’t even been defined yet.

Links

Where the Trump Investigations Stand: Georgia

Where the Trump Investigations Stand: Stolen Documents

Where the Trump Investigations Stand: The January 6 Conspiracies

How Did Intended Victim Mike Pence Testify?

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As a million outlets have reported, 21 months after Merrick Garland set up a framework that could obtain a for waiver executive privilege for January 6 without violating DOJ contact guidelines, 15 months after all January 6 investigations had converged on Mike Pence, over a year after investigators won precedents that made it possible, yesterday Mike Pence testified to a January 6 grand jury for around five hours.

This is definitely important news, but it is not new news. Given the recent precedent of then still sitting Vice President Dick Cheney giving a transcribed interview for presentation to the CIA Leak case grand jury in August 2004, it’s also not anywhere near as unprecedented as some outlets are hyping.

In fact, it’s so predictable, I’ve republished below, in its entirety, the post I wrote in November (before Jack Smith’s appointment) arguing that the publication of Pence’s book made this testimony far easier, and necessary, to get.

A witness with crucial testimony to a grand jury investigation testified before the grand jury. Far more importantly, the chief intended victim of a violent attack testified to the grand jury.

Little from this interview will be entirely new to prosecutors. I bet they even had a copy of Pence’s book with sticky tabs marking key pages. What will be important — and could even impact Smith’s charging decision — is whether Pence continued to shade the truth to protect Trump in some key episodes, or provided more honest testimony under oath.

It may actually matter whether Pence testified that he believed all Trump’s efforts to undermine the election outcome were justified. How Pence testified about his response to Trump’s focus on the rally on December 19 may matter (his role in a meeting with members of Congress on December 21 may be protected under the decision affording him Speech and Debate protection, which is a damned shame).

How Pence told this part of his January 6 story — the meeting he had on January 11 with Trump in its aftermath — may be one of the most important details of Pence’s testimony.

I met with the president on Jan. 11. He looked tired, and his voice seemed fainter than usual. “How are you?” he began. “How are Karen and Charlotte?” I replied tersely that we were fine and told him that they had been at the Capitol on Jan. 6. He responded with a hint of regret, “I just learned that.” He then asked, “Were you scared?”

“No,” I replied, “I was angry. You and I had our differences that day, Mr. President, and seeing those people tearing up the Capitol infuriated me.”

He started to bring up the election, saying that people were angry, but his voice trailed off.

I told him he had to set that aside, and he responded quietly, “Yeah.”

I said, “Those people who broke into the Capitol might’ve been supporters, but they are not our movement.” For five years, we had both spoken to crowds of the most patriotic, law-abiding, God-fearing people in the country.

For the public version, Pence described being angry at the rioters. He described being angry that they had targeted the Capitol building.

But just beneath the surface of this description is the disagreement Pence had with Trump. Just beneath the surface of this description is the obvious tie between Trump’s incitement and those rioters. Just beneath the surface of this description is the fact that Trump targeted those rioters at Pence. At Karen Pence. At Charlotte Pence.

Just beneath the surface of this description is Pence’s anger at Trump, not just the rioters.

How Pence described being the victim of Trump’s incitement matters. It’ll matter for the confidence with which Smith may have in a case relying on this testimony. It’ll matter for how convincing this case would be for a jury.

After a Year of Executive Privilege Fights, Mike Pence Just Tweeted It Out

The WSJ has published an excerpt — the parts relating to January 6 — from the Mike Pence book coming out next week. It includes descriptions of the following conversations with the then-President, at least some of which Pence was the only witness:

  1. Lunch on November 16, 2020, at which Trump said, “2024 is so far off.”
  2. A call on December 5, on which Trump raised the possibility of challenging the vote.
  3. A December cabinet meeting.
  4. A December 19 conversation in which Trump mentioned plans for the January 6 rally (which Pence claims to have thought was a “useful” idea).
  5. A January 1, 2021 phone call in which Pence told Trump he opposed Louie Gohmert’s lawsuit arguing that Pence had discretion to decide which votes to count. Trump accused his Vice President of being “too honest” and informed him that, “People are gonna think you’re stupid,” for choosing not to claim the power to throw out votes.
  6. A call on January 2 on which Trump said that if Pence, “wimp[ed] out,” he would be “just another somebody.”
  7. A meeting involving John Eastman and others on January 4.
  8. A meeting involving John Eastman in the Oval Office on January 5.
  9. The call Trump made to Pence on January 6 where he again called Pence a wimp.
  10. A meeting on January 11, where in response to Trump’s question whether he was scared on January 6, Pence said he was angry, purportedly just about the people “tearing up the Capitol.”
  11. An exchange inside the Oval Office during which Trump told Pence “Don’t bother” to pray for him.

Every one of these conversations are ones that would traditionally have been covered by Executive Privilege. Trump claimed such exchanges were covered by Executive Privilege starting over a year ago. Both Pence’s top aides — Greg Jacob and Marc Short — and three White House Counsels claimed such exchanges were covered by Executive Privilege this summer, and only in recent weeks did Beryl Howell override the claims of Pence’s people.

And yet, all the while, this book was in the works, including just on this topic, eleven conversations directly with the former President, many of them conversations to which Pence was the only witness.

Much of this description is self-serving (as most autobiographies are), an attempt to craft his support for challenging the election but not rioting. The excerpt, at least, does not disclose the advice that led him to reject Trump’s demand that he throw out votes.

This passage, in particular, seems to project any testimony that Eastman knew the request of Pence was illegal onto Greg Jacob, not himself.

On Jan. 4, the president’s chief of staff, Mark Meadows, summoned me to the Oval Office for a meeting with a long list of attendees, including the legal scholar John Eastman. I listened respectfully as Mr. Eastman argued that I should modify the proceedings, which require that electoral votes be opened and counted in alphabetical order, by saving the five disputed states until the end. Mr. Eastman claimed I had the authority to return the votes to the states until each legislature certified which of the competing slate of electors for the state was correct. I had already confirmed that there were no competing electors.

Mr. Eastman repeatedly qualified his argument, saying it was only a legal theory. I asked, “Do you think I have the authority to reject or return votes?”

He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”

At that I turned to the president, who was distracted, and said, “Mr. President, did you hear that? Even your lawyer doesn’t think I have the authority to return electoral votes.” The president nodded. As Mr. Eastman struggled to explain, the president replied, “I like the other thing better,” presumably meaning that I could simply reject electoral votes.

On Jan. 5, I got an urgent call that the president was asking to see me in the Oval Office. The president’s lawyers, including Mr. Eastman, were now requesting that I simply reject the electors. I later learned that Mr. Eastman had conceded to my general counsel that rejecting electoral votes was a bad idea and any attempt to do so would be quickly overturned by a unanimous Supreme Court. This guy didn’t even believe what he was telling the president.

By context, Pence asked Eastman whether Eastman thought Pence had “the authority to reject or return votes.” Eastman’s response, without qualification that he was addressing just one of those two items, was that, “it’s never been tested in the courts.” Then, by Pence’s telling, he directly told the then-President that Eastman had only said that returning votes to the states would be illegal. But that’s not what Eastman responded to! He responded to both, and did so in front of Trump.

By stating that Eastman later told his general counsel, Greg Jacob, that the Supreme Court would overturn any effort to reject the votes, rather than just return them, Pence is making Jacob the key witness, and he’s telling the story in such a way that Trump was not directly a witness to the conversation.

Maybe it really happened like Pence tells it. Maybe not. There were other attendees (including, probably, Jacob), and some of them have likely already described what they saw to the grand jury.

But this protective telling of the story is particularly interesting given this description of how, on January 1, Pence told Trump he didn’t have the authority to decide which votes to count.

Early on New Year’s Day, the phone rang. Texas Rep. Louie Gohmert and other Republicans had filed a lawsuit asking a federal judge to declare that I had “exclusive authority and sole discretion” to decide which electoral votes should count. “I don’t want to see ‘Pence Opposes Gohmert Suit’ as a headline this morning,” the president said. I told him I did oppose it. “If it gives you the power,” he asked, “why would you oppose it?” I told him, as I had many times, that I didn’t believe I possessed that power under the Constitution.

This is the first, in the excerpt, that he describes telling this to Trump. But he also says he had already told him the same, “many times.” The circumstances of those conversations would be really critical for pinpointing the timeline of Trump’s machinations and the extent that Pence warned him they were illegal.

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

The Testimony Jack Smith Gets This Week Builds on Work from Over a Year Ago

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Starting on Tuesday, Jack Smith’s prosecutors started getting return grand jury appearances for a set of key Trump aides who had invoked Executive Privilege in earlier appearances. In the days ahead, that same January 6 grand jury will get the testimony of Dan Scavino, Stephen Miller, Mark Meadows and — unless Trump succeeds with some kind of last minute challenge — Mike Pence.

Starting tomorrow, Secret Service agents will testify in the stolen documents case. That comes after (according to CNN), witnesses who gave voluntary testimony last summer have made subsequent appearances before the grand jury and Evan Corcoran provided crime-fraud excepted documents and testimony to the same grand jury. Multiple other lawyers already testified before the grand jury.

While there are a few outstanding items, such as the exploitation of Scott Perry’s phone, the DC Circuit decision on the application of 18 USC 1512(c)(2) to January 6, finding a way to obtain any remaining classified documents Trump has been hoarding, a verdict in the Proud Boys trial (which may dictate charging decisions for others) — all of which efforts have been pending for over six months, before Smith was appointed — the twin investigations headed by Jack Smith appear to be headed to imminent resolutions.

In recent weeks, the same TV lawyers who were wailing last summer about the January 6 investigation into Trump (the stolen documents investigation, while already laying the groundwork for charging a former President under the Espionage Act, still remained entirely unknown), have suggested that Alvin Bragg’s indictment of Trump might, “might light a fire under other prosecutors and advance the proposition that even ex-presidents must follow the law.”

It’s an obscene suggestion, that Jack Smith or his AUSAs or Merrick Garland needed some push to pursue the investigation into Donald Trump, when instead the TV lawyers simply needed a push to review what steps the investigation was actually pursuing. That’s because all of the recent developments in the Jack Smith case — the crime-fraud ruling, the Executive Privilege waiver, the testimony of Mike Pence — very obviously build on work done last year, well before Garland appointed Jack Smith. Some of those steps were even public at the time last summer when the very same TV lawyers were wailing. All of the climactic steps occurring in recent weeks were easily foreseeable by August.

Prosecutors have been building to this moment for a long time.

As I noted here, investigations in the era of cloud computing usually follow a clear logic:

  • Use subpoenas to obtain metadata to identify key subjects
  • Use metadata to obtain cloud warrants of subjects
  • Use cloud warrants to obtain warrants for phones (a necessary step if encrypted apps were used in furtherance of a crime, as was the case in the lead-up to January 6)
  • Use overt subpoenas for other witnesses to obtain evidence
  • Obtain grand jury testimony from witnesses

By the time the first overt subpoenas and warrants go out — which in the January 6 case was May 2022, though in the case of Sidney Powell was September 2021 — DOJ will already have obtained metadata and cloud content from key subjects of the investigation. Only after DOJ works through that covertly obtained evidence does it start doing the things that alert subjects to the scope of the investigation by subpoenaing other witnesses or seizing phones.

Even in a garden variety investigation, it can take six months from the date of seizure of a subject’s phone until an arrest. This was true even in the militia conspiracy cases, where arrests were an attempt to stave off further violence, in part because FBI was exploiting so many phones.

In the case of sensitive witnesses like lawyers, presidential advisors, and members of Congress, it takes a number of extra steps to get grand jury testimony or access content.

In Rudy Giuliani’s case, a privilege review of his phone content took nine months (though that review incorporated content relating to January 6, so it has been done since January 2022). In Enrique Tarrio’s case (largely due the security he used on his phone), it took over a year to access the content on his phone. In Scott Perry’s case, prosecutors are still working on it seven months later. In James O’Keefe’s unrelated case, Project Veritas still has one more chance to prevent prosecutors from getting evidence the FBI seized in November 2021, almost 17 months ago. You can’t skip privilege reviews, because if you do, key evidence will get thrown out during prosecution, rendering any downstream evidence useless as well.

In cases of privilege, DOJ first gets grand jury testimony where the witness invokes privilege, and then afterwards makes a case that the needs of the investigation overcome any privilege claim. DOJ first started pursuing privileged testimony regarding events involving Mike Pence with grand jury testimony from Pence aides Greg Jacob and Marc Short last July, then with testimony from the two Pats, Cipollone and Philbin, in August. It got privilege-waived testimony from Pence’s aides in October and from the two Pats on December 2. That process undoubtedly laid the groundwork for this week’s DC Circuit ruling that people like Mark Meadows and Dan Scavino must likewise testify to the grand jury.

By the time DOJ first overtly subpoenaed material in the fake electors plot last May, it had done the work to obtain cloud content from John Eastman and Jeffrey Clark. If DOJ had obtained warrants for the already seized phone content from Rudy — which is likely given the prominence of Victoria Toensing from the start of the fake elector subpoenas — then it would have built on content it obtained a year earlier in another investigation.

Some of this undoubtedly benefitted from the January 6 Committee’s work. I would be shocked, for example, if DOJ didn’t piggyback on Judge David Carter’s March 28, 2022 decision ruling some of John Eastman’s communications to be crime-fraud excepted. As NYT reported in August, in May 2022, DOJ similarly piggybacked on J6C’s earlier subpoenas to the National Archives (and in so doing avoided any need to alert Joe Biden to the criminal, as opposed to congressional, investigation); this is consistent with some of what Mueller did in the Russian investigation. Cassidy Hutchinson’s testimony, obtained via trust earned by Liz Cheney, has undoubtedly been critical. But the January 6 Committee also likely created recent delays in the January 6 and Georgia investigation, thanks to the delayed release of transcripts showing potentially exculpatory testimony.

But much of it preceded the January 6 Committee. I’ve shown, for example, that DOJ had a focus on Epshteyn before J6C first publicly mentioned his role in the fake electors plot. Toensing’s involvement came entirely via the DOJ track.

The path that brought us here went from the covert steps in advance of the May 2022 Clark and Eastman warrants (possibly including Rudy Giuliani warrants), to testimony from Trump’s aides, to testimony from White House Counsels, to Meadows and Pence and the rest of them.

There’s not a shred of evidence that DOJ’s prosecutors or Garland were afraid of taking these steps (FBI might be another issue). Instead, there’s a clear timeline of public steps DOJ has taken to get us to this point, which necessarily built on non-public things DOJ did to get to the point of obtaining warrants for the email accounts of several lawyers (and whatever covert steps it took with non-lawyers that won’t be public for years).

A timeline of the stolen document investigation is here.

Some key dates in the January 6 investigation are:

January 4, 2021: DC authorities seize Enrique Tarrio’s phone

January 25, 2021: Stop the Steal VIP Brandon Straka arrested; DOJ IG opens probe into Jeff Clark and others

February 17, 2021: First allegedly cooperative interview with Straka

March 17, 2021: DOJ makes first tie between Oath Keepers investigation and Roger Stone

March 25, 2021: Second allegedly cooperative interview with Straka

April 21, 2021 (Lisa Monaco’s first day on the job): DOJ obtains warrant targeting Rudy Giuliani’s cell phones in Ukraine investigation

June 23, 2021: First Oath Keeper who interacted with Stone enters into cooperation agreement

August 19, 2021: Alex Jones sidekick Owen Shroyer, who participated in Friends of Stone list and served as a communication hub between Proud Boys and others, arrested

September 2021: DOJ subpoenas records from Sidney Powell grift

September 3, 2021: SDNY makes an ultimately successful bid to review all content on Rudy’s devices for privilege (making such content available if and when DOJ obtains January 6 warrant targeting Rudy)

Fall 2021: Thomas Windom appointed to form fake elector team

October 28, 2021: Merrick Garland tells Sheldon Whitehouse DOJ is following the money of January 6

November 2, 2021: Special Master Barbara Jones releases first tranche of materials from Rudy’s phones, including content through seizure

November 22, 2021: Trump appointee Carl Nichols asks James Pearce whether 18 USC 1512(c)(2) might be applied to someone like Trump (he would go on to issue an outlier opinion rejecting the application)

By December 2021: JP Cooney starts long-invisible investigation into financial side of January 6

December 2021: NARA and Mark Meadows begin process of completing his record of PRA-covered communications

December 10, 2021: Judge Dabney Friedrich (a Trump appointee) upholds application of 18 USC 1512(c)(2) to January 6

January 5, 2022: Merrick Garland reiterates that DOJ is investigating the financial side of January 6

Mid-January 2022: DOJ finally obtains contents of Tarrio’s phone

January 19, 2022: Jones releases remaining content from Rudy’s phones; SCOTUS declines to review DC Circuit rejection of Trump’s Executive Privilege claims with respect to January 6 subpoenas

January 5, 2022: Lisa Monaco confirms DOJ is investigating fake electors plot

February 18, 2022: In civil cases, Judge Amit Mehta rules it plausible that Trump and militias conspired to obstruct vote certification, as well that he aided and abetted assaults

March 2, 2022: Oath Keeper in charge of Stone security on January 6, Joshua James, enters into cooperation agreement

March 28, 2022: Judge David Carter issues crime-fraud ruling covering John Eastman’s communications with and on behalf of Trump

May 2022: DOJ subpoenas all NARA records provided to J6C

May 26, 2022: Subpoenas for fake electors plot including Rudy, John Eastman, Boris Epshteyn, Bernie Kerik, and Jenna Ellis, among others; warrants for email accounts of Jeffrey Clark, John Eastman, Ken Klukowski, and one non-lawyer

June 6, 2022: DOJ charges Proud Boy leaders with seditious conspiracy

June 21, 2022: Second set of fake electors subpoenas, adding Mike Roman and others, warrants for NV GOP officials and GA official

June 22, 2022: DOJ searches Jeffrey Clark’s home and seizes his phone

June 28, 2022: DOJ seizes John Eastman’s phone

June 23, 2022: DOJ completes exploitation (but not scoping) of Shroyer’s phone

June 24, 2022: Ali Alexander grand jury appearance

June 27, 2022: Then Chief Judge Beryl Howell permits prosecutors to obtain emails between Scott Perry and Clark and Eastman

July 22, 2022: Marc Short appears before grand jury

August 9, 2022: Scott Perry’s phone seized

August 2022: Mark Meadows provides previously withheld PRA covered materials to NARA

Early September, 2022: Pre-election legal process includes seizure of Boris Epshteyn and Mike Roman’s phones, subpoenas to key aides including Dan Scavino, Bernie Kerik, Stephen Miller, Mark Meadows, subpoenas pertaining to Trump’s PAC spending,

October 13, 2022: Marc Short and Greg Jacob make second, privilege-waived grand jury appearance

November 18, 2022: Merrick Garland appoints Jack Smith

December 2, 2022: Pats Cipollone and Philbin make second, privilege-waived grand jury appearance

December 2022: Rudy Giuliani subpoena asks for information on his payment

February 9, 2023: Mike Pence subpoenaed

February 23, 2023: DC Circuit hears Scott Perry’s challenge to order providing access to his phone content

March 9, 2023: Judge Kollar-Kotelly orders Peter Navarro to turn over PRA-covered contents from Proton Mail account

March 28, 2023: Chief Judge Jeb Boasberg rules Mike Pence must testify (though protects some areas on Speech and Debate grounds)

April 4, 2023: DC Circuit declines to stay Beryl Howell ruling ordering testimony from Mark Meadows and others