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How Would You Arrest a Former President?

As I was reading the four-journalist WaPo story noting what I noted (and provided far more details about) almost three months ago — that the investigation into Trump has been greatly complicated by the involvement of lawyers in his suspected crimes — I thought about how one might arrest Donald Trump. WaPo is interested in whether it can be done before the first debates in August. I’m interested in the logistics of it.

Especially given another temporal complication that WaPo, with all those reporters, doesn’t mention: That the DC Circuit, a panel including two Trump appointees, is taking its own sweet time ruling on DOJ’s application of obstruction to January 6, which was argued back in December. The January 6 Committee referred Trump for 1512(c)(2), which also happens to be the framework DOJ has been using since summer 2021. It’s virtually certain that no matter how the DC Circuit rules, the application can still be applied to Trump (because he corruptly sought a personal benefit involving documents). But if I were Jack Smith, I’d wait to see the guideposts Trump’s own appointees put on the application before I charged it. I have also long said that certain steps may be contingent on the Proud Boy trial, which seems like it’ll go on forever.

I’m not promising Trump will be arrested. But think about the logistical complexities of the task, if Smith were to decide to do it. How do you arrest a rich man — if not quite a billionaire — with access to several planes and his own MAGA army? How do you stage it, given all the potential or likely co-conspirators?

The question of how to arrest Trump is likely also a pressing issue given the likelihood that DOJ still hasn’t obtained all the documents Trump stole, given the multiple properties that haven’t been searched (including Trump’s jet).

One way you might do that is to arrest him first on a limited set of charges tied to the crime scene, one that wouldn’t obligate DOJ to turn over discovery on all the other things Jack Smith is still investigating, such as the targeting of Mike Pence, the defrauding of MAGAts and related campaign finance crimes, and the fake elector plots involving at least a dozen other top Republicans. Arrest him on a crime scene charge, and get it over with.

You arrest Trump and maybe one or two other people, get them in a pretrial release situation limiting their direct contact with other potential co-conspirators (and requiring a truthful statement of net worth to prosecutors, a statement that may reveal useful evidence about Trump’s income from fraudulent claims and Saudi golf tournaments). Ground his plane … and then search it. Search the other properties during the period when Trump is being processed. Prevent Trump, legally, from singing duets with other January 6 thugs.

And then you continue to investigate, superseding the initial charges after you get the testimony of Mike Pence and Evan Corcoran.

Again, this is just a thought experiment. But I thought I’d get ahead of where four-journalist teams from the WaPo will be in three months time.

Trial by Combat: Rudy Giuliani and John Eastman Speeches Included in Ed Badalian Exhibit List

In a pre-trial filing in the case of Ed Badalian — who is charged with conspiring with Michael Fanone’s now admitted assailant, Danny Rodriguez, to obstruct the vote certification — the government identified at least six exhibits pertaining to the events at the Ellipse on January 6 it may introduce at trial.

That includes not just video and a transcript of Trump’s speech, but also of John Eastman and Rudy Giuliani’s speeches.

Exhibit 311 likely references the documentary clip showing Rodriguez, seemingly responding to Trump’s call-out of Pence in his speech, turning to the camera, stating “Joe Biden,” and making a throat-slitting movement several times (See 25:43 in this video).

Focusing on what happened at the Trump rally is unusual in January 6 trials.

Not even with some of the defendants who seemed most enraged by Trump — such as Kyle Fitzsimons — did the government rely on more than a still picture of the Ellipse event. In the Dustin Thompson case, where Thompson had affirmatively claimed that Trump’s speech had authorized him to storm the Capitol (and where Thompson had falsely testified Rudy’s speech had done so too), the government included just a YouTube of Rudy’s speech that had been sent to Thompson. They had Trump’s speech available as an exhibit, but relied, instead, on Thompson’s Uber and GPS records to prove he hadn’t seen Rudy’s speech.

The government has more often than not tried to keep the Ellipse rally out of January 6 trials than include it.

But in this case, the government may be in a position to do something else: to tie Trump, Rudy, and Eastman directly to the violence at the Capitol, to tie Trump directly to the attack that almost killed Michael Fanone.

As DOJ has done with other charged conspiracies, the indictment, Rodriguez’ statement of offense, as well as that of co-conspirator Gina Bisignano trace how the co-conspirators — here, a group of anti-maskers from Southern California — responded to Trump’s call by arming themselves, traveling together to DC, getting riled up at Trump’s speech, then going to the Capitol to engage in some of the most important violence and destruction during the attack.

In response to Trump’s December 19 tweet, for example, someone in the group described that, “Trump is calling on everyone to go to DC Jan 6th.” Two days later, Badalian announced, “we need to violently remove traitors and if they are in key positions rapidly replace them with able bodied Patriots.” On December 29, Rodriguez boasted, “Congress can hang. I’ll do it. Please let us get these people dear God.” Sometime before leaving for DC, Rodriguez told someone else, he would “assassinate Joe Biden” if he got the chance. On January 5, Badalian said, “we don’t want to fight antifa lol we want to arrest traitors.” Also on January 5, Rodriguez promised, “There will be blood. Welcome to the revolution.”

In this case, they also have a remarkable confession. DOJ has Rodriguez explaining to the FBI that he didn’t plan on murdering anyone like Fanone, he just thought there might be casualties because, he believed, he was fighting a civil war.

I kept thinking that we were going to go to, like, a civil war and it’s going to go hot and we’re just — it’s all going to — you know? I don’t know. I didn’t know — we didn’t — nobody knew, so we just thought that it was going to — we were preparing for the — we’re trying to save the country. We thought we were saving the country. I thought I was helping to save the country.

[snip]

A. I didn’t go planning to murder anybody.

Q. I’m not saying that.

A. But I knew that it was a possibility that —

BY AGENT ELIAS: Q. There could be causalities and —

A. There could be causalities. That, like, if this was another civil war, this was another 1776, another 4th of July or something, that that could be a possibility and —

But what they also have are the immediate reactions to Trump’s speech (and perhaps Eastman and Rudy’s, too), that turn to a camera and the show of slitting Biden’s throat. Rodriguez is not the only one who responded to Trump’s incitement by voicing plans to attack the Capitol. Bisignano (who may yet live to regret her nine month effort to renege on her plea deal) also responded directly to Trump’s incitement. “I hope Mike Pence is going to do the right thing,” Trump called out. “I hope so too,” Bisignano responded, “he’s deep state.” And as she marched to the Capitol, Bisignano filmed herself describing that “we are marching to the Capitol to put some pressure on Mike Pence.” Once there, she described, “we are storming the Capitol,” before she, Rodriguez, and Badalian did just that together.

One of the key pieces of evidence Jack Smith’s prosecutors have tying Donald Trump and John Eastman and Rudy Giuliani to the attack on the Capitol are Greg Jacob’s retorts to Eastman that day. “The knowing amplification of [Eastman’s] theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law,” Jacob told Eastman at 3:05 PM on January 6, as he sheltered with the Vice President from Danny Rodriguez and Gina Bisignano and thousands of other attackers, “has led us to where we are.” At 2:14PM, just as attackers broke through a window of the Capitol, Jacob was more succinct: “[T]hanks to your bullshit, we are now under siege.”

An hour after that initial breach, Danny Rodriguez would grab Fanone and, using a taser he was handed inside the Tunnel, tase the officer twice in the neck, leading to a heart attack and other injuries that remain redacted in Rodriguez’ statement of offense. In the morning, Rudy Giuliani called for “trial by combat.” John Eastman told listeners, “We no longer live in a self governing republic” if they couldn’t get Pence to let Republicans investigate further. Trump told his followers that if they didn’t fight, they wouldn’t have a country anymore.

In the morning, Trump’s speech led Rodriguez to imagine knifing Joe Biden, and in the afternoon, Danny Rodriguez almost killed Michael Fanone.

I don’t know if DOJ intends to do this (and as noted in the exhibit list, Badalian wants these exhibits excluded from trial on relevance grounds), but Amit Mehta certainly believed Trump might bear Aid and Abet liability for assaults like the one Rodriguez committed on Michael Fanone.

And in the case where you can draw the clearest line between things that Trump and Rudy and Eastman said at the rally to an assault and other violence at the Capitol, DOJ has laid the ground work to make that case.

Update: Here’s the updated exhibit list for the trial with specific times for the video of Trump and Giuliani’s speeches. The times from the latter are from when Rudy spoke, not John Eastman; it appears to include his “trial by combat” line.

Pence’s Previously Redacted Documents and The Corcoran Scapegoating

Time for another update on the various investigations into stolen and mishandled documents.

Start with Mike Pence, who thus far, the press has assumed, is the safest among the three men being investigated from legal exposure.

The Friday before a holiday weekend, Pence’s team revealed FBI searched Pence’s office. The topline result was that they didn’t find any documents with classification markings, but the FBI did seize three “previously redacted documents.”

Federal agents removed three “previously redacted documents” — but none with classified markings — during an hours-long search of the office of former Vice President Mike Pence’s public policy organization Friday, Advancing American Freedom, according to a Pence spokesman.

That detail raises more questions than answers: It’s hard to understand why, even under the Presidential Records Act, FBI would seize previously redacted documents.

Further in, the same story hinted at one possible reason: if certain no-longer classified documents reveal the import of other documents marked as classified. For example, consider the possibility of a tie between the debate prep materials from Pence’s office and the package of documents seized from Pence’s home.

The documents taken Friday are believed to be materials used for 2020 debate preparation, a person familiar with the matter said.

Last week, the FBI removed one classified document and six other documents during a voluntary search of Pence’s Indiana home. A person familiar with the search told NBC News earlier this week that at least one other item was taken at that time because the relevant materials “were kept in a place that required the FBI to take more than just the documents.”

Such a tie might be exculpatory, for example: it might suggest that documents with classification markings had already been declassified in advance of some prepared debate line. Much of the debate between Pence and Kamala Harris focused on COVID response and China. It would be unsurprising for Trump to declassify information on China’s role in COVID in advance of that debate; nor would it be surprising to find such papers at Pence’s home, given his role in COVID response.

Two other topics from the debate potentially implicating classified materials might be resonate with the Trump investigation, though. To defend Trump’s national security record, for example, Pence raised the execution of Qasim Soleimani, claiming Trump ordered the attack, “when Qasim Soleimani was traveling to Baghdad, to harm two Americans.” Given the visible dates of the highly classified documents at Trump’s home, it would be unsurprising if one or several of those documents related to this decision, stolen as trophies of Trump’s most self-satisfying order as President.

Also in the debate, as part of a false claim that he and Trump had been spied on by the FBI, Pence raised a CIA document unsealed and submitted to the Mike Flynn docket days earlier.

[T]he FBI actually spied on President Trump and my campaign. I mean there were documents released this week that the CIA actually made a referral to the FBI documenting that those allegations were coming from the Hillary Clinton campaign

If these were among the previously redacted documents at Pence’s home, it would suggest that Trump’s obsession with stealing documents pertaining to the Russian investigation had spilled (heh) over into documents in Pence’s possession.

This is all speculative. But the report that FBI took documents that would not obviously substantiate either the mishandling of classified documents or a violation of the Presidential Records Act for the first time suggests that FBI may be pursuing some more interesting explanation for the classified documents at Pence’s home.

Things get more interesting when you turn to Mar-a-Lago.

Also on Friday, Rolling Stone told a tale that suggests Trump is being advised to ditch Evan Corcoran as a lawyer because he’ll soon be charged. To be clear: neither Rolling Stone nor I are claiming Corcoran will be charged.

The story, by Asawin Suebsaeng and Adam Rawnsley, is likely legal nonsense. But the two have reported a series of insider stories on Trump world that capture — perhaps more than any other journalistic team — the batshittery going on close to the former President. This is not bad reporting. Rather, it seems to be accurate reporting that captures the batshittery and bullshit of Trump’s inner circle. One story that is a close analogue of this one described how Trump wanted to expose the IDs of people involved in the Russian investigation, on that piggybacked off a NYT story that served as cover for the centrality of Russian documents in Trump’s obsession with stealing documents.

Anyway, this story may be explained by two earlier reports.

On February 14, the NYT version of the story that DOJ was seeking a crime-fraud waiver for Corcoran’s testimony included the detail — amid reports that multiple witnesses have been asked about Boris Epshteyn’s role in withholding the stolen documents — that Epshteyn once sought to establish a joint representation.

Prosecutors overseeing the documents investigation have also been asking witnesses questions about Boris Epshteyn, who has played a central role in coordinating lawyers on several of the investigations involving Mr. Trump, according to multiple people briefed on the matter. It was Mr. Epshteyn who first brought Mr. Corcoran into Mr. Trump’s orbit.

At least three lawyers have sat for interviews with the Justice Department during which questions about Mr. Epshteyn were asked — among them Ms. Bobb and, more recently, Alina Habba, people with knowledge of the matter said. A third lawyer close to Mr. Trump, Jesse Binnall, has also spoken with prosecutors about Mr. Epshteyn, the people said.

One person briefed on the interviews said that investigators were interested in discussions between Mr. Epshteyn and others about establishing a possible common-interest privilege in the documents case. A common-interest privilege creates a kind of umbrella privilege allowing groups of lawyers and clients to communicate with each other confidentially.

Such common-interest agreements are frequently used in cases with multiple lawyers and multiple witnesses. But prosecutors are asking questions indicating they’re interested in whether Mr. Epshteyn was trying to improperly influence witness testimony, the person briefed on the interviews said.

The NYT story bears the same markers of MAL bullshit that some others on this story do, notably, claiming that Beryl Howell has always ruled against Trump when (among other things) she has deferred certain decisions, like holding Trump in contempt, forcing DOJ to do more work. There’s good reason to believe the claim is just the regurgitated bullshit claims made by Trump’s lawyers.

On February 17, Reuters reported (and thus far, they appear to be alone with this scoop) that Corcoran’s firm hired an attorney to represent him.

A lawyer for former President Donald Trump retained an attorney to represent himself as prosecutors step up their inquiry into the handling of sensitive documents at Trump’s Florida residence, two people familiar with the matter told Reuters on Thursday.

Evan Corcoran, who has represented Trump in interactions with the government over presidential records taken to his Mar-a-Lago resort, has turned to Michael Levy, a prominent white-collar lawyer in Washington, according to people familiar with the matter.

Levy was hired by Corcoran’s law firm, Silverman Thompson Slutkin & White, to represent Corcoran in the probe, according to one of the people.

This is not surprising. It’s grown up lawyering. But it provides important context of Epshteyn’s call to adopt a joint defense, in part because it explains with whom Epshteyn might want to form a mutual defense, in addition to the lawyer representing Christina Bobb and Alina Habba.

With that background in mind, take a look at the Rolling Stone piece. It describes not that Corcoran will be charged, but that Trump is being advised he will be.

In at least three meetings this year, according to two sources familiar with the matter, legal and political counselors to Trump have urged him to dump Evan Corcoran, one of the ex-president’s top attorneys in the federal probe into Trump’s handling of classified documents.

Some of the former president’s lawyers have explicitly told Trump that, based on information they have privately reviewed, they believe the Department of Justice has a strong case against Corcoran, arguing charges — including potentially for obstruction of justice — are “very likely,” the sources said. These advisers have argued that if the Justice Department indeed does come for Corcoran, it’s imperative for Trump to distance himself to avoid being dragged into possible further legal jeopardy by his own attorney.

Trump, the sources say, sounded “receptive” to their perspective. However, as of mid-February, it appears he wasn’t as receptive as they had hoped: Corcoran is still on Trump’s legal team.

As RS describes it, this is explicitly an attempt to pin the blame for what happened last summer on Corcoran.

Several of Trump’s close advisers who’ve recently spoken to him about this have argued to the ex-president that any potential wrongdoing on this matter could, somehow, be pinned entirely on Corcoran, and not Trump himself.

Even better, it includes this claim — that excludes Epshteyn from the list of lawyers whom DOJ might be targeting.

“These types of motions [requesting that a judge nullify attorney-client privilege based on the crime-fraud exception] would only be served upon the attorneys who’ve appeared in the case: Jim Trusty, John Rowley, Evan Corcoran, Tim Parlatore, and Lindsey Halligan; the five of them would be the only people who have access to these documents,” says a person familiar with the internal proceedings of Trump’s legal team. “Any source other than that would not be speaking from a position of access and would likely be speaking based on their own personal agenda, rather than actual facts. [Furthermore], when DOJ targets lawyers, it is often being done from a position of weakness in their underlying case, as a method of undermining the integrity of the defense legal team. Removal of Evan Corcoran … would serve the purpose of giving DOJ exactly what it wanted.” [bracket original]

Epshteyn has been at the center of these discussions from the start — he’s the guy who brought in Corcoran, he’s the guy who called up Christina Bobb and had her show up to be a fallgal for a misleading declaration on June 3. To exclude him from this comment — either because he’s the one you’re talking to or because someone is trying to obscure his centrality in all of it — is telling.

Trump’s lawyers believe that they can wait out the end of Beryl Howell’s term and they’ll be the ones who decide whether DOJ can get a crime-fraud exception for Corcoran’s testimony. That may not even be the case if Corcoran plays along. But if he doesn’t — if his own lawyer advises him that fighting a crime-fraud determination puts him in legal risk he’s not currently in — then it may explain why people at MAL are trying to preemptively claim Corcoran was behind a lot of epically shitty legal advice last summer and not Epshteyn.

Maggie Haberman Claims Asking a Witness to Repeat What He Said in Print Is “Most Aggressive” Move Yet

Exactly three months ago, I noted how some journalists were sowing false drama over whether DOJ would subpoena Mike Pence, given that he wrote up key details about January 6 in the WSJ (and his book).

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.

That post preceded, by almost two weeks, a 1,600-word piece from Maggie and Mike, squawking about how unprecedented it would be.

The effort to seek an interview with Mr. Pence puts both the department and the former vice president in uncharted territory.

For the record, it is not unprecedented for a Vice President to appear before a grand jury: Dick Cheney was interviewed by Pat Fitzgerald in what was treated as a grand jury appearance (though it was in Jackson Hole); he did so while he was still VP.

In that November piece, Maggie and Mike allowed Pence to make bullshit claims about profound separation-of-powers issues, even though they noted Pence already wrote it up.

However, in interviews for the release of his new book, “So Help Me God,” Mr. Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.

“There’s profound separation-of-powers issues,” Mr. Pence told The New York Times in an interview. “And it would be a terrible precedent.”

[snip]

Mr. Pence has written in detail in his book about Mr. Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.

Maggie continues the hype in her story about the subpoena, with Glenn Thrush, from yesterday, claiming the mere act of asking a witness to repeat for a grand jury claims he already made in print is an aggressive act.

The move by the Justice Department sets up a likely clash over executive privilege, which Mr. Trump has previously used to try to slow, delay and block testimony from former administration officials in various investigations into his conduct.

The existence of the subpoena was reported earlier by ABC News.

It was not immediately clear when the special counsel, Jack Smith, sought Mr. Pence’s testimony. The move is among the most aggressive yet by Mr. Smith in his wide-ranging investigation into Mr. Trump’s role in seeking to overturn the outcome of the 2020 election. He is also overseeing a parallel inquiry into Mr. Trump’s handling of classified documents.

It’s not until the 16th paragraph before Maggie reveals that Pence wrote all this up in his book — which is nine paragraphs after NYT reveals that talks about voluntary testimony broke down.

Mr. Pence’s team held discussions with the Justice Department about a voluntary interview, according to the person familiar with the matter, but those talks were at an impasse, leading Mr. Smith to seek the subpoena.

[snip]

Mr. Pence described some of his ordeal in his recently published book, “So Help Me God.”

When a politician resists saying under oath what he has said in a book, you start the story with that fact. And if a politician has already said something in print, then stop pretending it’s really aggressive to expect him to say that to a grand jury.

This story should be about why Mike Pence is resisting repeating, under oath, claims he made as part of a presidential run.

“Why Did Mike Pence Wait So Long to Reveal His Stash of Classified Documents?”

At a press availability yesterday, Merrick Garland repeated a line he often uses, that DOJ applies the law the same for everyone.

“We do not have different rules for Democrats or Republicans, different rules for the powerful or the powerless, different rules for the rich and for the poor, we apply the facts, and the law in each case in a neutral, non-partisan manner,” Garland told reporters during a press availability at Justice Department headquarters. “That is what we always do.”

Many of the reporters covering it treated it as a comment about DOJ’s handling of the Trump and Biden classified document inquiries. Maybe it was.

Little did anyone know, though, that Garland might well have had the FBI’s collection of about a dozen documents with classified markings from Mike Pence’s home in mind.

Greg Jacob first told the Archives about the documents on January 18, six days ago and two days after the search. The next day, the FBI arrived in Indiana to collect the documents, which Jacob complained was against standard protocol. Yesterday Pence’s staff delivered several boxes to the Archives to check for adherence to the Presidential Records Act.

I don’t much care that Pence didn’t immediately run to the press to announce the documents, but it is the kind of thing that journalists who are good at horse race coverage, unaware of many of the thus-far distinguishing details about the Trump documents, and ill-equipped to cover classified documents stories latched onto with Biden.

So in an effort to provide some structure for the kids-chasing-a-soccer-ball-like coverage we’re already seeing, here’s a table that summarizes what we know and don’t know about all three cases.

Until we have answers about some of the details that currently distinguish Biden and Pence from Trump — like whether they knew of the documents (both claim they did not), whether they ever accessed the documents after leaving office, whether we have reason to believe they’re harboring more — this should not be a story.

And the key difference, one that should be included in every story that tries to make such a comparison, is that Trump refused to give documents back, whereas Biden and Pence freely offered them up.

The reason that’s important, aside from the both sides drama of it, is that it is an element of the offense that would be most likely to be used if DOJ took the unprecedented step of charging a former Original Classification Authority with harboring classified documents.

As we can now see, it happens that men who have aides pack them up at the end of their tenure go home with documents they didn’t know they had. It happens. (By the time Kamala Harris leaves, there’s likely to be a new protocol in place, so Harris can set a perfect record as the first woman being packed up.) What matters — what distinguishes a mistake from a potential crime — is what you do with the documents when you become aware you have them.

It’s possible we’ll learn details that suggest Biden knowingly stashed classified documents. But thus far, we don’t have any such details. And that should — but thus far has often not — show up in any competent coverage.

Johnny McEntee: Enforcer of Trump’s Authority to Invoke the Insurrection Act

CNN’s ace Prettyman stakeout reporters spied John McEntee, Trump’s body man turned personnel enforcer, going into a grand jury appearance Friday.

That led me to spend quality time with his January 6 Committee transcript this weekend; I was trying to get a sense of whether this interview — one of the first that would have been scheduled after DOJ had an opportunity to read J6C transcripts turned over in early December — gave a sense of why Jack Smith prioritized McEntee.

I agree with CNN, this is likely part of it:

When testifying to the House committee, McEntee recalled a meeting in the Oval Office on Vice President Mike Pence’s role in certifying the election, in which he said he was asked to look into precedent. McEntee also recounted in-person exchanges between Trump and Pence, in which he heard Trump say, “Michael, do the right thing,” and “Do what you think is right, Mike.”

Here’s how it appears in the transcript.

Q Did you ever witness any conversations between the President and the Vice President about the Vice President’s role?

A No. No.

Q Or any phone calls? Anything like that?

A I remember the President saying, “Michael, do the right thing.” You know, “Do what you think is right, Mike.” That’s all I heard him say.

Q You heard him say that to Vice President Pence?

A Yeah.

Q Was it over the phone or in person?

A In person.

Q Okay. And was that in the Oval Office?

A Yeah.

Q Was anybody else there?

A I think Short was there, yeah.

Q Do you remember when that was?

A I don’t. It was, like, when he was going up for the evening, the President, and they were just finishing something up, so I came in to, like, grab all his stuff, and then he said that to him.

Q Okay.

A At the conclusion of the day at some point.

Q And did the Vice President say anything in response?

A No. He just nodded.

If credible, it would be exculpatory. DOJ needs to interview anyone who might have exculpatory information before they make a decision to charge Trump.

They may also be trying to get all testimony about Trump’s comments to Mike Pence before they move to interview Mike Pence, because they’d need to make a case they couldn’t get his testimony anywhere else.

But McEntee was not particularly credible, and I would imagine with call records and other testimony, DOJ would be able to prove that.

Indeed, even in the J6C testimony, McEntee got caught providing a dubious explanation for a call he had with Trump after the attack on January 6. At first, he claimed most of his conversation with Trump consisted of “colorful” comments about the people who resigned on January 6.

Q Did President Trump ever talk to you about the events of January 6th even after the fact?

A Just vaguely that night when we spoke.

Q Okay. Tell us about that conversation.

A I called, and I just went down the list of all the people who had resigned.

And then we discussed a little bit about each just colorfully. And then he just said this is a crazy day and, you know, I’ll see you tomorrow. But he didn’t go into many details.

Q Okay. Can you remember anything else he said about the events of that day?

A I can’t, other than he acknowledged that it was, like, wild, and we would talk tomorrow, you know, or next — we’ll see you in the morning, or something like that.

Q Okay.

A We were mostly going through all these people that resigned, and then kind of talked about them. And I was just relaying, because O’Brien called me and said you got to let him know I’m not resigning. So then I called, and he said, well, who has resigned? And then, like, I went through the list of the ones I knew at the time. And then the next day some more came out.

Q When the President said it was a crazy day, or something to that effect, what was his tone?

Q A Kind of like a little disbelief. Like, wow, like, can you believe this shit, you know?

A  Did he express any sadness over the violence?

Q No. I mean, I think he was shocked by, you know, it getting a little out of control, but I don’t remember sadness, specifically.

But in a final question, J6C pointed out the problem with that. Trump didn’t know any of the people who resigned on January 6; the people he knew who resigned only resigned on January 7.

Q I just want to ask, that conversation that January 6th evening, I think from the — the diary indicates it’s a 20-minute-long conversation. And you described it.

Many of the people who resigned that day Mr. Trump didn’t even know. In fact, the ones that he did know didn’t resign till the next day.

So 20 minutes is a long conversation, Mr. McEntee, and I’m wondering if you could just describe, when you say “disbelief” and “day is crazy,” what more color can you add to the feelings of that day as expressed to you?

A You know, it’s hard to remember, honestly. I don’t remember any details we went into about it. I know we went through each person, and I had to explain who each person was, so that took a minute or two on each –

There are other parts of McEntee’s testimony that strain credulity. He has little explanation for how he spent his day on January 6. He claimed not to understand most of what he was doing as he served as a go-between, between Steve Bannon and the White House via Bannon’s Chief of Staff Alexandra Preate. His response to being asked about a rumor that he slept at the White House for several days after the attack was weak — “not that I’m aware of.”

McEntee also described Trump using his (McEntee’s) phone — and he was a bit squishy about whether it was just his White House phone, or also his personal one — from time to time. McEntee likely learned this habit from working with Keith Schiller, who offered the same service as a body man.

But there’s an aspect of McEntee’s testimony that is far more alarming.

Shortly after returning to the White House in 2020, he was elevated to run personnel. He was wildly unqualified for the task, as intended for a government bureaucracy, but he was quite adept at politicizing every bit of the political appointment process, and demanding absolutely loyalty in the process.

And in that role, McEntee served as a means to drive the policy of the entire Pentagon.

The committee first reviewed McEntee’s role in firing Mark Esper for refusing to invoke the Insurrection Act during the summer of 2020. Then it turned to how, after simply interviewing Douglas MacGregor for an advisory role at the Pentagon, McEntee sent a memo to DOD ordering them, days after the election was called for Biden, to withdraw from Afghanistan and Somalia.

The exchange led his attorney, David Warrington, who at the time was paid by Trump’s PAC and who still represents a slew of January 6 witnesses, to go on an extended complaint about the scope of questions.

McEntee’s role in enforcing policy came up again in an exchange about the response to Army Secretary Ryan McCarthy saying, on December 18, that the military would play no role in determining the outcome of the election.

On December 18th, the Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff issued a statement that there was no role for the U.S. military in determining the outcome of an American election.

Do you remember what impact, if any, that had on the White House?

A I don’t remember that being brought up.

Q Do you remember conveying a message to Secretary Miller about the White House’s frustration that DOD, particularly the Secretary of Army, had issued such a  statement?

A No, I don’t remember. I don’t remember that.

Q Secretary Miller told the committee that he was contacted by you soon after the statement was made and you asked why McCarthy made the statement and, quote, “wanted me,” meaning Mr. Miller, “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He,” meaning you, “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

This was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

After getting McEntee to deny remembering this and claiming any interference at DOD was simply in his role as Assistant to the President, J6C then brought out a note, written by McEntee, that Trump or someone else had ripped up before it was preserved by the Archives.

It showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.

McEntee claimed he remembers none of that.

Q One second. Sorry.

These are handwritten notes that have been produced to us from the National Archives.

Is that your handwriting, Mr. McEntee?

A It looks like it, yes.

Q And it looks like the page has been torn. But it says, “Chris Miller spoke to both of them and anticipates no more statements coming out.” And then in parentheses, “If another happens, he will fire them.”

Do you remember writing this?

A No, I don’t remember writing this.

Q But this is your handwriting?

A Yes.

Q So, just want to be clear. This is your handwriting, but you have no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election?

This is important background to McCarthy’s indolent response to the attack on January 6. Trump’s chief enforcer had already intervened to make sure he didn’t do anything to fall afoul of Trump’s whims.

But it’s also important background to another comment in the interview.

As I suggested in this post, the J6C transcripts make it clear that a long-public reference to Trump requesting 10,000 National Guard on January 3 was misrepresented, no doubt deliberately so. Trump made the request not, as reported, in the interest of keeping his followers safe. Rather, he first floated having 10,000 Guard after it became clear the National Park Service would not approve a permit for a march to the Capitol, out of security concerns.

Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

And that, plus McEntee’s role in firing Esper because he refused to invoke the Insurrection Act and his threats of firing McCarthy because he said DOD would not intervene in the election, makes this reference all the more chilling. When asked about his role in the rally, McEntee described that he intervened to ask Christopher Miller to involve the Guard.

Q Did you have any conversations with the President that day?

A Only that night.

Q Okay. We’ll get to that in a minute. Did you go to the rally on the Ellipse?

A No.

Q Were you involved in any conversations about planning the rally?

A No.

Q Were you aware of any discussions about groups such as the Proud Boys, Oath Keepers, or anybody else being involved in the protests?

A I was not. The only thing I had to do that even remotely dealt with the rally was the President wanted to make sure it was safe. And either a day or two or three before, he had me call Chris Miller and ask if we could bring the National Guard in.

Q Okay. What did Mr. Miller say?

A I think he said he would look into it.

Q And do you know if anything happened after that?

A I don’t know if anything happened or came of it, no.

Q Did you report back to the President on what Secretary Miller said?

A I just let him know that I relayed his message to Chris, yeah.

Having earlier claimed not to recall using threats of firing to make demands on DOD and having earlier disclaimed any knowledge of Trump’s plan to walk to the Capitol, here’s the bullshit explanation McEntee offered for why Trump wanted to involve the Guard.

Q And did the President say anything about why he wanted the National Guard there?

A I think because that summer we had the Republican Convention. And if you remember, like, Rand Paul was getting attacked in the street. And, I don’t know, it just got kind of crazy. So this time he thought we’re going to have so many people, like, you know, we need to make sure that this city is safe. That kind of a thing.

Q Do you know why he said it to you?

A No, I think it was just on his mind and I just happened to be next to him. So he said call Chris and let him know. So I just called Chris.

Q Were you traveling at the time?

A We could have been, like, golfing, yeah, or something. You know, we could have been at his golf course maybe.

As I said above, I agree with CNN that one thing Jack Smith’s team would have wanted to ask McEntee about was his claim to have heard, alone among all known witnesses, Trump say something exculpatory.

DOJ would also want to see whether McEntee wanted to reiterate some of the more fantastic claims he made to J6C, especially knowing that DOJ would have the legal means to disprove some of them.

DOJ likely would want to ask about a conversation McEntee had with Trump, along with Dan Scavino (who has definitely appeared before the grand jury) and Molly Michael (who has definitely been interviewed in the stolen document case and likely interviewed in J6C), about testifying to J6C.

But depending on what other witnesses DOJ has already interviewed, DOJ may want to know more about McEntee’s role in arranging an ostensible Praetorian Guard for the President as he walked to the Capitol as they moved to certify his loss.

McEntee was among the people referred to, publicly at least, in the mix for a pardon after January 6. In his interview, McEntee only discussed that pardon, if it happened, in the context of a blanket pardon for staffers involved in January 6.

It was never entirely clear why McEntee might need one.

Unless he has knowledge of Trump’s attempt to use the National Guard as a Praetorian Guard to accompany his own march on the Capitol.

December 27: The January 6 Committee’s Blind Spots

The January 6 Committee Report is out.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5:51PM Trump tweet

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

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

Miller to Peede (2 minutes)

Peede to Ornato (3 minutes)

7:10: Wren to Guilfoyle text


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

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

[snip]

Mark Meadows pressures Georgia

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

[snip]

Doug Mastriano feeds bullshit to Trump and others in Congress

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONGRESSMAN SCOTT PERRY CALLS DONOGHUE

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

[snip]

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

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

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

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

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

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

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

Trump pardons Stone and they talk about January 6

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

Trump gets more involved in planning January 6

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

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

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

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

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

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

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


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

[snip]

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

[snip]

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

[snip]

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

 

The Thinness of the January 6 Committee’s Obstruction Referral

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

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

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

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

Here’s an example of the former:

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

Merrick Garland Names War Crimes Prosecutor Jack Smith to Oversee Trump Investigations

To my mind, the best part of appointing war crimes and public corruption prosecutor Jack Smith as Special Counsel to oversee the twin investigations into Donald Trump is that it will be a cinch, now, to subpoena Ginni Thomas.

Otherwise I have mixed feelings about the decision. I think the letter of DOJ guidelines requires it. But I don’t think it will change how much of a clusterfuck Trump makes of it.

It does have certain other advantages, other than making it easier to subpoena Ginni. It might even make it easy to subpoena Mike Pence.

First, this will make it very easy to refuse Jim Jordan’s demands for information about the investigation.

It will ensure the continuity of any prosecution after 2025, no matter who is elected (neither hypothetical Trump prosecution — the stolen documents or the coup attempt — would be done by then, even if it were indicted on December 15, the earliest possible date for either).

I don’t think this will create much of a delay. The stolen documents case, which is the first that could be prosecuted (assuming the 11th Circuit overturns Judge Aileen Cannon’s special master order) is fairly self-contained, so would only take a day to be briefed into. The coup attempt is far, far more complex, but I think there was no way Trump himself would be indicted before February or March anyway, probably longer.

The jurisdictional boundary is of interest: Anyone who crimed at the Capitol will be prosecuted by DC US Attorney Matthew Graves. Anyone who was not physically present at the Capitol would fall under Smith’s investigation.

It’s unclear where Alex Jones would fit in that schema. Roger Stone, though, would be moved under Smith.

My favorite part of the order appointing Smith is this part:

The language authorizing a Special Counsel to investigate anything that “might arise directly from this investigation” is standard Special Counsel language. It generally covers efforts to obstruct the investigation.

Only, usually, it only appears in the subjunctive, covering matters that might arise, in the future.

This authorizes Smith to investigate things that already have. Which would only be necessary if such matters had already arisen.

The order also authorizes Smith to spin off prosecutions.

Again, that’s not boilerplate. It may suggest Garland has already seen evidence of criminality that could and should be spun off.

Mostly, I think this is an “Eh” decision. It doesn’t change Garland’s role in the process. I don’t think it delays things. I think it carries certain advantages, two of those named Ginni and Jim.

But otherwise, the investigation continues with — as Garland said — urgency.

Update: Overnight I thought of this: Garland said there were recent developments, plural, that led to this decision. One could be the GOP taking over control of Congress. After all, Scott Perry, head of the Freedom Caucus, must be a subject of this investigation. But it’s not outside the realm of possibility that the incoming House Judiciary Committee Chair is too. And depending on the final split in Congress, it’s also not outside the realm of possibility that enough members are under investigation — with Perry, Jim Jordan, Marjorie Taylor Greene, Andy Biggs, Paul Gosar, and Matt Gaetz — that it could, briefly anyway, alter the majority in Congress.

Merrick Garland Hasn’t Done the Specific Thing You Want because DOJ Has Been Busy Doing Things They Have to Do First

The passage of the election has set off the Merrick Garland whingers again, people who like displaying their ignorance by claiming there has been no sign of progress on the investigations into Trump when (often as not) there were signs of progress that the whingers are ignoring in the last few days.

Yes. It has been almost a week since the close of polls last Tuesday. No. Merrick Garland has not carted Trump away in a paddy wagon yet (nor would the FBI, if and when they ever did arrest him).

Yes. We actually know why Garland hasn’t done so — and it’s not for want of actions that might lead there.

There are still known steps that have to or probably will happen before Trump would be indicted in any of the known criminal investigations into him. For those demanding proof of life from the DOJ investigations into Trump, you need look no further than the public record to find that proof of life. The public record easily explains both what DOJ has been doing in the Trump investigations, and why there is likely to be at least a several month delay before any charges can be brought.

The reason is that DOJ is still pursuing the evidence they would need before charging a former President.

Here’s an update on the various investigations into Trump (I’ve bolded the two appellate deadlines below).

Stolen documents

The reason I’m particularly crabby about the Merrick Garland whinging is because people were accusing DOJ of inaction hours after DOJ’s most recent step in the investigation into Trump’s stolen documents. On November 3, for example, DOJ compelled Kash Patel to testify before a grand jury under grant of use immunity, testimony that would be necessary, one way or another, before charging Trump, because DOJ would need to rule out or at least account for any claim that Trump mass-declassified the documents he stole.

DOJ continues to fight to ensure it can keep the documents it seized on August 8, and to be permitted to use the unclassified documents it seized in the investigation. The most recent filings in that fight, as I wrote up here, were filings about the disputes Trump and DOJ have about the seized documents, which Special Master Raymond Dearie will use to rule on those designations by December 16. After Dearie does that, Trump will dispute some of Dearie’s decisions, and Judge Aileen Cannon will make her own decision de novo. She has not set her own deadline for how long that decision would take. But if the Special Master process is the means by which DOJ guarantees its access to the evidence against Trump, it won’t be resolved until after the New Year, even assuming DOJ won’t have to appeal some ridiculous Cannon ruling.

Short of doing a search on another Trump property, preferably in Virginia but possibly in New Jersey or New York, this case cannot be charged until DOJ can present documents the custody of which it has guaranteed to a grand jury. DOJ has to make sure they have the evidence they would use to charge Trump (though adjudicating these disputes now might make any prosecution quicker on the back end).

That said, DOJ may guarantee custody of the documents it seized in August more quickly, via its challenge to Cannon’s decision to appoint a Special Master in the first place, in the 11th Circuit. Trump’s response to that appeal, which he submitted on November 10, seemed desultory, as if Chris Kice knows they will lose this appeal (indeed, that seems likely given that both the 11th Circuit and SCOTUS have already declined to see the case in the way Trump would prefer). DOJ’s response is due on November 17. Because of the way the 11th Circuit has scheduled this appeal, the panel reviewing it will be prepared for oral argument on rather quick turnaround. Even so, DOJ is not likely to guarantee access to these documents via any favorable 11th Circuit decision (which Trump will undoubtedly appeal) before December 1, and it would take about a week to present any case to the grand jury. So the very earliest that DOJ could indict this case would be early- to mid- December.

Update: In a filing submitted on November 8 but only unsealed today, DOJ asked Raymond Dearie to recommend that Judge Cannon lift the injunction on the 2,794 out of 2,916 documents over which Trump is making no privilege claim.

Update: The 11th Circuit has set a hearing for November 22, so DOJ may actually have access to those files sooner than December 1, though not all that sooner.

January 6 investigation(s)

There are at least four ways that Trump might be charged in conjunction with January 6:

  • For asking Mike Pence to illegally overturn legal votes and then threatening him, including with violence, when he refused
  • For setting up fake electors to contest the election
  • For fundraising off false claims of voter fraud and using the money to benefit those who helped the attack
  • Via people like Roger Stone, in a networked conspiracy with those who attacked the Capitol

DOJ sent out subpoenas in the first three prongs of this just before the pre-election pause. This post summarizes who was included.

These are all (and have been) intersecting conspiracies (this CNN story describes how many areas the subpoenas cover). For example, since January, it has been clear that the top-down investigation most visible in the January 6 Committee work and the crime-scene investigation visible in ongoing prosecutions had converged on the pressure both Trump and the mob focused on Mike Pence. It’s unclear how DOJ will treat the intersection of these investigations, and whether DOJ will wait for all prongs to converge before charging.

The Mike Pence prong is where DOJ made its most obvious progress during the pre-election pause. On October 6, Mike Pence Counsel Greg Jacob testified before a grand jury. October 14, Pence’s Chief of Staff Marc Short testified. Also in October, DOJ asked Beryl Howell to compel Trump’s White House Counsels Pat Cipollone and Pat Philbin as well. I’m not aware of the status of appeals on that (or whether Judge Howell compelled testimony from the two Pats in the meantime). We know that all four men would describe the debates over the extent of Pence’s authority to reject lawful electors, including the recognition from people like John Eastman that their legal theories were unsupported by law. The two Pats would also testify about Trump’s reaction to the mob, as he watched the attack on the Capitol from inside the White House dining room, including the tweet that specifically targeted Pence. These are all very credible first-hand witnesses to Trump’s words and actions both in advance of and during the attack. Obtaining their testimony would be necessary before charging a former President. But DOJ’s efforts (and success) at obtaining their testimony reflects the seriousness of the investigation.

The publication of Pence’s book, which relays his version about exchanges with Trump, would seem to invite a demand from DOJ that he testify about the same topics to the grand jury as well, particularly given the way he spun the story in ways that might help Trump. If I were a prosecutor contemplating charging the former President, I would want that potentially exculpatory (to Trump) locked in under oath. And any claim from Pence that he can’t share these details because of Executive Privilege seem ridiculous in the face of a book tour. But if DOJ decided they needed Pence’s testimony it might result in delay.

It’s unclear how much progress DOJ has made on the subpoenas issued before the pause. None of those subpoenaed have been spotted at grand jury appearances at Prettyman (though that may change this week). In particular, there are a bunch of senior Republicans involved in the fake elector plots from whom I expect DOJ to try to lock in testimony.

But two things may cause delay in any case. First, as I wrote here, subpoenas (generally served on people who might be expected to comply) are easy, because they require the person who received the subpoena to do the search for the subpoenaed materials. But it takes time to exploit phones, all the more so if the phone was seized without some way to open it. Here’s how long the communications of various high profile people have taken to exploit:

This is not indolence. It is physics and due process: it just takes time to crack phones, to filter the content, and to scope what is responsive to a warrant.

Among the steps taken before the pause, in early September, DOJ seized the phones of Boris Epshteyn and Mike Roman. While it’s possible DOJ will be able to accelerate the process of exploiting these phones (they have done so with Oath Keeper lawyer Kellye SoRelle’s phone, as last week DOJ submitted material that had gone through a filter review from the phone seized from her in early September in the sedition case), you should not assume they can fully exploit these phones (with whatever Signal content is on them) in less than six months, so March. In Epshteyn’s case, his claims to be playing a legal role in the stolen document case may cause further delays because of a filter review.

As someone involved in vote fraud efforts, Latinos for Trump, and the Oath Keepers, SoRelle is one of the pivots from the White House and Willard focused activities to the crime scene. DOJ seems closer to moving against others at that pivot point. Roger Stone, for example, has been mentioned over and over in the Oath Keeper trial. But that’s probably several months off. Alex Jones sidekick Owen Shroyer has been given until the end of the month to decide whether he wants to plead or take his chances on further charges. And I expect DOJ will wait until the verdict at least in the Oath Keeper case (they might not even get through all the defense witnesses this week), and possibly in the more complex Proud Boy case (which would be February barring likely unforeseen changes), before going too much further.

There’s one more thing that may delay any more spectacular charges in January 6. The oral argument for DOJ’s appeal of Carl Nichols’ outlier decision on the application of 18 USC 1512(c)(2) to the insurrection won’t happen until December 12. It drew a pretty unfavorable panel for that hearing (listed as Joseph Fischer here): Trump appointees Greg Katsas (like Nichols, a former Clarence Thomas clerk, who also worked as Deputy White House Counsel in 2017) and Justin Walker (who is close to Mitch McConnell), and Biden appointee Florence Pan (who presided over January 6 cases before being promoted to the Circuit Court). It’s possible, but by no means certain, that the Trump appointees will do something nutty, in which case, DOJ would surely appeal first to the full DC Circuit panel; if they overturn Nichols, Garret Miller and the other January 6 defendants who got their obstruction charges thrown out will presumably appeal to SCOTUS.

Nichols’ decision, which ruled that January 6 did count as an official proceeding but ruled that any obstruction had to involve some kind of documents, probably wouldn’t stall any charges relating to the fake electors, which were after all about using fraudulent documents to overturn the vote certification. But it might lead DOJ to pause for other charges until the legal application is unquestioned. 18 USC 1512 is the charge on which DOJ has built its set of interlocking conspiracy charges, and so this decision is pretty important going forward.

Unlike the stolen document case, I can’t give you a date that would be the soonest possible date to expect indictments. But for a variety of reasons laid out here, unless DOJ were to indict on charges specifically focused on Mike Pence (with the possibility of superseding later), it probably would not be until March or April at the earliest.

Georgia investigation

The Georgia investigation, like the Federal one, was paused for a period leading up to the election (it’s unclear whether the run-off between Raphael Warnock and Herschel Walker will further delay things). But during the pre-election period, DA Fani Willis won decisions for testimony from Lindsey Graham and Newt Gingrich. Those grand jury appearances were scheduled for the end of this month (though may be pushed back). In any case, Willis has indicated that any charges from this investigation may come before the end of the year.

To be clear, none of this is a guarantee that DOJ (or Willis) will indict Trump and/or his closest aides. It is, however, a summary of the reasons that are public that all these investigations have been taking steps that would have to happen before they could charge Trump, and that most have additional steps that would have to happen before prosecutors could even make a prosecutorial decision.