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Pat Cipollone Predicted the Obstruction and ConFraudUS Prosecutions

This morning, for the second time in two weeks, Liz Cheney called out former White House Counsel Pat Cipollone, by name, to cooperate with the January 6 Committee.

Yesterday’s testimony from Cassidy Hutchinson revealed one reason why his testimony would be so important. He predicted — on January 3 or 4th — that Trump might be prosecuted under the very same crimes DOJ has been charging for well over a year: conspiracy to defraud the United States and obstruction of the vote certification.

Cheney: We understand, Ms. Hutchinson, that you also spoke to Mr. Cipollone on the morning of the Sixth, as you were about to go to the rally on the Ellipse. And Mr. Cipollone said something to you like, “make sure the movement to the Capitol does not happen.” Is that correct?

Hutchinson: That’s correct. I saw Mr. Cipollone right before I walked out onto West Exec that morning and Mr. Cipollone said something to the effect of, “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.”

Cheney: And do you remember which crimes Mr. Cipollone was concerned with?

Hutchinson: In the days leading up to the sixth, we had conversations about obstructing justice of defrauding the electoral count.

Cheney: Let’s hear about some of those concerns that you mentioned earlier in one of your interviews with us.

{video clip}

Hutchinson: … having a private conversation with Pat on the after noon of third or fourth, um, that Pat was concerned it would look like we were obstructing justice, or obstructing the electoral college count. I apologize for probably not being very firm with my legal terms here.

Or rather, Cipollone didn’t predict Trump would be charged with ConFraudUS and obstruction. He predicted “we” would, presumably including himself and even Hutchinson.

Here I’ve thought I was ahead of the curve by predicting — last August — that if Trump were prosecuted, it would be for those crimes. It turns out that Trump’s White House Counsel was way ahead of me, predicting the same even before the insurrection!

Cipollone’s recognition of this legal exposure is important for a number of reasons. First, it validates DOJ’s approach — and does so in advance of the DC Circuit’s consideration of DOJ’s appeal of Carl Nichols’ outlier opinion rejecting such an application.

Those are also the crimes named in the warrant served on Jeffrey Clark last week.

But Cipollone’s awareness of this exposure also may explain why Cipollone has been reluctant to testify (though it’s possible he has testified with DOJ and simply doesn’t want that to be public). Hutchinson laid out a number of things that Cipollone did on January 6 that made it clear he was not willingly going along with Trump’s actions, most notably his efforts to get Trump to call off his mob before Trump re-ignited them with his 2:24 text attacking Mike Pence again. If there was a conspiracy to obstruct the vote certification, he took overt acts to leave that conspiracy before and during the conspiracy on January 6.

By that point, however, it may have been too late for Cipollone to avoid all exposure to Trump’s corrupt actions. That’s because Cipollone would have been involved in the pardons of those — Cheney focused on Roger Stone and Mike Flynn last night, but Bernie Kerik and Paul Manafort also got pardons — who would go on to play key roles in Trump’s insurrection. (I assume Cipollone was not involved in the Bannon pardon that came after the attack, and I noted in real time that Cipollone likely prevented a bunch of other pardons that would have made obstruction more likely.) That is, Cipollone might have exposure for obstruction for actions already taken by January 3 or 4 when he explained this legal exposure to Hutchinson.

Even Bill Barr said that rewarding false testimony with a pardon would be obstruction. And Roger Stone, Mike Flynn, and Paul Manafort all delivered on that quid pro quo.

For all Liz Cheney’s specific exhortations, Cipollone may know better than to testify to Congress. Because without testifying to DOJ, first, that may cause him more legal trouble than his current (presumed) silence.

Update: As a number of people in comments noted, the Committee has formally subpoenaed Cipollone.

Cassidy Hutchinson Proves that Trump Knew the Mob He Sicced on Mike Pence Was Armed

Cassidy Hutchinson just gave absolutely historic testimony implicating Donald Trump, Mark Meadows, and other in January 6. (My live tweet is here.) The woman is incredibly poised and courageous. Her testimony might help to turn the tide against Trumpism in this country.

But her testimony is not enough, yet, to charge Trump in January 6.

Without taking anything away from her dramatic testimony, I’d like to boil down what she said that will be useful in holding Trump accountable.

She only recently committed to delivering this testimony

The Committee announced Hutchinson’s testimony just yesterday, less than 24-hours before her testimony, in spite of the fact that she had already sat for three interviews with the committee, as well as a fourth quite recently. The decision to testify was so recent that members of the Committee had to fly back from their recess to attend.

A key reason she was willing to testify more forthrightly, it seems clear, is she recently (earlier this month) replaced her lawyer from a Trump loyalist to Jody Hunt. Hunt, once Attorney General Jeff Sessions’ Chief of Staff, is still a conservative Republican, but he has spent years holding up principle against Trump.

Particularly given his ties to the department, it’s likely that Hunt will happily guide Hutchinson to share this testimony with DOJ.

For those asking why DOJ didn’t have this testimony earlier, the answer is simple: It has taken a process for Hutchinson to get here.

She is a firsthand witness to important details

A number of things Hutchinson said are damning direct evidence against Trump or others. But it’s important to break that down, because while all of it would be admissible in a conspiracy, not all of it would be admissible against Trump.

  • In a conversation on January 2, Giuliani told Hutchinson Trump was going to go to the Capitol; when she asked Meadows about this, he said “things might get real bad on the Sixth.” This implicates both Rudy and Meadows in foreknowledge, though not Trump directly.
  • Hutchinson provided evidence that there was intelligence warning of violence (and that John Ratcliffe knew about it); she did not say — though it’s likely — that Meadows and Trump had the same awareness.
  • Hutchinson described that there were mentions of militia in advance in discussions implicating Rudy in advance of the insurrection. These would need to be more specific to be worthwhile evidence, but she may be able to point DOJ to where to get more specifics.
  • Hutchinson described advance knowledge of Trump supporters bringing weapons both in advance of January 6 and that day. Hutchinson specifically said that Meadows did not act on these warnings. She also made it clear that Deputy Chief of Staff Tony Ornato had spoken to the President about the weapons, but she did not say she knew what happened in that conversation.
  • Hutchinson’s testimony on a really critical point includes some ambiguity. In conversations at the White House and then later at the rally, Trump saw the crowd on January 6 and was furious more of his supporters weren’t inside the arena. He was aware many supporters were staying outside the arena because they didn’t want to go through the magnetometers because they had weapons. He asked to ditch the magnetometers because “they weren’t there to hurt him.” This detail is most important because it reflect knowledge on Trump’s part they were armed, before he riled them up and sent them to the Capitol. But in a trial, he would excuse letting them into the rally itself by pointing to his long-standing crowd narcissism, exhibited most famously at his inauguration.
  • Some of Hutchinson’s most damning testimony involved his insistence on going to the Capitol. Some of this — the most damning, her description of how he lunged at his Secret Service detail when he refused to take Trump to the Capitol — was second-hand. It would require Ornato or Trump Secret Service Agent in Charge Bobby Engel to present that in a trial. Plus, Trump would offer less incriminating explanations for why he wanted to go to the Capitol. Hutchinson mentioned he wanted to enter the chamber, though, which should be developed more (because he would require an invitation). The Secret Service is now pushing back on this.
  • During the rally at the Ellipse, Mark Meadows twice pushed Hutchinson away when she was trying to warn him of violence at the Capitol. This squandered 20-25 minutes in which he might have responded to the initial violence, but since he did nothing for hours anyway, it made little difference. It does, however, reflect Meadows’ own disinterest in protecting the country.
  • Hutchinson’s description of efforts to keep belligerent language out of Trump’s speech reflects on Pat Cipollone’s foreknowledge of Trump’s criminal exposure, but probably would require Cipollone’s testimony to be admissible against Trump. Hutchinson described Cipollone’s legal concerns about going to the Capitol, as well, but not necessarily that he explained that to Trump.
  • Hutchinson alluded to discussions involving Mark Meadows, Rudy, and Scott Perry about what they would have done if Trump had made it to the Capitol, but she explicitly said she wasn’t sure which of those plans were shared with Trump.
  • At Trump’s request, Mark Meadows remained in the loop with Mike Flynn and Roger Stone on January 5 which may help implicate Meadows in the militia planning; Hutchinson discouraged Meadows from attending the War Room at the Willard in person, but he did call in.
  • After the attack started Hutchinson described, Meadows telling Cipollone that “he doesn’t want to do anything,” suggesting the President didn’t want to respond at all to the Capitol attack. But that would require testimony from one or both of them to clarify the meaning.
  • Perhaps the most damning part of her testimony described that Meadows and Cipollone were in the Oval with Trump discussing the hang Mike Pence chants just before Trump put up the 2:24 tweet claiming Pence hadn’t shown courage. It’s in that conversation where Trump said, “Mike deserves it.” This goes a long way to proving the deliberate effort by Trump to put Pence at more risk. But DOJ would need another witness and/or some corroboration for the timeline to place the “Mike deserves it” comment to just before Trump sent the tweet.
  • The Committee presented some of the calls from others, including Ivanka, for Trump to call off the rioters; Hutchinson’s testimony will be one part of the evidence that Trump did nothing during the attack (though Meadows’ comment that “Trump didn’t want to do anything” may be more important to show affirmative refusal, but DOJ would need to get Meadows’ testimony on that point).
  • Hutchinson also testified that both Rudy and Meadows wanted a pardon after January 6, which implicates them, but not Trump.

Hutchinson may lead to or force the testimony of others

Whether it happens with the January 6 Committee or DOJ, Hutchinson’s is the kind of testimony that might identify witnesses who would cooperate with DOJ or against whom Hutchinson’s testimony could be used to coerce cooperation.

For example, there’s a greater (Cipollone) or lesser (Kevin McCarthy) that her testimony will embarrass or otherwise convince other witnesses to cooperate with the Committee.

Her testimony identified other White House staffers who were also witnesses to Trump’s demands that the Secret Service ditch the magnetometers or that he go to the Capitol, who would make key witnesses for DOJ.

If Ornato and Trump’s Secret Service detail have been unwilling to testify, this may make it easier to obtain their testimony.

Hutchinson’s testimony tied Rudy to the militias in advance. She also established Rudy’s foreknowledge of a plan to go to the Capitol. These might be really important details implicating Rudy (plus she was witness to some of his earlier efforts to sow the Big Lie.

Her testimony tied Meadows into the plotting at the Willard (on Trump’s orders). And she otherwise depicted Meadows as taking no action because Trump didn’t want to. The case against Meadows would/will need to be far more robust, but having testified against him publicly, she’s likely to be able to offer DOJ far more.

Liz Cheney raised witness tampering in this hearing, without naming names. It’s quite possible Hutchinson has firsthand knowledge of that.

Trump sicced a mob he knew to be armed on his Vice President

To sum up, the most important pieces of testimony show that Trump knew well a significant number of the people at his rally were armed. And after siccing them on his Vice President (and trying to join them), instead of calling them off, he instead further incited violence against Pence, claiming at the moment he did so that they were right to attack Pence.

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

The Peaceful Transfer of Power: What President Reagan Called, “Nothing Less than a Miracle”

I’ve caught up to all of you in the States watching the first January 6 Committee hearing (my Twitter commentary while watching the video is here).

I think the hearing was an effective scene-setter, laying out information in a coherent narrative.

Perhaps the most striking part of the hearing was the degree to which, aside from the two live witnesses, Capitol Police Officer Carolyn Edwards and Nick Quested, the hearing relied exclusively on Republicans to make their case, with clips from:

  • Jason Miller
  • Alex Cannon
  • Matt Morgan
  • Bill Barr
  • Ivanka
  • Mike Pence (from a video appearance at the Federalist Society)
  • Greg Jacob
  • Steve Bannon
  • General Mark Milley
  • Sean Hannity and Kayleigh McEnany
  • Jared
  • Jeremy Bertino
  • Enrique Tarrio
  • Stewart Rhodes
  • A number of Jan 6 defendants, including Eric Barber

If I’m not mistaken, Thomas Jefferson was the only Democratic President named, but a slew of Republican Presidents were named (George W Bush was not, but Gerald Ford was).

There was plenty of shaming, including calling out Jeffrey Clark and Scott Perry for refusing to cooperate and noting that Kevin McCarthy was scared.

The clip of Jared accusing Pat Cipollone of “whining” when he threatened to quit may make it more likely to get the former White House Counsel’s testimony.

In short, this was directed at Republicans and relied on Republicans to make the case for democracy.

In that frame, I found the closing words of Liz Cheney’s opening statement to be the most effective messaging.

I ask you to think of the scene in our Capitol Rotunda on the night of January 6. There in a sacred space in our Constitutional Republic. The place where our Presidents lie in state. Watched over by statues of Washington and Jefferson, Lincoln and Grant, Eisenhower, Ford, and Reagan. Against every wall that night encircling the room, there were SWAT teams. Men and women in tactical gear, with long guns, deployed inside our Capitol building. There in the Rotunda these brave men and women rested beneath paintings depicting the earliest scenes of our Republic, including one painted in 1824, depicting George Washington resigning his commission, voluntarily relinquishing power, handing control of the Continental Army back to Congress. With this noble act Washington set the indispensable example of the peaceful transfer of power, what President Reagan called, nothing less than a miracle. The sacred obligation to defend the peaceful transfer of power has been honored by every American President, except one. As Americans, we all have a duty to ensure that what happened on January 6 never happens again. To set aside partisan battles. To stand together, to perpetuate and preserve our great Republic.

With this speech (and the imagery), Cheney attempted to invoke the mantle of Reagan, her party’s (and our shared generation’s) political icon. In doing so, she attempted to make democracy a religion again, something worth defending.

At the very least, she provided some mythology on which she will rebuild her party.

Trump’s Coup Attempts: A Tale of Five Pardon Dangles

In an analysis piece earlier this week, the NYT reported as newsworthy that,

Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.

Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.

“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”

Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.

Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?

A Yes.

Q How many conversations did you have with him about pre-pardoning

A One or two.

Q And what did he say to you?

A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.

Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?

A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.

Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?

A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –

Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?

A No.

Q Okay. What do you mean by a global pardon?

A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.

Q So when you say everyone, who do you mean?

A I guess whoever it is that you started to request to come in, testify, subpoenaed.

And in Trump’s last days in office, he considered pre-emptive pardons, but — in part because of Pat Cipollone’s opposition — he did not do so.

It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.

This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.

It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.

It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:

  • December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
  • January 12: The indictment on sedition charges of the Oath Keepers whose testimony could most directly damage Trump
  • January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
  • January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
  • January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
  • January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee

What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.

So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.

Michael Cohen pardon dangle

This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.

But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.

Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.

Roger Stone commutation

Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.

While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.

But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.

Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.

Mike Flynn pardon

As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.

Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.

That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.

More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.

THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?

MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.

THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.

MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.

THE COURT: What’s the reason why you can’t discuss that?

MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.

THE COURT: Well, you don’t work for the government.

MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.

THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?

MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.

THE COURT: How did you provide that update? Was it in writing?

MS. POWELL: No, sir.

THE COURT: How did you provide that update? Who did you speak with?

MS. POWELL: I provided it in person to counsel for the President.

THE COURT: I mean the White House counsel or a deputy or who did you speak to?

MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.

THE COURT: And did you make any request of the President?

MS. POWELL: No, sir. Other than he not issue a pardon.

THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?

MS. POWELL: That’s the only one I recall.

THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?

MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.

THE COURT: Are the New York Times’ representations erroneous?

MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.

THE COURT: All right. About this case. But there’s been more than one though.

MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.

THE COURT: And was that within the last two weeks?

MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.

THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?

MS. POWELL: Oh, heavens, no.

THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?

MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]

On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.

And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.

At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.

Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.

Roger Stone pardon

During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.

Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.

On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.

On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.

On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”

Roger Stone, who received a Christmas week pardon from President Donald Trump, delivered a personal thank you to the president on Sunday at the Trump International Golf Club in West Palm Beach.

Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”

[snip]

Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.

A photo posted and then removed from Roger Stone's Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.

One picture showed four people talking: Trump; Kimberly Guilfoyle, a senior adviser to the Trump campaign and Donald Trump Jr.’s girlfriend; Christopher Ruddy, the CEO of the website and cable channel Newsmax, which is based in Boca Raton; and Stone.

“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”

The next day, Stone deleted the pictures of his face-to-face meeting with Trump.

On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.

Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)

Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.

Steve Bannon

Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.

It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.

December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.

In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.

“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.

Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”

So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.

But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.

Rudy Giuliani left dangling

Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.

While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.

It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.

But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.

Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.

But he didn’t.

That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.

Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion

Key pardons of January 6 participants

February 18. 2020: Bernie Kerik

November 25, 2020: Mike Flynn

December 22, 2020: George Papadopoulos

December 23, 2020: Roger Stone and Paul Manafort

January 19, 2021: Steve Bannon

“I do share information[,] Rudy. You never read your emails, you never read your texts,” Sidney Powell purportedly said, while plotting a coup

In Patrick Byrne’s February 1, 2021 telling of a series of December 18, 2020 meetings that was just retold by the NYT, Sidney Powell — who is currently under grand jury investigation — told Rudy Giuliani — who is currently under grand jury investigation– that she hadn’t been leaving him out of the loop. On the contrary, Powell explained as she tried to convince Rudy and with him the former President to adopt the plan she and Mike Flynn concocted to seize the voting machines, Powell had sent Rudy this information via email and text.

Finally, Trump stopped and scanned the three of us, and asked simply. “So what are you saying?” Thinking of the difference between the highly organized and disciplined approach I had experienced with Flynn and Sidney, versus the college sophomore bull-session approach of the Campaign and Rudy-World, I spoke up again: “Mr. President, I think you should appoint Sidney Powell your Special Counsel on these election matters and make General Flynn your Field Marshall over the whole effort. I know Rudy’s your lawyer and friend, and he can have a great role in this. Rudy should be personally advising you, and we don’t want to do anything to embarrass him. But it needs to be Sidney taking point legally on this. And if you really want to win, make General Flynn here the Field Marshall. If you do I put your chances at around 50-75%. You should see how he well he has this planned, it would run like clockwork…”

The President shook me off, saying, “No no, it’s got to be Rudy.”

[snip]

The three male [White House Counsel] lawyers edged closer to the front, and then as though as some hidden signal, they all started being bitches.

First was some comment about it not being right to use the National Guard. “The optics are terrible, Mr. President,” said one. “It would have to be the DHS.” I liked the National Guard idea because we needed to reestablish trust of the American people in the electoral process, and the US institution with the most trust is the one where people dress in military uniforms. Yet the National Guard is local, they are all around us, our colleagues at work, our “Citizen Soldiers”. But perhaps in a sign of flexibility, Flynn and Sidney allowed as how one could use the DHS instead of the National Guard.

[snip]

I took another shot at it with the President. “Again Sir, I know that Rudy is a friend of yours, he’s wonderful. He’s America’s Mayor. I love Rudy, I don’t want to embarrass him. But you should see how what Mike and Sidney have got going. It is so organized, so well-planned-” Again he cut me off, saying, “No no, it’s got to be Rudy…” On the inside I slumped.

[snip]

Eventually President Trump said that we would all meet in 30 minutes in the living quarters, in the “Yellow Oval” (I believe the room is called). In the meantime, Rudy was coming in and we had to find a way to make things work between Rudy and Sidney. As we parted he said, “You know, in 200 years there probably has not been a meeting in this room like what just happened…”. As he was leaving he brushed past me, stopped, and speaking low and quiet, said something quite kind and meaningful, showing me that he knew a lot more about me than I had guessed.

A few minutes later Sidney, Mike, Alyssa, and I were in the Cabinet Room. waiting for Rudy. It was dark, and we had to find a couple lamps to turn on. Mike and I were intent on making sure the meeting went well between Sidney and Rudy, so everyone could work happily together.

After 10 minutes Rudy came in, tying his tie, and said in not too gruff a manner, but with perhaps the gruffness of a man disturbed from his evening meal, “You know Sidney, if we are going to work together you have to share information.” I did not take his tone as being too aggressive, but one of trying to turn over a new leaf in a relationship, perhaps.

Sidney immediately told him, “I do share information Rudy. You never read your emails, you never read your texts.”

“That’s not true Sidney! I just need you to stop keeping me in the dark-“

“”Rudy I don’t keepo [sic] you in the dark! You-”

“Sidney you have to stop keeping everything to yourself! I cannot work with you if you don’t share with me!”

Within moments the conversation had spiraled out of control. After a minute of squabbling I tried to interject something helpful. “Mr. Mayor, it is true that since I arrived, everything we ever brought Sidney, she always said, ‘Get this to Rudy right away.’ It’s true. Absolutely everything we turned up, she told us to share with you. She never asked us to keep you in the dark about anything.” [my emphasis]

As NYT tells this story, a bunch of subpoenas pertaining to Powell and seizure and privilege review of 16 Rudy devices later, Rudy “vehemently opposed” the idea of having the military seize the voting machines, acceded to asking DHS to do so, but — after all the other witnesses had left the room, according to the story — warned Trump that the plan would get him impeached.

Six weeks after Election Day, with his hold on power slipping, President Donald J. Trump directed his lawyer, Rudolph W. Giuliani, to make a remarkable call. Mr. Trump wanted him to ask the Department of Homeland Security if it could legally take control of voting machines in key swing states, three people familiar with the matter said.

Mr. Giuliani did so, calling the department’s acting deputy secretary, who said he lacked the authority to audit or impound the machines.

Mr. Trump pressed Mr. Giuliani to make that inquiry after rejecting a separate effort by his outside advisers to have the Pentagon take control of the machines. And the outreach to the Department of Homeland Security came not long after Mr. Trump, in an Oval Office meeting with Attorney General William P. Barr, raised the possibility of whether the Justice Department could seize the machines, a previously undisclosed suggestion that Mr. Barr immediately shot down.

[snip]

Mr. Giuliani was vehemently opposed to the idea of the military taking part in the seizure of machines, according to two people familiar with the matter. The conflict between him and his legal team, and Mr. Flynn, Ms. Powell and Mr. Byrne came to a dramatic head on Dec. 18, 2020, during a meeting with Mr. Trump in the Oval Office.

At the meeting, Mr. Flynn and Ms. Powell presented Mr. Trump with a copy of the draft executive order authorizing the military to oversee the seizure of machines. After reading it, Mr. Trump summoned Mr. Giuliani to the Oval Office, according to one person familiar with the matter. When Mr. Giuliani read the draft order, he told Mr. Trump that the military could be used only if there was clear-cut evidence of foreign interference in the election.

Ms. Powell, who had spent the past month filing lawsuits claiming that China and other countries had hacked into voting machines, said she had such evidence, the person said. But Mr. Giuliani was adamant that the military should not be mobilized, the person said, and Mr. Trump ultimately heeded his advice.

Shortly after the Oval Office meeting, Mr. Waldron amended the draft executive order, suggesting that if the Defense Department could not oversee the seizure of machines then the Department of Homeland Security could, the person said.

Around that time, Mr. Trump asked Mr. Giuliani to call Kenneth T. Cuccinelli II, the acting deputy secretary at the Department of Homeland Security, to ask about the viability of the proposal, according to two people familiar with the matter. Mr. Cuccinelli said that homeland security officials could not take part in the plan.

[snip]

Even Mr. Giuliani, who had spent weeks peddling some of the most outrageous claims about election fraud, felt that the idea of bringing in the military was beyond the pale.

After Mr. Flynn and Ms. Powell left the Oval Office, according to a person familiar with the matter, Mr. Giuliani predicted that the plans they were proposing were going to get Mr. Trump impeached. [my emphasis]

The CNN version of this story (which, like Maggie Haberman, first started reporting this story out in December 2020, even before January 6, and long before the overt seizures of materials from two of the lawyers involved) chose not to grant Robert Costello anonymity for a quote about Rudy being “vehemently” opposed to the plan to use the military to seize the voting machines.

Reached earlier this month, Cuccinelli said his discussion with Giuliani “never developed to the point of talking about an executive order including such action that I recall.”

When asked about the executive order involving the military, Giuliani’s attorney, Robert Costello, said his client also shut that idea down when he became aware of it.

“As soon as he heard about this idea, he was vehemently against it, as was White House Counsel Pat Cipollone and then-President Trump,” Costello said.

But Giuliani and his team did continue to pursue other avenues for overturning the election based on the same conspiracies about election fraud cited in the draft executive order to justify the seizure of voting machines.

Trump also continued to entertain some of the same core elements of those executive orders, including the idea of installing a special counsel to investigate election fraud.

Nearly two weeks after White House aides pushed back on the suggestion of naming Powell to such a role, Trump raised the idea again during another Oval Office meeting, but this time floated Cuccinelli as a possible candidate, according to testimony provided to the Senate Judiciary Committee by former senior Justice Department officials who were present.

Meanwhile, Flynn remained adamant that election equipment was going to be seized and personally reached out to at least one senior defense official in mid-December attempting to enlist their help with his cause, according to a source familiar with the outreach. [my emphasis]

There’s really not all that much new in the story as laid out here, except that a bunch of people who know their communications are in the FBI’s hands (and, in the case of Costello, who has spent the last nine months reviewing the content of those communications, including those Byrne describes Powell claiming to have sent Rudy) providing updated versions of the least-damning story they can tell here.

Just one more key part of the story that has changed.

As CNN described it in the 2020 version of the story (but NYT did not), Mark Meadows was also involved.

White House aides who participated in the meeting, including White House chief of staff Mark Meadows and counsel Pat Cipollone, also pushed back intensely on the suggestion of naming Powell as a special counsel to investigate voter fraud allegations Trump’s own administration has dismissed (or, as seems more feasible, hiring her in the administration for some kind of investigatory role).

Meadows shows up in yesterday’s NYT story only as not being the one who let Powell and Flynn and Byrne in the White House.

When Mr. Flynn, Ms. Powell and Mr. Byrne arrived at the White House to discuss their plan to use the military to seize voting machines, they were not let into the Oval Office by a typical gatekeeper, like Mark Meadows, Mr. Trump’s chief of staff. Rather, they were escorted in by Garrett Ziegler, a young aide to another Trump adviser, Peter Navarro, according to Mr. Ziegler’s account.

“I waved in General Flynn and Sidney Powell on the Friday night of the 18th — for which Mark Meadows’s office revoked my guest privileges,” Mr. Ziegler said on a podcast, adding that he had done so because he was “frustrated with the current counsel” Mr. Trump was getting.

That guy — the former Chief of Staff who also was getting and sending a bunch of texts on his phone — that guy has also spent some time recently reviewing his communications. Not only did he review — and withhold — a bunch of communications before sharing some with the Select Committee, but once the Select Committee figured out that Meadows had violated the Presidential Records Act by failing to turn over those communications he conducted on his personal — but his emails! — devices, Meadows has been spending time trying to find such communications so he can share them with the National Archives to uncommit some crimes.

NARA, of course, has been ordered by a court to share such communications, even the ones that Trump might otherwise have invoked Executive Privilege over, with the Committee.

We’re going to get a lot of revised least-damning versions of these stories as more and more people review the communications that will be handed over to investigative bodies.

It’s worth comparing, then, the versions we’re getting now with those people were telling when they thought none of the emails and texts Sidney Powell sent would come out.

Update: Harpie is right. The Jonathan Swan version of this exchange, published exactly a year ago, is worth reading as well.

“I’m Just There to Open the Envelopes:” The Select Committee and DOJ Investigations Converge at Mike Pence

You might not understand this from following just traditional news outlets, but over the course of a year, the news-friendly January 6 Select Committee and even the public parts of the locked-down DOJ investigation have met at a common pivot point in their investigation of January 6: on Trump’s efforts to pressure Mike Pence to violate the Constitution.

Trump did so, first, with personal pressure. Then he sent his mob.

The pressure on Pence is how Trump’s plotting in advance of January 6 affirmatively led  directly to — not just through inaction, but through action — specific steps taken by confessed mobsters to assault the Capitol.

Already in February of last year, both the House Impeachment Managers and I recognized the centrality of Trump’s treatment of his Vice President to his liability for the January 6 insurrection.

Trump had nothing to say in defense of his actions with regards to Mike Pence.

The House brief mentions Pence, by title and sometimes by name, 36 times. Those mentions include a description of how Pence was presiding over the counting of the electoral vote, how he fled when Trump’s mobsters flooded into the Capitol, how the attackers targeted him by name, how Secret Service barely kept him safe, how Trump’s own actions made Pence’s danger worse.

The House brief dedicates a section to how Pence refused to do what Trump explicitly asked him to do, to unilaterally discount certain electoral votes.

C. Vice President Pence Refuses to Overturn the Election Results

By the time the rally began, President Trump had nearly run out of options. He had only one card left to play: his Vice President. But in an act that President Trump saw as an unforgivable betrayal, Vice President Pence refused to violate his oath and constitutional duty—and, just hours later, had to be rushed from the Senate chamber to escape an armed mob seeking vengeance.

In the weeks leading up to the rally, President Trump had furiously lobbied Vice President Pence to refuse to count electoral votes for President Biden from any of the swing states.68 These demands ignored the reality that the Vice President has no constitutional or statutory authority to take that step. Over and over again, President Trump publicly declared that if Vice President Pence refused to block the Joint Session from finalizing President Biden’s victory, then the election, the party, and the country would be lost. “I hope Mike Pence comes through for us, I have to tell you,” President Trump said in Georgia on January 4.69 The next day, he tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency.”70 President Trump reiterated this demand just hours before the rally: “States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”71 On the morning of January 6, President Trump reportedly told Vice President Pence, “You can either go down in history as a patriot, or you can go down in history as a pussy.”72

Later that day, while President Trump was speaking at his rally, Vice President Pence issued a public letter rejecting President Trump’s threats. “It is my considered judgment,” he wrote, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”73

This letter sounded the death knell to any peaceful methods of overturning the election outcome. It was well known that the House and Senate were going to count the lawfully certified electoral votes they had received. President Trump’s efforts to coerce election officials, state legislatures, the DOJ, Members of Congress, and his own Vice President had all failed. But he had long made it clear that he would never accept defeat. He would fight until the bitter end. And all that remained for President Trump was the seething crowd before him—known to be poised for violence at his instigation—and the Capitol building just a short march away, where Vice President Pence presided over the final, definitive accounting of President Trump’s electoral loss.

[snip]

In other words, a key part of the House brief describes Trump giving Pence an illegal order, and then, after Pence refused to follow that order and announced he would do his own Constitutional duty, Trump took actions to focus the anger of the mob on his own Vice President.

It’s not just what Trump said about Pence, the incitement of an assassination attempt against his Vice President that Trump claims is protected by the First Amendment, but it’s about an illegal order Trump gave to Pence, which Pence duly ignored.

That order was unconstitutional, and as such is not protected by the First Amendment.

Trump’s brief, by contrast, mentions the Vice President (only by title) just three times, two of which are simply citations from the House brief. The sole mention of the man he almost got hanged involves a concession that the Vice President was, indeed, presiding over the counting of the votes.

It is admitted that on January 6, 2021 a joint session of Congress met with the Vice President, the House and the Senate, to count the votes of the Electoral College.

But in response to the second citation from the House brief mentioning Pence, Trump instead pivots to defending the Republican members of Congress challenging state results. As part of that discussion, Trump denies any intention of interfering with the counting of Electoral votes. That denial focuses exclusively on the actions of Members of Congress, not Pence.

Since that time, Congress has been investigating from the top down, aided by the press and a healthy bunch of Pence staffers horrified by what happened to their boss. DOJ has been investigating (at a minimum) from the crime scene up.

The Select Committee appears to have corroborated stories told by Bobs Woodward and Costa in Peril. After losing all their attempts to challenge the election in the courts and backed by a coup memo from John Eastman, in December 2020, Trump’s people started demanding that Pence refuse the vote totals from a select group of states.

At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment — is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.

Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.

Pence conducted a series of consultations, most notably with his predecessor Dan Quayle, who counseled Pence could only open the ballots. In the hours before the riot, conservative legal stars John Yoo and Michael Luttig backed the Vice President as well.

That led to the remarkable scene on January 5 (as described in Peril, though Keith Kellogg is among the witnesses who cooperated with the Select Committee under a friendly subpoena and Peril’s account relies heavily on him and other Pence aides), as Trump invited Pence to call on unconstitutional power from the mob.

On the evening of January 5, as he waited for Pence to arrive from a coronavirus task force meeting, an aide informed Trump his supporters were gathering near the White House on Freedom Plaza near Pennsylvania Avenue.

Despite the bitter cold, the supporters were cheering loudly and chanting his name. They were waving “Make America Great Again” flags.

When Pence arrived, Trump told him about the thousands of supporters. They love me, he said.

Pence nodded. “Of course, they’re here to support you,” he said. “They love you, Mr. President.

“But,” Pence added, “they also love our Constitution.”

Trump grimaced.

That may be, Trump said, but they agree with him regardless: Pence could and should throw Biden’s electors out. Make it fair. Take it back.

That is all I want you to do, Mike, Trump said. Let the House decide the election. Trump was not ready to give up, especially to a man he maligned as “Sleepy Joe.”

“What do you think, Mike?” Trump asked.

Pence returned to his mantra: He did not have the authority to do anything other than count the electoral votes.

“Well, what if these people say you do?” Trump asked, gesturing beyond the White House to the crowds outside. Raucous cheering and blasting bullhorns could be heard through the Oval Office windows.

“If these people say you had the power, wouldn’t you want to?” Trump asked.

“I wouldn’t want any one person to have that authority,” Pence said.

“But wouldn’t it almost be cool to have that power?” Trump asked.

“No,” Pence said. “Look, I’ve read this, and I don’t see a way to do it.

“We’ve exhausted every option. I’ve done everything I could and then some to find a way around this. It’s simply not possible. My interpretation is: No.

“I’ve met with all of these people,” Pence said, “they’re all on the same page. I personally believe these are the limits to what I can do. So, if you have a strategy for the 6th, it really shouldn’t involve me because I’m just there to open the envelopes. You should be talking to the House and Senate. Your team should be talking to them about what kind of evidence they’re going to present.”

In spite of Pence’s refusals, Trump released a false statement that the Vice President would, in fact, do Trump’s dirty work.

Late Tuesday evening, January 5, as word dripped out in the press that Pence was holding, Trump directed his campaign to issue a statement claiming that he and Pence were in “total agreement that the Vice President has the power to act.”

This set the expectation with the already enraged mob that their efforts to keep Trump in office might just work.

As the Select Committee revealed last night, the White House Counsel’s Office was objecting to all of this, and threatening to resign if Trump tried it. Sean Hannity learned about those threats as early as December 31 and shared his concerns with Mark Meadows.

We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.

The night of January 5, the same night Trump falsely claimed that Pence would go along with the plan, Hannity again told Mark Meadows he was worried the White House Counsel lawyers would quit.

Pence pressure. WH counsel will leave.

Whether or not Hannity sits for an interview with the Select Committee, the release of texts showing that Trump or Meadows shared privileged advice that the White House Counsel gave to Trump (thereby waiving any privilege claim) may have made the testimony of those lawyers themselves accessible, if not to the Select Committee, then under subpoena from DOJ.

That’s important, because as the DOJ prosecutor guiding DOJ’s use of 18 USC 1512(c)(2) to charge those who participated in the insurrection, James Pearce, has already noted, one way an unnamed person just like Trump might act corruptly would be by asking someone else to violate their duty: If that person, “calls Vice President Pence to seek to have him adjudge the certification in a particular way … knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.”

By publicly releasing those Hannity texts, the Select Committee may have made proof that Trump knew his request to Pence was illegal available to DOJ.

Still, any testimony Hannity could offer is important for what came next: because Hannity seems to have known that Trump’s persistence would lead to trouble.

Already knowing that Pence would not reject the vote tallies, already knowing Pence didn’t have that power, Trump riled up his mob in his speech by making it clear everything came down to Pence.

And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so.

Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.

States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.

Trump led his mob to believe only Pence could help them, and if Pence did, Trump falsely led many of them to believe, it would amount to following the Constitution (precisely the opposite of what his White House Counsel appears to have had told him).

Pennsylvania has now seen all of this. They didn’t know because it was so quick. They had a vote. They voted. But now they see all this stuff, it’s all come to light. Doesn’t happen that fast. And they want to recertify their votes. They want to recertify. But the only way that can happen is if Mike Pence agrees to send it back. Mike Pence has to agree to send it back.

And many people in Congress want it sent back.

And think of what you’re doing. Let’s say you don’t do it. Somebody says, “Well, we have to obey the Constitution.” And you are, because you’re protecting our country and you’re protecting the Constitution. So you are.

That’s what Trump left his mob with as he falsely promised he would walk to the Capitol with them.

So let’s walk down Pennsylvania Avenue.

Already, at that moment, the Proud Boys had kicked off the attack. Moments later, Pence released his letter stating he would certify the vote. “Four years ago, surrounded by my family, I took an oath to support and defend the Constitution, which ended with the words, ‘So help me God.'”

And Trump’s Tweets and speech had the direct and desired effect. When Trump called out, “I hope Pence is going to do the right thing,” Gina Bisignano responded, “I hope so. He’s a deep state.” When she set off to the Capitol, Bisignano explained, “we are marching to the Capitol to put some pressure on Mike Pence.” After declaring, “I’m going to break into Congress,” Bisignano rallied some of the mobsters by talking about “what Pence has done.” She cheered through a blowhorn as mobsters made a renewed assault on the Capitol. “Break the window! she cheered, as she ultimately helped another break a window, an act amounting to a team act of terrorism.

Josiah Colt and his co-conspirators learned that Pence would not prevent the vote certification as Trump demanded. In response, they aimed to “breach the building.” Colt set out to where Pence was presiding. “We’re making it to the main room. The Senate room.” Where they’re meeting.” His co-conspirators Ronnie Sandlin and Nate DeGrave are accused of assaulting a cop to get into the Senate.

Jacob Chansley mounted the dais where Pence should have been overseeing the vote count and declared, “Mike Pence is a fucking traitor,” and left him a note, “It’s Only A Matter of Time. Justice Is Coming!”

Matthew Greene never went to listen to Trump speak. Instead, he was following orders from top Proud Boys, a bit player in an orchestrated attack to surround and breach the Capitol. His goal in doing so was to pressure Pence.

Greene’s intent in conspiring with others to unlawfully enter the restricted area of the Capitol grounds was to send a message to legislators and Vice President Pence. Greene knew he lawmakers and the Vice President were inside the Capitol building conducting the certification of the Electoral College Vote at the time the riot occurred. Green hoped that his actions and those of his co-conspirators would cause legislators and the Vice President to act differently during the course of the certification of the Electoral Vote than they would have otherwise. Greene believed that by unlawfully entering the Capitol grounds, he and other rioters outside the building would send a stronger message to lawmakers and the Vice President inside the building, than if Green and others had stayed outside the restricted area.

There is a direct line of corrupt intent from the moment where Trump asked Pence, “If these people say you had the power, wouldn’t you want to [exercise it]?” and efforts that his mobsters — both those who planned this in advance and those who reacted to Trump’s incitement — made at the Capitol. Some of the most central players in the attack on the Capitol have testified under oath that they understood their goal to be pressuring Mike Pence. In pursuit of that, they broke into the Capitol, they assaulted cops, they occupied the Mike Pence’s seat.

Congress is currently focused on showing what Trump did during the 187 minutes after his mob had breached the Capitol — aside from his tweet focusing again on Pence.

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

DOJ is finalizing its understanding of the coordinated effort, using the mobs Alex Jones lured to the Capitol and to a second front, that resulted in multiple breaches of the building and vastly inflated risk to Pence and members of Congress.

But on one point, both investigations have already converged: the motive of a vast many involved, from Trump to his scheming associates to organized militias to unwitting trespassers, was to was pressure Mike Pence to violate his duty.

Update, 3/3/22: In a filing trying to breach John Eastman’s claim of privilege, the January 6 Committee cited three instances of defendants reacting the Pence information.

Trump Breached His Own Privilege by Blabbing to Sean Hannity

The January 6 Committee is inviting Sean Hannity for a voluntary interview with the committee.

It’s unclear whether he’ll take them up on that investigation. But it seems the damage has already been done. That’s because texts involving Hannity make it clear he knew about the White House Counsel’s concerns about Trump’s actions.

The Select Committee is in possession of dozens of text messages you sent to and received from former White House Chief of Staff, Mark Meadows and others related to the 2020 election and President Trump’s efforts to contest the outcome of the vote. At this time, we are specifically focused on a series of your communications with President Trump, White House staff and President Trump’s legal team between December 31, 2020, and January 20, 2021. For example, on December 31, 2020, you texted Mr. Meadows the following:

“We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity.

Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.”

Among other things, this text suggests that you had knowledge of concerns by President Trump’s White House Counsel’s Office regarding the legality of the former President’s plans for January 6th. These facts are directly relevant to our inquiry.

Similarly, on January 5th, the night before the violent riot, you sent and received a stream of texts. You wrote: “Im very worried about the next 48 hours.” With the counting of electoral votes scheduled for January 6th at 1 p.m., why were you concerned about the next 48 hours?

Also, on the evening of January 5th, you texted Mr. Meadows: “Pence pressure. WH counsel will leave.” Wha communications or information led you to conclude that White House Counsel would leave? What precisely did you know at that time?

Effectively, Trump breached the privileged advice the White House Counsel gave him by blabbing it to Hannity (or by Meadows doing so). The Committee can’t get that advice directly. But whatever got shared with a journalist has lost its privileged status.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Paul Nakasone’s Concerns about Mike Ellis Hiring Vindicated

DOD Inspector General released a report yesterday finding there was no evidence of impropriety in the hiring of Michael Ellis as General Counsel, but also suggesting that NSA Director Paul Nakasone was vindicated in his concerns about Ellis’ hiring. DOD IG made those conclusions without succeeding in getting Pat Cipollone — who might know a back story to Ellis’ hiring — to sit for an interview about his role in the process.

The hiring process

As the report lays out, Ellis was one of 29 candidates who were deemed qualified for the position to apply in early 2020. An initial vetting process did not work as one of the participants said it had in the past, partly because of how the panel considered the technical requirements, partly because they did not conduct interviews. But by all accounts Ellis was deemed one of the top seven candidates, and so qualified for the position.

In the next round, just three people were reviewed, including Ellis. Several of the three panel members deemed a different candidate to have had an exceptionally good interview, but all agreed Ellis did quite well and that it was a close decision.

After that DOD General Counsel Paul Ney, who had selection authority, chose Ellis. When asked why he preferred Ellis, he cited Ellis’ more extensive Intelligence Community experience and his experience both on the Hill (where he wrote dodgy reports for Devin Nunes) and in the White House (where he ran interference for Trump), though there’s no evidence Ney understood Ellis’ role on those bodies. Ney told DOD IG that he had several calls with John Eisenberg and one with Pat Cipollone where the lawyers spoke favorably of Ellis during the hiring process, but he did not regard those as being an attempt to pressure him.

The law requires that the NSA Director be consulted in this process. After the decision was made, Nakasone conducted interviews and decided that the same candidate who had had the exceptionally good interview would best manage the 100-person General Counsel department at the NSA. He also shared concerns with Ney about the way that Ellis had done the classification review of John Bolton’s book (probably reflecting that Ellis was pursuing a political objective on that front). Nevertheless, Ney picked Ellis, and after the election, his hiring was announced.

As the transition wore on and Congress got involved, Nakasone raised concerns about whether the Office of Personnel Management had done an adequate review of the hiring of a political appointee. The review is not required (the IG Report recommended that it be required going forward), and was not used with Obama’s General Counsels Raj De and Glenn Gerstell either. On January 15, Nakasone attempted to stall the on-boarding process, citing the OPM review and concerns from Congress. But then Ney got Christopher Miller to order Nakasone to hire Ellis by the end of the following day, which Nakasone did.

After that (but before the inauguration), Nakasone learned of two security incidents involving Ellis, and based on that and the ongoing IG investigation, put the newly hired General Counsel on leave.

The Eisenberg and Cipollone calls

The IG Report considered whether in calls from John Eisenberg and Pat Cipollone, they inappropriately influenced Ney. It credibly shows they did not. That’s true, first of all, because the IG Report makes it clear that Ney had regular interactions with Eisenberg, Ellis, and Cipollone. Ellis’ bosses at the White House wouldn’t have needed to push him — he was a known figure to Ney.

Eisenberg’s positive comments were credibly described as a supervisor expressing positive comments about someone.

When we asked Mr. Eisenberg about the rationale for his comments to Mr. Ney, he told us,“I would not have been happy with myself if somebody who … works so hard for me, that I … couldn’t be bothered to basically give a recommendation before somebody makes a decision.” Mr. Eisenberg told us, “[T]here’s nothing inappropriate about … somebody from the White House in an appropriate context, providing an evaluation of their employee.”

The IG Report doesn’t describe (and it would be beyond its scope) that Eisenberg played a central role in some key cover-ups for Trump, the most notable of which was Trump’s attempt to coerce election assistance from Ukraine. Ellis was a part of those cover-ups (indeed, that’s arguably what the Bolton classification review was). Eisenberg also played a key role, way back in 2008, in withholding information from FISC for the first programmatic review of PRISM.

That is, a recommendation from Eisenberg is a recommendation from someone who did questionable things to protect the President, often with Ellis’ help. John Eisenberg is a very credible, experienced national security lawyer. He’s also someone who helped Trump undermine democracy.

Still, the IG Report credibly describes this as the normal kind of comment that a supervisor would make. It’s only important given who the supervisor was and what the supervisor had asked Ellis to do in the past.

I’m rather interested, however, that Cipollone blew off DOD IG’s request for information.

Shortly after interviewing Mr. Ney on March 15, 2021, we attempted to contact Mr. Cipollone. He did not respond; however, his assistant responded on July 12, 2021, and we asked to interview Mr. Cipollone. Neither Mr. Cipollone nor his assistant provided any response to our request. Based on the witness testimony and documents we reviewed, we determined that Mr. Cipollone likely did not have any additional information different from what we obtained from other sources, and we decided, therefore, not to further delay our review waiting for a response from Mr. Cipollone or his assistant.

Cipollone had no legal obligation to cooperate, and DOD IG had no legal means to coerce him to do so. But he’s also the kind of person who would know better than to get himself in an interview where he might have to reveal other pertinent details. For whatever reason, he just blew off the request.

In the days after January 6, Ellis was discovered to have two security violations

After determining, credibly, that Ellis was legally hired, DOD IG then considered whether Ellis was legally put on leave as soon as he was hired. The analysis involves the discovery of two security violations on January 7 and January 8, as laid out in this table.

In the first incident, NSA discovered that Ellis had put together and shared notebooks of documents of “compartmented, classified [NSA] information” without NSA knowledge or consent.

An NSA employee received a controlled, classified NSA notebook of documents on January 7, 2021, from a Department of State official who was not authorized to access that information. An initial NSA review further found that several copies of the notebook had been produced without NSA authorization. This event raised concerns that other individuals possessed copies of these sensitive materials without NSA authorization.

[NSA Deputy Director George] Barnes told us that “[they] were spending the last week or so of the administration trying to find out who had them, where they were, and trying to get them back into positive control before the administration members left.” NSA officials received information on January 13, 2021, that Mr. Ellis either created or directed the copying of these notebooks of documents with compartmented, classified information without NSA knowledge, consent, or control.

In the second, more alarming instance, two days after Trump’s coup attempt, an NSA employee tried to retrieve “some of the most sensitive information that NSA possesses” from Ellis, only to discover he was storing it with inadequate security and refusing to return it. (After DDIRNSA Barnes asked for help from Eisenberg, NSA got the information back.)

On January 8, 2021, an NSA employee tried to retrieve an NSA document from Mr. Ellis that contained information of a classified, controlled, compartmented NSA program “of some of the most sensitive information that NSA possesses.” Mr. Barnes told us that Mr. Ellis refused to return the document, retained it for the White House archives, and, based on what the NSA employee saw, placed the document in a container that did not meet the security storage requirements for such a sensitive program. Mr. Barnes told us that he contacted Mr. Eisenberg on January 9, 2021, for help obtaining the document, and the document was returned to the NSA on January 14, 2021. Mr. Barnes said, “The White House people were all leaving so every day new members were leaving and so we were prioritizing on identifying our documents that needed to be brought under positive control and accounted for.” Mr. Barnes added:

And then we started to get the pressure on the 15th is when Acting SecDef ordered us to issue a job offer to him. And so, in that intervening several days, all’s we knew his [sic]is we have a problem, we have to investigate the nature of how these documents were handled, distributed outside of our purview and control. And so that was—the flares were up but we didn’t have time to actually do anything yet and Mr. Ellis was not our employee so we didn’t have a chance to contact him yet for questioning for anything. We had to get security involved to do it right whenever we do an investigation because we didn’t know if there was a disconnect or an understanding that so these were just—the flares went up on the 7th and the 8th.

Effectively, at a time when NSA was trying to ensure that outgoing Trump officials didn’t walk out with NSA’s crown jewels, they learned that Ellis wanted to keep the crown jewels on White House servers.

Importantly, two aspects of these violations repeat earlier concerns about Ellis’ tenure: He shared information with people (like Nunes) not authorized to have it, and that he and Eisenberg played games with White House servers to avoid accountability. And while it’s not clear why Ellis was violating NSA’s security rules, it does seem of a part of his efforts to politicize classification with the John Bolton review.

DOD IG found that it was not proper to put Ellis on leave based on the then-ongoing IG investigation. But it did find Nakasone’s decision to put Ellis on leave was proper based on Nakasone having control over Ellis’ clearance.

The investigation into Ellis’ security violations appears to have ended when he resigned in April. The IG Report includes a recommendation that it be reconsidered.

The Office of the Undersecretary of Defense for Intelligence and Security should review the allegation and supporting material that Mr. Ellis improperly handled classified information on two occasions to determine what, if any, further actions the NSA or another agency should take regarding this allegation.

It’s possible, though, that this investigation didn’t go further for a different reason. That’s because the President is ultimately the Original Classification Authority for the entire US government. If Ellis was distributing these notebooks and withholding the NSA crown jewels based on Trump’s authorization, it wouldn’t be a violation at all.

That said, that seems reason enough to chase down why he did those things.

A DOJ IG Investigation Is Insufficient to Investigate Trump’s Attempt to Get DOJ Help to Steal the Election

As many news outlets are reporting, DOJ’s Inspector General Michael Horowitz is opening an investigation into whether any former or current DOJ official helped Trump try to overturn an election.

The DOJ Office of the Inspector General (OIG) is initiating an investigation into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.  The investigation will encompass all relevant allegations that may arise that are within the scope of the OIG’s jurisdiction.  The OIG has jurisdiction to investigate allegations concerning the conduct of former and current DOJ employees.  The OIG’s jurisdiction does not extend to allegations against other government officials.

The OIG is making this statement, consistent with DOJ policy, to reassure the public that an appropriate agency is investigating the allegations.  Consistent with OIG policy, we will not comment further on the investigation until it is completed.  When our investigation is concluded, we will proceed with our usual process for releasing our findings publicly in accordance with relevant laws, and DOJ and OIG policies.

This is welcome news, but nowhere near as big a deal as people are making out. That’s true for several reasons. First, while DOJ IG will have access to internal DOJ communications, DOJ IG cannot compel testimony of former employees. So if Jeffrey Bossert Clark — or any of the sources leaking anonymously with no threat of legal consequences — don’t want to cooperate with this inquiry, they can avoid doing so.

More importantly, as Horowitz notes, his office’s jurisdiction, “does not extend to allegations against other government officials.” He can’t investigate Scott Perry, the GOP Congressperson who was reportedly involved in this, he can’t investigate Pat Cipollone, who reportedly sided with others at DOJ to undercut Trump’s efforts, and he can’t investigate Trump himself.

Still, it will serve one welcome purpose. As I noted in this post, one way to get investigations into Trump conduct started without appearing as if Joe Biden’s DOJ has it in for Trump is to start them with Inspectors General. A year from now, DOJ IG will likely produce a report showing improper behavior from Clark (probably because he went around his superiors, not for any good legal reason), while noting that he was unable to get further cooperation. That could provide predicate for opening an investigation into the Former President.