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The Men Disputing Cassidy Hutchinson’s Retelling of Trump’s SUV Lunge Got Warnings about Plans to Flood the Capitol

Since Cassidy Hutchinson’s startling testimony on Tuesday, credulous journalists have reported anonymous sources pushing back against one of her most dramatic stories: that when told he was not going to the Capitol on January 6, Donald Trump lunged towards the steering wheel of the SUV taking him back to the White House and then went after the clavicle of the head of his detail, Bobby Engel.

On top of being anonymous, the pushback never disputed Hutchinson’s claim: that she was told this story by Tony Ornato, the Secret Service Officer that Trump elevated into an important political position at the White House, Deputy Chief of Staff, in front of Engel, who did not dispute the story. Plus, Alyssa Farrah has described that Ornato, in the past, has disputed things she said under oath (about Trump’s stunt in Lafayette Square), without himself going under oath.

Nevertheless, that anonymous pushback has distracted from a far more alarming detail in Tuesday’s testimony that Ornato and Engel have not disputed, neither on or off the record: that they got warnings about plans to occupy buildings in DC and, implicitly, warnings about Proud Boy involvement.

That revelation came just before Hutchinson affirmed a detail I’ve been almost alone in reporting for over a year: Not just Roger Stone, but also Rudy Giuliani, had links to the Proud Boys.

Cheney: US Secret Service was looking at similar information and watching the planned demonstrations. In fact, their Intelligence Division sent several emails to White House personnel, like Deputy Chief of Staff Tony Ornato and the head of the President’s protective detail Robert Engel, including certain materials listing events like those on the screen.

Cheney: The White House continued to receive updates about planned demonstrations, including information regarding the Proud Boys organizing and planning to attend events on January 6. Although Ms. Hutchinson has no detailed knowledge of any planning involving the Proud Boys for January 6, she did note this:

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Hutchinson: I recall hearing the word[s], “Oath Keeper,” hearing the word[s], “Proud Boys,” closer to the planning of the January 6 rally when Mr. Giuliani would be around.

The reference to Ornato and Engel is among the first in Tuesday’s hearing: while Cheney had previewed Hutchinson’s interactions with Ornato and the Secret Service in her introduction, this reference was the first substantive description of Ornato’s activities. That description, as well as Hutchinson’s explanation of how she told Trump’s National Security Advisor Robert O’Brien that Ornato had had a conversation with Mark Meadows about the warnings of violence, came even before Cheney cued Hutchinson to explain what an important role the Deputy Chief of Staff played.

Some time later, the hearing revealed texts between Hutchinson and Ornato reflecting the latter’s awareness that Trump’s supporters were trying to avoid the metal detectors.

Importantly, Cheney mentioned something about this text exchange that doesn’t appear in the texts shown on the screen: a discussion between the two of them — Hutchinson and Ornato — about an “OTR,” an “off the record” movement to get Trump to the Capitol. The Committee appears to be withholding precisely what those texts say — involving Trump personally, and so colorably covered under Executive Privilege.

That may not be the only thing the Committee withheld from its presentation: note in my transcription above that Cheney doesn’t say Ornato and Engel received the warnings that were flashed on the screen. She says they received, “certain materials listing events like those on the screen.” [my emphasis] Particularly given the reports that the Committee met in a secure facility in advance of this hearing, that phrasing could allow for other records, records too sensitive to show publicly, tying the Proud Boys to plans to occupy buildings on January 6.

The story of Trump lunging in the SUV is a distraction, and Ornato, a loyal Trumpster, is likely using his pushback to distract from far more damning details of Hutchinson’s testimony:

  • Both Engel and Ornato had warnings of plans to occupy buildings
  • Hutchinson linked Rudy Giuliani in advance of the attack to both militias that attacked the Capitol
  • Ornato discussed these warnings in advance with Mark Meadows, who pushed Hutchinson away twice during the early moments of the attack
  • In spite of foreknowledge of a plan to occupy buildings and the involvement of militias, Ornato nevertheless continued to plan to take Trump to the Capitol

Secret Service loyalists, for all their anonymous pushback, are denying none of these far more damning details, details that put them — and Meadows and Trump — in far more complicit position with respect to the attack.

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.

Jeffrey Clark: Physics Takes Over the Investigation Now

Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

Indeed, one reason Clark may have been raided is because he makes an easier target, for now, than Meadows or the Members of Congress who were involved. All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

To obtain Signal conversations that haven’t been saved to the cloud, one needs at least one of the phones that was involved in the conversation. That assumes the texts were not deleted. In the James Wolfe investigation, the FBI demonstrated some ability to recover deleted Signal texts, but in the Oath Keeper investigation, their Signal deletions forced investigators to seize a whole bunch of phones to reconstruct all parts of the communications.

By law, the government should have some of these Signal texts accessible. Under the Presidential Records Act, Mark Meadows had a legal obligation to share any such texts with the Archives. But because he replaced his phone in the months after the insurrection, at a time he knew of the criminal investigation, he may not have been able to comply. If DOJ can prove that he deleted Signal texts, he might be on the hook for obstructing the DOJ investigation.

So one thing DOJ may have been trying to do, by seizing the phones of at least four players in the fake electors plot on the same day, was to obtain phones sufficient to reconstruct any Signal threads about the plot. Those served subpoenas, both in this and an earlier round of subpoenas, will have to turn over Signal texts too, if they meet the terms of the subpoena. If DOJ were trying to reach the far higher bar of obtaining a warrant against someone protected by Speech and Debate or other privileges — like Perry — they likely would need to use such threads to meet that higher bar.

So back to the physics.

The table below shows how the investigations into a number of high profile investigative subjects have proceeded. While there are exceptions (investigations where the FBI has some excuse or urgency to conduct an interview, as with Mike Flynn and George Papadopoulos, are different), investigators often first obtain readily accessible cloud content with a gag order, then use the information from a person’s cloud content to obtain probable cause for a warrant to seize phones. Under that pattern, the phone seizure will alert a subject of an investigation to that investigation. In most cases (the first round of January 6 arrests and Roger Stone are exceptions, each for different reasons), the search of phones precedes any arrest by months if not years.

Whereas, during the Mueller investigation, the FBI could exploit phones in four months time, of late, it has been taking closer to six months to exploit cell phones, even without any kind of special review. Part of this delay is physics: if a person uses any kind of secure password, it takes the FBI time to crack that password (and still more time if someone uses additional security features, as Enrique Tarrio did). In many cases, the DOJ will have to use a filter team to exclude data that is somehow privileged; in all cases, DOJ will then do a scope review, ensuring that the investigative team only gets material responsive to the warrant. When a special review is required, such as the attorney-client privilege review for Rudy or the “journalistic” review for Project Veritas, that process can take much longer. Because DOJ will have to conduct a fairly exhaustive filter review for an attorney like Clark, it might take closer to nine months to exploit the devices seized last week.

This pattern suggests several things about the investigation into Jeffrey Clark (and the fake electors). First, DOJ likely obtained their first probable cause warrants against Clark and the fake electors months ago, probably pretty close to the time (though hopefully before) Lisa Monaco confirmed the investigation into the fake electors in January. In Clark’s case, an investigation may have come from a referral from DOJ IG. So contrary to what many outlets have reported, such as this example from James Risen at the Intercept, the searches of Clark and others are not proof that an investigation is beginning or that DOJ only recently established probable cause. Rather, they suggest DOJ has been investigating covertly for months, at least long enough to obtain probable cause that even more evidence exists on these phones.

But it’s also likely that it will take DOJ some months — until Christmas at least — to exploit Clark’s phone. This investigation will not move as quickly as you might think or hope that this point, and that’s partly dictated by the constraints of cracking a password — math and physics.

All that said, several prongs of an investigation that could implicate Trump may be much further on. As I’ll show in a follow-up (and as I’ve mentioned in the past), the investigation into Stop the Steal is undoubtedly much further on than people assume given Ali Alexander’s grand jury appearance last week. And the FBI has ways of getting content via the Archives, much as they obtained content from Trump’s transition from GSA, that bypass pattern laid out above.

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

Update: Several people have asked why there would be a privilege review for Clark’s phone, since he would have been a government attorney through January 6. I’m not certain there would be, but if a warrant covered the time since January 6 (which I think likely given what DOJ has done with warrants elsewhere), then any lawyering he has done since he left would be privileged.

Update: As noted in comments, also on Wednesday, the FBI seized John Eastman’s phone. The warrant is from DOJ IG, not DC USAO and bears a 2022 case number. DOJ IG opened an investigation into Clark in 2021, but perhaps something they saw in the Jan6 Committee hearings led to a new prong of the investigation, leading to this search? Given the squirreliness regarding what agency did the search of Eastman, I wonder if both these investigative steps were DOJ IG.

Background material

This annotated file shows the unsealed Mueller warrants, with labels for those warrants that have been identified.

This post shows how the Michael Cohen investigation started with Russian-related warrants in the Mueller investigation then moved to SDNY, including a crucial detail about preservation orders for Cohen’s Trump Organization emails served on Microsoft.

This post shows how the investigation into George Papadopoulos developed; his is the outlier here, in that overt actions took place closer to the beginning of the investigation — but in his case, DOJ used a series of informants against him to obtain information.

This post describes how Trump’s team only discovered Mueller had obtained transition devices three months after Mueller obtained them, via Mike Flynn’s statement of offense.

This post shows that the seizure of Roger Stone’s phones with his January 2019 arrest was just one step in an ongoing investigation.

This post uses the Michael Cohen example to explain how the Rudy investigation might work.

This post shows how the investigation into Project Veritas developed.

This post shows how it took almost an entire year to crack Enrique Tarrio’s password, with a filter team delaying access for another month.

This post describes how the sheer volume of Stewart Rhodes’ Signal texts delayed his arrest.

Bill Barr’s Attempt to Corrupt EDNY May Have Saved the Republic

Almost all of the witnesses the January 6 Committee has relied on are deeply conflicted people. The same Trump attorney, Justin Clark, who allegedly coached Steve Bannon to withhold information from the Committee about communications with Rudy Giuliani and Mike Flynn appeared on video claiming to have qualms about using fake electors in states where the campaign did not have an active legal challenge. Ivanka claimed to believe Bill Barr’s claims that voter fraud couldn’t change the election, but the Committee just obtained video of her saying otherwise. And Bill Barr himself has gotten credit for fighting Trump’s false claims of voter fraud even though he spent months laying the groundwork for those claims by attacking mail-in ballots.

But yesterday’s hearing was something else.

After Liz Cheney invited watchers to imagine what it would be like to have a DOJ that required loyalty oaths from lawyers who work there — a policy that Alberto Gonzales had started to implement in the Bush-Cheney Administration — Adam Kinzinger led former Acting Deputy Attorney General Richard Donoghue through a narrative about the Republican Party and the Department of Justice they might like to belong to.

The whole thing was a flashback. In May 2007, I was tipped off to cover Jim Comey’s dramatic retelling of the first DOJ effort to push back on Presidential — and Vice Presidential, from Liz Cheney’s father — pressure by threatening to quit. Only years later, I learned how little the 2004 Hospital Hero stand-off really achieved. So I’m skeptical of yesterday’s tales of heroism from the likes of Jeff Rosen and Steve Engel.

But that’s also because their record conflicts with some of the things they said.

For example, check out what Engel — someone who played an absolutely central role in Bill Barr’s corruption of the Mueller investigation, and who wrote memos that killed the hush payment investigation into Trump and attempted to kill the whistleblower complaint about Volodymyr Zelenskyy — had to say about politicization of investigations.

Kinzinger: Mr. Engel, from your perspective, why is it important to have a [White House contact] policy like Mr. Rosen just discussed?

Engel: Well, it’s critical that the Department of Justice conducts its criminal investigations free from either the reality or any appearance of political interference. And so, people can get in trouble if people at the White House are speaking with people at the Department and that’s why, the purpose of these policies, is to keep these communications as infrequent and at the highest levels as possible just to make sure that people who are less careful about it, who don’t really understand these implications, such as Mr. Clark, don’t run afoul of those contact policies.

Or consider how Special Counsels were described, as Kinzinger got the witnesses to discuss how wildly inappropriate it would have been to appoint Sidney Powell to investigate vote fraud. Here’s how Engel explained the limited times there’d be a basis to appoint one:

Kinzinger: So during your time at the Department, was there ever any basis to appoint a Special Counsel to investigate President Trump’s election fraud claims?

Engel: Well, Attorney General Barr and [inaudible] Jeffrey Rosen did appoint a Special Counsel. You would appoint a Special Counsel when the Department — when there’s a basis for an investigation, and the Department, essentially, has a conflict of interest.

Engel is presumably referring to John Durham with that initial comment. But Durham fails both of those tests: there was never a basis for an investigation, and for most of the time Durham has been Special Counsel, he’s been investigating people outside the Department that present absolutely no conflict for the Department. [Note: it’s not clear I transcribed this properly. The point remains: Rosen and Barr appointed a Special Counsel that violated this standard.]

In other words, so much of what Engel and Rosen were describing were abuses they themselves were all too happy to engage in, up until the post-election period.

Which is why I’m so interested in the role of Richard Donoghue, who moved from EDNY to Main Justice in July 2020, to be replaced by trusted Bill Barr flunkie Seth DuCharme. It happened at a time when prosecutors were prepared to indict Tom Barrack, charges that didn’t end up getting filed until a year later, after Merrick Garland and Lisa Monaco had been confirmed. The 2020 move by Barr looked just like other efforts — with Jessie Liu in DC and Geoffrey Berman in SDNY — to kill investigations by replacing the US Attorney.

That is, by all appearances, Donoghue was only the one involved in all these events in 2020 and 2021 because Barr was politicizing prosecutions, precisely what Engel claimed that DOJ, during his tenure, attempted to avoid.

That’s interesting for several reasons. First, in the context of explaining the January 3 stand-off in the White House, Donoghue described why environmental lawyer Jeffrey Clark was unqualified to be Attorney General.

Donoghue: Mr. President, you’re talking about putting a man in that seat who has never tried a criminal case. Who has never conducted a criminal investigation.

Well, neither had regulatory lawyer Jeffrey Rosen (or, for that matter, Billy Barr). That is, in explaining why Clark should not be Attorney General,  Donoghue expressed what many lawyers have likewise said about Barr, most notably during Barr’s efforts to undermine the Mike Flynn prosecution (the tail end of which Donoghue would have been part of, though DuCharme was likely a far more central player in that).

In the collective description of the showdown at the White House on January 3, it sounds like before that point, Donoghue was the first one who succeeded in beginning to talk Trump out of replacing Rosen, because it was not in Trump’s, or the country’s, interest.

Mr. President, you have a great deal to lose. And I began to explain to him what he had to lose. And what the country had to lose, and what the Department had to lose. And this was not in anyone’s best interest. That conversation went on for some time.

Donoghue also seems to have been the one to explain the impact of resignations in response to a Clark appointment.

Mr. President within 24, 48, 72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What’s that going to say about you?

To be clear: Rosen would have pushed back in any case. As he described,

On the one hand, I wasn’t going to accept being fired by my subordinate, so I wanted to talk to the President directly. With regard to the reason for that, I wanted to try to convince the President not to go down the wrong path that Mr. Clark seemed to be advocating. And it wasn’t about me. There was only 17 days left in the Administration at that point. I would have been perfectly content to have either of the gentlemen on my left or right to replace me if anybody wanted to do that. But I did not want for the Department of Justice to be put in a posture where it would be doing things that were not consistent with the truth, were not consistent with its own appropriate role, or were not consistent with the Constitution.

But Rosen had already presided over capitulations to Trump in the past, including events relating to the first impeachment and setting up a system whereby Rudy Giuliani could introduce Russian-brokered disinformation targeting Joe Biden into DOJ, without exposing Rudy himself to Russian Agent charges. Repeatedly in yesterday’s hearing, I kept asking whether the outcome would have been the same if Donoghue hadn’t been there.

Plus, by all appearances, Donoghue was the one providing critical leadership in the period, including going to the Capitol to ensure it was secured.

Kinzinger: Mr. Donoghue, we know from Mr. Rosen that you helped to reconvene the Joint Session, is that correct?

Donoghue: Yes sir.

Kinzinger: We see here in a video that we’re going to play now you arriving with your security detail, to help secure the Capitol. Mr. Donoghue, thirty minutes after you arrived at the Capitol, did you lead a briefing for the Vice President?

Donoghue: I’m not sure exactly what the time frame was, but I did participate in a call and participate in a briefing with the Vice President as well as the Congressional leadership that night. Yes.

Kinzinger: Where’d you conduct that call at?

Donoghue: I was in an office, I’m not entirely sure where it was. My detail found it, because of the acoustics in the Rotunda were such that it wasn’t really conductive to having a call so they found an office, we went to that office, and I believe I participated in two phone calls, one at 1800 and one at 1900 that night, from that office.

Kinzinger: What time did you actually end up leaving the Capitol?

Donoghue: I waited until the Senate was back in session which I believe they were gaveled in a few minutes after 8PM. And once they were back in session and we were confident that the entire facility was secured and cleared — that there were no individuals hiding in closets, or under desks, that there were no IEDs or other suspicious devices left behind — I left minutes later. I was probably gone by 8:30.

Kinzinger: And Mr. Donoghue, did you ever hear from President Trump that day?

Donoghue: No. Like the AAG, the acting AG, I spoke to Pat Cipollone and Mark Meadows and the Vice President and the Congressional leadership but I never spoke to the President that day.

So it seems possible, certainly, that one of the few things that held DOJ together in this period is Donoghue, seemingly installed there as part of yet another Bill Barr plot to corrupt DOJ.

Congresswoman Cheney, who in her opening statement talked about how outrageous it was for Trump to demand that DOJ make an announcement about an investigation into voter fraud (but who voted against the first impeachment for extorting Volodymyr Zelenskyy for exactly such an announcement), ended the hearing by inviting those who had put their trust into Donald Trump to understand that he had abused that trust.

In Sentencing Memo, SDNY Scoffs at Lev Parnas’ Claims of Cooperation

The two sides have submitted sentencing memos for Lev Parnas’ scheduled June 29 sentencing. In the face of DOJ’s call for a 78 to 97 months sentence, Parnas is claiming that he “cooperated” with the 2019-20 House impeachment investigation. Parnas suggests that DOJ won’t give him a cooperation departure because they didn’t like what he had to say.

Apparently, the information Mr. Parnas wished to supply the Department of Justice in this case was information that it did not want to hear. Prosecutors kept Mr. Parnas at bay for months before finally hearing his proffer. When they did, it was principally used to thwart his potential trial testimony, rather than to consider his attempt to provide substantial assistance in good faith. Mr. Parnas’s cooperation with Congress was timely and material.

His media statements were intended to place information and evidence that was important to our national interest into the public domain—frequently at great risk to himself. And yet, from nearly the moment Mr. Parnas committed to cooperating with Congress and producing videos, photographs, documents, text messages, proton mail messages and other information, the value of this evidence was of undeniable significance.

But SDNY argues that Parnas did no more than comply with a subpoena, his civic duty.

Parnas’s compliance with the HPSCI subpoena does not justify a downward departure. His decision to produce documents in response to a duly issued subpoena is akin to a civic deed that is “ordinarily not relevant in determining whether a sentence should be outside the applicable guideline range.” § 5H1.11.

SDNY details at more length what transpired before Parnas started pitching his story to Congress: Parnas’ attorney, Joseph Bondy, provided a series of proffers that fell short of the truth. In November 2019, they told Parnas explicitly that his public campaign was harming his bid to cooperate.

Within a week of Parnas’s arrest, on October 16, 2019, Parnas’s counsel contacted the Government to indicate that Parnas was “really upset” that then-President Trump was “claiming he didn’t know [Parnas],” and that Parnas was interested in cooperating. 1 The Government then requested an attorney proffer—that is, a summary from Parnas’s attorney of what Parnas would be able to testify to at trial—in order to evaluate Parnas’s truthfulness and potential to provide substantial assistance. Parnas’s counsel provided a number of attorney proffers beginning on October 28, 2019, but the information was not fully credible and in material respects was plainly contradicted by the evidence the Government had gathered to date, which caused the Government to have serious concerns about Parnas’s credibility and candor. The Government had extended discussions with Parnas’s counsel in the weeks and months following Parnas’s arrest during which the Government pointed counsel to evidence that contradicted the attorney proffers.

Moreover, in an effort to encourage Parnas to be truthful, on November 6, 2019, the Government took the extraordinary step of meeting with Parnas and his counsel for a reverse proffer to explain, among other things, the evidence the Government had gathered against Parnas; what the cooperation process entailed; and that Parnas would have to be truthful and accept responsibility for his own crimes. At the close of that meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness. The Government also explained to Parnas how certain information he had provided through his attorney proffers had been contradicted by the evidence and was materially false. After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

[snip]

As this Court is aware from pretrial litigation, the Government met with Parnas for a proffer on March 5, 2020. During that proffer, Parnas was not fully credible or forthcoming. He minimized, blamed others for the criminal conduct he has pled to and been convicted of, made statements that were inconsistent with the evidence, and the Government was ultimately unable to corroborate significant portions of what Parnas said. Due to his lack of credibility, candor, and unwillingness to accept responsibility, the Government did not meet with Parnas again for another proffer session and did not proceed with cooperation. [my emphasis]

The government seems far more worried that Judge Paul Oetken, who sentenced Parnas’ co-defendants to a year and a day, would give Parnas a lower than guidelines sentence to avoid a sentencing disparity than that he’d get credit for cooperation.

Parnas is playing that up, too, noting that Igor Fruman got released to a halfway house just three months after reporting.

Two of Mr. Parnas’s co-defendants, David Correia and Igor Fruman, were ultimately offered plea agreements to select counts of the indictment and entered guilty pleas. Mr. Parnas, who was not offered such a plea, proceeded to trial along with another co-defendant, Andrey Kukushkin, which ended in conviction on October 22, 2021. Mr. Parnas filed post-verdict motions for a judgment of acquittal and for a new trial, which were denied.

Thereafter, he entered a plea to the single remaining count against him–which had been previously severed—”the Fraud Guarantee” wire fraud conspiracy. All of Mr. Parnas’s co-defendants have been sentenced by the Court to 366 days’ imprisonment. Mr. Fruman, who surrendered to the custody of the Bureau of Prisons on March 14, 2022, has already been released to “residential reentry management.”

All of which is most interesting for the disposition of the charges relating to Yuri Lutsenko, which were part of the original indictment against Parnas and Fruman, but which were removed in a 2020 superseding indictment. These are the charges that Parnas and Fruman would face with Rudy Giuliani.

In April, Rudy offered what reporters presented as a last minute meeting, before prosecutors made an imminent decision on his prosecution, but nothing has come of it since then. Perhaps we’ll learn more after Parnas’ sentencing next week.

Crime in the Era of Encrypted Apps: The Relationship between the DOJ and January 6 Investigations into Fake Electors

Yesterday, DOJ took a slew of overt steps in their investigation into the fake electors:

  • WaPo: Law enforcement activity targeting GA lawyer David Carver and Trump staffer Thomas Lane, subpoenas for GA GOP Chair David Shafer and Michigan fake electors
  • NYT: Subpoenas to Trump campaign aide in MI, Shawn Flynn, as well as Carver, Lane, and Shafer
  • CBS: Search warrants for NV GOP Chair Michael McDonald and Secretary James DeGraffenreid
  • CNN: Subpoena for Shafer, a warrant for David Carver’s phone, information on a GA Signal chat

Even though some of these reports cite the late January batch of subpoenas DOJ sent to people who had declined to participate in the fake elector scheme, the timing of the action — taking place one day after the hearing on the scheme — has set off the usual set of whinging that DOJ isn’t doing as much as the January 6 Committee.

Yet even the first of these stories — the WaPo one — provides reason to believe that DOJ is not chasing the January 6 Committee on this investigation at all. And as I keep pointing out, in April 2021, DOJ took steps — starting on Lisa Monaco’s first day in office — that will be critical to this investigation.

I’ve laid out how, by seizing Rudy Giuliani’s phones in conjunction with his Ukraine influence peddling investigation on April 28, DOJ has made the content available for the January 6 investigation at whatever time they were able to show probable cause for a warrant. That’s because the privilege review covered all content from the phones that post-dates January 1, 2018 and the privilege review was conducted prior to any review for relevance, so it would cover content whether or not it related to Ukraine.

As this table lays out, the review on half the devices DOJ was able to get into (there were two the passwords for which it had not cracked by April) included content to date of seizure on April 28, 2021.

Special Master Barbara Jones turned over the last of this material on January 21, days before Monaco confirmed that DOJ is investigating the fake elector scheme. In April, purportedly to conduct an interview in advance of an imminent decision on Rudy’s Ukraine influence-peddling, DOJ asked for his help to get into the last several phones (the numbers in this story don’t match Barbara Jones’ reports, but CNN may suggest there were two newly discovered phones; there has been no overt activity in the Special Master docket since then).

All of which is to say that whatever material Rudy, a prolific texter, had on his phones about the fake elector scheme he was central to would have been available to DOJ with a warrant since January, but that’s only true because DOJ started this process on Monaco’s first day on the job.

Even in spite of that (and the timing of Monaco’s announcement of the investigation into the fake electors), like many people, I believed DOJ might have been chasing the January 6 Committee investigation. Except several details revealed in recent days makes it clear that DOJ had developed information independent of the Committee.

For example, I first learned that Boris Epshteyn was involved from this slide in Tuesday’s hearing, which left Epshteyn’s name unredacted whereas the copy docketed in the John Eastman litigation redacts it.

But Kyle Cheney noted that Epshteyn’s name was first made public in a footnote in the associated court filing. That filing was dated May 26.

Before May 26, according to earlier NYT and CNN stories on DOJ’s investigation into the fake electors, prosecutors were already asking about Epshteyn’s role. Here’s CNN:

Former Trump attorney Rudy Giuliani, adviser Boris Epshteyn and campaign lawyer Justin Clark are among the list of names the witness was asked about, the source said.

Yesterday’s WaPo story similarly described prosecutors asking about the involvement of someone — Bernie Kerik — whose role the January 6 Committee has not yet (as far as I’m aware) public disclosed.

Those earlier subpoenas sought all documents since Oct. 1, 2020, related to the electoral college vote, as well as any election-related communications with roughly a dozen people in Trump’s inner circle, including Rudy Giuliani, Bernard Kerik, Boris Epshteyn, Jenna Ellis and John Eastman.

One would-be Trump elector in Georgia, Patrick Gartland, had been appointed to the Cobb County Board of Elections and Registration and believed that post meant serving as an elector would have created a conflict of interest for him. Still, two FBI agents recently came to his home with a subpoena and asked whether he had any contact with Trump advisers around the time of the November election. “They wanted to know if I had talked to Giuliani,” Gartland said.

One possible explanation (though not the only one) is that DOJ has a more Rudy-focused understanding of the elector scheme than the Committee, which would make sense if they had materials from Rudy’s devices that the Committee doesn’t have.

To be clear: I think it likely that DOJ has or will exploit the January 6 investigation into the same topic in at least two ways.

First, I think it likely that DOJ piggybacked on the Committee’s privilege fight with Eastman. They’ve always had the ability to serve a warrant on Chapman University for the same emails the Committee has been receiving covertly, after all, which is the kind of thing DOJ loves to do in an investigation. But by doing so in the wake of Judge David Carter’s privilege decisions, DOJ can get crime-fraud excepted communications without a Special Master process like the one they used with Rudy.

And, because the January 6 Committee is obtaining sworn depositions from some of the people involved, DOJ may get evidence of false statements — from people claiming to have no knowledge of the larger scheme or corrupt intent of the fake electors — that they could use to coerce cooperation down the road.

With the warrants in NV and GA, DOJ is taking the kind of overt acts that sometimes precede arrests. Because DOJ can get email and social media content covertly, it almost always does that before serving subpoenas (to minimize the chance someone will destroy evidence in response). Only after that, usually, do they seize someone’s phone. That kind of stuff takes months. So there’s no way DOJ could have gotten there overnight based entirely off watching the January 6 hearing.

In Tuesday’s hearing, it became clear that the GOP will try to, institutionally, blame Trump for all this. That may not be true. But it may be useful for DOJ investigators.

Update: Fixed the names of the NV GOPers.

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.

Maybe Merrick Garland Already Made Some of the Decisions Everyone Thinks Are Pending?

Jack Goldsmith has weighed in on the debate over whether and if so how Trump should be charged in the NYT. He tries to capture three things that Merrick Garland might consider before charging Trump, which include:

  • Whether charging Trump would require a Special Counsel to avoid any conflict of interest stemming from Garland’s appointment by Joe Biden
  • Whether there’s enough evidence to convict the former President
  • Whether the national interest is served by such a prosecution

It’s a worthwhile piece that has, at least, generated some substantive discussion.

Garland might face a prosecutorial decision on something other than obstruction

But I wanted to throw out some things that might change the calculus on these three questions. First, Goldsmith’s column is premised on prosecuting Trump for crimes relating to January 6, focusing on 18 USC 1512(c)(2) and 18 USC 371.

The two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.

Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.

I think it’s not necessarily the case that the first prosecutorial decision Garland would face for Trump would be for one of these January 6 crimes, nor is it certain that these would be the January 6 charges he would be considering.

For example, Trump has potential criminal exposure that dates to before and after his time in the Presidency, which for various reasons might be easier to charge sooner. Trump has criminal exposure in Georgia for trying to cheat; if he were charged there, it might make it easier to charge him federally with an associated crime (including 18 USC 371). Similarly, other charges in relation to January 6 might be easier to charge, including aiding and abetting the violence, conspiring in violation of 18 USC 372 to intimidate Pence out of certifying the vote, or wire fraud in conjunction with the way he monetized the Big Lie.

It’d be one thing, after all, to charge Trump for pressuring Pence and another thing to charge him for trying to get Pence killed. The mens rea requirements for other charges would not give Trump the same invitation to pretend he really believed he had won. And with regards to Trump’s grift, even Laura Ingraham reacted negatively to the evidence of his Big Grift (though that may only because Republicans are seeking a way to clear the decks for Ron DeSantis).

So the prosecutorial decision that Garland might face would differ considerably based on what crime line prosecutors and US Attorneys were asking for approval to charge.

DOJ has already put in place measures to guard the independence of the investigation

Second, my impression is that Garland would view appointing a Special Counsel not only as unnecessary, but also counterproductive.

I wrote about why it would be counterproductive here. The short version of that is that if Trump committed a crime in conjunction with January 6, he did so in part by conspiring some subset of the 1,000 people who have already been charged or are being investigated now, in an investigation that upwards of 140 prosecutors have worked.

In Merrick Garland’s recent speech, he revealed there are 140 prosecutors working on this investigation, half normally assigned to the DC US Attorney’s office (that is, people who now report to Graves), and the other half coming from other units. Some of those units are functional, with the most notable being National Security’s Terrorism prosecutors, but also Public Corruption. Far more of them are detailees assigned from different US Attorneys offices. Some of these detailees, working on the simpler cases, are doing 6 month stints, then handing off their cases. Others, including key prosecutors involved in the Proud Boys investigation, appear to be seeing the investigation through. Just as one example, there are three prosecutors on the case against the five Florida men who traveled with Joe Biggs the day of the attack; they are located in Chicago, Brooklyn, and Seattle. Just accounting for the number of prosecutors involved, this investigation is larger than most US Attorneys Offices in this country, and far too large for a Special Counsel to handle.

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through.

If Trump were to be charged with conspiring with any number of those 1,000 people, then you’d want to use one of the grand juries that has already reviewed big chunks of this investigation. In my opinion, you’d want to make sure that Trump’s prosecution was charged via the same process that the thousand other alleged criminals involved that day were, in part to make it clear that his was the crime of a violent mob, not a backoffice presidential decision.

And even as it would be counterproductive to appoint a Special Counsel in this investigation, I think Garland has already taken steps to ensure the independence of the investigation. For starters, while Deputy Attorney General Lisa Monaco’s office has kept a very close watch on the investigation (many would say too close a watch), the prosecutorial decisions are being made out of DC US Attorney’s Office. And while Garland was confirmed with broad approval, Matthew Graves had no recorded opposition at his confirmation (though Ron Johnson held up the confirmation). No Special Counsel will have any more recorded buy-in from Republicans than the existing team does.

Meanwhile, among the things Garland’s DOJ did, at a moment when prosecutors may have realized a Trump prosecution was possible, was to set up a framework under which prosecutors could obtain sensitive information on Trump’s role in January 6 without any involvement from Joe Biden. The most important of those is the privilege review for January 6-related materials the January 6 Committee deems material to their investigation. It has gone like this:

  • Jan 6 Committee makes requests
  • The Archives identifies materials responsive to those requests
  • Biden reviews those materials and either waives privilege or withholds the information
  • Trump sues to withhold the materials but the Supreme Court denies his lawsuit
  • The Committee receives the materials

Once materials have been through that process, DOJ could simply serve a warrant on the Archives to obtain the same materials. Neither Trump nor Biden nor any of the rest of us would know (and this is consistent with things past investigations into Presidents have done, including the Mueller investigation). This process would bypass one of the problems Mueller had investigating Trump, in which Trump waived privilege for the investigation but not for any further use of it.

But DOJ would have various other means to obtain pertinent potentially privileged information, including:

  • Using a January 6-specific warrant to obtain materials seized from Rudy Giuliani in response to a warrant approved on Lisa Monaco’s first day in office; as I laid out here, the privilege review of those materials included all materials through the date of seizure
  • Obtain a warrant to Chapman University for all John Eastman emails that Judge David Carter approved to be turned over to the January 6 Committee
  • Review for an obstruction determination all the emails and texts sent over personal accounts that Mark Meadows had originally withheld from the Archives in violation of the Presidential Records Act
  • Review the already identified materials tied to the referral for stealing classified information from NARA
  • Obtain a January 6-specific warrant for materials already obtained from Sidney Powell in the fraud-related investigation into her grift

I wrote more about some of these methods here.

Obtaining sensitive information like this doesn’t eliminate the political sensitivities of an Attorney General appointed by Joe Biden making a prosecutorial decision regarding Trump. But it ensures that DOJ can entirely shield the investigation from any Biden involvement.

None of these things make the question easier. But they do suggest that Garland may have already put into place ways of addressing them.

January 6 Committee Details The Big Fraud Monetizing The Big Lie

The second hearing from the January 6 Committee was just as well choreographed as the first one, with an even greater reliance on Republican voices to make the case against Trump, including:

  • Bill Barr
  • Bill Stepien
  • Al Schmidt
  • Alex Cannon
  • Ivanka
  • Rudy Giuliani
  • Sidney Powell
  • Chris Stirewalt
  • Jason Miller
  • Ben Ginsberg

Here’s my live tweet of the hearing.

The presentation started by describing how Trump was told on election night that the news looked bad. The presentation ended by showing how those attacking the Capitol cited Trump’s lies to justify their actions.

Perhaps the most effective part of the hearing, however, was a video shown near the end that talked about how Trump monetized the Big Lie. He raised $250M telling lies about voter fraud.

Some of that money went to Mark Meadows’ “charity,” the Conservative Partnership Institute and even more went to Paul Manafort’s company, Event Strategies.

This is the kind of activity, fundraising making false claim, that got Steve Bannon charged with wire fraud and it’s the kind of scheme behind the investigation into Sidney Powell.

Like the January 6 Investigation, the Mueller Investigation Was Boosted by Congressional Investigations

Midway through an article on which Glenn Thrush — who as far as I recall never covered the Russian investigation and has not yet covered the January 6 investigation — has the lead byline, the NYT claims that it is unusual for a congressional committee to receive testimony before a grand jury investigation does.

The Justice Department has asked the House committee investigating the Jan. 6 attack for transcripts of interviews it is conducting behind closed doors, including some with associates of former President Donald J. Trump, according to people with knowledge of the situation.

The move is further evidence of the wide-ranging nature of the department’s criminal inquiry into the events leading up to the assault on the Capitol and the role played by Mr. Trump and his allies as they sought to keep him in office after his defeat in the 2020 election.

[snip]

The Justice Department’s request for transcripts underscores how much ground the House committee has covered, and the unusual nature of a situation where a well-staffed congressional investigation has obtained testimony from key witnesses before a grand jury investigation. [my emphasis]

That’s simply false. This is precisely what happened with the Mueller investigation, and there’s good reason to believe that DOJ made a decision to facilitate doing the same back in July, in part to avoid some evidentiary challenges that Mueller had difficulties with, most notably Executive Privilege challenges.

First, let’s look at how Mueller used the two Congressional investigations.

At the start, he asked witnesses to provide him the same materials they were providing to Congress. I believe that in numerous cases, the process of complying with subpoenas led witnesses to believe such subpoenas were the only way Mueller was obtaining information. Trump Organization, especially, withheld a number of documents from Mueller and Congress, including direct contacts with Russian officials and a Steve Bannon email referencing Russian involvement in the election. By obtaining a warrant for Trump Transition materials held by GSA and the Trump Organization emails of Michael Cohen hosted by Microsoft, Mueller got records the subjects of the investigation were otherwise hiding. Steve Bannon, too, falsely told Mueller he didn’t use his personal accounts for campaign business, only to discover Mueller had obtained those records by the time of his October 2018 interview. Surprising witnesses with documents they had been hiding appears to have been one of the ways Mueller slowly coaxed Bannon and Cohen closer to the truth.

We should assume for key figures in the vicinity of Ali Alexander and John Eastman, the same is happening with the January 6 investigation: the very people who’ve been squealing about complying with subpoenas or call records served on their providers are likely ones DOJ obtained covert warrants for.

Then there are the prosecutions that arose entirely out of Congressional interviews. There were three Mueller prosecutions that arose out of Committee investigations.

Perhaps the most interesting was that of Sam Patten — whose interview materials are here. He had an interview with SSCI on January 5, 2018, where he appears to have lied about using a straw donor to buy Inauguration tickets for Konstantin Kilimnik. By March 20, the FBI attempted their first interview of Patten, after which Patten deleted some emails about Cambridge Analytica. And when Mueller did interview Patten on May 22, they already had the makings of a cooperation deal. After getting Patten to admit to the straw purchase and also to violating FARA — the latter of which he would plead guilty months later, on August 31 — Patten then provided a ton of information about how Kilimnik worked and what he had shared with Patten about his role in the 2016 operation, much of which still remained sealed as part of an ongoing investigation in August 2021. Patten had two more interviews in May then appeared before the grand jury, at which he shared more information about how Kilimnik was trying to monitor the investigation. He had two more interviews before pleading guilty, then at least two more after that.

Not only did Patten share information that likely served as part of a baseline for an understanding about Russia’s use of Ukraine to interfere in US politics and provided investigators with an understanding of what the mirror image to Paul Manafort looked like, but this remained secret from much of the public for three months.

It’s less clear precisely when SSCI shared Cohen’s lies with Mueller. But in the same period, both Mueller and SDNY were developing parallel investigations of him. But by the time Cohen pled guilty in SDNY (also in August 2018), Mueller had the evidence to spend almost three months obtaining information from Cohen as well before he entered into a separate plea agreement with Mueller in which he admitted to the secret communications with the Kremlin that he and Trump lied to hide.

Meanwhile, HPSCI’s much more hapless investigation proved a way to get a limited hangout prosecution of Roger Stone. By May 2018, when Mueller developed evidence showing not just ways that Stone was obstructing his own investigation but also how Stone attempted to craft lies to tell to the Committee — coordinated with Jerome Corsi and reliant on threats to Randy Credico — it provided a way to prosecute Stone while protecting Mueller’s ongoing investigation into whether Stone conspired with Russia.

And by all public appearances at the time, it appeared that Congress was acting while Mueller was not. But that was false (and is probably false now). The entire time during which SSCI and HPSCI were taking steps with Cohen and Stone that would late become really useful to the criminal investigation, Mueller was taking active, albeit covert, steps in his own investigations of the two men (whether he was investigating Patten personally or just Kilimnik is uncertain). Mueller obtained his first warrants against Cohen and Stone in July and August, respectively. But no one knew that until the following spring. That is, Cohen and Stone and everyone else focused on Congress while Mueller got to investigate covertly for another nine months.

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

Even those of us who’ve been covering DOJ’s January 6 prosecution day-to-day (unlike Thrush) have no way of saying what DOJ has been doing covertly in the last year — though it is public that they’ve been investigating Alex Jones, the purported new thrust of this investigation, since August.

What we know from recent history, however, is that DOJ’s use of Congress’ work in no way suggests DOJ hasn’t been doing its own.