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How One New Hampshire Voter and One Politico Journalist Refused to Hold “a Pig … a Womanizer … [an] Arrogant Asshole” Accountable

Politico has an interesting profile of a two-time Obama voter, who will today become a three-time Trump voter, New Hampshire voter Ted Johnson.

It demonstrates that Johnson is driven by the very same false beliefs that Scott Perry is, which I laid out here.

Johnson admits that Trump is a pig. He even admits some concern about Trump’s stolen documents — before he parrots the false claims he learned on Fox News about that investigation.

And the Mar-a-Lago classified documents case in Florida? It’s the one that gives Johnson a modicum of pause. “You don’t f— around with classified material. Whoever advised him he could have that — he should have gave that s— up,” he said. “But he was being the stubborn, arrogant person that he is.” And he added, “I didn’t like the way the FBI did it. The raid was ridiculous. And that just emboldened me.”

But nevertheless Johnson will vote for the pig … womanizer … arrogant asshole today because he believes that Trump will bring accountability.

“And trust me, the guy’s a pig, he’s a womanizer — arrogant a—–e,” Johnson said of Trump. “But I need somebody that’s going to go in and lead, and I need somebody that’s going to take care of the average guy.”

“But is taking care of the average guy and breaking the system the same thing?” I said.

“Yes,” he said. “Because they’re all in it for themselves.”

“And if you break the system, what does that look like?”

“Accountability,” he said.

Go read it. It’s precisely the dynamic that I’m preparing to write about: how Trump trained people like Scott Perry and Ted Johnson to hate rule of law while calling that disdain for rule of law “accountability.”

But while you’re reading it, watch journalist Michael Kruse’s own blindspot. For much of the article, Kruse lets Johnson babble on, voicing his false beliefs about Trump’s legal woes.

Kruse largely lets Johnson spout those false beliefs unchallenged. But he pushes back when Johnson raises Hunter Biden.

Sort of.

Johnson started talking about “Russia-gate” and “Biden’s scandals” and Hunter Biden. What, I wondered, did Hunter Biden have to do with Nikki Haley? “She’s not going to hold anybody accountable for what they’ve done,” Johnson told me. “People need to be held accountable. That’s why you’ve got to break the system to fix the system,” he said. “Because it’s a zero-sum game right now. And to be honest with you, the Democrats are genius. They did anything they could do to win and gain power, even if they lie, cheat, steal. … What they’re doing is they’re destroying the country. Who could bring it back?” He answered his own question: “Trump’s the only one.” [my emphasis]

Rather than contest Johnson’s premise that Joe Biden has scandals, Kruse instead challenges Johnson as to what Hunter has to do with Nikki Haley.

Then later in the story, Kruse himself raises Hunter Biden as the counterpart of accountability to Trump.

“Accountability is accountability. But they’re throwing so much stuff at this guy, and it’s almost like I’m rooting for him,” he told me. “This is a whole system of government going after one man who, probably, I bet, right now, 85 million people want to be president.”

“But accountability is accountability,” I said.

“Accountability is accountability,” he said.

“Whether it’s Hunter Biden or Donald Trump,” I said.

“But do I trust the system?” he said. “I don’t.”

Kruse himself, who has actually been pretty sympathetic to Joe Biden in the past, likens the President’s son’s alleged crimes to Trump’s coup attempt.

Now, perhaps Kruse allowed Johnson to make all these false claims uncontested simply to let him talk. It’s a useful interview. I shouldn’t gripe.

But adopting Hunter Biden as the counterpart of accountability for Trump is itself a false claim. It’s why I spend so much time calling out shoddy dick pic sniffing stenography.

The record shows that even if everything Republicans allege about Hunter Biden were true (and at this point, DOJ has let statutes of limitation on FARA crimes expire without charges, so it seems that in going-on-six-years of looking, DOJ never substantiated FARA crimes), his actions still wouldn’t come close to those of Paul Manafort, whom Trump pardoned with nary a whisper.

Perhaps a better response to Johnson’s complaints about Hunter Biden would be a question about Trump’s decision to pardon Manafort for doing far worse? How is that accountability? Manafort is the quintessential sleazy insider and he gets a pass.

Plus, the record shows that Trump’s crimes are not a mirror of Hunter’s; rather, Trump’s crimes cannot be dissociated from the charges against Hunter.

The record shows that Trump started pushing Rudy Giuliani and Lev Parnas to gin up an investigation into Hunter Biden no later than December 2018, at such time as Joseph Ziegler was struggling to come up with some excuse to turn non-payment of taxes into a criminal case.

The record according to Johnathan Buma shows that before DOJ opened a grand jury investigation into Hunter Biden, FBI agents on the investigation enthusiastically accepted dirt on Hunter Biden from two Ukrainians that Buma would acknowledge were part of an influence operation.

The record shows that four days after Joe Biden announced he was running for President, DOJ decided the grand jury investigation into Hunter Biden would be in Delaware, where Joe might one day become a target, rather than Washington DC or Los Angeles, where any tax crimes would have happened. Ziegler first claimed, then backed off a claim, that Bill Barr made this decision personally.

The record shows that the first IRS supervisor on this case documented what he viewed to be problems with the predication of it and ongoing political influence into it.

The record shows that Donald Trump extorted Volodymyr Zelenskyy in an attempt to get an investigation into Hunter  Biden and his father. In that same conversation, he asked Zelenskyy to work with both his personal attorney and with Bill Barr to gin up such an investigation.

The record according to Chuck Grassley shows that even while Trump was claiming to care about Burisma corruption, his DOJ shut down an investigation into Mykola Zlochevsky, one that had been opened while Joe Biden was Vice President and Hunter was on the board of Burisma. Grassley says DOJ shut that investigation down in December 2019.

The record shows that the day after DOJ obtained a warrant to access a laptop obtained from John Paul Mac Isaac, Barr’s chief of staff texted him to say, “laptop on way to you.”

The record shows that days later, Bill Barr set up a dedicated channel by which Rudy Giuliani could share dirt he had obtained, including from a known Russian spy and almost certainly from Burisma, such that it could be laundered into the investigation into Hunter Biden.

The record shows that that process resulted in DOJ obtaining an informant report describing a conversation with Zlochevsky. Remarkably, the FBI neglected to write down what date that conversation happened even though that’s how they validated that it did occur, but it almost certainly dates to the period when DOJ was shutting down an investigation into Zlochevsky. The informant report recorded a claim of bribery of Joe Biden that conflicted with claims Zlochevsky had made just months earlier, when DOJ was (per Chuck Grassley) still investigating him.

The record shows that FBI made Steve Bannon associate Peter Schweizer an informant so he could pitch Hunter Biden dirt leading up to the 2020 election.

The record shows that Trump bitched Bill Barr out about the Hunter Biden investigation shortly after the October 14, 2020 NYPost story on the hard drive from Hunter Biden. Days later, Richard Donoghue ordered the Hunter Biden investigators to accept a briefing about that bribery allegation.

The record shows that, shortly before David Weiss used the FD-1023 obtained during the course of Scott Brady’s effort to launder dirt into the Hunter Biden investigation to justify reneging on the plea deal he had agreed to, Bill Barr described being personally involved in the handling of it.

The record shows that, the day after Trump hosted Tony Bobulinski at a Presidential debate, Bobulinski told the FBI things that conflict with his own communications.

The record according to Cassidy Hutchinson shows that shortly after that Bobulinski interview with the FBI, he had a secret meeting with Mark Meadows at which Trump’s Chief of Staff handed Bobulinski something that might be an envelope.

The record shows that, in the same call where Trump threatened to replace Jeffrey Rosen if he didn’t start endorsing Trump’s claims of voter fraud, he also criticized the handling of the Hunter Biden case.

The record shows that Trump repeatedly, publicly, demanded criminal charges against Hunter Biden, including in the January 6 speech that set off an insurrection.

The record shows that when Trump first learned he’d be indicted, he raised pressure on the Hunter Biden investigation.

The record shows that on the day Hunter’s plea deal was released, Trump complained three times, twice suggesting Joe Biden was implicated in this plea deal.

“Wow! The corrupt Biden DOJ just cleared up hundreds of years of criminal liability by giving Hunter Biden a mere ‘traffic ticket.’ Our system is BROKEN!

“A ‘SWEETHEART’ DEAL FOR HUNTER (AND JOE), AS THEY CONTINUE THEIR QUEST TO ‘GET’ TRUMP, JOE’S POLITICAL OPPONENT. WE ARE NOW A THIRD WORLD COUNTRY!”

“The Hunter/Joe Biden settlement is a massive COVERUP & FULL SCALE ELECTION INTERFERENCE ‘SCAM’ THE LIKES OF WHICH HAS NEVER BEEN SEEN IN OUR COUNTRY BEFORE. A ‘TRAFFIC TICKET,’ & JOE IS ALL CLEANED UP & READY TO GO INTO THE 2024 PRESIDENTIAL ELECTION. . . .”

The record shows that, among the other complaints and false claims Trump made about Hunter’s prosecution, one targeted David Weiss and demanded a death sentence.

Weiss is a COWARD, a smaller version of Bill Barr, who never had the courage to do what everyone knows should have been done. He gave out a traffic ticket instead of a death sentence. . . .

The record shows that when Trump attacks people on social media, they get threats, often so bad as to uproot their entire lives.

The record also shows that former President Trump’s words have real-world consequences. Many of those on the receiving end of his attacks pertaining to the 2020 election have been subjected to a torrent of threats and intimidation from his supporters. A day after Mr. Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, someone called the district court and said: “Hey you stupid slave n[****]r[.] * * * If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly b[***]h. * * * You will be targeted personally, publicly, your family, all of it.” Special Counsel Br. 5; see United States v. Shry, No. 4:23-cr-413, ECF 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023). The Special Counsel also has advised that he has received threats, and that a prosecutor in the Special Counsel’s office whom Mr. Trump has singled out for criticism has been “subject to intimidating communications.” Special Counsel Mot. 12.

The record shows that investigators in the Hunter Biden case were, just like prosecutors on Trump’s own cases, threatened in response to manufactured political outrage. That includes David Weiss himself. Here’s how former AUSA Lesley Wolf described those threats.

My desire to serve my community and my country, such a great source of pride, has recently come at significant cost. As a private person, the once routine and mundane details of my life have become the subject of public interest in an invasive and disturbing manner. Far worse, I’ve been threatened and harassed, causing me to fear for my own and my family’s safety.

I mentioned earlier that I recently left the U.S. Attorney’s Office. My decision to do so long predated and was unconnected to the baseless allegations made against me. In fact, I agreed to stay with the office months longer than planned because of my belief that my family and I were safer while I remained an AUSA.

I have no doubt that after today the threats of harassment and my own fear stemming from them will heighten. This not only scares me, but as someone who loves this country, it also breaks my heart.

We are living in a day and age where politics and winning seem to be paramount, and the truth has become collateral damage.

In short, the record shows that Trump was always a part of the Hunter Biden investigation.

I think the record is pretty clear that Hunter Biden owned a gun for 11 days during the worst days of his addiction. The record is pretty clear that as he tried to rebuild his life, it took several years to straighten out his taxes — but less time than it took Roger Stone to straighten out his taxes, even while the rat-fucker was using a shell company to shield his funds from the IRS.

But the story of Hunter Biden’s alleged crimes — the things that Michael Kruse seems to think mirror Trump’s 91 felony charges — is a story that cannot be told (or should not, were journalism engaged in a responsible pursuit), without also telling the story of Trump’s extortion, Rudy’s consorting with Russian spies, Bill Barr’s hijacking of DOJ for partisan purpose, Bobulinski’s seemingly inconsistent story and whatever role the secret meeting with Meadows had in that story, and Trump eliciting dangerous threats against every participant in the legal system who does not bow to his will, including on this case.

I get that journalists believe that the story of Hunter Biden is a story of DOJ holding Biden’s family member accountable for what they gleefully report are real crimes.

But it is, no less than that, a story of Trump crimes, including, possibly, under two statutes that prohibit this kind of pressure explicitly, 26 USC 7217 and 26 USC 7212. The story of Hunter Biden’s prosecution is the story of Trump’s successful going-on-six-year effort to hijack rule of law to target Joe Biden, an effort that builds on years of similar conduct targeting Hillary Clinton.

I’m grateful that Kruse has depicted Johnson’s nonsensical beliefs in all their absurdity. It’s an absolutely critical step in underestanding how Trump taught Republicans to hate rule of law.

But another step is in unpacking how journalists have come to reflexively equate Hunter Biden with Donald Trump, how journalists have come to simply ignore the five years of corruption that Trump and his lawyers engaged in to get us here, how journalists are not remotely curious about details in the public record about this case.

The reflexive equation of Hunter Biden with the President who targeted him for over five years is an equation every bit as manufactured by Donald Trump as Ted Johnson’s pathetic belief that Trump brings accountability rather than the opposite.

Scott Perry Explains How Trump, Fox, and Russian Propaganda Made Him Hate Rule of Law

This exchange, between Scott Perry and Dan Goldman, is one of the best depictions of why and how Republicans have come to hate rule of law.

Jared Moskowitz had just called out Republicans for their utter lack of curiosity about Jared Kushner’s $2 billion windfall for monetizing his role overseeing Middle East policy.

Then Scott Perry — who earlier in the hearing had been brutally criticized for his role in a coup attempt — decided to explain what “galls, or troubles us on this side of the aisle.” He claimed that witnesses in the first impeachment lied in their depositions. “Many of us — I was one of them — sat in a SCIF … for an impeachment [calls out Dan Goldman] … knew there were lies being told to compel the impeachment. … abject straight up lies.”

Then Perry turned to the Russian investigation.

Not to mention the fact that, for years, the other side of the aisle pursued the then-duly elected President of the United States based on pure hyperbole about some Russian hoax that has now turned into, you know, it’s the same old thing from the 1930s in Germany and the 1940s. If you tell a lie enough times it becomes the truth. We sat and watched you dismantle the country and the presidency and any agenda that the American people had voted for based on that.

Then he complained that Hillary Clinton sat for a deposition instead of a grand jury appearance.

Look. Secretary Clinton got away with it. She was allowed to be deposed, not under oath, and her deposition on a Saturday, on a holiday weekend. She got to do that. That galls the rest of America who says, when the FBI or the local magistrate or some law enforcement agency comes knocking on my door and says you’re going to appear, you’ve been served.

In response, Dan Goldman spoke about what distinguished the first Trump impeachment from this GOP inquiry: Fact witnesses. But before he got very far into that, Scott Perry had walked out.

It’s tempting to laugh at this, at the hypocrisy of Perry, who blew off a subpoena himself, and then invoked privileges to withhold evidence of an insurrection from prosecutors, to complain that Hillary also got accommodations from prosecutors. It’s even more tempting to laugh that Perry is so stupid he doesn’t realize neither Trump nor his failson — the latter, a private citizen — did even that in the Mueller investigation; he doesn’t realize that Donald Trump couldn’t even manage what Hillary did. It’s even more tempting to guffaw that Perry has forgotten Hillary’s famous 11-hour Congressional appearance during the Benghazi stunt.

It’s tempting to mock Scott Perry for his belief that the Russian investigation was a hoax, even after five top Trump associates were found, via guilty verdict or judge’s ruling, to have lied to cover up Trump’s ties to Russia. Trump’s campaign manager, coffee boy, his National Security Advisor, his personal lawyer, and his rat-fucker — all of them lied to cover up Trump’s ties to Russia in the year before becoming President.

And I have no idea what he’s referring to when he says witnesses in the first Trump impeachment lied. Perhaps it’s a dispute about Alex Vindman’s testimony that Trump’s White House took out a mention of Burisma in Trump’s perfect phone call with Volodymyr Zelenkyy (though ultimately, even Mike Pence aide Jennifer Williams testified the word Burisma had been uttered). Perhaps he’s adopting the renewed Republican belief — based off what Mykola Zlochevsky told an FBI informant around the time that Bill Barr’s DOJ shut down a corruption investigation into him, that he had bribed Joe Biden — that Biden got Viktor Shokin fired to help Burisma, not to reverse corruption.

It’s tempting to dismiss this rank hypocrisy from one of the key figures in an attack on democracy in 2021.

But it’s important to recognize that Scott Perry believes this. Scott Perry actually believes that Hillary Clinton got better treatment than Donald Trump got. Scott Perry actually believes that the Russian investigation revealed no egregious wrong-doing, including strong evidence that both Trump’s campaign manager and his rat-fucker helped the attack by Russian spies, whether wittingly or not. Scott Perry actually believes that Trump didn’t violate Congress’ appropriation authority to try to extort campaign assistance from a foreign leader.

Sure, those beliefs are ridiculous, and easily factually disproven. But as Perry demonstrated by walking out as Goldman spoke, he’s not going to stick around to be exposed to any facts.

One reason Scott Perry believes all these ridiculous things are because he lives in a right wing media bubble, and the default position for those who live in that media bubble is to believe these false claims. If you consume Fox News, you would have no way of learning that these are all false beliefs. None.

Another reason that Scott Perry believes these things is because he was easily, gleefully manipulated by one of the best con mans of all time, Donald Trump. Scott Perry is so gullible he even believed some of the most whack election conspiracy claims in 2020.

He’s an easy mark, Scott Perry is.

And finally, Scott Perry believes these things because he has become susceptible to Russian propaganda, propaganda designed to make easy marks like Scott Perry hate rule of law, prefer his party, “his guy,” over the Constitution.

Scott Perry attacked his country and he did so — he told us at length on Wednesday — because he came to believe a series of false claims, believe them so deeply that rule of law galls him.

It’s tempting to laugh that someone can be so easily manipulated as Scott Perry has been. But Scott Perry succinctly explained why he attacked the country, why he helped Donald Trump attack democracy. And until we come to grips with the series of things that came to make Scott Perry believe absurd things, we will never convince Trump’s believers to adhere to rule of law.

Update: In a recent post on Elise Stefanik, in which I argued that she adopts Trump’s fascism out of naked ambition, I included a rubric I’ve increasingly used to try to understand why Republicans adopt Trump’s fascism. Because folks in comments are discussing similar ideas, I thought I’d include it.

  1. Cowards afraid of his retaliation
  2. People conned by his grift
  3. Utilitarians who believe he’s the only way GOP wins
  4. Adherents of fascism
  5. Christian nationalists

This post argues that Perry believes a bunch of obviously false things, which would put him into the con category. But he has definitely parroted ideologies that would put him into one of the latter two categories.

James Comer’s Second Impeachment Hearing More of a Circus than the First

The House Oversight and Judiciary Committees are attempting to hold split screen mark-up meetings to hold Hunter Biden in contempt.

It was going to be a shit-show in any case. Between the two committees, Jim Jordan, Andy Biggs, and Scott Perry all blew off January 6 Committee subpoenas. Ranking Member of the Oversight Committee, Jamie Raskin explained what Perry had done in advance of January 6 as Perry visibly seethed.

Neither Chair — Jordan or Comer — keep their committees in order. Comer in particular has problems keeping Majorie Taylor Greene from doing really outrageous things (Jordan doesn’t make the same efforts to keep Matt Gaetz in line on HJC). Indeed, she attempted to submit something into evidence that led to a halt of the hearing as staffers from both sides discussed whether whatever she had on placards could properly come in; they did not.

One after another Democrat used their turn to focus on the emoluments report they recently released, with Republicans dedicating much of their time trying to explain away that Trump was on the take of China during his presidency, while Comer desperately tried to tie a 2017 or 2018 payment from CEFC to Hunter Biden to his father, after Biden left government.

Every public hearing is going to continue to be like this — testament not just that Donald Trump has done what Republicans have found no evidence showing Biden has — but also showing that rather than government, or funding government, Republicans continue to sniff Hunter Biden’s dick pics.

Democratic Representative Robert Garcia even said that, dick pics, in the hearing.

This is the face Donald Trump has demanded that House Republicans show to the American people.

And then, to make it worse, Hunter Biden showed up himself, with Abbe Lowell in tow.

Nancy Mace immediately accused Hunter of having no balls, because it’s never a House Oversight hearing without Hunter’s genitalia being the central issue.

Comer failed to find a way to get CSPAN to stop tracking how Hunter and his attorney were responding. He similarly was helpless to prevent CSPAN showing his miserable face as Raskin made point after point.

Jared Moskowitz asked for a show of hands of Republicans who wanted to just question Hunter right then and there. Until — as soon as MTG first spoke, they all got up and walked out of the room.

Before the Committees broke for votes, Raskin was taking to calling his colleagues cult members, doing the bidding of Donald Trump.

This is the face of the Republican House. That’s what Donald Trump is demanding will be the face of the Republican House.

When Michael Dreeben Accepted John Sauer’s Invitation to Talk about Speech and Debate

Trump’s appeal of Judge Tanya Chutkan’s immunity opinion is interesting for the personnel involved. The briefs repeat the very same arguments — and in some instances, include the same passages almost verbatim — made less than three months ago. But first Trump brought in John Sauer to argue his appellate cases, then in the last few weeks, former Deputy Solicitor General Michael Dreeben quietly joined the Special Counsel team (importantly, the Solicitor General appointed by Joe Biden has no role in this appeal).

That makes any changes in the arguments of particular interest, because accomplished appellate lawyers saw fit to add them.

Admittedly, two things happened in the interim to change the landscape significantly. In Blassingame, issued hours before Chutkan released her order, DC Circuit Chief Judge Sri Srinivasan laid out how a President running for reelection does not act in his official duty. In Meadows, 11th Circuit Chief Judge William Pryor adopted that analysis in the criminal context with regards to Mark Meadows in the Georgia case.

That provided both sides the opportunity to address what I had argued, on October 21, was a real weakness in Jack Smith’s first response: the relative silence on the extent to which Trump’s actions were not part of his official duties.

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

Citing both Blassingame and Meadows, Smith and Dreeben invited the DC Circuit to rule narrowly if it chose, finding that the crimes alleged in the indictment all pertain to Trump’s role as candidate.

The Court need not address those issues here, however. The indictment alleges a conspiracy to overturn the presidential election results, JA.26, through targeting state officials, id. at 32-44; creating fraudulent slates of electors in seven states, id. at 44-50; leveraging the Department of Justice in the effort to target state officials through deceit and to substitute the fraudulent elector slates supporting his personal candidacy for the legitimate ones, id. at 50-54; attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding, id. at 55-62; and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021, id. at 62-65. The indictment thus alleges conspiracies to advance the defendant’s prospects as a candidate for elective office in concert with private persons as well as government officials, cf. Blassingame, 87 F.4th at 4 (the President’s conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity as a candidate for re-election), and the defendant offers no plausible argument that the federal government function and official proceeding that he is charged with obstructing establish a role—much less an exclusive and conclusive role—for the President, see Georgia v. Meadows, No. 23-12958, 2023 WL 8714992, at *11 (11th Cir. Dec. 18, 2023); United States v. Rhodes, 610 F. Supp. 3d 29, 41 (D.D.C. 2022) (Congress and the Vice President in his role as President of the Senate carry out the “laws governing the transfer of power”) (internal quotation marks omitted).

The short term goal here is to convince Judge Karen Henderson, the Poppy Bush appointee on this panel whose judicial views have grown as radical as any Trump appointee’s, to reject Trump’s claims. Ultimately, Jack Smith is arguing against Presidential immunity even for official acts, but a ruling limited to acts taken as a candidate might provide a way to get Judge Henderson to join the two Biden appointees on the panel, Florence Pan and Michelle Childs, in rejecting Trump’s immunity claims.

In both his briefs, Trump had — ridiculously! — argued that Nixon’s Watergate actions were private acts yet Trump’s January 6 actions were part of his official duties. Smith swatted that claim away in a passage noting that Nixon’s acceptance of a pardon served as precedent for the notion that a President could be tried for actions done as President.

That President Nixon was named as an unindicted coconspirator in a plot to defraud the United States and obstruct justice, Nixon, 418 U.S. at 687, entirely refutes the defendant’s efforts (Br.27-28, 41) to distinguish that case as involving private conduct. See United States v. Haldeman, 559 F.2d 31, 121-22 (D.C. Cir. 1976) (en banc) (per curiam) (explaining that the offense conduct included efforts “to get the CIA to interfere with the Watergate investigation being conducted by the FBI” and “to obtain information concerning the investigation from the FBI and the Department of Justice”) (internal quotation marks omitted). And President Nixon’s acceptance of the pardon represents a “confession of guilt.” Burdick v. United States, 236 U.S. 79, 90-91 (1915).

Again, once the categorization adopted by Srinivasan is available, it makes the comparison with Nixon far more damning.

One of the most interesting additions to the earlier arguments, however, is that Sauer added a second kind of immunity to Trump’s earlier discussion that the principles of judicial immunity carry over to Presidential immunity: Speech and Debate. In two cursory paragraphs, Sauer claimed that, like members of Congress, Trump should enjoy both civil and criminal immunity for their official, “legislative” acts.

Legislative immunity. Legislative immunity encompasses the “privilege … to be free from arrest or civil process” for legislative acts, i.e., criminal and civil proceedings alike. Tenney, 341 U.S. at 372. Such immunity enables officials “to execute the functions of their office without fear of prosecutions, civil or criminal.” Id. at 373–74 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).

Thus, legislative immunity “prevent[s]” legislative acts “from being made the basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at 180. A legislative act “may not be made the basis for a civil or criminal judgment against a Member [of Congress] because that conduct is within the sphere of legitimate legislative activity.” Gravel v. United States, 408 U.S. 606, 624 (1972) (emphasis added). Speech and Debate immunity “protects Members against prosecutions that directly impinge upon or threaten the legislative process.” Id. at 616.

Did I say two developments have changed the landscape of this discussion? I’m sorry, I should have added a third: In response to the September DC Circuit remand of Scott Perry’s appeal of Judge Beryl Howell’s decision that Jack Smith could have some stuff from his phone — in a panel including Henderson — on December 19, Howell’s successor at Chief Judge, James Boasberg reviewed the contested files anew and ruled that Smith could have most of them, including communications pertaining to “efforts to work with or influence members of the Executive Branch.”

Subcategories (c), (d), (e), and (f) comprise communications about non-legislative efforts to work with or influence members of the Executive Branch. Even if such activities are “in a day’s work for a Member of Congress,” the Speech or Debate Clause “does not protect acts that are not legislative in nature.”

Kyle Cheney (who snagged an accidentally posted filing before it was withdrawn) described what many of those communications would include, including Perry’s advance knowledge of Trump’s efforts to install Jeffrey Clark as Attorney General.

Boasberg’s order required Perry to turn over those communications by December 27; if he appealed that decision, I’m not aware of it. So as you read this Speech and Debate section, consider the likelihood that Jack Smith finally obtained records from a member of Congress DOJ has been seeking for 17 months, since before Smith was appointed.

The DC Circuit opinion in Perry is not mentioned in any of these briefs. But the developments provide an interesting backdrop for Dreeben’s much longer response to Sauer’s half-hearted Speech and Debate bid. Much of it is an originalist argument, noting that whereas Speech and Debate was explicitly included in the Constitution, immunity for Presidents was not, not even in a landscape where Delaware and Virginia had afforded their Executive such immunity.

Along the way, Dreeben includes two citations that weren’t in Jack Smith’s original submission: One from Clarence Thomas making just that originalist argument about Presidential immunity: “the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.” And one from Karen Henderson, the key vote in this panel, noting that, contra Sauer’s expansive immunity claim, “it is well settled that a Member is subject to criminal prosecution and process.”

Unlike the explicit textual immunity granted to legislators under the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, which provides that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place,” the Constitution does not expressly provide such protection for the President or any executive branch officials. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”); JA.604-06. By contrast, state constitutions at the time of the founding in Virginia and Delaware did grant express criminal immunity to the state’s chief executive officer. JA.605 (citing Saikrishna Bangalore Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021)). To be sure, the federal Constitution’s “silence . . . on this score is not dispositive,” Nixon, 418 U.S. at 705 n.16, but that silence is telling when placed against the Constitution’s Impeachment Judgment Clause, which presupposes and expressly preserves the availability of criminal prosecution following impeachment and conviction. See U.S. Const. art. I, § 3, cl. 7.

[snip]

The defendant suggests (Br.16-17, 18-19) that common-law principles of legislative immunity embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model for the defendant’s immunity claim.

In contrast to the defendant’s sweeping claim of immunity for all Presidential acts within the outer perimeter of his duties, the Speech or Debate Clause’s scope is specific: it is limited to conduct “within the ‘sphere of legitimate legislative activity.’” Gravel v. United States, 408 U.S. 606, 624 (1972). “Legislative acts are not all-encompassing,” and exclude a vast range of “acts in [a Member’s] official capacity,” such as outreaches to the Executive Branch. Id. Beyond that limitation, the Clause “does not purport to confer a general exemption . . . from liability . . . in criminal cases.” Id. at 626. Nor does it “privilege [Members or aides] to violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. Courts have therefore recognized for more than 200 years that a Representative “not acting as a member of the house” is “not entitled to any privileges above his fellow-citizens” but instead “is placed on the same ground, on which his constituents stand.” Coffin v. Coffin, 4 Mass. 1, 28-29 (1808); see Rayburn House Off. Bldg., 497 F.3d at 670 (Henderson, J., concurring in the judgment) (observing that “it is well settled that a Member is subject to criminal prosecution and process”). The Speech or Debate Clause does not “make Members of Congress super-citizens, immune from criminal responsibility.” United States v. Brewster, 408 U.S. 501, 516 (1972). The defendant’s immunity claim, however, would do just that, absent prior impeachment and conviction.

The Speech or Debate Clause’s historical origins likewise reveal its inapplicability in the Presidential context. The Clause arose in response to successive British kings’ use of “the criminal and civil law to suppress and intimidate critical legislators.” United States v. Johnson, 383 U.S. 169, 178 (1966); see United States v. Gillock, 445 U.S. 360, 368-69 (1980) (noting that the English parliamentary privilege arose from “England’s experience with monarchs exerting pressure on members of Parliament” in order “to make them more responsive to their wishes”). In one instance, the King “imprison[ed] members of Commons on charges of seditious libel and conspiracy to detain the Speaker in the chair to prevent adjournment,” and the judiciary afforded no relief because “the judges were often lackeys of the Stuart monarchs.” Johnson, 383 U.S. at 181. That history has no parallel here: the defendant can point to no record of abuses of the criminal law against former Presidents, and the Article III judiciary provides a bulwark against any such abuses. [my emphasis]

Having been invited to discuss congressional immunity, Smith’s brief cites another comment from Henderson’s Rayburn concurrence elsewhere. “[T]he laws of this country allow no place or employment as a sanctuary for crime.”

see United States v. Rayburn House Off. Bldg., 497 F.3d 654, 672-73 (D.C. Cir. 2007) (Henderson, J., concurring in the judgment) (“[T]he laws of this country allow no place or employment as a sanctuary for crime.”) (citing Williamson v. United States, 207 U.S. 425, 439 (1908)). [my emphasis]

Tactically, all this is just an argument — an originalist argument — that even an immunity explicitly defined in the Constitution, Speech and Debate, does not — Judge Karen Henderson observed in 2007, when the question of immunity pertained to Black Democrat William Jefferson, in a case in which she sided with DOJ attorney Michael Dreeben — exempt anyone from criminal prosecution. Read her concurrence! She makes the same arguments about Tudor kings that Smith and Dreeben make!

But much of Jack Smith’s response, in my opinion, lays the ground work for other, future appeals. For example, this brief adopts a slight change in the way it describes the fake elector plot, emphasizing the centrality of Trump, “caus[ing his fake electors] to send false certificates to Congress,” a move that may be a preemptive response to any narrowing of 18 USC 1512(c)(2) that SCOTUS plans in the Fischer appeal of obstruction’s use for January 6.

Ultimately, Smith is still arguing for a broader ruling, rejecting Trump’s presidential immunity claims more generally. Ultimately, I imagine this adoption of language from Clinton v Jones is where Jack Smith would like to end up.

Given that, the Constitution cannot be understood simultaneously (and implicitly) to immunize a former President from criminal prosecution for official acts; rather, the Constitution envisions Presidential accountability in his political capacity through impeachment and in his personal capacity through prosecution. See Clinton, 520 U.S. at 696 (“[F]ar from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.”) (quoting 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson)).

To get there without possibly fatal delays, though, Dreeben and Smith need to get Henderson to agree to at least a narrow rejection of Trump’s immunity claims.

And so, responding to Sauer’s invitation, Dreeben reminded Henderson of what she said about a case he argued 16 years ago.

But if I were Scott Perry, three days after he was ordered to turn over records about his plotting with Donald Trump to overturn the election, I’d be watching these arguments closely.

DOJ Says Inciting a Riot Is Not Part of the President’s Job Description

When Trump appealed Amit Mehta’s ruling that he could be sued for his role in setting off an attack on January 6, Trump said he had absolute immunity from being held accountable for his role in the attack.

The DC Circuit asked DOJ what they thought about that claim.

DOJ has now responded in an amicus filing. They argued that Mehta’s opinion — which held that it is plausible that Trump incited violence at the Capitol — would not cover stuff that is part of the President’s job description.

Here, the district court concluded that plaintiffs’ complaints plausibly allege that President Trump’s speech at the rally on January 6, 2021, precipitated the ensuing attack on the Capitol—and, in particular, that the complaints plausibly allege that the former President’s speech encouraged imminent private violent action and was likely to produce such action. The United States expresses no view on that conclusion, or on the truth of the allegations in plaintiffs’ complaints. But in the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States.

In this Court, President Trump has not challenged the district court’s conclusion—reiterated by plaintiffs on appeal—that the complaints plausibly allege that his speech instigated the attack on the Capitol. Instead, his briefs advance only a single, categorical argument: A President is always immune from any civil suits based on his “speech on matters of public concern,” Trump Br. 7—even if that speech also constitutes incitement to imminent private violence. The United States respectfully submits that the Court should reject that categorical argument.

The government specifically and repeatedly stated that they are not endorsing Mehta’s opinion. They also make it clear that they’re not stating a view about the criminal liability of anyone for January 6.

[T]he United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events.

But they are saying that if Mehta’s opinion holds, then what his opinion covers (and he excluded Trump’s inaction as areas in which he might be immune) would not be covered by the President’s job description.

The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol. But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this Court should reject the categorical argument President Trump pressed below and renews on appeal. Resolving the appeal on that narrow basis would allow the Court to avoid comprehensively defining the scope of the President’s immunity for speech to the public—including when and how to draw a line between a President’s speech in his presidential capacity and speech in his capacity as a candidate for office.

Of note for Scott Perry: In the midst of a passage that explains that a President’s natural incumbency position must render some reelection speech Presidential, it also notes that that’s not true for Members of Congress, because House ethics rules exclude campaign activity from a Member of Congress’ job description.

For those reasons, and because of differences in the applicable legal standards, the outer perimeter of the President’s Office differs from the scope of a Member of Congress’s employment for purposes of the Westfall Act, 28 U.S.C. § 2679. Cf. U.S. Resp. to Mo Brooks’s Westfall Act Pet. at 8-19, Swalwell v. Trump, No. 21-cv-586 (July 27, 2021), Dkt. No. 33 (explaining that Representative Brooks’s speech at the January 6 rally was outside the scope of his employment because House ethics rules and agency-law principles establish that campaign activity is not within a Representative’s employment).

So Members of Congress can’t campaign as part of their jobs. Presidents can. But they cannot — whether to stay in office or for some other reason — incite private actors to engage in violence.

Update: As I laid out here, DOJ may be laying the groundwork for proving aid and abet liability for both Trump and Rudy Giuliani in the near-murder of Michael Fanone. Those exhibits are being presented in the bench trial, before Amy Berman Jackson, of Ed Badalian.

DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone

Earlier this month, I noted the difficulty created by the fact that 25 of the known witnesses or investigative subjects in the January 6 investigation were attorneys. Days later, I reiterated the difficulty presented by the six or so key participants in Trump’s suspected crimes who are members of Congress.

An important scoop from Politico demonstrates how difficult that is. It confirmed that a still-sealed appeal of a Beryl Howell decision pertains to DOJ’s efforts to get into Scott Perry’s phone.

The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.

The fight has intensified in recent weeks and drawn the House, newly led by Speaker Kevin McCarthy, into the fray. On Friday, the chamber moved to intervene in the back-and-forth over letting DOJ access the phone of Perry, the House Freedom Caucus chair, reflecting the case’s potential to result in precedent-setting rulings about the extent to which lawmakers can be shielded from scrutiny in criminal investigations.

The House’s decision to intervene in legal cases is governed by the “Bipartisan Legal Advisory Group,” a five-member panel that includes McCarthy, his Democratic counterpart Hakeem Jeffries, and other members of House leadership. The panel voted unanimously to support the House’s intervention in the matter, seeking to protect the chamber’s prerogatives, according to one of the two people familiar with the proceedings.

[snip]

More than four months after the government obtained Perry’s phone, Howell sided with DOJ. While Howell’s rulings in the dispute remain under seal, along with any rationale that appeals court judges may have offered for their actions, some spare details about the fight appear in that court’s public docket.

Remember: When DOJ was trying to breach the privilege claims of lawyers Jeffrey Clark and Ken Klukowski, they appeared to do so, in part, by prioritizing Perry’s contacts, emails that could not be privileged given the clients that Clark and Klukowski should have been representing — for a significant period for both, US taxpayers. Yet for most of the time since then, DOJ has been blocked from getting the non-lawyer’s contacts, even though he played a central role in attacking the peaceful transfer of power.

I have not yet been proven correct in my speculation that one reason Merrick Garland appointed a Special Counsel was because the Republican majority in the House made it more difficult to investigate those members of Congress, starting with Perry, who participated in Trump’s coup attempt. But Jack Smith’s background in investigating former members of Congress sure will help this investigation.

The Fourth Account: The Grand Jury Investigation into Jeffrey Clark and Others

Last Friday, Beryl Howell unsealed two opinions regarding privilege team reviews in the grand jury investigation into attempts to overturn the 2020 election. The first order, dated June 27, 2022, pertains to 37 emails involving Scott Perry seized from two Gmail, one Microsoft, and John Eastman’s Chapman U email accounts involving:

  • A non-lawyer whose name remains redacted (probably 8 documents total)
  • Jeffrey Clark (19 documents total)
  • Ken Klukowski (7 documents total)
  • John Eastman 3 documents total)

The second order, dated September 27, 2022, pertains to a filter review of an outline for an auto-biography Clark was writing on October 11 and 14, 2021, which was auto-saved 331 times in Google Notes. Because Clark attempts to invoke both work product and attorney-client privilege over a document he initially labeled as not privileged, Howell calls Clark’s claims in that dispute “throwing spaghetti at the wall to see what sticks.”

The orders reveal bare outlines of the investigation.

It shows, first of all, what I laid out here: That the FBI obtains warrants for materials stored in the cloud that are accessible covertly before it gets warrants for things — like phones and homes — that it must seize overtly. In Clark’s case, the FBI first obtained his Outlook account and only later his Gmail account.

By May 26, the FBI had warrants for the cloud accounts of four people. But it took just a month to get a warrant for Jeffrey Clark and John Eastman’s phone.  Amazingly, it seems that the FBI used Scott Perry’s involvement in the investigation as a way to initially isolate information that should not be privileged. Most of the emails in the first order sound investigatively uninteresting, including things like nine copies of Clark sending Perry two versions of his resume or requests from Perry to give him a call; that provides a glimpse of the difficulties of an investigation, like this one, in which most of the suspected co-conspirators are lawyers.

The material covered by the second order sounds more interesting, as it gives Clark’s version of the January 3 confrontation where most of DOJ’s top officials and Trump’s top White House Counsel threatened to quit.

The second order explains that after an overt search takes place on a subject, then their own attorneys are brought into the filter process (as Clark’s attorney was in the second order).

The filter protocol was later amended with respect to Clark and others to provide for detailed procedures for disclosing certain material to any potential privilege holder after separate search warrant on Clark and others, and Clark’s residence were executed, alerting these persons to the government’s investigation.

This detail suggests there likely was an overt warrant served on Klukowski (otherwise the existence of the cloud warrant targeting him would not be unsealed). It suggests the fourth person, a non-lawyer, has not yet been formally alerted into the investigation into him or her.

It also likely provides background to what happened with Scott Perry. DOJ was already accessing his [email protected] email, at least those seized from the lawyers. He likely learned the full extent of prior warrants served on him in August, after DOJ seized his phone. And a more recent dispute over text messages reported by CNN may operate under a similar protocol, with his lawyer contesting access directly.

 

Timeline

May 26, 2022: Three separate hearings on filter protocol; Howell approves filter protocol for four email accounts

June 17, 2022: Filter team begins reviewing 130,000 documents

June 23, 2022: Jeffrey Clark home searched and phone seized; John Eastman phone seized

June 24, 2022: Warrant approved for Clark Gmail account

June 27, 2022: Howell authorizes sharing of Scott Perry emails; Warrant executed for Clark Gmail

July 12, 2022: Filter protocol covering devices seized from Clark’s residence

July 21, 2022: Howell approves filter protocol for Clark Gmail account

August 9, 2022: Scott Perry phone seized

August 17, 2022: Filter team notifies Clark of auto-biography dispute

August 25, 2022: Clark attorney Charles Burnham objects to sharing of auto-biography, claiming attorney work product

August 29, 2022: Filter team provides more substantive reply; Burnham responds, “We object”

September 8, 2022: Filter team moves to share a copy of motion with Clark’s lawyer and a memoir with investigative team

September 21, 2022: Supplemental response to Beryl Howell query

September 27, 2022: Howell approves sharing of memoir

September 28, 2022: Clark provided September 27 order

November 16: Howell issues minute order about unsealing opinions

December 15: Howell unseals two redacted orders

What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.

A Parliamentary Congress or a Batshit One?

With the call of two Arizona and one California House race yesterday, it seems clear the Republicans will hold a majority in the House next year — though it’s not yet clear whether the Congress will start with a 219-216 split or a 221-214 split. Sometime today, Kevin McCarthy will win a majority of votes in the GOP caucus to be the presumptive Speaker next year, though not before defeating Andy Biggs, in what will be a test vote of conservative votes.

That’s when things get interesting.

To win today, McCarthy only needs a majority. To win in January, McCarthy needs a majority of the votes cast, presumably 218. So if the final count is 219-216, he can’t afford any defections.

Marjorie Taylor Greene and Jim Jordan have already endorsed McCarthy. Marge — one of the shrewder wingnuts — explained why she would support McCarthy.

If we don’t unify behind Kevin McCarthy, we’re opening up the door for the Democrats to be able to recruit some of our Republicans and they may only need one or two since we don’t know what we will have in the majority.

Since then, Don Bacon has announced that — if Republicans don’t get 218 votes on January 3 — he would consider backing a moderate Democrat as Speaker.

Even newly elected Long Island Republican George Santos, who is a fire-breathing MAGAt but who will be one of the most vulnerable Republicans in 2024, has said he wants the GOP to wait six months before they start launching witch hunts into Biden.

I know maybe four people (aside from Nancy Pelosi) who understand enough about rules of Congress to comprehend the full implications of such a close Congress. For some reason — possibly because they’ve spent the last six months writing beat sweeteners — the press seems to think the Freedom Caucus (led by Scott Perry, whose phone was seized as part of the January 6 investigation) will be in the driver’s seat going forward. In the short term, it’s just as likely that people like Don Bacon will be.

There are several possibilities: One is that McCarthy does get the votes on January 3 and presides over a Congress that reels from day-to-day, serially held hostage by the worse instincts, legal challenges, and health concerns of the members of both parties (the current Congress has lost 16 members over the last two years, six to death, and McCarthy has already said he’ll end proxy voting even as COVID continues to recur in new variants).

If that happens, expect many if not most things to get done via Discharge Petition, in which members can bypass the Speaker if they get 218 votes on something.

Also expect the most vulnerable Republicans to be susceptible to flipping parties if the fire-breathers in the party demand too much, particularly if the margin gets close to even.

Another possibility is that McCarthy doesn’t get the votes, giving Democrats a chance to cobble together a majority of the solid middle, led by someone other than Nancy Pelosi (non-members like Tim Ryan or Adam Kinzinger could be options, though Bacon has said that Liz Cheney is not one). Such a majority would need to command the votes of a larger number of people — probably closer to 240 — but it would also be more sustainable over the Congress.

And all this will be happening as the GOP fights among itself about whether it will continue down a Trumpist cult or become a political party again.

DOJ Prepares to Pull Multiple January 6 Threads Together

After Steve Bannon got indicted for defrauding thousands of Trump supporters, he complained to Charlie Kirk that 35 Trump associates had been raided the day before.

Bannon, unsurprisingly, was calling a legal request to provide information and testify truthfully, a raid.

But he appears to be right about the numbers. Over the last five days, multiple outlets have cobbled together the numbers that Bannon had ready at hand. Here are key reports:

  • NYT1, first reporting the focus on Trump’s PAC
  • NYT2, reporting 40 subpoenas and warrants for Boris Epshteyn and Mike Roman’s phones
  • CNN, reporting 30 subpoenas
  • CNN, story on scope of subpoenas
  • CNN, story on Mark Meadows
  • CBS, reporting 30 subpoenas
  • ABC, reporting 40 subpoenas

Between those reports, they describe the following having received legal process:

  • Boris Epshteyn, a key Willard participant (the NYT claims he served as an attorney)
  • Mike Roman, who played a key role in ferrying fake elector materials
  • William B. Harrison, an aide to Mr. Trump in the White House and after his presidency
  • William S. Russell, who served in the West Wing and now works for Mr. Trump’s personal office
  • Julie Radford, Ivanka’s Chief of Staff
  • Nick Luna, Trump’s body man
  • Sean Dollman, who was chief financial officer of Mr. Trump’s 2020 campaign
  • Dan Scavino, Trump’s online brain
  • Bernie Kerik, who worked closely with Rudy on coup plans
  • Bill Stepien, Trump’s campaign manager
  • Brian Jack, WH political director
  • Amy Kremer, head of Women for America First
  • Kylie Kremer, in charge of the Ellipse rally
  • Stephen Miller, Trump’s fearmongerer around race
  • Mark Meadows
  • Ben Williamson, Meadows’ aide
  • Poll watchers

In a potentially related development, the government moved to be able to share Brandon Straka’s sentencing papers with him and his lawyers. He avoided jail time by providing leads about some of the people subpoenaed, but likely wasn’t forthcoming about pre-January activities and aimed to limit visibility into his own finances, which (according to CNN) are included in the scope of this latest round of subpoenas.

There are several important takeaways from this news.

First, DOJ’s scope is broader than the fake electors, broader even then the financing of the coup attempt (which, remember, Merrick Garland said was under investigation as early as January 5). As CBS describes, some of these subpoenas cover events that have long been part of the investigation for rioters: how they networked at state riots and earlier MAGA rallies, and how they responded to Trump’s call for Stop the Steal in December 2020. Only, this time it asks for evidence about those who organized those events.

Virginia-based attorney David A. Warrington, who said he represents approximately a dozen clients who have been issued subpoenas, said the FBI was “very professional” when serving his clients. He added that the subpoenas his clients received are nearly identical, describing them as lengthy documents divided into sections and subsections. They cover issues related to “alternate” electors and election certification deadlines on December 14 and January 6, fundraising by the Save America PAC and the January 6 “Stop the Steal” rally — but not the ensuing riot.

The subpoenas require individuals provide documents and any communication between themselves and Trump allies like Rudy Giuliani, John Eastman, Sidney Powell and Bernie Kerik, Warrington said. The subpoenas also demand recipients to provide any communication with dozens of individuals who appeared on slates of fake electors.

At least some of the subpoenas compel recipients to appear before a grand jury on September 23 at the Washington, D.C., district courthouse, Warrington said.

Mother and daughter Amy and Kylie Kremer were served subpoenas last week, according to Warrington. They are listed as “host(s)” on the National Park Service permit for the Ellipse rally on January 6, 2021.

As NYT describes, they also focused on speakers and security for the Ellipse rally and members of the legislative branch who were part of the planning.

According to one subpoena obtained by The New York Times, they asked for any records or communications from people who organized, spoke at or provided security for Mr. Trump’s rally at the Ellipse. They also requested information about any members of the executive and legislative branches who may have taken part in planning or executing the rally, or tried to “obstruct, influence, impede or delay” the certification of the presidential election.

As CNN notes, it also covers compensation and communications with DOJ.

Some of the subpoenas, including one reviewed by CNN, were broad in scope, seeking information on a range of issues, including the fake elector scheme, Trump’s primary fundraising and political vehicle, Save America PAC, the organizing of the Trump rally on January 6, and any communications with a broad list of people who worked to overturn the 2020 election results.

The subpoena reviewed by CNN seeks records related to compensation provided to or received from a list of people that included Trump lawyers and campaign staffers through January 20, 2021.

It also asks for communications with anyone in the Justice Department.

Many of these people have communications with members of Congress and as such will prepare DOJ to surpass Speech and Debate protections for relevant figures.

But there are ways that last week’s actions are still broader.

I assume that the probable cause that DOJ showed to seize Epshteyn and Roman’s phones tied to the fake elector plot. Ephsteyn was the focus of DOJ’s activities for some time and Roman played a key role ferrying materials between the players.

But it has become clear that DOJ is what I’ll call sheep-dipping phones: seizing them for one purpose and then getting separate warrants to obtain the same content for other investigations. That fairly clearly is what happened with John Eastman and Scott Perry, where DOJ IG seized their phones but (in Eastman’s case) Thomas Windom quickly got involved. The late date and the sustained focus on Victoria Toensing, whom Congress has never mentioned, suggests I was right when I argued that DOJ could use the seized material from Rudy’s phones for the January 6 investigation.

And in Epshteyn’s case, he has been centrally involved in another of Trump’s schemes for which DOJ has already shown probable cause: He has been centrally involved in Trump’s response to the investigation into stolen classified documents.

As a number of outlets have noted, this subpoena bonanza took place just before the 60-day period when DOJ will have to avoid any big public steps in its investigations. But they’ve just arranged to obtain plenty to keep them busy — and quite possibly, enough to emerge on the other side with the ability to start putting all these parts together: a scheme to attack our democracy and get rich while doing it.

Update: In a second CNN story on the subpoena bonanza, they describe that those who blew off the January 6 Committee are being instructed to turn over what the committee asked for.

The subpoenas also ask for the recipients to identify all methods of communication they’ve used since fall 2020 and to turn over to DOJ anything the House select committee investigating January 6, 2021, has demanded – whether they cooperated with the House panel or not.

I’ve been anticipating that (and DOJ will have seized the phone records people sued to keep away from J6C long ago).

Update: Added a third CNN story.