When Trump appealedAmit 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.
https://www.emptywheel.net/wp-content/uploads/2021/02/Screen-Shot-2021-02-10-at-9.37.01-PM.png9741708emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-03-02 13:46:172023-03-02 16:55:14DOJ Says Inciting a Riot Is Not Part of the President’s Job Description
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.
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.
https://www.emptywheel.net/wp-content/uploads/2022/11/Screen-Shot-2022-11-19-at-11.23.51-AM.png472418emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-01-31 06:59:392023-01-31 06:59:39DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone
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.
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
https://www.emptywheel.net/wp-content/uploads/2022/07/Jeffrey-Clark.jpeg11542048emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-12-20 12:11:222022-12-20 12:11:22The Fourth Account: The Grand Jury Investigation into Jeffrey Clark and Others
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.
https://www.emptywheel.net/wp-content/uploads/2022/11/Screen-Shot-2022-11-19-at-11.23.51-AM.png472418emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-11-19 07:52:332022-11-19 07:58:58What If the Special Counsel Is about Scott Perry, not Just Donald Trump?
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.
https://www.emptywheel.net/wp-content/uploads/2022/11/McCarthy.jpeg960768emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-11-15 05:06:402022-11-15 05:06:40A Parliamentary Congress or a Batshit One?
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
Ben Williamson, Meadows’ aide
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.
https://www.emptywheel.net/wp-content/uploads/2022/06/Screen-Shot-2022-06-13-at-7.09.00-PM.png8321510emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-09-13 06:37:002022-09-15 00:19:01DOJ Prepares to Pull Multiple January 6 Threads Together
Yesterday, Rachel Maddow reported the exciting news that Merrick Garland released the same memo that Attorneys General always do during election years.
“As in prior election cycles, I am issuing this memorandum to remind you of the Department’s existing policies with respect to political activities.” Rachel was really upset that Garland integrated the requirement for prior approval that was already the norm, but which Barr put into writing (which arose, in part, out of Michael Horowitz’s IG Report on Carter Page, which showed that not everyone had learned of the investigation into Trump’s flunkies in timely fashion). After months and months of inflammatory commentary suggesting that the decision on whether or not to investigate Trump rested exclusively with Garland (and not, as is the reality, a hierarchy of DOJ personnel, starting with a team of career AUSAs), Rachel wailed that the memo requires Garland to do what everyone has long assumed was true: that Garland would have to approve any investigation into Trump.
In response to her irresponsible sensationalism, people immediately concluded that by releasing the memo, Garland had nixed any further indictments before the election.
One reason I’m certain that’s not true is because after Garland released this memo, DOJ arrested declared candidate for Governor of Michigan, Ryan Kelley. Kelley never entered the Capitol on January 6. But in addition to charging him with entering restricted grounds (that is, entering inside the barricades set up around the Capitol), DOJ also charged him with vandalizing the scaffolding set up in advance of the Inauguration. The charging documents also cited some of his other efforts to undermine democracy in the lead-up and aftermath of the 2020 election.
In October of 2020, KELLEY attended the “American Patriot Council Nationwide Freedom March” in Allendale, Michigan. During that event, KELLEY wore a blue shirt, a black coat, a watch with a red watch band, and aviator sunglasses. Parts of this attire were also worn by KELLEY in photos and videos from the U.S. Capitol grounds on January 6, 2021. KELLEY appears at this event in the image below.
In November of 2020, KELLEY was a featured speaker and introduced by name at a “Stop the Steal” rally at the Michigan Capitol in Lansing. During that event, KELLEY indicated that those attending the rally should stand and fight, with the goal of preventing Democrats from stealing the election.
He gave a speech while wearing a name tag and stated “Covid-19 was made so that they can use the propaganda to control your minds so that you think, if you watch the media, that Joe Biden won this election. We’re not going to buy it. We’re going to stand and fight for America, for Donald Trump. We’re not going to let the Democrats steal this election”.
Kelley was arrested on June 9, technically within the 60 day window in advance of the August 2 primary. But DOJ did arrest the gubernatorial candidate in time for voters to learn of his actions during the insurrection (it even was an issue at a recent debate), without creating last minute news before an election like Jim Comey did against Hillary Clinton in 2016.
Kelley’s not the only one against whom DOJ has taken overt investigative steps in the wake of the memo, either. DOJ seized the phones of a number of high ranking subjects in the fake electors plot, including the Chair of Nevada’s Republican Party, Michael McDonald. Indeed, the likelihood a number of subjects of the fake elector plot would be covered by the DOJ policy may be why the January 6 Committee is finally making an exception regarding their refusal to share interview transcripts for that part of DOJ’s investigation: while they’ve been refusing, the window on pre-election indictments for fake elector plotters is closing.
Besides, all this panic-mongering seems really, really badly targeted.
I’m impatient to have some accountability for Trump and his flunkies, just like everyone else (even if, because I’ve followed the investigation, I know that DOJ is investigating Trump’s flunkies). I think, for the reasons I laid out here, a hypothetical Trump indictment wouldn’t come for some time yet, but I’m also confident that if the investigation isn’t open now or soon, Trump’s campaign roll-out would do nothing to thwart opening an investigation. It would require the same Garland approval that would be obtained in any case. Trump wouldn’t even be affected by the DOJ policy on pre-election actions, because he’s not on the ballot this year.
But there is a key player in January 6, someone known to have been under investigation, for whom the window to prosecute is closing as the election draws near, someone who presents a far more immediate threat to democracy than Trump: Doug Mastriano, the GOP candidate for Governor of Pennsylvania.
Mastriano technically could be charged, just for his actions on January 6. Like some other political figures — in addition to Kelley, Couy Griffin, and key influencers like Owen Shroyer and Brandon Straka (though Straka’s original complaint included civil disorder) — Mastriano appears to have been at the Capitol, inside the barriers, but did not enter the building.
The images, shared with NBC News, appear to show Mastriano holding up his cellphone as rioters in the front of the mob face off with police at the Capitol steps. Reconstructed timelines and other videos filmed nearby show rioters would breach this police line within minutes, ripping away a crowd control rope line and rushing past officers up the stairs. The timelines and videos, including unedited versions, that show Mastriano in the crowd were reviewed by NBC News.
Online sleuths also identified a video posted by “Stop the Steal” organizer Mike Coudrey on Jan. 6 that appears to show Mastriano taking photos or video with his cellphone as rioters face off with police on the steps of the U.S. Capitol. Coudrey’s tweet celebrated the mob, which he said “broke through 4 layers of security at the Capitol building.
Mastriano’s campaign did not respond to NBC News’ request for comment. Mastriano previously said that he “respected all police lines as I came upon them” and that he never stepped foot on the Capitol stairs. One of his campaign aides, Grant Clarkson, was near the front of the mob, NBC previously reported. There has been no evidence that Clarkson entered the Capitol that day and he has insisted he did not.
And perhaps to an even greater extent than some other influencers who were arrested for their presence inside the barricades at the Capitol, Mastriano spent the months leading up to the insurrection laying the foundation for it, actions that might make him susceptible to an obstruction charge. This article describes his key role in sowing The Big Lie, most notably arranging for the quasi-official hearing at which Rudy could spread false claims. Mastriano also spoke at the “Jericho March” on December 12, 2020, which was a key networking event in advance of the insurrection.
As laid out in the SJC Report on the topic, Mastriano also pressured DOJ to intervene to overturn the election. When Trump complained to DOJ that they were ignoring fraud claims on December 27, for example, Mastriano was — along with Jim Jordan and Scott Perry — one of the people whose complaints he directed Jeffrey Rosen to attend to.
Trump twice calls Rosen. During the second call, Rosen conferences in Donoghue, who takes extensive notes on Trump’s claims that the “election has been stolen out from under the American people” and that DOJ is failing to respond. Trump mentions efforts made by Pennsylvania Representative Scott Perry, Ohio Representative Jim Jordan, and Pennsylvania State Senator Doug Mastriano, and asks Rosen and Donoghue to “just say the election was corrupt and leave the rest to me and the Republican Congressmen.” Trump also references Jeffrey Clark and potentially replacing DOJ’s leadership.
Mastriano also paid $3,000 to bus people into the event.
On paper, then, Mastriano is the kind of influencer-organizer that DOJ has been investigating for some time, but he has not yet been charged.
The FBI have carried out investigative steps with regards to Mastriano. A CNN report from last month says he was interviewed last summer (and sat for an interview with the January 6 Committee).
The FBI has been conducting an expansive investigation into the January 6 riot and questioned Mastriano last summer after photos emerged of him on Capitol grounds that day, according to the source familiar with the interview, which has not been previously reported.
Mastriano has not been accused of committing any crimes and cooperated fully with the FBI, according to the source. Asked about Mastriano’s interview, an FBI spokesperson told CNN that the bureau “cannot confirm the existence of an investigation or comment on details.”
The lapsed time since his FBI interview doesn’t mean he won’t be charged; such delays, even longer ones, are common for those arrested for January 6. Plus, Mastriano is someone whose communications, including with Rudy and probably John Eastman and Ali Alexander, have likely shown up in materials seized or subpoenaed by DOJ.
But if DOJ is going to charge Mastriano, they have slightly more than 50 days to do so in order to comply with the DOJ guidelines.
And when I say he poses a more urgent threat to democracy right now than Trump, that’s not just about the impending election. In addition to regressive policies that are typical of the GOP these days, such as a no-exception ban on abortion, he poses an immediate threat to democracy itself. He has publicly committed to attacking democracy itself.
Those concerns are made especially acute in Pennsylvania by the fact that the governor has the unusual authority to directly appoint the secretary of state, who serves as chief elections officer and must sign off on results. If he or she refuses, chaos could follow.
“The biggest risk is a secretary of state just saying, ‘I’m not going to certify the election, despite what the court says and despite what the evidence shows, because I’m concerned about suspicions,’” said Clifford Levine, a Democratic election lawyer in Pennsylvania. “You would start to have a breakdown in the legal system and the whole process.”
Mastriano’s backers appear well aware of the stakes. A video posted to Telegram by election denial activist Ivan Raiklin from Mastriano’s victory party on Tuesday showed the candidate smiling as Raiklin congratulated him on his win and added, with a thumb’s up, “20 electoral votes as well,” a reference to the state’s clout in the electoral college.
“Oh yeahhhh,” Mastriano responded.
Mastriano did not respond to a voice mail or an email sent to a campaign account for media.
But Mastriano told Stephen K. Bannon, a former adviser to Trump who now hosts a podcast popular on the right, that he had already selected the person he would appoint as secretary of state if elected.
“As far as cleaning up the election, I mean, I’m in a good position as governor,” he said in the April 23 appearance on Bannon’s “War Room” podcast. “I have a voting-reform-minded individual who’s been traveling the nation and knows voting reform extremely well. That individual has agreed to be my secretary of state.”
A number of people have said, with no exaggeration, that a Mastriano win would virtually guarantee no Democratic candidate could win the state’s presidential votes in 2024.
If DOJ is going to expand its prosecutions to those who laid the groundwork for January 6, they are going to be charging people like Doug Mastriano. There’s little doubt that Mastriano, as much as anyone who went inside the building on January 6, as much as Trump, was trying to prevent the lawful transfer of power.
Yet DOJ only has seven weeks left to charge Mastriano before DOJ’s election guidelines would prevent that from happening.
If you want to panic, panic first about Mastriano. Because the threat he poses to democracy is far more imminent than the very real threat Trump poses.
Update: Politico has a piece on Mastriano talking about how close it is in PA, and NYT has a piece using Mastriano as illustration of the increasing embrace of conspiracism on the far-right.
Update: This thread from an online researcher tracks Mastriano’s movements around the Capitol on January 6.
https://www.emptywheel.net/wp-content/uploads/2022/07/Screen-Shot-2022-07-19-at-2.59.01-PM.png13341526emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-07-19 10:07:402022-07-20 05:39:29If You Need to Panic about DOJ’s Investigation into January 6, Panic First about Doug Mastriano
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.
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.
https://www.emptywheel.net/wp-content/uploads/2022/06/Screen-Shot-2022-06-23-at-8.58.04-PM.png15162834emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-06-27 08:12:182022-06-28 08:34:13Jeffrey Clark: Physics Takes Over the Investigation Now
I think the hearing was an effective scene-setter, laying out information in a coherent narrative.
Perhaps the most striking part of the hearing was the degree to which, aside from the two live witnesses, Capitol Police Officer Carolyn Edwards and Nick Quested, the hearing relied exclusively on Republicans to make their case, with clips from:
Mike Pence (from a video appearance at the Federalist Society)
General Mark Milley
Sean Hannity and Kayleigh McEnany
A number of Jan 6 defendants, including Eric Barber
If I’m not mistaken, Thomas Jefferson was the only Democratic President named, but a slew of Republican Presidents were named (George W Bush was not, but Gerald Ford was).
There was plenty of shaming, including calling out Jeffrey Clark and Scott Perry for refusing to cooperate and noting that Kevin McCarthy was scared.
The clip of Jared accusing Pat Cipollone of “whining” when he threatened to quit may make it more likely to get the former White House Counsel’s testimony.
In short, this was directed at Republicans and relied on Republicans to make the case for democracy.
In that frame, I found the closing words of Liz Cheney’s opening statement to be the most effective messaging.
I ask you to think of the scene in our Capitol Rotunda on the night of January 6. There in a sacred space in our Constitutional Republic. The place where our Presidents lie in state. Watched over by statues of Washington and Jefferson, Lincoln and Grant, Eisenhower, Ford, and Reagan. Against every wall that night encircling the room, there were SWAT teams. Men and women in tactical gear, with long guns, deployed inside our Capitol building. There in the Rotunda these brave men and women rested beneath paintings depicting the earliest scenes of our Republic, including one painted in 1824, depicting George Washington resigning his commission, voluntarily relinquishing power, handing control of the Continental Army back to Congress. With this noble act Washington set the indispensable example of the peaceful transfer of power, what President Reagan called, nothing less than a miracle. The sacred obligation to defend the peaceful transfer of power has been honored by every American President, except one. As Americans, we all have a duty to ensure that what happened on January 6 never happens again. To set aside partisan battles. To stand together, to perpetuate and preserve our great Republic.
With this speech (and the imagery), Cheney attempted to invoke the mantle of Reagan, her party’s (and our shared generation’s) political icon. In doing so, she attempted to make democracy a religion again, something worth defending.
At the very least, she provided some mythology on which she will rebuild her party.
https://www.emptywheel.net/wp-content/uploads/2022/06/Screen-Shot-2022-06-10-at-8.31.32-AM.png7581344emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-06-10 06:13:292022-06-11 06:25:24The Peaceful Transfer of Power: What President Reagan Called, “Nothing Less than a Miracle”
The January 6 Committee just issued subpoenas to five of their colleagues.
Minority Leader Kevin McCarthy was in communication with President Trump before, during, and after the attack on January 6th. Mr. McCarthy was also in communication with other members of the White House staff during the attack and in the days before and after January 6th concerning the events at the Capitol. Mr. McCarthy also claimed to have had a discussion with the President in the immediate aftermath of the attack during which President Trump admitted some culpability for the attack.
Representative Scott Perry was directly involved with efforts to corrupt the Department of Justice and install Jeffrey Clark as acting Attorney General. In addition, Mr. Perry had various communications with the White House about a number of matters relevant to the Select Committee’s investigation, including allegations that Dominion voting machines had been corrupted.
Representative Jim Jordan was in communication with President Trump on January 6th and participated in meetings and discussions throughout late 2020 and early 2021 about strategies for overturning the 2020 election.
Representative Andy Biggsparticipated in meetings to plan various aspects of January 6th and was involved with plans to bring protestors to Washington for the counting of Electoral College votes. Mr. Biggs was involved in efforts to persuade state officials that the 2020 was stolen. Additionally, former White House personnel identified Mr. Biggs as potentially being involved in an effort to seek a presidential pardon for activities connected with the former President’s efforts to overturn the 2020 presidential election.
Representative Mo Brooks spoke at the rally on January 6th, encouraging rioters to “start taking down names and kicking ass.” In addition, Mr. Brooks has publicly described conversations in which the former President urged him to work to “rescind the election of 2020” and reinstall Mr. Trump as President. The Select Committee also has evidence that Mr. Brooks’s staff met with members of Vice President Pence’s staff before January 6th and conveyed the view that the Vice President does not have authority to unilaterally refuse to count certified electoral votes.
I suspect such a subpoena only conceivably has a chance in hell of working with Kevin McCarthy (or possibly Mo Brooks if he can do it quietly, given how Trump has targeted him). The rest of genuine criminal liability they’d like to use Speech and Debate to dodge.
But this provides a way for the January 6 Committee to package up what evidence they have against these five in such a way as to feed it to DOJ.
https://www.emptywheel.net/wp-content/uploads/2021/12/bennie-thompson-reduced-file-size.png8001920emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-05-12 13:49:502022-05-12 14:16:35Members of Congress Subpoena Members of Congress