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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.

If You Need to Panic about DOJ’s Investigation into January 6, Panic First about Doug Mastriano

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.

A man who appears to be Doug Mastriano takes photos or video with his cell phone on the steps of the U.S. Capitol on Jan. 6, 2021.
 A man who appears to be Doug Mastriano takes photos or video with his cellphone near the steps of the U.S. Capitol on Jan. 6, 2021.@MichaelCoudrey via Twitter

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.

Mastriano has had ties with a number of the people charged for more serious roles in the insurrection, most notably Sam Lazar, who was arrested a year ago on charges of civil disorder and assaulting cops.

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.”

Mastriano has been buying followers from the far-right social media site, Gab. And he has ties to Russian-backed far-right propagandists.

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.

Jeffrey Clark: Physics Takes Over the Investigation Now

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

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

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

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

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

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

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

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

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

So back to the physics.

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

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

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

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

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

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

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

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

Background material

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

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

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

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

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

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

This post shows how the investigation into Project Veritas developed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Members of Congress Subpoena Members of Congress

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 Biggs participated 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.

Rudy Giuliani Attacks Biden as SDNY Sifts Through His Comms for Ukraine Foreign Agent Investigation

Among the many Trump allies suggesting that the former President was better on Russian issues than the current, Rudy Giuliani attempted to attack President Joe Biden with a Tweet dripping with projection.

Just over four weeks ago, the Special Master Barbara Jones delivered the latest tranche of records seized from Giuliani’s phones to prosecutors in SDNY, the US Attorney’s Office that Rudy once led.

While the scope of the review exceeds the scope of the known warrants, those known warrants target Rudy’s role in getting Maria Yovanovich fired in 2019 as part of an effort to get campaign dirt on Joe Biden.

Indeed, for six of Rudy’s devices, the latest review focused on the period from December 1, 2018 through May 31, 2018, which would cover the following events.

Late 2018: Rudy Giuliani participates in a Skype call with the former top Ukrainian prosecutor, Viktor Shokin, who was ousted from office after multiple Western leaders, including former Vice President Joe Biden, pressed for his removal. Leaders complain Shokin was failing to tackle corruption. It’s around this time that Giuliani says he first learned of a possible Biden-Ukraine connection.

January 2019: Giuliani meets in New York with the top Ukrainian prosecutor at the time, Yuriy Lutsenko. This is when, Giuliani says, his investigation into the Bidens began.

A man named Lev Parnas has said he attended the meeting with Lutsenko and arranged the call with Shokin. Parnas told NPR he attended at least two meetings Giuliani had with Lutsenko. Parnas and an associate, who also worked with Giuliani, are later arrested and charged with violating campaign finance law in a separate matter.

March 31: The first round of presidential elections take place in Ukraine. Zelenskiy, a comedian who once played a president on television, comes out ahead of incumbent President Petro Poroshenko. The race goes to a runoff.

April 7: In an interview on Fox News, Giuliani, unprompted, brings up a Biden-Ukraine connection. He says that while investigating the origin of the Russia investigation, “some people” told him “the story about [gas company] Burisma and Biden’s son.” Giuliani suggests that as vice president, Biden pressed to remove Shokin because he was investigating Burisma, a Ukrainian gas company that had Biden’s son Hunter on its board for several years. There is no evidence to support this claim.

April 21: Zelenskiy is elected president of Ukraine and Trump calls to congratulate him. A White House readout of the call says Trump “expressed his commitment to work together with President-elect Zelenskyy and the Ukrainian people to implement reforms that strengthen democracy, increase prosperity, and root out corruption.”

April 25: Trump calls in to Sean Hannity’s TV show and says he has heard rumors about Ukrainian “collusion.” He tells the Fox News host he expects Attorney General Bill Barr to look into it. “I would imagine he would want to see this,” Trump says.

May 6: Marie Yovanovitch, the U.S. Ambassador to Ukraine and an Obama appointee, ends her assignment in Kyiv. According to the whistleblower complaint filed against Trump, she had been “suddenly recalled” to the U.S. by senior State Department officials a week earlier.

Giuliani later says in an interview that she was removed “because she was part of the efforts against the President.” Yovanovitch tells Congress that she learned from the deputy secretary of state “there had been a concerted campaign against me, and that the Department had been under pressure from the President to remove me since the Summer of 2018,” according to prepared remarks reported by multiple outlets.

May 9: Giuliani tells The New York Times he will travel to Ukraine “in the coming days” to push for investigations that could help Trump. Giuliani says he hopes to meet with President-elect Zelenskiy to push for inquiries into the origins of the Russia investigation and the Bidens’ involvement with Burisma.

“We’re not meddling in an election, we’re meddling in an investigation, which we have a right to do,” Giuliani tells the Times.

“There’s nothing illegal about it,” he says. “Somebody could say it’s improper. And this isn’t foreign policy — I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client and may turn out to be helpful to my government.”

Among the members of Congress criticizing Biden, Tulsi Gabbard voted present to impeach Trump on his related extortion attempt; virtually all Republicans voted not to impeach Trump, including Biden critics Paul Gosar and Scott Perry. Of Republican Senators, just Mitt Romney voted to convict the President.

Trump was not serious about Ukraine. He viewed it as nothing more than a political football. Almost his entire party backed him in that effort.

And his former attorney, wailing on Twitter about the ‘CLEAR AND PRESENT DANGER” posed by “mentally deteriorating [men], who [were] of limited intelligence even before [] dementia” remains under criminal investigation as an unregistered agent of Russian-backed Ukrainians for his role in politicizing Ukraine.

The Worm Turns: Neither Devin Nunes Nor Ron DeSantis (Thus Far) Support Jim Jordan’s Impeachment Bid

As I laid out a few weeks ago, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.

I was in DC when Mark Meadows and Jim Jordan rolled out articles of impeachment against Rod Rosenstein. As a number of people have noted, the articles themselves are batshit crazy, calling over-redaction subsequently corrected a high crime and misdemeanor.

And some of the articles would require a time machine to prove, such as holding Rosenstein responsible for a FISA application submitted when he was merely the US Attorney for MD with no role in the investigation.

But something else is even more interesting to me.

The original press release included the names of 6 congressmen, in addition to Mark Meadows and Jim Jordan, who co-sponsored the articles HR 1028:

  1. Mark Meadows
  2. Jim Jordan
  3. Andy Biggs
  4. Scott Perry
  5. Paul “Dentists Read Body Language” Gosar
  6. Jody Hice
  7. Matt Gaetz
  8. Scott DesJarlais

And while the other three congressmen who joined as co-sponsors seemed a lot more sheepish about signing on, the following me also joined:

  1. John Duncan
  2. Louie Gohmert
  3. Bill Posey

By mid-morning yesterday, in the face of opposition from Paul Ryan and citing some deal with Bob Goodlatte, Meadows and Jordan admitted defeat. Shortly thereafter, Jordan announced a bid to be Speaker, with support from Meadows.

Apparently this morning, the following men signed on:

  1. Tom Massie
  2. Ted Yoho
  3. Ralph Norman
  4. Duncan Hunter

We’re two days into this effort, and thus far, two names are conspicuously absent: Devin Nunes (who has admittedly refrained from officially participating in some of the batshittery to — apparently — limit his legal exposure) and Ron DeSantis, who has spent the last seven months leading efforts to discredit Mueller’s investigation.

While I was in DC, a Republican admitted to me that this was just about ginning up votes and predicted that the House is done meeting until November — meaning Rosenstein should be safe from Congressional tampering until then.

If so, DeSantis’ non-participation in this stunt is telling. He’s running for governor with the vocal support of President Trump.

Indeed, DeSantis currently has a healthy lead against Adam Putnam in the GOP primary, with the primary date a month away, August 28, largely due to Trump’s support.

DeSantis is also one of the people who most obviously benefitted from Russian interference in 2016.

That Ron DeSantis has not (yet) signed onto this stunt suggests he’s not sure that, in a month (or perhaps in three, in the general), having done so will benefit his electoral chances to be governor.

So apparently Jim Jordan (facing sexual assault cover-up charges) and Duncan Hunter (facing even more serious legal troubles) think it’s a smart idea to go all-in on supporting Trump. But Ron DeSantis does not.

Steve King Just Voted to Subject Americans to “Worse than Watergate”

Devin Nunes has launched the next installment of his effort to undercut the Mueller investigation, a “Top Secret” four page report based on his staffers’ review of all the investigative files they got to see back on January 5. He then showed it to a bunch of hack Republicans, who ran to the right wing press to give alarmist quotes about the report (few, if any, have seen the underlying FBI materials).

Mark Meadows (who recently called for Jeff Sessions’ firing as part of this obstruction effort) said, “Part of me wishes that I didn’t read it because I don’t want to believe that those kinds of things could be happening in this country that I call home and love so much.”

Matt Gaetz (who strategized with Trump on how to undercut the Mueller investigation on a recent flight on Air Force One) said, “The facts contained in this memo are jaw-dropping and demand full transparency. There is no higher priority than the release of this information to preserve our democracy.”

Ron DeSantis (who joined Gaetz in that Air Force One strategy session with Trump and also benefitted directly from documents stolen by the Russians) said it was “deeply troubling and raises serious questions about the [the people in the] upper echelon of the Obama DOJ and Comey FBI,” who of course largely remain in place in the Sessions DOJ and Wray FBI.

Steve King claimed what he saw was, “worse than Watergate.” “Is this happening in America or is this the KGB?” Scott Perry said. Jim Jordan (who joined in Meadows’ effort to fire Sessions) said, “It is so alarming.” Lee Zeldin said the FBI, in using FISA orders against Russians and facilities used by suspected agents of Russia was relying “on bad sources & methods.”

It all makes for very good theater. But not a single one of these alarmists voted the way you’d expect on last week’s 702 reauthorization votes if they were really gravely concerned about the power of the FBI to spy on Americans.

Indeed, Gaetz, DeSantis, and King — three of those squawking the loudest — voted to give the same FBI they’re claiming is rife with abuse more power to spy on Americans, including political dissidents. Nunes, who wrote this alarming report, also wrote the bill to expand the power of the FBI he’s now pretending is badly abusive.

Even those who voted in favor of the Amash-Lofgren amendment and against final reauthorization — Meadows, Jordan, and Perry, among some of those engaging in this political stunt — voted against the Democratic motion to recommit, which would have at least bought more time and minimally improved the underlying bill (Justin Amash and Tom Massie, both real libertarians, voted with Democrats on the motion to recommit). Zeldin was among those who flipped his vote, backing the bill that will give the FBI more power after making a show of supporting Amash’s far better bill.

In short, not a single one of these men screaming about abuse at the FBI did everything they could do to prevent the FBI from getting more power.

Which — if you didn’t already need proof — shows what a hack stunt this is.