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The First Mike Flynn-Inspired Insurrectionist Sentenced to 44 Months in Prison

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In his (successful) letter to John Bates asking for leniency, QAnoner Nicholas Languerand attributed his involvement in the dangerous cult to prominent people, most notably Mike Flynn.

During this time, I was introduced to what has been dubbed “QAnon.” I cannot deny my involvement with this group or the profound impact it has had on my life. Unfortunately, there is a great deal of misinformation related to the beliefs and motives of this group within the public discourse. In regards to my case, I believe the most important aspect of this controversial topic is the fact that those individuals were consistently encouraged by highly respected members of society such as President Trump, Lt General Michael Flynn, General Flynn’s attorney Sidney Powell, and Lt General Thomas McInerny.

[snip]

There is absolutely no doubt, and I have every intention of showing to the court, that these individuals promoted and in effect facilitated and took responsibility for what I call the Q information network. The evidence of this is substantial to say the least. I think it is only fair that the court and Americans at home understand that this phenomenon went on for 4 years and culminated in the “Stop the Steal” movement between November 2020 and Janaury 6th 2021. It is also important to understand that it was lead [sic] by retired senior military intelligence officers who attained one of the highest possible statuses within the U.S. military.

Languerand pled guilty to assaulting cops, throwing a large orange bollard and some sticks at the officers in the Tunnel on January 6, then stealing a riot shield.

Languerand invoked that Lieutenant General again today at his sentencing. Bates, showing the same deference to other white January 6 defendants he has in the past, gave him a below guidelines sentence, 44 months.

Whatever excuses he made for himself, the key one is that Languerand believes Flynn and others mobilized his best motivations and turned it to violent effect on January 6.

Languerand will not the be the last January 6 defendant who attributes his radicalization to Mike Flynn. But he is the most serious defendant thus far who will spend three years of his life paying for the actions he says Flynn inspired him to take.

Why It Would Be Counterproductive To Appoint a Special Counsel to Investigate January 6

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I continue to get people asserting as fact that the investigation into Trump’s role in January 6 would be going better if Merrick Garland had appointed a Special Counsel.

I have yet to see calls for a Special Counsel that are not, themselves, just an extended admission that the people calling for one don’t understand the investigation. For example, in a widely shared Asha Rangappa thread in October, she claimed to present Pros and Cons like this:

Pro:

  1. “It’s warranted” (she didn’t say what “it” was)
  2. “It would signal that getting to the bottom of this is a priority for the Justice Department” (she didn’t say what “this” was)
  3. “It could provide for a more efficient investigation … An SC would be able to have FBI agents and prosecutors detailed to focus on this one matter”
  4. It would insulate Garland from political blowback; “Garland would be right to be concerned with the *appearance* of a politically motivated investigation under his direct watch”
  5. “The Special Counsel regulations have important formal mechanisms for reporting prosecutorial decisions (including declinations to prosecute)”

Cons:

  1. “It gives people who may be subjects of an investigation a ‘heads up'”
  2. “It creates a new space for politicization, as we saw with Mueller:”

More recently, a non-public non-expert suggested that because Merrick Garland hadn’t appointed a Special Counsel when he came in, Congress was doing the investigation that a Special Counsel was not.

I want to start from that claim — that Congress is investigating stuff that DOJ is not. It reflects a belief that even DOJ reporters have, such as in this shitty WaPo piece revealing in ¶30 that DOJ is investigating Roger Stone and Rudy Giuliani for their militia ties but then reporting as fact that DOJ “has yet to turn its attention directly to Trump and his close allies.” The things WaPo turns to before examining how — and ignoring that — DOJ is investigating Trump’s one-degree ties to the militias who managed the attack on the Capitol are:

  • Whether DOJ is investigating the war room at the Willard Hotel (never mind that WaPo missed one overt way DOJ is investigating the war room)
  • Whether DOJ is investigating Trump’s call to Brad Raffensperger
  • Whether DOJ is investigating Trump’s threats to install Jeffrey Clark to get an Acting Attorney General more amenable to claiming voter fraud occurred

Of those, only the call to Raffensperger (which is being investigated by Fulton County’s DA) is clearly illegal.

Special Counsels can only investigate crimes, not potential crimes not pursued

It is not clearly illegal, for example, for John Eastman to write a letter calling on Trump to pressure Mike Pence to reject the vote totals or for Peter Navarro to set up a propaganda campaign that members of Congress will point to to justify corrupt action (indeed, the latter is how lobbyists made DC run). It may not be illegal for a President to install someone who has been Senate confirmed as Acting Attorney General who will pursue his policy goals, no matter how corrupt they are; it’s not even illegal for a President to ask a Cabinet Member to lie to the public (and Cabinet Members lie a lot, sometimes for good reasons). It’s even less illegal to consider doing so but deciding not to because of the political cost of doing so, as happened with Clark. It is not even illegal to receive a plan to have the military seize voting machines, especially if you don’t pursue that plan (which Trump did not).

These things only become illegal when they are shown to be part of plan to commit a crime.

There’s the first problem with calls to appoint a Special Counsel. Much of what people want to investigate (again, Raffensperger and the fraudulent certificates are an exception) is not clearly a crime.

I have talked about how the Select Committee is investigating from the top down and DOJ is investigating from the crime scene up (in addition to investigating Sidney Powell’s potential Big Lie fraud). I’ve talked about how, as a separate co-equal branch of government, the Select Committee can more easily do things like get Executive Privilege waivers or waive Speech and Debate protections, the former of which was a challenge for Mueller’s investigation. I’ve laid out how the two investigations have already converged, first with the focus on the targeting of Mike Pence and more recently on the role of Trump’s directions serving as the motivating instruction for three different armed conspiracies, including the sedition one.

But it’s equally important to recognize that the Select Committee is also conducting the important work of investigating things that weren’t crimes, like considering but not acting on a suggestion to seize the voting machines and considering but not acting on a plan to make Jeffrey Clark Acting Attorney General (both issues Bennie Thompson addressed on the Sunday shows this morning).

A Special Counsel can’t be appointed to investigate something that is not a crime.

I realize that people have argued, starting on January 6, that Trump incited the insurrection and that’s the crime that could have predicated the Special Counsel. Bracket that idea. I’ll come back to it.

No Republican Senator is on the record opposing DC US Attorney Matthew Graves leading this investigation

As it happens, Rangappa wrote her thread on October 25, three days before US Attorney for DC Matthew Graves was confirmed on a voice vote. While Ron Johnson held up the vote for other reasons, no Republican Senator thought it important enough to register opposition to Graves to call for a recorded vote.

That means, going forward, the US Attorney overseeing the January 6 investigation can claim the support of the entire Senate. No Republican recorded their opposition to Matthew Graves overseeing the investigation into January 6.

Those asking for a Special Counsel are, in effect, saying that there would be less political blowback if Merrick Garland chose, on his own, to appoint someone to lead an investigation than if a US Attorney against whom not a single Republican recorded opposition led the investigation.

The January 6 investigation is far too large for a Special Counsel

Now consider the claim that a Special Counsel investigation would be more efficient because the Special Counsel would have a dedicated team of prosecutors and FBI agents and a dedicated grand jury. Such claims are astounding for how little awareness of the actual investigation they show.

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

Then there’s this magical notion about convening a grand jury. The existing January 6 investigation is already using somewhere between four and six. Public Corruption prosecutions, like that of Steve Bannon, are using the same grand juries that the militias are being prosecuted through. Given COVID, keeping these grand juries up and running has been a real bottleneck on the investigation (something else Garland alluded to). For one conspiracy indictment I followed, it took five months — from April until September — from the time DOJ stated it would charge it as a conspiracy and the time the FBI Agent could sit with the grand jury safely to get that indictment. So you’re better off having several to juggle than relying on one. “When will Garland get a grand jury for this investigation,” people keep asking, and the answer is that was done already, in January 2021 before Garland was confirmed, in May, in August, and in November. Over a hundred Americans have already been serving, in secret, during a pandemic, on these grand juries that people are wailing must be appointed some time in the future.

Then there are other things about the investigation that have required massive and immediate resource allocations. Most notably, DOJ had to appoint a team (led by a prosecutor named Emily Miller) to create an entirely new discovery system, which has involved throwing large amounts of money at both Deloitte and the Federal Public Defenders office. Special Counsels need to budget ahead, and because this investigation is so large, it would not be possible given the budgetary requirements of the Special Counsel regulation.

We know similar resource allocations are going on at a whole-DOJ level with respect to the FBI (including a reliance on Joint Task Forces for more localized investigations); those decisions are just less visible.

The point being that this investigation is so large it requires the DOJ, as a whole, to manage the resources for it. It’s far too large for a Special Counsel. And nothing about putting someone without those resources who has to budget in advance would make this investigation more nimble.

Calls for a Special Counsel internalize a belief that Trump was further from the mob than he was

So let’s go back. The crime invoked by those calling now or in the past for a Special Counsel as the predicating crime for the investigation is incitement. There are problems with that. Trump’s defense attorneys rightly pointed out during his second impeachment trial that the riot had already started — by the militia that Trump had called out on September 29 — before he incited the mob at his rally. Trump’s relationship with the mob is far more complex — and frankly, damning, than that.

But the other problem with that is if you want to prove that Trump incited the crowd, you need to get proof that those who went on to riot were responding to Trump’s speech.

That’s actually one thing DOJ has been doing for the last year; I would guesstimate that about a third of the 200 or so people who’ve pled guilty have said things in their statements of offense to support an incitement charge against the former President. But they’ve also provided DOJ more specific details about their expectations for what would happen at the Capitol (most notably that Trump would speak again) and how those expectations were manipulated to get them to do things like climb to the top of the East steps just before it was breached. The way in which Trump (and close associates like Alex Jones) manipulated attendees was actually more malicious than simple incitement.

So even (perhaps especially) for the crime that everyone is sure Trump committed, incitement, you need to do some of the work everyone points to in claiming that DOJ is investigating the wrong people, just the pawns and not the generals. One thing DOJ has done in the last year is collect evidence that large numbers of those who, without planning to do so in advance, nevertheless played a key role in occupying the Capitol, did so not just because of Trump’s violent imagery, but also because of the expectations he set among rally goers.

More importantly, what DOJ has spent the last year doing is understanding what those who kicked off the riot while Trump was speaking did, and how those who brought mobs to the Capitol manipulated them to make them more effective. And what they’ve discovered — what WaPo thought worth burying in ¶30 — is they were working with Trump’s closest associates, if not responding to orders from Trump himself.

DOJ already is investigating what happened at the Willard Hotel (and has been since last summer). But they’re investigating it not because a bunch of the people there considered ideas — like seizing the voting machines — that weren’t adopted. They’re investigating it because there are tangible ties between what happened at the Willard and what happened on Capitol Hill.

Consider the centrality of efforts to pressure Mike Pence to reject the legal results of the election. After efforts to overturn the election with legal challenges based on the Big Lie (for which Sidney Powell is already being investigated by prosecutors also investigating other aspects of January 6) failed, Mike Pence became a necessary player in the plots to steal the election. And the effort to pressure Pence is continuous from Donald Trump to his allies to people at the mob.

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

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

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

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

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

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

There are things that Trump did that are independently illegal, including giving Mike Pence an illegal order. But their illegality becomes much more salient in the context of the organized effort to pressure Mike Pence, threaten his life, and prevent the vote certification from taking place.

And DOJ has already acquired evidence that the people at the Capitol who were most deliberately implementing that plan have direct ties to Trump’s closest associates.

Bizarrely, the foundational assumption of those demanding a Special Counsel is that Trump didn’t have any tie to the riot — it has to be!! The foundational assumption of those demanding a Special Counsel is that the investigation of the insurrection won’t get to the former President unless it convenes a separate investigation into him, even though the investigation working up from the mob has already found at least three one-degree links between those mobilizing the bodies at the Capitol and Trump’s close associates (and the grand jury investigation that already charged sedition has at least three cooperating witnesses with ties to Roger Stone).

No one has to ask Merrick Garland to open an investigation that might prosecute Trump. It has been open since long before Garland was confirmed. No one has to ask Merrick Garland to get a prosecutor to convene a grand jury that will investigate Trump’s actions; grand juries have already indicted at least four violent conspiracies that were mobilized by Trump’s calls to violence, including one that has been working since two days after the attack.

If you believe that Trump’s actions played a central role in the insurrection — if you believe that the violent mob mobilized on January 6 was an important part of plans hatched at the Willard Hotel — then creating a separate investigation to investigate Trump does nothing but remove him from his liability in crimes already charged as sedition. That’s why calls to appoint a Special Counsel are so stupid. They treat Trump’s crimes as separate and distinct from those of the mob that he mobilized. There’s no reason, at this point, to do that (if Democrats were to lose in 2024, there might be).

People have been wailing for a year that DOJ needs to open an investigation into Donald Trump and all the while an investigation has been open and has been working towards Trump.

January 6 Deconfliction: “This Is Part of a Much Bigger Conspiracy”

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In a Detroit Free Press article on the forged electoral certificate presented from Michigan, the state’s awesome Attorney General Dana Nessel explained why, after investigating for almost a year, she is now referring the matter to the Grand Rapids US Attorney’s Office.

Nessel told Maddow that her office has been evaluating charges for almost a year but decided Thursday to refer the matter to the U.S. Attorney’s Office for the Western District of Michigan.

“We think this is a matter that is best investigated and potentially prosecuted by the feds,” Nessel said.

The signatories of the failed attempt to award Michigan’s Electoral College votes to Trump include Michigan GOP co-chair Meshawn Maddock, national Republican committeewoman Kathy Berden and Michigan GOP grassroots vice chair Marian Sheridan, among other pro-Trump activists in the party.

The decision does not preclude possible charges against the Republicans who falsely claimed that they cast Michigan’s Electoral College votes for Trump, Nessel said. And her office might still bring charges, she added.

“Under state law, I think clearly you have forgery of a public record, which is a 14-year offense and election law forgery, which is a five-year offense,” Nessel said.

“But, obviously, this is part of a much bigger conspiracy and our hope is that the federal authorities and the Department of Justice and United States Attorney General Merrick Garland will take this in coordination with all the other information they’ve received and make an evaluation as to what charges these individuals might (face),” she said.

Consider what happened to lead to this federal criminal referral. After electors sent fake certifications to the National Archives, NARA then sent them to Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs.

Vice President Mike Pence the winners of both Michigan and Arizona and their electors after the 2020 election. Public records requests show the secretaries of state for those states sent those certificates to the Jan. 6 panel, along with correspondence between the National Archives and state officials about the documents.

Spokespeople for the Michigan and Arizona secretaries of state declined to comment on the documents. The offices confirmed that Michigan Secretary of State Jocelyn Benson and Arizona Secretary of State Katie Hobbs, both Democrats, and their staff met with the panel in November.

“They mostly discussed election administration in Arizona, the 2020 elections, threats/harassment directed toward the office, and the Cyber Ninja’s partisan ballot review,” said Hobbs’ spokesperson C. Murphy Hebert.

Benson and her staff took questions from the committee on the 2020 election and events leading up to the Jan. 6 riot, according to Tracy Wimmer, a spokesperson for Benson.

The National Archives sent emails to the Arizona secretary of state on Dec. 11, 2020, passing along the forged certificates “for your awareness” and informing the state officials the Archives would not accept them.

Arizona then took legal action against at least one of the groups who sent in the fake documents, sending a cease and desist letter to a pro-Trump “sovereign citizen” group telling them to stop using the state seal and referring the matter to the state attorney general.

“By affixing the state seal to documents containing false and misleading information about the results of Arizona’s November 3, 2020 General Election, you undermine the confidence in our democratic institutions,” Hobbs wrote to one of the pro-Trump groups.

Arizona took immediate action; given Nessel’s comments, Benson appears to have referred the matter to Nessel. Some of these details were made public last March after American Oversight obtained them. But after the January 6 Committee put them all in context and focused renewed attention to how the fake certificates fit into a larger effort, it led Nessel to hold off on pursuing potential 14-year charges against some of the most powerful Republicans in the state, and instead to formally refer the investigation to the Feds, based on the logic that the obviously coordinated effort to forge fake electoral certificates is part of a larger whole.

This is not dissimilar from how legal action from Florida’s charity regulator led to state action as well as a grand jury investigation into Sidney Powell’s grifting.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said.According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

Defending the Republic’s finances have already prompted an investigation and a settlement with Florida’s charity regulator. The group paid a $10,000 fine in September as part of a settlement agreement related to its solicitation of contributions and failure to register as a charitable organization in the state.

[snip]

Defending the Republic’s finances first attracted the scrutiny of regulators in Florida shortly after Powell founded the group in November 2020 when authorities received a complaint and subsequently issued a subpoena to internet hosting service GoDaddy for information about the group’s website.

In a June press conference, Florida Agriculture Commissioner Nikki Fried said Defending the Republic was “found to be soliciting contributions from the State of Florida or from persons within the State of Florida” on the internet “without having filed in the State of Florida” as a charitable organization.”

On Aug. 24, Defending the Republic paid a $10,000 fine as part of a settlement agreement with Florida authorities over its fundraising.

As part of that agreement, Powell’s group agreed to register as a charity in Florida and submitted a projected budget of over $7 million. The settlement agreement also required Defending the Republic to submit an audited financial statement for the group’s operations between December 2020 and July 2021 by Nov. 30, including a balance sheet and a list of expenses and revenue.

Meanwhile, Fulton County’s DA, Fani Willis, has been investigating Trump’s call to pressure Brad Raffensperger to cheat and will reportedly make a prosecutorial decision in the months ahead.

The prosecutor weighing whether Donald Trump and others committed crimes by trying to pressure Georgia officials to overturn Joe Biden’s presidential election victory said a decision on whether to bring charges could come as early as the first half of this year.

Fulton County District Attorney Fani Willis said in an interview with The Associated Press last week that her team is making solid progress, and she’s leaning toward asking for a special grand jury with subpoena power to aid the investigation.

“I believe in 2022 a decision will be made in that case,” Willis said. “I certainly think that in the first half of the year that decisions will be made.”

[snip]

Willis declined to speak about the specifics, but she confirmed that the investigation’s scope includes — but is not limited to — a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger, a November 2020 phone call between U.S. Sen. Lindsey Graham and Raffensperger, the abrupt resignation of the U.S. attorney in Atlanta on Jan. 4, 2021, and comments made during December 2020 Georgia legislative committee hearings on the election.

Regardless of what Willis decides, she can also refer actions to the Feds because it, like the forged electoral certifications, “is part of a much bigger conspiracy.”

The point is (besides that we should be grateful that Democrats elected a lot of smart, fearless women in recent years) that there are lots of moving parts to this “much bigger conspiracy.” And all those moving parts have, as an option, referring their investigative findings to DOJ to drop it into the “much bigger conspiracy.”

So during the year when DOJ has been laying what Merrick Garland called “the evidentiary foundation for more complex cases,” states and local authorities have been conducting investigations that can be joined to that evidentiary foundation.

These are all parts of a much bigger conspiracy.

All these moving parts require coordination, however, or “deconfliction,” both in an effort to maximize cross-fertilization between the investigations and to ensure no investigation screws up the criminal investigations that might lead to real consequences. While there has been no reporting on how this is being done at DOJ, we can be sure it is, not least because DOJ and the Committee are muddling through the Executive Privilege questions in tandem.

Robert Mueller, for example, had his own congressional liaison, and referrals from the Senate Intelligence Committee led directly to plea deals with Sam Patten and Michael Cohen that, in turn, led to information both (and in the latter case, Trump’s lawyers) had shielded from the Committees.

Adam Schiff, now a member on the Select Committee, knows well that Mueller also used a House Intelligence Committee interview with Roger Stone as a basis for an obstruction prosecution against Trump’s rat-fucker. While the details are less clear, I also suspect that Steve Bannon’s interviews with HPSCI served to tee up the fruitful grand jury appearance for him in January 2019 about which Stone is still furious.

Liz Cheney brings a different knowledge base to the challenge of deconfliction. Her dad played a central role in screwing up the Special Prosecutor investigation into Iran-Contra by offering key witnesses immunity. He’s one reason why congressional committees hoping to preserve criminal investigations tread carefully. Hopefully, Congresswoman Cheney can apply lessons learned from her evil genius father to the forces of good on the Select Committee. She has the most to lose if this Committee doesn’t succeed.

As noted above, the most visible sign of this deconfliction has come on privilege reviews. In July, at the same time that DOJ established their contact policy fire-walling President Biden from learning about any ongoing investigations, DOJ got privilege waivers for former DOJ personnel to appear before Congress. After that, when the Select Committee, as an independent branch of government that is also fire-walled from the criminal investigation, asked for investigative materials from the Archives, Biden conducted privilege reviews of that material and waived privilege over much, but not all, of it. If and when that material is released, however, it would be available to anyone with a need, including DOJ.

In fact, the back and forth between the Committee and DOJ has likely already made investigative materials available to DOJ. That’s because, after the Select Committee made it clear Mark Meadows had violated the Presidential Records Act with regards to some of the materials he shared with the committee, Meadows undertook efforts to fix that. To the extent he is able to provide his personal emails and Signal texts to NARA (some of the latter are likely are unavailable), that material would become available to DOJ without subpoenaing Meadows. And to the extent this process reveals that materials of investigative interest to a grand jury were deleted when Meadows obtained a new phone, it will give DOJ reason to use legal process to either hold Meadows accountable for obstruction, or reason to get it from others, like Jim Jordan. To say nothing of the fact that Meadows can’t prevent DOJ from subpoenaing the call records that led him to renege on efforts to cooperate with the January 6 Committee. That’s why I doubt DOJ will hold Meadows in criminal contempt, because they would be better served to get that information — and coerce cooperation, if he chooses that route — via their own legal process. Effectively, then, Bennie Thompson wrote a rough draft of a warrant affidavit for the FBI.

It’s in the subpoenas for witnesses, however, that I’m most curious about with regards to deconfliction between the DOJ and Select Committee investigation. Consider: There are two Trump associates who were key in sowing the Big Lie, Rudy Giuliani and Sidney Powell, who are known to be under criminal investigation right now. That’s a topic the Select Committee is focusing closely on. But in spite of the fact that Bennie Thompson has expressed an interest in interviewing Rudy, thus far Thompson remains coy about how he’ll reach out to get Rudy’s testimony. There has been no public mention of getting Powell’s testimony or, for that matter, Lin Wood or Patrick Byrne, who — based on public reports — are part of that grifting investigation as well (and Byrne would be interesting of his own accord because he was honey-potted by a Russian spy). And for that matter, at least by the time he sued the committee, Mike Flynn’s call records hadn’t been subpoenaed either.

I’m equally interested in the timing of the Stewart Rhodes subpoena: November 23. That was after DOJ obtained an arrest warrant for James Beeks, the last member of The Stack, on November 18, but the day before they arrested him. By that point (probably long before), DOJ had to have known they were going to pursue sedition charges against him. But for some reason, they held off on the sedition charges when they superseded the Oath Keepers indictment on December 1 (before they otherwise would have needed to charge Beeks) to include him and tweak the Civil Disorder language in the indictment. There may be very good reasons they needed to wait: They needed to find Rhodes; they needed to finish exploiting his phone; they needed to resolve how they were going to treat the field commander, Mike Simmons, whose status in the investigation changed pretty dramatically between the December indictment and the Sedition one. But in that period while they held off, the Select Committee tested whether Rhodes wanted to go lie under oath to Congress. He declined.

It was worth a shot!

I find it equally curious that the Select Committee chose to target colleagues who played a more ambivalent role in the insurrection on January 6, rather than people like Paul Gosar or Mo Brooks, who have clear ties to organizers and other insurrectionists.

Similarly, I share Justin Hendrix’s curiosity why — especially in the wake of his article showing that The Donald isn’t being used in FBI affidavits — the Select Committee isn’t pursuing the role of the post-Reddit social media site in the insurrection, even while they expand their prior requests on more traditional social media.

In short, DOJ and the Select Committee are necessarily deconflicting their efforts, even if the Committee remains fire-walled from what DOJ has planned in the weeks ahead. But understanding that raises interesting questions about the Select Committee choices.

These pieces are all parts of a much bigger conspiracy. And until we see all those pieces we won’t see how they all work together.

But there are increasing signs that others are putting those pieces together.

Update: On January 18, the committee subpoenaed Rudy, Sidney Powell, and two others.

Update: On January 28, J6 subpoenaed the fake electors.

Select Committee Witness Requests

The Structure of the January 6 Assault: “I will settle with seeing [normies] smash some pigs to dust”

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Before 8AM on the morning of the insurrection, the Proud Boys had this discussion on their organizing Telegram thread.

UCC-1: I want to see thousands of normies burn that city to ash today

Person-2: Would be epic

UCC-1: The state is the enemy of the people

Person-2: We are the people

UCC-1: Fuck yea

Person-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

Person-2: Fuck these commie traitors

Person-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

UCC-1 has been reported to be Aaron Whallon-Wolkind, who cheered on the insurrection from Philadelphia and interacted with Zach Rehl and other Philly Proud Boys throughout the day. Persons 2 and 3 have not yet been publicly identified.

This discussion and others reveal a key part of the Proud Boy plan for January 6: to incite others — “normies” — to commit violence. And while a number of Proud Boys or close associates engaged in what I’ve called “tactical” violence that day, the vast majority of (and the worst) violence was done by others, mostly by people with either no known or just networking ties to militia groups (such as through anti-mask activism). The Proud Boys weren’t the only militia-linked people attempting to encourage others to engage in violence; it’s a key part of the anti-mask/3% conspiracy, for example. But a stated goal of at least some of the militia members who implemented the assault on the Capitol was to stoke others to engage in violence.

This detail is critical to understanding what DOJ has accomplished so far and where they might be headed. Many of those screeching that DOJ is not doing enough to investigate January 6 — like Elie Honig complaining that DOJ has arrested 700 indistinguishable “rioters” or Hussein Ibish claiming that “many foot soldiers” have “received mainly light prison sentences” but no “planners … have been held to account in any meaningful way” — seem not to understand it.

So I’d like to talk about what we know about the structure of the attack on the Capitol and how it related to things Trump and his minions were doing. Before I attempt to do that, let me rebut a straw man Honig and others have used in an attempt to ignore the facts I present. I share their alarm about the urgent need to respond to January 6 and Trump’s unlawfulness. I am not guaranteeing that Trump will be held accountable.

Where we differ is that I have read the public record on the investigation (and on other investigations that Honig, at least, has denied exist, like the investigation into Sidney Powell’s grifting).

It is not the case that all 700 people who have been arrested were mere “rioters,” — and calling some of these people rioters adopts the preferred label of those championing the coup. And unless you consider mere rioters “foot soldiers,” then very few witting foot soldiers have yet been sentenced. While it is true that no planners have been sentenced, it is also the case that DOJ has arrested some key ones, a small number of whom have been jailed since their arrest, and a great deal of DOJ’s overt investigative focus lies in arresting those who can illuminate how the organizers worked and how they coordinated with others.

Before I lay this out, keep in mind the three main theories of liability for Trump for January 6 (as opposed to his call to Brad Raffensperger, though as I’ve noted, the call to Raffensperger goes a long way to showing Trump’s corrupt mens rea on January 6). At first, people argued that Trump incited the mob. There were problems with that claim, which Trump’s defense lawyers successfully exploited during his second impeachment trial, most notably that the Proud Boys had already kicked off the assault on the Capitol before the former President finished speaking. Still, to prove he incited a riot, you’d need to prove that the people who rioted did so in response to his speech at the Ellipse. Then, after Liz Cheney raised it, TV lawyers discovered what I’ve been pointing out for months. Trump’s actions (and inaction) fit squarely within the application of obstruction of the vote count that DOJ applied from the start. Finally, last week, Congress watchers discovered that Trump might actually have entered a conspiracy to obstruct the vote count, “involv[ing] coordination between the ‘political elements’ of the White House plan communicated to Republican lawmakers and extremist groups that stormed the Capitol” — again, consistent with what I’ve laid out for months. That, though, would require mapping out how the various parties entered into agreements and how they communicated and coordinated (with conspiracy members as well as Congress and the mobsters). That’s why I keep pointing to the structure of the existing conspiracy charges: because what Trump did exactly mirrors the overt acts already charged, from getting bodies to DC, ensuring they get to the Capitol, and encouraging means to overtake it.

It’s all one networked conspiracy. Indeed, the judge presiding over the Oath Keeper conspiracy case, Amit Mehta, observed in the Trump lawsuit hearing the other day that there was evidence that militia conspired with the Proud Boys.

Which, if DOJ could ever prove that those Trump entered into an agreement with, like Alex Jones, also entered into an agreement with Alex Jones’ former employee Joe Biggs, it would network Trump right into the conspiracies that rolled out at the Capitol, potentially putting him on the hook for the things those at the Capitol did, including damaging the building (which brings the terrorism enhancement), potentially some tactical assaults, and (if it gets charged), possibly even Kelly Meggs’ effort to hunt down Nancy Pelosi.

That may not be your preferred model of to hold Trump accountable, but I’m fairly certain that’s how DOJ would do so, in addition to whatever liability for him arises out of investigations into people like Sidney Powell or Rudy Giuliani.

What the evidence thus far shows is that Trump brought huge numbers of people to DC and convinced them that, to defend their country, they needed to march to the Capitol and pressure Congress, via one of a number of means, to not certify the election. Alex Jones and Ali Alexander then delivered these bodies to the Capitol, and once there, to a second breach on the East side. The Proud Boys, seemingly anticipating that this influx of “normies,” kicked off and carefully focused the riot just in time to create a real threat to Congress (and Mike Pence) just as they started to certify the vote count. (This Sedition Hunter timeline makes a compelling argument, one consistent with Proud Boy Matthew Greene’s statement of offense, that the Proud Boys paused their assault to wait for the mobs Alex Jones was bringing.)

The plan required six types of participants to make it work:

  • People (Trump, Rudy, and Mo Brooks) to rile up large numbers of normies
  • Someone (Alex Jones) to guide the normies to the Capitol, probably while communicating with the Proud Boys as they kicked off the riot
  • People at the Capitol (Proud Boys and associates) to tactically deploy the normies as a weapon, both to occupy the Capitol and to create a very real risk to the members of Congress
  • Members of Congress (Paul Gosar and others) willing to create conflict that could be exploited in any of a number of ways
  • Masses and masses of people who, starting even before the election, had been led to believe false claims that their country was under threat; those masses did two things:
    • Enter the Capitol, with a varied level of vocal enthusiasm for the mayhem occurring, and make it far more difficult for cops to put down the assault
    • “Smash some pigs to dust”

Had any of a number of things gone differently — had Ashli Babbitt not been shot and had the amped up Zach Alam chased just behind her through the Speaker’s Lobby door before members of Congress escaped; had Officer Eugene Goodman not done several things to prevent both Mitt Romney and Mike Pence from running into the mob; had counter-protestors come out in large numbers to create the excuse for street skirmishes made lethal by arsenals of weapons stashed nearby; had DOD delayed deployment of the Guard even further, allowing a planned second assault to take place — the coup might well have succeeded.

With that has background, let’s turn to the DOJ investigation thus far. Politico has done the best public accounting of sentences here (though I treat Zoe Tillman’s numbers, along with GWU’s, as canonical). As Politico shows, the vast majority of those who’ve been sentenced — and almost as significant a majority of those who’ve pled guilty so far — are trespassers.

The vast majority of people sentenced so far were MAGA tourists, lured to the Capitol by Trump’s speech and the momentum of the crowd. While a sizable number knew of plans to obstruct the vote certification in advance (and a significant number of people were permitted to plead down from obstruction), a bunch of them really did arrive for the speech and stay for the riot.

One example of that is Anthony Scirica, who followed the crowd to the Capitol and decided to enter the Capitol even though he heard a window breaking and alarms going off.

After listening to the speeches at the rally, SCIRICA, along with a group of individuals, walked to the U.S. Capitol from the West. 10. As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

Eliel Rosa went to DC as much for the anti-certification rallies as the Trump speech.

Eliel Rosa and Jenny Cudd traveled from Texas to Washington, D.C. to participate in “Stop the Steal” rallies or protests and to connect with other “Patriots.” Mr. Rosa and Ms. Cudd understood that on January 6, 2021, in Washington, D.C. at the United States Capitol, elected members of the United States House of Representatives and the United States Senate were meeting to certify the vote count of the Electoral College of the 2020 Presidential Election, which had taken place on November 3, 2020.

But even still, he attributed his trespassing to being swept up in “mob rule.”

Rosa blamed himself for his unauthorized entry into the U.S. Capitol and stated that he was caught up in “mob rule” at the time.

Kevin Blakely, who traveled to DC with friends, made new friends while waiting for Trump’s speech to start and then joined in to experience history (a common theme among some defendants).

The defendant and three others stood in the Ellipse for more than four hours before the rally started and met with other attendees. After President Trump’s speech, the defendant joined others as they began to walk toward the U.S. Capitol Building. [Blakely] made a detour and returned to the Hyatt Regency, where he was staying during his visit to Washington, D.C. From his hotel room, the defendant watched the crowd as they gathered outside the Capitol Building nad sometime between 2:00 and 2:30 p.m., [Blakely] decided to “get closer and more fully experience this ‘once in a lifetime’ event.”

Even those who did go to the Capitol from Trump’s speech knew, from communications including Trump’s, that it would be a mob. Here’s what Blakely’s friend Paul Conover, who just recently pled guilty, said he was doing.

Prior to January 6, on or about December 24, 2020, defendant posted a message on social media that states in sum and substance: GOING TO WASHINGTON DC WITH BLAKEY [SIC] TO JOIN THE MOB JAN 5TH CMON JOIN US.

Conover appears to be one of the misdemeanants whose arrest DOJ prioritized because they took videos in key locations. After he busted through the East doors closely behind the Oath Keepers and Joe Biggs, Conover narrated as he took a video panning the Rotunda:

This is it, boys and girls. This is the Capitol. Apparently, there’s some crazy shit going on in the Senate today and the certification. They’ve had enough. Well, uh, here we are! Ha ha ha! I pray to god that nobody does any damage to the stuff in here, ’cause I’m not down with that. But I’m kind of, kind of proud of the people that stood up and said you know what? Enough.

The statement of offense for Stacie Getsinger, who described on Facebook going to the East steps because Alex Jones told a crowd that Trump would speak, offered few details, describing only that she “walked to onto U.S. Capitol grounds and up the stairs of the U.S. Capitol with others, including her husband John Getsinger. Once Getsinger got to the outside of the Rotunda North doors, she observed others engaged with law enforcement who tried to stop individuals from entering the U.S. Capitol building.”

Adam Johnson described how he went from hearing Mo Brooks call for violence to running towards the Capitol.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

Following these speeches, JOHNSON and. Person 1 began marching to the Capitol with the crowd. While marching, JOHNSON heard someone say “Pence didn’t do it.” JOHNSON also saw police running towards the Capitol and heard members of the crowd shout,”they broke into the Capitol!” JOHNSON and Person 1 started running towards the Capitol as well.

Others who came over from the Ellipse more explicitly discussed intimidating Congress. For example, here’s how Michael Stepakoff (who will be sentenced in coming days) narrated his approach to the Capitol.

So we’re marching up Pennsylvania Avenue to the Capitol building. The Senate and House of Representatives are in session . . . There’s nothing like the presence of at least a million Americans who are fed up and pissed off and are not going to stand for having our vote stolen because it’s the sacred right of our people to be able to vote for our president . . . so a million strong, at least a million standing outside the Capitol, storming the gates, so to speak, is going to make them think twice about what they are going to do today . . . God bless America.

While some people cheered the violence and a few got away with violence DOJ only discovered after their plea, the majority of the almost 200 people who’ve pled guilty so far did not engage in violence. With a few exceptions, below, these people weren’t wittingly part of the more organized plans to storm the Capitol. They were the bodies turned into an orchestrated mob, in part by Trump’s tweets and other social media advertising, and in part by those channeling the mob at the Capitol.

If you want to prove Trump incited the riot, you would need to collect these individual stories to prove it. That’s not the only reason DOJ has prosecuted these people, but it does provide evidence showing how people responded to Trump’s calls after he riled them up.

Some of the movement operatives wandered to the Capitol too

Among those who’ve been permitted to plead to misdemeanors, even some that I’d call “movement operatives,” wandered to the Capitol.

For example, right wing podcaster William Tryon, plausibly described following the crowd to the Capitol after Trump’s speech. Frank Scavo, a local PA politician who arranged busses for 200 people to travel to DC, tied his decision to walk to the Capitol to Pence’s decision to certify the vote; he’s one of the defendants sentenced to a longer sentence than the government requested.

There are a few exceptions. America Firster, Leonard Ridge, unsurprisingly seemed to know there’d be an attempt to shut down the vote count ahead of time, telling a friend, “I think we are going to try to block the session of congress” (he was one of the people permitted to plead down from obstruction to the more serious trespassing charge).

Two cases defy explanation. Micajah Jackson, a Proud Boy who denied a pre-January 6 affiliation and continued to attend Proud Boy events during pretrial release, mentioned nothing about that in his statement of offense. We might find out more about this in February, when Jackson is due to be sentenced.

The statement of offense for Brandon Straka, who is perhaps the senior-most inciter-organizer to plead guilty thus far, describes only that Straka took the metro directly to the Capitol, where he was scheduled to speak: “Knowing that Congress was in session to certify the election results at the U.S. Capitol and that Vice President Pence intended to certify the election, Straka got off the metro on January 6, 2021 sometime between 2 p.m. and 2:20 p.m.”

It’s not clear how these men were given misdemeanor pleas, when they were clearly part of an organized attempt to prevent the transfer of power. There’s no sign either man cooperated before entering their pleas, though Straka’s sentencing has been held up because, “the defendant provided counsel for the government with information that may impact the government’s sentencing recommendation.” If the current schedule holds, Straka’s sentencing memos will come in tomorrow and he’ll be sentenced next week.

That said, movement operatives like Jackson and Straka are, thus far, the minority among those moving towards sentencing. Most were part of a self-described mob.

About half the felony pleas charged people who wandered to the Capitol

Even two of the three people who’ve pled guilty to assault thus far showed up without any pre-conceived plan to attack the Capitol. Devlyn Thompson, in an unsuccessful bid to use his autism diagnosis to get lenient treatment, described that he went to the Capitol because believed Trump would give another speech, a lie that motivated a good number of mobsters.

When I was leaving, my intention was to listen to another speech at the capitol. I had gotten text messages. I got a text that there was a planned speech. There was supposed to be two speeches at the capitol. One from an Arizona legislator and one from Women for Trump. I thought Alex Jones would be there and Trump.

After getting riled up by clashes between cops and rioters in the earlier part of the assault, Thompson joined in the Tunnel assault, eventually using a baton to hit one of the officers trying to help John Anderson respond to respiratory distress.

Robert Palmer similarly described being lured to the Capitol by a false belief in Trump’s claims.

In Mr. Palmer’s warped mind, on the day in question, he was acting as a patriot and for the good of the nation. While his intent was misplaced and his actions inexcusable, he sincerely believed that he was acting as a patriot on the day in question. Unfortunately, that mindset, coupled with the crowd mob effect, saw an otherwise law-abiding and successful father and business owner assault Capitol police.

Palmer was at the Capitol for hours, cheering the violence, before he got sucked in and participated in it by throwing a series of things at cops.

Just Scott Fairlamb, who was sentenced for punching a cop, clearly knew shit was going to go down in advance. He RTed a Steve Bannon prediction that “All hell is going to break loose tomorrow,” and asked, “How far are you willing to go to defend our Constitution?” Those statements are one of the reasons why Fairlamb, uniquely thus far, pled to both obstruction and assault and, if not for some mitigating circumstances that came out at sentencing, might have faced a terrorism enhancement.

There are two straight obstruction defendants sentenced so far, Paul Hodgkins and Jacob Chansley. Like many of the trespassers, Hodgkins simply followed the crowd after Trump’s speech (he was charged with a felony because he made it to the Senate floor).

Just Chansley, then, turned a central role in the right wing movement — importantly, as a celebrity in QAnon — into a key role obstructing the vote count and threatening Pence. There’s far more to say about the success QAnon had in mobilizing bodies to where they could be the most useful (and the Podcast Finding Q revealed that FBI was investigating that in the weeks after the attack). But the operational model by which people like Chansley got to the Senate floor is different than for other MAGA tourists who were turned onsite.

There are more known cooperators than straight felony pleas

To a great degree, this entire exercise is misleading, which is why pat comments from people trying to dismiss the investigation are so misleading. There are a number of reasons the stats skew where they are now: Obviously, people will plead to a misdemeanor more quickly than a felony. Virtually all of those charged with obstruction have been waiting for judges to rule on challenges to that application, and as those people move towards pleading out (as they have started to do), it still will take some weeks to finalize pleas. One reason for that hold-up: DOJ is only now making the final bits of global discovery available, without which many attorneys, for due diligence reasons, will not advise taking a plea.

A more important reason claims about who has been sentenced are misleading is that there have been more felony cooperators than straight felony pleas thus far. With two people convicted for making threats, there have been seven people who pled to a felony sentenced. There are nine overt cooperators (and presumably more we don’t know about). And while two cooperators — Josiah Colt and Gina Bisignano — are cooperating against their own limited network of more serious defendants, cooperation deals like Colt’s structured under 18 USC 371 networks into any larger conspiracy, potentially putting conspirators on the hook for the assaults of his co-conspirators. The other cooperating witnesses, though, have provided information about how the planners who’ve been in custody for most of a year — Kelly Meggs and Kenneth Harrelson for the Oath Keepers, Joe Biggs and Ethan Nordean for the Proud Boys — and those who have not yet been arrested orchestrated the attack.

This was a fairly flat conspiracy, with Proud Boys on the scene implementing orders from Proud Boy leaders who are, themselves, just one degree from Donald Trump through people like Alex Jones and Roger Stone. In addition to the 17 plus four Oath Keepers charged in a conspiracy, there are several more Oath Keepers being prosecuted. In addition to the 16 Proud Boys plus one cooperator charged with conspiracy, there are a slew more arrested individually and in co-traveler groups (some of whom are at risk of being added to conspiracy charges once they’re formally charged) who can offer information about the funding for all this, what Proud Boy leaders were saying during the riot, and some key tactical organization. Some of the 3%ers charged so far networked with key right wing funders, January 5 speakers, and even Ted Cruz.

So yes, 700 people have been arrested so far, and half of those are normies whose non-violent presence was operationalized in a well-planned assault on the Capitol. Many of the 150 assault defendants were “normiecons [who] have no adrenaline control.” But 200 of the arrestees are accused of more witting participation in a plan to prevent the peaceful transfer of power and of those 100 have networked insight into how that worked. Those people haven’t been sentenced yet because discovery and legal challenges have delayed most from accepting plea offers.

The most chilling passage in any statement of offense, in my opinion, is Matthew Greene’s description of realizing — from his service in Afghanistan — the moment the mob turned into an insurrection.

Greene noticed that during and following the chanting, the mood in the crowd changed, and it reminded him of his time in Afghanistan while stationed there with the U.S. Army, when protests changed from peaceful to violent.

In the days and weeks after he recognized Americans turning insurgent in their own country, Greene returned home and started assembling a (seemingly illegal) arsenal and preparing for war.

He told another acquaintance in the days following the riot to be prepared to do uncomfortable things. He ordered over 2,000 rounds of assault-rifle ammunition and a gas mask. And he engaged in conversations with other Proud Boys on encrypted messaging platforms in which he stated a continuing desire to “take back our country” – in Greene’s own words, written in chat platforms post-January 6, “this is a 4th generation” war, and “we must stand together now or end up in the gulag separately.”

The effort to spark an insurrection at the Capitol was not one implemented by “foot solders,” but some highly trained veterans who were onsite, including an alarming number of Marines in most key tactical locations. And the network of people who stoked the normies to serve as useful bodies to this effort ties, via just one or two steps, right to Trump.

That’s the conspiracy DOJ has been investigating for a year.

Update: Took out detail that Straka was not at Ellipse. The key detail is he claims he took the Metro, didn’t walk.

The Six Trump Associates Whom DOJ Is Investigating

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Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Rudy Giuliani

As I said a month ago, the treatment of Rudy Giuliani’s phones single-handedly disproves claims that Merrick Garland’s DOJ wouldn’t investigate Trump’s people, because a month after he was confirmed and literally the same day that Deputy Attorney General Lisa Monaco was sworn in on April 21, DOJ obtained warrants targeting Rudy Giuliani.

The known warrants for Rudy’s phone pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

But as this table shows, Judge Paul Oetken ordered Special Master Barbara Jones to conduct a privilege review for Rudy’s seized devices from January 1, 2018 through the date of seizure, April 28, 2021. That means anything on Rudy’s devices from the entire period when he was helping Trump obstruct Mueller’s investigation well past the time he played the central role on orchestrating a coup attempt would be available to DOJ if it could show probable cause to get it.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

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

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

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Tom Barrack

Just this Tuesday, in a Zoom hearing for Brooklyn’s Federal Court, lawyers for the guy who installed Paul Manafort as Trump’s campaign manager suggested that Merrick Garland had politicized DOJ because, after the investigation into Tom Barrack had apparently stalled in 2019, he was indicted as an unregistered agent of the Emirates in July 2021.

According to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Sidney Powell

Two different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud. WaPo’s story on the investigation describes that Molly Gaston is overseeing the investigation (she is also overseeing the Steve Bannon referral). As I noted, Gaston was pulled off three prosecutions for insurrectionists by last March.

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

For at least the Michael Riley prosecution and the Steve Bannon prosecution, Gaston is using two of at least three grand juries that are also investigating insurrectionists. For at least those investigations, there is no separate grand jury for the public corruption side of the investigation and the assault on the Capitol. They are the same investigation.

The investigation into Powell will necessarily intersect in interesting ways with Trump’s pardon of Mike Flynn.

There have been a lot of complaints that DOJ is not following the money. Powell’s investigation is proof that DOJ is following the money.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

There’s one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year. The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

Update, 2/8/22: NYT just named the sixth person under investigation: Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.

There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.

Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.

Update: I did a podcast where I explained how the misdemeanor arrests are necessary to moving up the chain.

Clue: It Was Sidney Powell with the Grifting, in Advance of the Pardon, on Lin Wood’s Plantation

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In a post on the significance of the news that the DC US Attorney Office is investigating Sidney Powell’s grift, I noted that she started fundraising to perpetuate false claims about a stolen election — on November 23, 2020 — before she received a thing of value from Trump — a pardon for Mike Flynn — and before she had set up the legal vehicle to do that grifting.

I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

This CNBC report adds a new wrinkle to this timeline: during this same period, Powell and Flynn and Patrick Byrne were at Lin Wood’s two plantations in South Carolina. They appear to have worked in Wood’s residence, Tomotley Plantation, and stayed in Cotton Hall, which he had just purchased.

Lin Wood, a conservative trial lawyer who led a failed legal challenge against the election results in Georgia, said in a lengthy interview that shortly after the 2020 contest last November, he hosted at his massive South Carolina properties fellow right-wing attorney Sidney Powell, former Trump national security advisor Mike Flynn, former Overstock CEO Patrick Byrne, and Doug Logan, the CEO of cybersecurity firm Cyber Ninjas.

Jim Penrose, who says on his LinkedIn profile that he used to work for the National Security Agency, and Seth Keshel, who promotes himself on his Twitter page as a former Army captain and who has spread falsities about the election, according to the Associated Press, also made appearances at Wood’s properties, the attorney said.

[snip]

“They set up in my living room and one of the sunrooms. They looked like election central. They had computers, whiteboards. They were working,” Wood said about Powell and her team’s prior work at his residence. Southern Living magazine describes the living room at Tomotley: “Custom built-ins and a working fireplace bring warmth to the spacious living room.”

[snip]

But many of Powell’s fellow election conspiracy theorists took up residence for days at Wood’s nearby property called Cotton Hall, the veteran attorney explained. It too is considered a historic plantation in South Carolina, and it encompasses over 700 acres. The South Carolina plantations history website says its primary crop in the 19th century was rice.

[snip]

Flynn, for instance, arrived at Tomotley with Byrne days after Powell arrived, Wood said. Though Byrne stayed at Cotton Hall for only a day, Flynn took up residence through Thanksgiving.

“Flynn was here on Thanksgiving because he carved the turkey when we ate over at Cotton Hall,” Wood said during the interview.

It’s unclear why Wood shared all these details. While this report cites the Daily Beast reporting that includes the news on the grand jury investigation, it presents that story instead in the context of the “feud” between Wood, Flynn, Byrne, and Powell. If they haven’t been already, those people would all be subpoenaed in the investigation, and so this might instead be an attempt to coordinate stories or convey what questions are being asked.

But what’s interesting about the timeline is that it seems to suggest that Trump or someone close to him would have called into the plotting on the plantation.

When you pardon someone, you call them or their representative to let them know. And while it’s not certain that Flynn had arrived at the plantation yet when he got the pardon on November 25, the day before he cut the turkey at Wood’s plantation on November 26, Powell had already been there some days before Flynn showed up, meaning — at least per this reporting — she was definitely at Lin Wood’s plantation plotting propaganda to help Trump stay in office on the day of the pardon.

This also adds the delicious detail that a guy who advertised that he had been honey-potted by a woman accused of spying for Russia may have been with Flynn when he received notice he was being rewarded for refusing to admit to Mueller’s team that Trump was involved in efforts to undercut sanctions on Russia in December 2016.

This all would read like a cheap spy novel if there weren’t an accused spy and a guy who admitted he had been secretly working for another frenemy state as well.

But even aside from Byrne’s presence, it sure adds interesting details to the circumstances of Flynn’s pardon that may be of interest to criminal investigators.

Why That Peter Navarro Interview Isn’t Enough To Charge Him with Sedition

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A slew of people have asserted as fact that an interview that Peter Navarro did on his book offers adequate proof to charge him with sedition. The interview (and I assume the book) lays out a plan called the Green Bay Sweep that, Navarro hoped, would result in Trump remaining in power. It entailed:

  • Recruiting “over 100 congressmen, including some senators” to raise objections to the vote count, setting off 24-hours of news coverage on false claims about the election
  • Increasing public pressure — unrelated to threats of violence — to lead Mike Pence to send the electoral vote back in six swing states
  • Using that delay, getting those states to change their vote results

Navarro’s role was to invent the false claims members of Congress would use to fill up 24-hours of “debate.”

Navarro’s part in this ploy was to provide the raw materials, he said in an interview on Thursday. That came in the form of a three-part White House report he put together during his final weeks in the Trump administration with volume titles like, “The Immaculate Deception” and “The Art of the Steal.”

“My role was to provide the receipts for the 100 congressmen or so who would make their cases… who could rely in part on the body of evidence I’d collected,” he told The Daily Beast. “To lay the legal predicate for the actions to be taken.” (Ultimately, states have not found any evidence of electoral fraud above the norm, which is exceedingly small.)

I’d like to talk about why this book and interview are not enough to charge Navarro with sedition, and in fact the current media frenzy into is is actually counterproductive to the legal investigation.

A book and an interview are not evidence

The most important reason why this book and Navarro’s interviews on it are not enough to charge him is that books are probably not admissible evidence.

This is retroactive telling about what, Navarro claims, he and Steve Bannon and others planned to do. While the book might be part of a conspiracy to cover up what Navarro and Bannon planned, in and of itself, it’s not clear it would be admissible at trial (though it could be useful at trial for other reasons, such as challenging any testimony Navarro gave).

Instead, you’d need to get all the texts and memos Navarro says documents this effort, the former of which may require seizing his phone with a probable cause warrant.

Although the bipartisan House committee investigating the violence on Jan. 6 has demanded testimony and records from dozens of Trump allies and rally organizers believed to be involved in the attack on the nation’s democracy, Navarro said he hasn’t heard from them yet. The committee did not respond to our questions about whether it intends to dig into Navarro’s activities.

And while he has text messages, phone calls, and memos that could show how closely an active White House official was involved in the effort to keep Trump in power, he says investigators won’t find anything that shows the Green Bay Sweep plan involved violence.

You’d likely need cooperating witnesses that were willing to tell this story, perhaps Navarro himself and Steven Bannon (the same guy refusing to testify to the Jan6 Committee right now).

As such, this interview is at most an investigative blueprint that, months down the road, might lead to evidence that could be used to prosecute Navarro.

Much of this is not illegal

Another reason why this interview and book are not a smoking gun is that, as Navarro describes it, much of it is not illegal.

It is not illegal to invent false claims about an election, as Navarro said he did. It might be sanctionable for a lawyer to make those same false claims to a court (as it finally became for Sidney Powell). I might be illegal to raise money off promises of electoral changes you knew to be false, which seems to be one of several premises for the investigation of Sidney Powell. But it’s not illegal to lie.

It’s also not illegal for members of Congress to raise objections on the floor, which was a central part of this plan. As Republicans never tire of reminding, Jamie Raskin did so himself in 2017.

Unlike Raskin’s challenge, the plan here was to base electoral challenges off bullshit. But even if you could prove that members of Congress knew it was all bullshit (and you would need to prove that), it’s also not illegal for members of Congress to push bullshit in Congress. Indeed, that is pretty aggressively protected under Speech and Debate. To criminalize this behavior you’d have to distinguish it from what lobbyists do all the time when they push members of Congress to adopt storylines that are factually false.

All this only becomes illegal in the context of a plan to violate the law. DOJ has been using 18 USC 1512(c)(2) to charge deliberate efforts to prevent the certification, but at least as stated, Navarro didn’t want to obstruct the proceeding in question, he wanted that process to occur, albeit stretched over 24 hours according to the very rules that judges have pointed to to affirm that it is an official proceeding. So if you were to charge it, you’d need to charge something else, perhaps trying to get Pence to violate his duty.

Much of this is probably a lie

Crazier still, people claiming that this book and interview are the smoking gun in a prosecution are treating it as a truthful description, which it would need to be to serve as admissible evidence for any crime itself (which is why it would have limited evidentiary value short of getting a whole lot of texts and testimony).

Peter Navarro is a noted liar and Steve Bannon is an even more accomplished one. And we know — because BuzzFeed fought to liberate Mueller materials — that Bannon is all too happy to tell serially false stories to protect himself from criminal exposure. At a very similar time in the Mueller investigation, Roger Stone got the press to chase his false claims like six year olds chasing a soccer ball, and to this day, the overwhelming majority of the press believe his claims about why he was prosecuted are actually why he was (though prosecutors used that to their advantage, too).

We should assume this story is of the same ilk, a cover story, which has successfully led the press to grasp onto it as a smoking gun rather than a distraction. If it is a cover story, it serves to:

  • Claim that “‘Stephen K. Bannon, myself, and President Donald John Trump’ were ‘the last three people on God’s good Earth who want to see violence erupt on Capitol Hill,'” as it would disrupt their plans. This claim is crucially important with regards the pressure campaign focused on Pence, as I’ll return to. And it is undoubtedly bullshit.
  • Claim that Navarro “felt fortunate that someone cancelled his scheduled appearance to speak to Trump supporters that morning at the Ellipse, “because “It was better for me to spend that morning … Just checking to see that everything was in line, that congressmen were on board.” This adopts the same strategy that Stone has, blaming those who organized the Ellipse rally rather than those orchestrating events at the Hill. And in this telling, Navarro was just talking to members of Congress, not communicating to any of the people who would go on to attack the Capitol.
  • Distance himself from Sidney Powell’s equally outlandish claims. In his telling, this is a plan that arose from the failures of Sidney Powell’s false claims, not a continuation of them. This treats Navarro’s efforts as an alternative to Powell’s false claims, not a continuation of them.

[Navarro] said it started taking shape as Trump’s “Stop the Steal” legal challenges to election results in Arizona, Georgia, Pennsylvania, and Wisconsin fizzled out. Courts wouldn’t side with Trump, thanks to what Navarro describes in his book as “the highly counterproductive antics” of Sydney Powell and her Kraken lawsuits.

  • Focus on January 6 rather than January 5. Navarro emphasizes that he spoke to Bannon first thing in the morning on January 6. Given what we know about the way the riot was finalized on January 5, I’m more interested in whom he spoke with before he went to bed.

In my experience, you learn far more in mapping out what liars are trying to cover up than you do chasing their claims as if they are the truth. And the same is probably true here.

But at the very least, Navarro’s tale attempts to dissociate himself with several contributors to January 6 that might be more obviously tied to crimes than the lies he packaged up for members of Congress to tell.

The takeaway from this book and interview ought to be that Navarro has admitted his goal was to bring maximal pressure on Mike Pence. As such, it means he shares a stated goal of a number of January 6 defendants who have already pled guilty.

Mike Flynn Forgets He Was Shit-Canned by Presidents of Both Parties

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In a lawsuit attempting to kill an existing subpoena from the January 6 Committee and an as-yet unidentified subpoena to Verizon, Mike Flynn accuses Bennie Thompson of opposing Barack Obama. That’s the only logical conclusion one can draw from Flynn’s claim that the people behind the subpoena of him, “belong to the political party that opposed the President under whom General Flynn served.”

The body that issued the Subpoena is composed of 9 members, 7 of whom belong to the political party that opposed the President under whom General Flynn served. The remaining two members were Republicans hand-picked by Speaker Pelosi because they were vocal opponents of former President Trump from within the Republican Party.

As Flynn himself points out in his lawsuit, he served Barack Obama as Defense Intelligence Agency head for over two years, a total of 744 days. He served Donald Trump as National Security Advisor for around 24 days, a laughably short tenure even by the standards of the Trump Administration.

Plaintiff Lieutenant General Michael Flynn is a retired Lieutenant General in the United States Army, served as the Director of the Defense Intelligence Agency from July 2012 to August 2014, and was the National Security Advisor at the start of the Trump Administration.

Mike Flynn was shit-canned by both Presidents.

Nevertheless, a man fired by Presidents of both parties wants to claim a mere subpoena is a witch hunt against him.

Flynn, predictably, gets a lot else wrong in this lawsuit. His depiction of how Billy Barr attempted, but — even after appointing a team that altered DOJ documents as part of their attempt — failed to blow up the prosecution of him gets details big and small wrong.

He was famously led into a perjury trap by the Federal Bureau of Investigation, pled guilty to making a false statement after the government threatened his son and then agreed not to prosecute his son if he pled guilty. He later sought to withdraw that plea under the guidance of new counsel after the discovery of exculpatory evidence that was withheld from him prior to his guilty plea. When the Department of Justice decided to drop the charges against him, a court stayed his sentencing while the Court considered whether to force the Department of Justice to prosecute him. Ultimately, General Flynn received a Presidential pardon.

There was no perjury trap, his very good Covington lawyers were especially worried about Flynn’s exposure as a secret agent of Turkey, none of the evidence was deemed to be exculpatory, and he had already been prosecuted.

It is true that after Sidney Powell did more harm then good, Trump pardoned the man he shit-canned. It’s also true that Flynn remained equivocal about whether Donald Trump knew about his efforts to undermine sanctions during the Transition — though transcripts of his calls with Sergey Kislyak show that he told Russia’s Ambassador, at least, that Trump did know.

But there are several details in this lawsuit — like all of these lawsuits challenging the January 6 Committee, which appear to be at least partly an attempt to coordinate cover stories — of interest.

As Josh Gerstein observed, the lawsuit is full of dated information.

On January 6, 2021, a large group of people in Washington, D.C., entered the U.S. Capitol, breached security, and disrupted the counting of Electoral College votes until order was restored. The U.S. Department of Justice has arrested more than 500 individuals in connection with those activities on January 6th. General Flynn was not part of, nor was he present, at the Capitol grounds during any of those activities at the Capitol that day. Like most Americans, he saw those troubling events unfold on television.

[snip]

Former President Trump appealed the district court’s order, and the D.C. Circuit Court of Appeals enjoined NARA from releasing the disputed Presidential records pending its ruling. See Mem. Op. 17, Trump v. Thompson, No. 1:21-cv-2769 (D.D.C. Nov. 9, 2021).

On November 30, 2021, the D.C. Circuit held oral argument on the merits of former President Trump’s appeal. This case is still pending.

While I’m not surprised the Dhillon Law Group cited details about the January 6 investigation that are four months out of date, you’d think they — or Flynn, via Jesse Binall, who was part of the Sidney Powell team that represented him — would have heard of the legal thumping that the DC Circuit gave Jesse Binall on December 9.

As Katelyn Polantz observed, by filing this in his home district in Florida (albeit in the wrong district at first), Flynn sets up the possibility of a circuit split with the DC Circuit decision that Dhillon Law Group hasn’t heard about yet.

So this may be part of a concerted plan, but one that being implemented with the legal incompetence characteristic of Trump (and Flynn) lawyers.

Particularly given how dated this lawsuit is, I’m particularly interested in Flynn’s reliance on the investigation into Sidney Powell’s grift to explain his hesitations about cooperating with the Committee.

Flynn bases his knowledge about the investigation into Sidney Powell on a November 30 WaPo story (though he credits NYT with the scoop), not personal knowledge of the investigation.

In 2021, General Flynn was briefly a board member of a nonprofit founded and led by his defense counsel, Ms. Powell, called Defending the Republic. In September 2021, a federal prosecutor handling the January 6 Capitol attack as well as the criminal contempt of Congress proceedings against individuals referred by the Select Committee also subpoenaed the records of Defending the Republic in connection with a criminal investigation into its activities.

[snip]

In September 2021, the Department of Justice obtained a grand jury subpoena for records of a nonprofit General Flynn briefly served as a director, which was founded and led by his criminal defense counsel, Sidney Powell. The subpoena was signed by an Assistant U.S. Attorney prosecuting matters related to the January 6 Capitol attack as well as contempt of Congress charges against Stephen K. Bannon for not complying with the Committee’s subpoena. Isaac Stanley-Becker, Emma Brown, and Rosalind Helderman, Prosecutors Demanded Records of Sidney Powell’s Fundraising Groups As Part of Criminal Probe, NEW YORK TIMES, Nov. 30, 2021.

Here’s a December 1 Daily Beast story with other details of the investigation (which may come from Lin Wood or Patrick Byrne). Here’s my post noting that the virgin birth of the grift times awkwardly with Flynn’s own pardon.

In language immediately preceding one of those descriptions, Flynn misleadingly claims that the Committee subpoena against him starts “just before” DOJ “sought to dismiss the charges against him in May of 2020.”

(The Subpoena curiously seeks documents from General Flynn starting just before the Department of Justice sought to dismiss the charges against him in May of 2020, and long before the 2020 election or the January 2021 attack on the Capitol.) In late 2020, General Flynn publicly stated his concerns about the integrity of the 2020 elections, as did many other citizens. General Flynn did not organize or speak at any events on January 6 in Washington D.C.

The start date for the subpoena actually starts on April 1.

Still, I find it interesting that Flynn is so worried about what happened during Billy Barr’s failed attempt to blow up his prosecution. And I find it interesting that Flynn claims to have no firsthand knowledge of the investigation Molly Gaston is leading into Sidney Powell’s grift.

Incidentally, Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

Anyway, back to Mike Flynn.

Unlike the other people suing, Flynn appears to be uncertain about whether Verizon received a January 6 Committee subpoena targeting him. John Eastman returned the subpoena targeting him with his lawsuit. Alexander included the notice of the subpoena — dated December 2 — he received from Verizon. Meadows also included the notice of the subpoena.

But Flynn doesn’t include documentation like that to substantiate his basis for believing that Verizon got a subpoena targeting him. Rather, he says that he thinks Verizon got a subpoena targeting him — from the January 6 Committee — because they got one for Mark Meadows.

Upon information and belief, the Select Committee is not only targeting a wide variety of individuals with sweeping subpoenas, but also is obtaining extensive private records about various individuals—including cooperating witnesses—by issuing subpoenas to their telecommunications providers.

For example, the Select Committee issued a subpoena to Verizon Wireless seeking subscriber information and cell phone data associated with former White House Chief of Staff, Mark Meadows (the “Verizon Subpoena”). The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon Subpoena requested all of Mr. Meadows’ personal cell phone data for four months: from October 1, 2020, and January 31, 2021.

That is, unless Verizon has lost track of whom to bill for his cell service (or unless the General is confused about who is service provider is), it appears that Flynn — who was, for a period, on the board of the Powell nonprofit already being investigated by a grand jury in September — didn’t get a letter on December 2 alerting him that January 6 had subpoenaed his phone records.

Don’t get me wrong: particularly given his propensity to lie, Mike Flynn is not wrong to invoke the Fifth Amendment to avoid answering questions from the January 6 Committee (though he still is on the hook for the document request). That would be true even if Molly Gaston weren’t investigating Sidney Powell, but with the investigation, he’s quite right to invoke the Fifth (again — he did so with the SSCI Russian investigation too).

But if there’s a reason why the House Committee didn’t feel the need to ask for his phone records, that may be the least of his worries.

The most interesting aspect of the January 6 investigation that no one is covering — not even in a NYT story on criminal referrals — is the means by and extent to which the Committee is deconflicting with DOJ. There must be a legislative affairs person doing this near full time, unless Thompson and Liz Cheney — the daughter of someone who played a key role in screwing up Iran-Contra by refusing to do this — are doing this at a higher level. But the story about whom the Committee hasn’t subpoenaed — which includes both Sidney Powell and Rudy Giuliani, both known to be under investigation by DOJ — is as interesting as who they have.

The Virgin Birth of Sidney Powell’s Fraud Fund

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On the list of things those whinging about Merrick Garland seem to have missed is this Daily Beast story reporting that a grand jury is investigating Sidney Powell’s grift.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said. According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The story is most amusing because it airs the entertaining feud between Powell, Lin Wood, Patrick Byrne, and the Flynns. The story airs the claims of those feuding with Powell who say, at a time this is under criminal investigation, that they were uninvolved with the grift.

Powell created Defending the Republic with great fanfare in December 2020 and listed a who’s who of pro-Trump election conspiracy world on its incorporation paperwork. The group’s board originally included former Trump national security adviser Mike Flynn, his brother Joe, and QAnon enthusiast Lin Wood, a fellow Trump-connected lawyer who recently started feuding with Powell.Attorneys for Defending the Republic claim that Wood was mistakenly listedas a board member and subsequently removed from registration filings.

Overstock.com founder Patrick Byrne, who briefly served as Defending the Republic’s CEO, says he had his own concerns about the group’s finances.

In a phone call with Wood that Wood surreptitiously recorded, Byrne claimed that Byrne, Michael Flynn, and Flynn’s brother Joseph Flynn quit the group in April after Powell refused to allow an audit of Defending the Republic’s accounts.

“I gave her a laundry list of things she had to clean up and told her she had to get an auditor,” Byrne told Wood on the call.

[snip]

While working as Defending the Republic’s CEO, Byrne said he became concerned that Powell was using the money for herself and may have potentially violated the law in the process. Byrne said he had determined that he faced no legal liability himself, but had been tempted to “drop a dime on” Powell and alert law enforcement.

“Sidney’s just running this as a scam,” Byrne told Wood.

The Daily Beast story on the criminal investigation into Powell then turns to some details laid out in the Dominion lawsuit against the Kraken lawyer. Powell had her Defending the Republic site up and running on November 23, before she incorporated it on December 1, 2020; and she advertised it falsely as a 501(c)(3), donations to which are tax deductible, rather than a 501(c)(4), which are not.

Defendant Defending the Republic, Inc. (“Powell’s fundraising website”) is the corporate form that was belatedly incorporated to solicit “millions of dollars” online at https://defendingtherepublic.org/, a website created shortly after the 2020 election. The separate corporate entity for Powell’s fundraising website was not created until December 1, 2020, after Powell had appeared on television to solicit donations to the website and after the website began representing to potential donors that it was a 501(c)(4) organization.8

18. On or before January 7, 2021, defendingtherepublic.org began representing to potential donors that it is a “501c3 (Status Pending) Non-Profit.”9

19. Unlike contributions to 501(c)(3) organizations, contributions to 501(c)(4) organizations are not tax deductible.

20. As of January 7, 2021, Defending the Republic, Inc. did not appear in a search of 501(c)(3) organizations or 501(c)(4) organizations on the IRS website.10

8 Sidney Powell talks about her allegations regarding the computerized voting systems on election night, Washington Examiner (Nov. 20, 2020), available at, https://www.washingtonexaminer.com/videos/sidney-powell-talks-about-her-allegationsregarding-the-computerized-voting-systems-on-election-night (last visited Jan. 4, 2021) (Ex. 5); Sidney Powell on Lou Dobbs Tonight on 11/30/20, YouTube (Nov. 30, 2020), available at, https://www.youtube.com/watch?v=4uMr-TRZNCw (last visited Jan. 4, 2021) (Ex. 6); Defending the Republic (Nov. 23, 2020), available at, https://web.archive.org/web/20201123034128/https://defendingtherepublic.org/ (Ex. 7).

9 Defending the Republic Contact Page, available at, https://defendingtherepublic.org/?page_id=15 (last visited Jan. 7, 2021).

10 Compare November 23, 2020 capture of https://defendingtherepublic.org/ (Ex. 7) with IRS Tax Exempt Organization Search, available at, https://apps.irs.gov/app/eos/allSearch (Ex. 8).

Daily Beast presents this as further evidence supporting claims from Byrne (who should not be trusted either) that this money was going to support Powell, not sowing conspiracy theories.

But I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Powell

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

It was always the case that Flynn’s pardon was wrapped up in propaganda to get elected. As I’ve noted, Trump used the alteration Bill Barr’s DOJ made to Peter Strzok’s notes, along with Powell’s false claims about it, to launch a prepared debate attack on Joe Biden.

But now the details of how Powell took overt steps to help Trump try to overthrow the election before Trump gave her something in value are before a grand jury.

Release the Kraken!! Two Degrees of Donald Trump at the East Doors

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It was probably happenstance that Jimmy Haffner, who was arrested the other day for assaulting the cops guarding the East door of the Capitol on January 6, met “Sidney FRICKIN’ Powell” while she was on a bus tour spreading the Big Lie. The FBI included a picture of him apparently pictured with Powell (her face is redacted because she has not been arrested) purportedly to add validation for their identification of him.

The rest of his networking, however, seems absolutely central to the evidence the government is collecting to explain how the Proud Boys, the Oath Keepers, and a mob led by Alex Jones all converged on the East steps of the Capitol just before it was breached, with the involvement of a number of Marines.

As the FBI explains, Haffner and his buddy Ron Loehrke — who lived in Washington State on January 6 but both of whom have moved since — were recruited to go to DC by then head of the Proud Boys in the Northwest, Ethan Nordean. On December 27, the complaint explains, Nordean texted Loehrke saying he wanted him “on the front line” with him. In response, Loehrke told Nordean he was bringing three “bad mother fuckers” with him.

Loehrke and Haffner’s phones were in contact 106 times between December 19 and January 7. Sometime on January 5, Nordean’s phone called Loehrke’s.

On the morning of January 6, Loehrke showed up at the Washington Monument, where Telegram chats sent the day before said the Proud Boys were meeting up. He and Haffner marched with Nordean and others towards the Capitol (though Haffner was pretty disciplined in keep his face hidden). Loehrke helped people over the initial barricades and waved people forward. He later encouraged rioters: “Don’t back down, patriots! The whole fucking world is watching. Stand the fuck up today!”

Both Loehrke and Haffner then moved to the East side of the Capitol, where Joe Biggs, the Oath Keepers, and Alex Jones would also go. The two men helped dismantle the barricades that enabled a mob to crowd the stairs in advance of the East doors being opened. “Let’s go! Get in there!” Loehrke exhorted.

The government alleges that Haffner sprayed the officers guarding the East doors with some kind of aerosol, which played a key role, they suggest, in the cops losing control of that entrance. Minutes later, the rioters breached the Capitol.

The arrest affidavit doesn’t say it, but Joe Biggs and the Oath Keepers were in the immediate vicinity as this happened; Alex Jones had been or was just yards away riling up the crowd he had lured there by falsely claiming that Trump would speak there, chanting “1776!” with his blowhorn.

The affidavit explains that Loehrke went to Merkley’s office once he breached the Capitol; it doesn’t say whether he met with Zach Rehl there.

There are lots of other details the FBI doesn’t provide either: the time on January 5 when Nordean called Loehrke, the hotel in downtown DC that Haffner checked into on January 5, the hotel at which Loehrke’s tattooed hand was videoed outside. It doesn’t reveal whether Haffner or Loehrke were at a meeting on January 5 that Nordean and Biggs — but not their alleged Proud Boy co-defendants — attended.

Even without those details, however, the arrest affidavit strongly suggests that guys Nordean personally recruited to attend the January 6 riot not only knew to converge on the East doors at the same time that Biggs, the Oath Keepers, and Jones were also doing so, but played a key role in successfully breaching that door.

Update: Here’s a video of Loehrke’s activities that day (look for his maroon hood) put together by online researchers. They also note he’s a Marine, just like many of the other key figures behind the breach of the East doors.