Bannon Turned Out to Be the Irreplaceable One

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All outlets are reporting that after equivocating all day and all week, Trump has decided to pardon Steve Bannon (along with Eliot Broidy and Paul Erickson). Here’s the WaPo version:

President Trump has pardoned Stephen K. Bannon, the firebrand architect of his 2016 campaign who was charged last year with defrauding donors to a private fundraising effort for construction of a wall on the U.S.-Mexico border, according to a senior White House official involved in the process.

Trump approved Bannon’s pardon late Tuesday, after days of frantic deliberations. Some aides said as recently as Monday night that the move appeared unlikely. Trump vacillated throughout the day Tuesday, and even after he said he was going to sign off on the pardon, it remained unclear for some time that he would actually do so, the official said, speaking on the condition of anonymity to discuss internal conversations.

WaPo correctly notes, it won’t be clear what this really means until we see how broadly it is written. The White House language seems to suggest it covers just the already charged crimes for fraud, though.

Stephen K. Bannon – President Trump granted a full pardon to Stephen Bannon. Prosecutors pursued Mr. Bannon with charges related to fraud stemming from his involvement in a political project. Mr. Bannon has been an important leader in the conservative movement and is known for his political acumen.

If it just excuses his fraud charges in SDNY, it’ll end that federal prosecution, leave him open for state prosecution on the same crimes plus civil suits, and/or make him the star witness against his co-defendants.

If it is broader, it will cover some of Bannon’s activities leading up to the insurrection, something that is likely to make a Trump conviction in the Senate more likely (as the Bannon pardon may all by itself).

One way or another, it probably doesn’t end Bannon’s legal woes (there’s also an investigation into his foreign influence peddling). Plus, there’s still the matter of his grand jury testimony in the Mueller investigation, just some of which was unsealed for the Roger Stone trial.

But Bannon, alone among Trump’s closest associates, got a pardon after the coup attempt made such pardons more risky.

Which makes the reasons for the pardon all the more interesting.

Update: There’s been some chatter that Trump might issue his spawn or himself “pocket pardons,” which I think was irresponsible speculation. There’s no way a Trump pardon that is not formally lodged with DOJ by noon will be deemed valid.

That said, the means by which he pardoned Bannon (and others) would allow room for Trump to have pardoned Bannon for more than the existing fraud charges against him. While some of the pardons Trump signed last night enumerated the crimes, Bannon and Broidy were pardoned

It’s possible that DOJ “enumerated” other crimes for Bannon which would then be covered under this language.

I doubt it though — and in any case, everything will be lodged in the next day or so, presumably in time to be included in impeachment considerations in the Senate.

The First Node of the Insurrection Conspiracy: The Oath Keepers

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With a fairly steady drumbeat since the day of the attempted coup pm January 6, the government has been charging one after another person involved, most based off evidence obtained via social media and tips from those who know them. But that has left the picture surrounding the event rather formless, probably (given that almost all the affidavits were written by different FBI Agents) intentionally so.

That began to change in the last two days with charges against Jessica Watkins, retired Marine Donovan Ray Crowl, and Edward Caldwell, with the former two members of an Ohio militia and Caldwell coordinating their efforts as part of a larger Oath Keepers effort.

These Affidavits describes that Watkins and Crowl were in the disciplined unit that entered the Capitol in formation.

I have reviewed footage of the January 6, 2021, incursion of the U.S. Capitol, including a video that, at the approximate 3 minute and 8 second mark, shows 8 to 10 individuals in paramilitary equipment aggressively approaching an entrance to the Capitol building.1 These individuals, who are wearing helmets, reinforced vests, and clothing with Oath Keepers paraphernalia, move in an organized and practiced fashion and force their way to the front of the crowd gathered around a door to the U.S. Capitol.

It relies for that claim on Parler postings from Watkins describing using force to get into the Capitol and entering the Senate, not to mention IDing her compatriots.

Crowl also did an interview with Ronan Farrow.

The Caldwell affidavit describes that, after returning home to Ohio after the initial riot, Watkins then went back to the DC area to stay with Caldwell.

During the course of this investigation, law-enforcement authorities spoke with Witness-1 (W-1). W-1 informed that although WATKINS returned to Ohio after the January 6, 2021 incursion, she subsequently left Ohio on or about January 14, 2021, to stay with a friend and fellow Oath Keeper whom W-1 knew as “Tom” or “Commander Tom.” As described below, your affiant believes this individual is CALDWELL. WATKINS also provided W-1 with instructions on how to contact her, including by providing a phone number at the location where she would be staying, 540-XXX-XXXX. A database check for this phone number reveals that it is a phone on CALDWELL’s property, the PREMISES. [number substituted]

The Caldwell affidavit then describes him, before the January 6 insurgency, recommending they pile into one or two rooms at the Comfort Inn in Ballston. It describes Crowl messaging Caldwell that he’d be seeing him soon and calling him Commander.

It also cites Caldwell’s own social media posts from the riot, including his report of what the Proud Boys had done to push the cops out of the way.

Caldwell also sent a Facebook message (this may be private, which, since there’s no mention of a warrant, would suggest another witness shared it with the FBI) saying,

We need to do this at the local level. Lets storm the capitol in Ohio. Tell me when!

Watkins and Crowl were charged with the two trespassing-based charges virtually everyone gets charged with, along with 18 USC 1512(c)(2), tampering with a proceeding, which carries a 20 year sentence.

Caldwell is charged with the two trespassing charges, the tampering one, along with conspiracy to tamper, and abetting.

Presumably, the FBI has been obtaining search warrants to identify the other people involved in this node of activity, including the common communication between (for example) Caldwell and the Proud Boys, as well as the Ohio Militia and the Oath Keepers more generally. Likewise, the FBI is likely using location data from within the Capitol to understand precisely what these people were doing.

This is not the first use of a conspiracy charge (the zip tie guy and his mom were charged with conspiracy, too, but that was probably because there was less direct social media evidence of her inside the Capitol and also as a means to get her son to cooperate), but it is one that is likely to be fleshed out as a way to force people to confess what the larger plan, if any, was.

Update: Corrected how zip tie guy and mom were charged.

Update: DOJ has released a more detailed conspiracy charge against these dirtbags. This Facebook message is one of the most chilling:

On January 6, 2021, while at the Capitol, CALDWELL received the following Facebook message: “All members are in the tunnels under capital seal them in . Turn on gas”. When CALDWELL posted a Facebook message that read, “Inside,” he received the following messages, among others: “Tom take that bitch over”; “Tom all legislators are down in the Tunnels 3floors down”; “Do like we had to do when I was in the core start tearing oit florrs go from top to bottom”; and “Go through back house chamber doors facing N left down hallway down steps.”

Trump’s Second Impeachment Has Already Had a Beneficial Effect

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After Billy Barr spent eight months dedicating DOJ resources to supporting Sidney Powell’s conspiracy theories about Mike Flynn, Trump pardoned his short-lived National Security Advisor for everything associated with the Mueller investigation. Within weeks, Flynn called for martial law, a three-star General with an avid QAnon following inciting an insurrection.

After Billy Barr dismissed the seriousness of threats against Randy Credico and Amy Berman Jackson backed by Proud Boy associates of Roger Stone, Trump first ensured that Stone would do no prison time and then pardoned him for his cover-up of the Trump campaign’s efforts to optimize the release of stolen John Podesta files. While Roger Stone claims to have had no role, the key organization behind the riot, Stop the Steal, adopted the name and the methods he used in 2016. And thus far five members of the Proud Boys have been arrested in association with the coup attempt.

It seems that Trump’s belief in his own invincibility — one he got, in significant part, by successfully obstructing the Mueller investigation by buying silence with promised pardons, then hiring an Attorney General who would and did repeatedly protect him from consequences — not only led him to believe he could incite a riot, but led key bridges between him and the foot soldiers in this coup attempt to believe they had impunity too.

But according to stories in virtually all major outlets (here’s the CNN version), in the wake of both the coup attempt and impeachment for it, Trump has backed off plans to complete that act of impunity by pardoning his spawn and himself.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one — unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

[snip]

The January 6 riots that led to Trump’s second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20.

After the riots, advisers encouraged Trump to forgo a self-pardon because it would appear like he was guilty of something, according to one person familiar with the conversations. Several of Trump’s closest advisers have also urged him not to grant clemency to anyone involved in the siege on the US Capitol, despite Trump’s initial stance that those involved had done nothing wrong.

I predicted this would happen here.

To be clear, I don’t think Trump’s moderated plans come from any remorse or sense of contrition. Rather, after the riot Pat Cipollone apparently refused to be a part of such plans anymore (though I also think the Stone and Paul Manafort pardons were far more modest than they might have been). Lindsey Graham’s efforts to minimize the impeachment trial in the Senate also helped, as Lindsey knows any attempt to prevent conviction in the Senate is premised on Trump avoiding any further abuse.

None of this changes the fact that Trump has abused the pardon power far more than any president before him. Nor will it prevent a great many other abusive pardons today.

But to restore legitimacy and belief in the rule of law, the story of Trump’s crimes needs to be told, and told in a way that makes the damage he caused and the betrayal of his supporters clear. If, indeed, Trump decides not to pardon his lawyer, his spawn, and himself, it will be one important step in that process.

Update: This CNN story reports on precisely this phenomenon.

The decision to not pardon any Republican lawmakers or his family members was a last minute one. After initially defending the idea that he may pardon himself or his family members out of concern they would be targeted once he’s out of office, Trump decided Saturday night that he would not pardon anyone in his family or himself.

Trump agreed with the attorneys and other advisers that doing so would increase the appearance of guilt and could make them more vulnerable, but was disappointed at the outcome, according to people familiar with the matter.

Trump, according to people he’d spoken to, appeared more taken with the message of unchecked power it might send to his naysayers than actual protection from liability. His pardon power was among his favorite perks of the job.

The newfound concerns about actually exercising this favorite perk of the job extends to members of Congress worried about their own legal exposure and Ed Snowden and Julian Assange.

Several Republican lawmakers who are alleged to have been involved in the rally that preceded the deadly riot on the US Capitol have sought clemency from Trump before he leaves office, but after meeting with his legal advisers for several hours on Saturday, the President decided he would not grant them, according to two people familiar with his plans.

[snip]

Trump is also not expected to pardon Edward Snowden or Julian Assange, whose roles in revealing US secrets infuriated official Washington.

While he had once entertained the idea, Trump decided against it because he did not want to anger Senate Republicans who will soon determine whether he’s convicted during his Senate trial. Multiple GOP lawmakers had sent messages through aides that they felt strongly about not granting clemency to Assange or Snowden.

But His Emails! Kushner’s Unique Exposure under the Presidential Records Act

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The focus on what Trump will burn down in his final days as President has brought renewed focus on whether Trump will manage to destroy evidence on his way out. For example, Trump’s refusal to concede defeat may have delayed the normal archiving process, not to mention the instructions to White House employee that there needed to be an archiving process.

When Trump lost the November election, records staffers were in position to transfer electronic records, pack up the paper ones and move them to the National Archives by Jan. 20, as required by law. But Trump’s reluctance to concede has meant they will miss the deadline.

“Necessary funding from the (White House) Office of Management and Budget was delayed for many weeks after the election, which has caused delays in arranging for the transfer of the Trump presidential records into the National Archives’ custody,” the National Archives said in a statement to The Associated Press. “Even though the transfer of these records will not be completed until after Jan. 20, the National Archives will assume legal custody of them on Jan. 20 in accordance with the Presidential Records Act.”

White House spokesman Judd Deere said Saturday that contesting the election did not cause the delay in getting the president’s records transferred to the archives and that guidance was available to staffers on how to pack up their materials.

One person familiar with the transition said guidance typically emailed to executive branch employees explaining how to turn in equipment and pack up their offices was sent out in December, but quickly rescinded because Trump insisted on contesting the election.

With little guidance, some staffers in the White House started quietly calling records workers to find out what to do.

In early December, CREW and the National Security Archive tried to sue to preserve records, requesting a Temporary Restraining Order. While a key part of that suit — which the parties may be moving to novel litigation over — pertains to whether it’s enough to take a screen shot of an electronic communication, the suit also focuses on Jared Kushner’s well-documented habit of using private communications.

72. Notwithstanding these requests and the preservation directive, Mr. Kushner and his wife and Advisor to the President Ivanka Trump reportedly re-routed their personal email accounts to Trump Organization computers within one to two days of receiving the September 25, 2017 letters. Mar. 21, 2019 Oversight Letter, at 3.

73. In a December 2018 interview with then-House Oversight and Government Reform Chairman Gowdy and Ranking Member Cummings, Mr. Kushner’s counsel “confirmed that Mr. Kushner has used—and continues to use—WhatsApp” to create or send Presidential records, including to communicate “with people outside the United States.” Mar. 21, 2019 Oversight Letter, at 6. When asked by Rep. Cummings if “Mr. Kushner has ever used WhatsApp to discuss classified information,” his counsel replied, “That’s above my pay grade.” Id.

74. WhatsApp is a non-official, encrypted electronic messaging application.

75. Mr. Kushner’s lawyer further explained that Mr. Kushner preserves Presidential records created or sent from his WhatsApp account by “tak[ing] ‘screenshots’ of these communications and forward[ing] them to his official White House email account or to the National Security Council.” Mar. 21, 2019 Oversight Letter, at 6 (emphasis added).

76. Mr. Kushner’s attorney also admitted that between January and August 2017, Mr. Kushner used his personal email account to send and receive official emails. Mar. 21, 2019 Oversight Letter, at 2-3.

The government is trying to make all this go away quickly though, arguing, in part, that the NGOs suing have no private right of action under the Presidential Records Act (meaning there’s no way for them to demand more diligent treatment of records).

Here, Plaintiffs cannot make such a showing; not only does the PRA lack any private right of action, see Judicial Watch, Inc. v. NARA, 845 F. Supp. 2d 288, 299 n.5 (D.D.C. 2012), but, as discussed above, the D.C. Circuit has concluded that it affirmatively precludes judicial review.

That’s one of the reasons I’m so interested in what happened in the last week in another lawsuit, Andrew McCabe’s lawsuit against DOJ for being fired as a result of Trump’s personal retaliation against him.

Whereas CREW and NSA sued in December, McCabe instead submitted a document subpoena to the Executive Office of the President on November 4 asking for materials relating to McCabe and his firing. Since then, the parties have been squabbling over how to deal with the subpoena and, specifically, how to make sure that relevant records stored on private accounts would be preserved.

In a mid-December hearing, Judge Randolph Moss endorsed, in principle, that such records should be preserved both by those who’ve already left government and those who remained at the White House.

That’s when things got interesting.

According to a status report submitted the day of the insurrection, even though this dispute was primarily about those still in the White House, the government tried to claim it would be too onerous to ask current White House employees — McCabe focused specifically on Hope Hicks, Dan Scavino, Stephen Miller, and Jared Kushner — to simply ask these four specifically whether they have archived their private server emails and WhatsApp chats properly and if not, to both do so and tell McCabe’s team if they haven’t.

Defendants’ position is as follows: Plaintiff asks that Defendants apply the procedure outlined in paragraph five above to four current EOP employees (Hope Hicks, Jared Kushner, Stephen Miller, and Daniel Scavino) to ensure that the individuals have copied any PRA records to an official EOP account before the end of their service at the White House. The White House has reminded all employees since the November election of their existing obligation to do just that—ensure that any official communications conducted on personal devices have been preserved on an official EOP account before the transition. Thus, there is no need to provide additional reminders to these individuals, particularly where there is no reason to presume that they have not complied with their obligations to preserve records. The benefit, if any, of requiring another reminder is outweighed by the burden on the EOP and its employees, especially given the deference owed to the White House in matters of discovery, see Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 387 (2004), and the alleged peripheral, at best, role of the four EOP employees in this litigation, as to which the White House is not even a defendant.

As McCabe’s team pointed out, it’s not enough to say these White House employees have a general obligation under the toothless PRA; these employees should also know they have a specific obligation under a lawsuit in which discovery has already been granted.

Moreover, a general post-election reminder to preserve documents does not suffice to inform the four current EOP employees of their obligation, specific to this litigation, to preserve relevant documents.

There’s no reason for DOJ to react in the way they did unless they had reason to believe the simple document retention request would cause problems. That’s particularly true given that, over the course of the Mueller investigation, DOJ has learned over and over that Jared (and people like Steve Bannon) weren’t archiving official records on specifically this topic. They already know details about what Jared (and Bannon) destroyed, which may explain why they responded in this fashion.

On January 8, Judge Moss sided with McCabe on this dispute, and ordered DOJ to give the four people specific warnings.

I assume, like everyone else, that Trump and his spawn have been lighting bonfires on their way out.

But in Jared’s case, he will now be asked, legally, whether he has done so.

The PRA still doesn’t have any teeth. But we may learn whether DOJ has been covering for Jared’s past document destruction, including on matters pertaining to the Mueller investigation and Trump’s vengeance for the investigation.

The Press Continues to Help Billy Barr Whitewash His Complicity in January 6

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Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

In spite of that record, Barr continues to find journalists willing to spin a fairytale completely inconsistent with this record, one of Barr standing up to Trump as he pursued this path.

Consider this account of Bill Barr’s decision to quit from Jonathan Swan.

It provides a dramatic account of how Barr denounced Trump’s conspiracy theories — all rooted in claims about the delayed counting of mail-in ballots that Barr had stoked for months.

The president’s theories about a stolen election, Barr told Trump, were “bullshit.”

White House counsel Pat Cipollone and a few other aides in the room were shocked Barr had come out and said it — although they knew it was true.

It describes Barr’s frustration with Trump’s demands about the Durham investigation without mentioning that Barr repeatedly fed those expectations.

He was sick of Trump making public statements and having others do so to whip up pressure against U.S. Attorney John Durham to bring more prosecutions or to put out a report on the Russia investigation before the election.

It also allows Barr to call Rudy and Sidney “clownish,” without mentioning that those very same clowns had gotten Barr to squander the credibility of DOJ on similarly outlandish conspiracy theories, including but not limited to the Mike Flynn prosecution.

For good measure, the attorney general threw in a warning that the new legal team Trump was betting his future on was “clownish.”

[snip]

The president had become too manic for even his most loyal allies, listening increasingly to the conspiracy theorists who echoed his own views and offered an illusion, an alternate reality.

[snip]

But Barr’s respite ended after Election Day, as Trump teamed up with an array of conspiracy theorists to amplify preposterous theories of election interference, arguing that Biden and the Chinese Communist Party, among others, had stolen the election from him.

It presents the conflict over using the military to quell summer protests, without mentioning Barr’s own role in militarizing the response (to say nothing of treating BLM more harshly than right wing terrorists).

By the late summer of 2020, Trump and Barr were regularly skirmishing over how to handle the rising Black Lives Matter protests sparked by the death of George Floyd while in police custody. As the national movement unfurled, some protests had given way to violence and looting. Trump wanted the U.S. government to crack down hard on the unrest.

The president wanted to invoke the Insurrection Act and send the military into U.S. cities. He wanted troops in the street.

[snip]

Besides, Barr asked, what was the endgame for adding the military to the mix? Federal forces could end up stranded in a city like Portland indefinitely.

Trump grew more and more frustrated, but Barr pushed back harder, standing his ground in front of everyone in the room. He was ready, willing and able to be strong, he said. But, he added, we also have to be thoughtful.

In short, this dramatic profile presents a fictional character, wise old Attorney General Bill Barr, who stood up against the President’s worst instincts, wisely resisting the urge to politicize investigations, trump up claims of voter fraud, chase the theories of Sidney Powell and Rudy Giuliani, and back a violent crackdown against Trump’s opponents.

Except that profile is entirely fictional. That Bill Barr is a myth carefully crafted with the help of obliging reporters.

The reality is that over two years of not just tolerating these efforts, but usually taking affirmative steps to foster them, Billy Barr helped to create this monster, even though he was one of the people with the obligation to stop it.

With his corruption as Attorney General Bill Barr fostered this monster. He should get no credit for skipping out before the predictable outcomes of his own actions blew up on January 6.

OpSec Shaming Misses the Terrorists for the Forest of Bozos They Hid Behind

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It has been amusing reading the affidavits justifying the arrest of the January 6 insurrectionists to see how easy many of them made it for the FBI.

Yesterday’s favorite example is Samuel Camargo. He posted a picture with some kind of trophy stolen from the Capitol building to his Instagram account and a confession that he had been in the riot on Facebook. After some of his associates reported him and then an FBI agent interviewed him, Camargo posted to his Facebook account claiming — notwithstanding the agent’s view that, “Camargo [had become] uncooperative, questioning your affiant’s loyalty to the constitution, and advised the interviewing agent he had no information to provide” — that he had been cleared of any crime related to the insurrection.

It didn’t work out that way.

InfoSec and cyber journalists are beginning to report on it, too. This happens to be one example, though I’m seeing a number of examples.

But while federal law enforcement has significant legal and technical resources at its disposal — like the ability to get warrants to phone or tech companies to see whose phones were in an area at a specific time, for instance — that’s proven unnecessary for a number of people who have been charged so far.

It goes on to review the OpSec failures of nine different coup-conspirators (and Camargo is not one of them).

I get the sense of schadenfreude that the seeming certainty among insurrectionists that they would not only be victorious but their victory celebrations would be risk-free has instead led to their arrests. I’m especially sympathetic to communities of color for whom similar behavior might have gotten them killed.

But with a few exceptions, notably the identification of “zip tie guys” Larry Rendall Brock (by his ex-wife) and Eric Munschel, as well as the identification of Proud Boys member, “Spaz,” as the retired Marine Dominic Pezzola (the latter of whom was arrested with the help of two seeming insider cooperating witnesses), few of the arrests so far have been of the most dangerous insurrectionists.

For example, even though the FBI posted this image of the person suspected of placing bombs at both the RNC and DNC on the day of the attack, there’s no public indication that the FBI has any leads on who it is.

According to former Capitol Police Chief Steven Sund, the discovery of the bombs distracted his leadership team from the growing riot at a key moment on January 6.

Sund told NPR on Friday that he increasingly believes the insurrection was part of a coordinated, planned attack on the Capitol. Specifically, Sund believes that reports of pipe bombs planted at the headquarter offices of the Republican National Committee and the Democratic National Committee in southeast Washington were part of an effort to distract police as the violent mob approached the Capitol complex.The Justice Department said it has “no direct evidence of kill or capture teams” but is still looking into what kind of planning there was.

Sund said moments before those reports came through, he was in the operations center for Capitol Police and watching the rally with President Trump at the Ellipse.

“We had the volume up a little bit so I can kind of hear what was going on, listening for anything — anything that was going on down there,” Sund said. Then “we had to turn the volume down to, you know, again, to direct our attention toward the first pipe bomb that was over at the Republican National Committee.”

The FBI has said the first pipe bomb was reported at 1 p.m. ET at the RNC in southeast Washington, followed by a report of a second pipe bomb at the DNC at 1:15 p.m. A suspect in that case has not be identified.

“I think that’s all part of the concerted and coordinated efforts that led to the violent attack,” Sund said. “Those were diversionary tactics to pull resources away from the Hill in advance of that attack. I honestly believe that.”

Likewise, I’ve seen no indication that the FBI has leads on members of a team of men who quietly snaked through the loud mouths on the stairs and into the Capitol in military formation, even though they wore insignia from the Oath Keepers, one of the most closely watched right wing terrorist groups.

As President Donald Trump’s supporters massed outside the Capitol last week and sang the national anthem, a line of men wearing olive-drab helmets and body armor trudged purposefully up the marble stairs in a single-file line, each man holding the jacket collar of the one ahead.

The formation, known as “Ranger File,” is standard operating procedure for a combat team that is “stacking up” to breach a building — instantly recognizable to any U.S. soldier or Marine who served in Iraq and Afghanistan. It was a chilling sign that many at the vanguard of the mob that stormed the seat of American democracy either had military training or were trained by those who did.

[snip]

A close examination of the group marching up the steps to help breach the Capitol shows they wore military-style patches that read “MILITIA” and “OATHKEEPER.” Others were wearing patches and insignias representing far-right militant groups, including the Proud Boys, the Three Percenters and various self-styled state militias.

Thus far, most of the charges involve involve illegal entry and interfering with cops. It would be easy for law enforcement to focus on the chum along with the murderers of Brian Sicknick, while concentrating less closely on the people whose good OpSec has not only allowed them to delay capture, but seems to have succeeded in ensuring the Capitol would be as vulnerable as possible. Worse still, with limitations on resources in the DC District Court — most notably a scarcity of grand jury time because of COVID — the flood of idiots entering the system might delay the pursuit of more dangerous terrorists.

Yes, let’s have our fun. Let’s use the ease with which some have been caught as a way to scare the terrorism tourists from showing up on Inauguration Day or in their state capitals, to say nothing of exposing them to shame in their communities.

But let’s remember that, to a significant extent, the people taking selfies and trophies from the Capitol building were largely the camouflage behind which more dangerous men appear to have hidden.

Update: After I posted on Sunday, the government arrested several more more dangerous people. Most were all still identified via public videos. But working through these networks will likely lead to those who avoided closer video scrutiny.

Rudy Giuliani and Jack Posobiec Claim a False Flag

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Yesterday, the FBI arrested John Sullivan, one of the guys who took video showing Ashli Babbitt’s shooting in the January 6 insurrection. As the arrest affidavit describes, in an interview the day after the riot, Sullivan claimed he had been acting as a journalist at the riot.

SULLIVAN claimed to be an activist and journalist that filmed protests and riots, but admitted that he did not have any press credentials.

[snip]

23. At various times in his statements to law enforcement, to others inside the U.S. Capitol that were recorded in his video, and to news outlets, SULLIVAN has claimed he was at the U.S. Capitol only to document and report. In addition, your affiant is aware that, at various times, SULLIVAN has claimed to be a journalist. He has admitted, however, that he has no press credentials and the investigation has not revealed any connection between SULLIVAN and any journalistic organizations.

The affidavit describes that, at some protest in DC, Sullivan made anti-Trump comments.

The United States obtained a video of SULLIVAN, posted on YouTube, in which, while attending a protest in Washington, D.C., SULLIVAN can be seen telling a crowd, over a microphone, “we about to burn this shit down,” “we got to rip Trump out of office . . . fucking pull him out of that shit . . . we ain’t waiting until the next election . . . we about to go get that motherfucker.” SULLIVAN then can be seen leading the crowd in a chant of, “it’s time for a revolution.”1

But it quotes from a video he shared with the FBI repeatedly speaking of “we,” including himself in the mob. On several occasions, Sullivan convinced police to stand down (including in front of the Speaker’s Lobby, just before Babbitt was shot). And it provides evidence that Sullivan broke a window in one of the offices.

h. At one point in the video, SULLIVAN enters an office within the U.S. Capitol, as seen in the screenshot below. Once inside the office, SULLIVAN approaches a window, also seen in the screenshot below, and states, “We did this shit. We took this shit.”

i. While at the window, a knocking noise is heard off-screen. The camera then pans to show more of the window and a broken pane can be seen that was not broken on SULLIVAN’s approach to the window:

SULLIVAN can then be heard saying, “I broke it. My bad, my apologies. Well they already broke a window, so, you know, I didn’t know I hit it that hard. No one got that on camera.” SULLIVAN then exits the office.

Sullivan is charged with violent entry of Congress and impeding police officers during a civil disorder. He is not charged with breaking the window.

Even before his arrest, left wing activists had described concerns in that community, going back some time, that Sullivan was a provocateur working with others, including his brother James, who has ties to the Proud Boys and runs a pro-Trump organization.

But shortly after Sullivan’s arrest was reported, right wing propagandist Jack Posobiec pounced on his arrest, claiming it showed that BLM was behind the attacks and and that Sullivan’s actions led to Babbitt’s death (remember these screen caps have GMT, so subtract 5 for ET).

Then, in the middle of the night Rudy’s time, he posted a text from what appears to be John’s brother James.

Rudy presents this as proof that the riot was conducted by Antifa. But it instead seems to show that John’s brother (the phone number is in Utah, where they’re from) claimed to be, “working with the FBI,” had gotten his “agent” and three others out of trouble (Rudy did not show when he received this text, so it may have predated John’s arrest). It also showed that Sullivan seemed to have ties with someone named Kash, who might be Patel, the Devin Nunes flunky who got installed as DOD’s Chief of Staff. Patel would likely have had a key role in ensuring the National Guard delayed any response to the riot last week.

A Nazi sympathizer and the President’s lawyer seemed prepared to speak from the script that Donald Trump seems to have written the day before the riot, when he moved towards naming Antifa a terrorist organization. The OANN propagandist and chief purveyor of fraudulent claims about the election are attempting to use the arrest of John Sullivan to claim that their own people did not plan out this coup attempt.

In the process, however, Rudy Giuliani may have tied the President and the Proud Boys, and the Pentagon together in the plot. And Rudy’s calls to Tommy Tuberville after people had already died, that ties people n Congress to the attempts to assassinate members of Congress.

Update: I’ve been persuaded that “Kash” is someone else who was detained after the raid, so deleted references to Kash Patel. That person, Kash Kelly, is probably a convicted gang member awaiting his sentencing.

Update: Corrected that the anti-Trump comments may not have been at this protest.

Three Things: Good, Better, Best News

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Let’s mix things up a bit and roll around in some good news for a change, hmm?

~ 3 ~

Arrests continue in wake of January 6 Capitol insurrection and they are both pleasurable and comic.

Mothertrucking racist who waved an enemy flag inside the capitol has been arrested.

Goddamned firefighter arrested for throwing a fire extinguisher at a Capitol Police officer’s head.

Chicago man stupid enough to think he wouldn’t be caught, was caught.

Gratifying to see they are chasing all of these perps to ground. These are only a few I’ve seen in my timeline, but among some of the more egregious insurrectionists. The firefighter is only lucky he didn’t throw that extinguisher hard enough to kill the Capitol Police Officer.

~ 2 ~

Flint may get some justice; former Michigan governor Rick Snyder was charged with two misdemeanor counts of willful neglect of duty in his handling of Flint’s water crisis. Six others were charged as well; the former director of the Michigan Department of Health and Human Services and the state’s former chief medical executive were both charged with involuntary manslaughter related to the known dozen deaths of Michiganders who died from Legionnaire’s disease acquired from the city’s contaminated water.

Personally, I think Snyder’s charge is both too light and won’t stick; an entire city’s children were poisoned because he failed to execute his job faithfully, not to mention an increase in fetal deaths. Lead poisoning isn’t like getting the flu — the brain damage it causes may be permanent though the brain can be trained to compensate for some of the damage. Chances are good Snyder will weasel out of the charges because he relied on experts like the director of MDHHS and the chief medical executive.

One of my adult kids was poisoned during the period when Flint’s water was contaminated. They were fortunate their exposure was limited, but it took nearly five years to recover their health and we’re still not certain there won’t be sequelae which haven’t yet emerged. An entire city faces the same challenge, at a minimum; not all those who died of Legionnaire’s were Flint city residents, getting sick in Flint because they had to be in Flint for work or some other reason. There’s a possibility there were more Flint-related deaths which were masked by other chronic illness, but we may never know for sure.

At least these charges are the beginning of the end to the Flint water crisis. I do hope during the course of prosecution that all communications before and immediately following the cutover from Detroit’s water supply to the Flint River will be disclosed. I still suspect something happened the night of the cutover when Detroit made a last pitch to keep Flint on their water system.

~ 1 ~

A new day dawns at Democratic National Committee as Joe Biden gave Jaime Harrison the nod for DNC Chair. His experience will help change the party’s approach to southern states, complimenting the work Stacey Abrams did in Georgia.

There will be grousing from the far left about Harrison’s experience working for Podesta Group and the types of clients served. But Harrison has done what others with similar experience haven’t — organizing and getting out the vote in marginalized communities, zip code by zip code. Will he be more moderate as many Black Americans are across the south? Sure, but leave the policy and legislation to the Democratic majority in Congress; if they can pull off greater successes felt at home and in American’s wallets, the entire base will move more to the left.

We may have a chance to keep the majority and win more seats if Harrison can keep the energy high across the party. We don’t want another 2010 during which we lost an extremely narrow majority in the Senate, ushering in Mitch McConnell’s nightmarish decade of obstruction and social destruction.

~ 0 ~

What other good news is there? Apart from the fact we are now six days away from Biden’s inauguration. Share in comments.

Where’s Rudy?

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There’s an interesting passage in this Daily Beast article, one of several articles in the last day describing the snowballing madness in the Oval Office. For the last day or so, Rudy Giuliani has gone missing.

Meanwhile, Trump, whose rhetoric helped incite the Jan. 6 rioting, is increasingly cut off from once-loyal senior officials, some of whom have resigned in recent days. Instead, the president is focused on managing the fallout, both legally and reputationally, from the attack and the deaths that resulted from it. Even the president’s personal attorney and close confidant, Rudy Giuliani, has been somewhat absent in the last 24 hours, caught up with his own personal problems, including the New York Bar Association’s move to open an inquiry into his removal from its membership, according to one individual with direct knowledge of the situation. [my emphasis]

It doesn’t actually make sense that the Bar Association challenge is that pressing a problem. It’ll go forward regardless of what he does, and it’s not actually the legally meaningful challenge to his bar membership (though a NY State Senator’s request to the state courts could be). Aside from some ill-fated appearances in voter fraud cases, though, Rudy’s not actually practicing courts anymore so much as influence-peddling.

Which may explain two graver threats to Rudy. Last Friday, Dominion Voting Systems sued Sidney Powell for $1.3 billion. Dominion has said they plan to follow up that lawsuit with others, potentially targeting Wood, the media that magnified Powell’s claims (including Fox, OANN, and Epoch Times), and Rudy himself.

Meanwhile, yesterday Treasury sanctioned Rudy’s buddies from Ukraine. The statement on the designation includes a shout-out to meetings involving Rudy (and implicating Devin Nunes and other Republican lawmakers).

Since at least 2019, Derkach and his associates have leveraged U.S. media, U.S.-based social media platforms, and influential U.S. persons to spread misleading and unsubstantiated allegations that current and former U.S. officials engaged in corruption, money laundering, and unlawful political influence in Ukraine.

Former Ukrainian Government officials Konstantin Kulyk, Oleksandr Onyshchenko, Andriy Telizhenko, and current Ukraine Member of Parliament Oleksandr Dubinsky have publicly appeared or affiliated themselves with Derkach through the coordinated dissemination and promotion of fraudulent and unsubstantiated allegations involving a U.S. political candidate. They have made repeated public statements to advance disinformation narratives that U.S. government officials have engaged in corrupt dealings in Ukraine. These efforts are consistent with and in support of Derkach’s efforts, acting as an agent of the Russian intelligence services, to influence the 2020 U.S. Presidential election.

Kulyk, a former prosecutor for the Prosecutor General’s Office of Ukraine, formed an alliance with Derkach to spread false accusations of international corruption. Onyshchenko, a fugitive from Ukrainian justice due to charges of corruption, provided edited audio tape copies of purported audio recordings of conversations between former Ukrainian and U.S. officials, which Derkach released between May and July 2020 to discredit U.S. officials and influence the U.S. elections. Telizhenko, a former low-level Ukrainian diplomat, orchestrated meetings between Derkach and U.S. persons to help propagate false claims concerning corruption in Ukraine. Dubinsky, who serves alongside Derkach in Ukraine’s parliament, joined Derkach in press conferences designed to perpetuate these and other false narratives and denigrate U.S. presidential candidates and their families.

Kulyk, Onyshchenko, Telizhenko, and Dubinsky are being designated pursuant to E.O. 13848 for having directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign influence in a United States election.

Effectively, the sanctions make it clear — Rudy’s denials notwithstanding — that the people whose dirt he has been peddling for years was disinformation seeded by Russia.

And that couldn’t come at a worse time.

For years, Rudy as been operating as if he had impunity. And he probably did, as it has become clear for some time that Trump would pardon him.

Except now that Trump’s incitement of sedition has complicated pardoning his troubles away, Trump has started wailing that if he’s not allowed to self-pardon, then no one else can have a pardon either.

The President had been warned, David, by some of his lawyers that if he goes ahead and pardons himself, he could be more vulnerable to civil lawsuits, including from some of those injured in the Capitol riot because a self-pardon would be seen as an admission that he did something wrong that he would need to be pardoned for. The President is angry. He has not taken that well. And I am told that he is now saying that he doesn’t want to see pardons for anybody. So the attitude seems to be, if I can’t get a pardon, then nobody else should get one either.

This actually isn’t a bad legal decision. It has always been true that if Trump pardoned his co-conspirators of stuff they’ve protected him on so far, then they could be forced to testify against him. This was, at least, he and his co-conspirators all go down together.

But that would be a very bad thing for Mr. Giuliani, because he has been wracking up crimes with abandon, with the apparent belief that they would all be wiped away before January 20.

It’s unclear whether that has driven Rudy away … or whether he’s making a belated attempt to clean up his exposure.

Julian Assange Officially Asks Trump to Pardon Him for Helping Him Get Elected

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As I have noted, there’s abundant evidence that Robert Mueller investigated pardon discussions between Julian Assange and Roger Stone; that investigation appeared to be ongoing at least as of October 2020. That should make any Trump pardon of Julian Assange at least as legally fraught as any of the others he has given or is expected to give, short of a self-pardon.

Predictably, Ken Vogel makes no mention of that in his story on two parallel efforts to obtain a pardon for Assange. Nor does Vogel note that the petition submitted by Assange’s US defense attorney, Barry Pollack, includes what would be that quid pro quo in the requested scope of the pardon.

Mr. Assange should be granted a pardon to cover the conduct at issue in the pending criminal case against him and any other conduct prior to the pardon grant that could be the basis for criminal charges against him in the United States.

If Trump gave Assange a pardon with this scope, the language would amount to a pardon for helping Trump get elected, a pardon under discussion within days of Trump’s 2016 victory if not even before it. This would amount to a more generous pardon than Trump gave his own rat-fucker, Roger Stone.

Along with a misrepresentation of what the current CFAA charge against Assange is and a claim that Assange, “has already been confined longer than any person ever charged or convicted under the Espionage Act in its more than 100-year history” (effectively counting time Assange chose to hide out in the Ecuadorian Embassy while still engaged in similar acts to those he’s being prosecuted for), Pollack presents a really hysterical subset of the files Assange leaked in 2016 and 2017:

In 2016, WikiLeaks published:

  • 19,252 e-mails and 8,034 attachments from the Democratic National Party leadership, which resulted in the resignation of five top officials who had taken actions during the primaries in favor of Hillary Clinton over Bernie Sanders.

In 2017,WikiLeaks:

  • exposed lax security in the CIA unit dedicated to malware development, a fact acknowledged by an internal CIA report into the publication, which was subsequently revealed by Senator Ron Wyden; and
  • published the “the Russia Spy files,” documents relating to Russia under Vladimir Putin, including releases about surveillance contractors in Russia.

Pollack leaves off, among other things, the Podesta files involved in the seeming quid pro quo (which I guess might otherwise make him party to the crime). And he includes the Russian files for the same reason WikiLeaks published the already published files — as propaganda to cover up his role as a cut-out for Russia. The Vault 7 release, of course, happened during the period when — Pollack claims — Assange was “confined” as if it had anything to do with Espionage charges.

The real focus of the Vogel story, however, is how — in the wake of Trump’s coup this week — a bunch of Australian buddies of Assange just signed a “pro bono” contract with a lobbyist to push for the pardon.

Mr. Davis, who is now a lawyer specializing in national security and whistle-blower cases, is on the board of Blueprint for Free Speech, an Australia-based nonprofit group that advocates for press freedoms and whistle-blower protections. The group, which was started by Suelette Dreyfus, a former journalist who is an old friend and collaborator with Mr. Assange, signed a pro bono contract on Saturday with the lobbyist Robert Stryk to seek a pardon for Mr. Assange.

During Mr. Trump’s presidency, Mr. Stryk, who is well connected in Trump administration circles, has developed a lucrative business representing foreign clients in precarious geopolitical situations.

He has worked for a jailed Saudi prince who had fallen out of favor with his country’s powerful de facto leader, as well as the administration of President Nicolás Maduro of Venezuela, which the Trump administration considers illegitimate. Mr. Styrk also worked for Isabel dos Santos, the daughter of Angola’s former president, who is accused of embezzling millions of dollars from a state oil company she once headed, as well as the government of the former Congolese president Joseph Kabila, which had faced American sanctions for human rights abuses and corruption.

Disclosure: my travel expenses were paid to speak at events in Australia in 2017 by Dreyfus’ organization.

Again, I’m perfectly happy with the decision that our prisons are too inhumane for Assange. Pollack is a superb lawyer and Assange is certainly entitled to a vigorous defense (the first real hint of which shows up in the petition). But this whole effort is yet more of a propaganda campaign hiding what Assange has become and the role Assange had in electing the guy who just attempted a coup to stay in power. That does not serve journalism, though it may give Trump enough cover to pay off his 2016 campaign dues to Russia.