What Lisa Monaco Said about Charging a Hypothetical Former President
When I was doing my, “What DOJ Was Doing While You Were Wasting Time Whinging on Twitter” post, I was laughing to myself at the number of times that Merrick Garland or Lisa Monaco have said things about the January 6 investigation, including charging high ranking people, only to have pundits claim that DOJ never makes a statement about such things.
On that note, someone linked this appearance Monaco did at University of Chicago in May, where professor Genevieve Lakier asked her a hypothetical about charging the President and Monaco answered at some length.
Lakier: I have one final question. I think it’s my responsibility to ask. And again, I know you’re not supposed to talk about pending cases, or uncharged cases, you don’t want to prosecute anyone in this theater. So I’m just going to ask you a hypothetical. Not about any real person. Just a hypo, like I do every day in the classroom.
Monaco: Okay.
Lakier: Which is, you’re the Deputy Attorney General and you have some power to decide what the Department of Justice and there’s former high ranking members of the Administration who are no longer in the Administration and there’s plenty of suggestive evidence and maybe some Federal judges have found there to be quite a lot of evidence that they have committed crimes. So how do you go about the process of thinking about whether to charge them? How do you talk to the American public about that process? How do you do it?
Monaco: See, e.g., the last hour.
Lakier: Yeah. It’s no different?
Monaco: No!
Lakier: When thinking about charging the highest federal official and a regular person.
Monaco: One set of rules, not matter who’s on the side of “the v[ersus],” right? That has to be the right answer. Right, professor, doesn’t that have to be the right answer?
Lakier: And so if you have enough evidence to charge — Well, in my class we talk a lot about a thing called prosecutorial discretion.
Monaco: Right.
Lakier: And how much power this gives prosecutors to make difficult choices about where to mobilize resources.
Monaco: Right. That’s exactly right. That’s exactly right. And so we look to the policy and the process that guides that decision-making, and then, when it’s appropriate, if we’ve decided to bring charges, we’ll talk about those charges. Right? We won’t talk about the uncharged conduct. And it is important to talk about the work that we’re doing. So for instance, I’ve spent a bunch of time in the last month talking about what we’re doing to go after Russian cyberattackers. What we’re doing to go back and seize back assets from Russian oligarchs. As our part of the whole of government effort to respond to the horror that’s happening in Ukraine. It’s important for us to talk about that as a priority, so people understand the steps we are taking in their name to address the aggression that’s happening in Ukraine. That’s an example where we’re taking steps, we’re talking about the work that we’re doing, but we’re doing it in the context of specific enforcement action that we’re taking and where we can point to conduct that we will either prove in court or put before a judge in a forfeiture action.
Lakier: I guess I’ll [take a?] follow-up, because maybe I don’t see any students at the microphones, but if students have questions please go up to the microphones. Just as a quick follow-up. I mean, thinking sympathetically one might imagine that if you’re a prosecutor and you’ve got lots of cases to charge and there’s lots of bad behavior to go after, you might think that the profound political fall-out that might follow going after a particular individual would distract generally from the work of the Department of Justice and in the long run, undermine the people’s justice. So I guess I’m wondering, are those kinds of concerns — not with the, oh we don’t want to charge this person because of their rank. But we don’t want to charge this person because it’s going to make our lives of doing the people’s justice so much harder. Do those kinds of considerations come in?
Monaco: Look, I’ll quote the Attorney General here. “We don’t avoid specific cases because they’re controversial or they’re sensitive. We do avoid making decisions based on purely political or partisan considerations.”
Later, after Monaco dodged a question about fraudulent claims of stolen elections based on her past confirmation that DOJ was investigating the fake electors plot, Lakier tried again.
Lakier: Okay, I guess I’ll ask a variety of that question. I did not put [the questioner] up to it but I’m curious about this.
Monaco: Yeah. Yeah.
Lakier: Which is, again, going back to January 6, you say you just follow the law. But there’s so many laws. And they’re generally quite broadly worded, for example, seditious conspiracy. So again, I just want to know about the trade-off. So so far in the prosecutions though I understand that everything’s not over yet, by any means, most of the people who’ve been charged are those who were directly involved in the events at the Capitol. But we know that there was plenty of organizing, inciting, encouraging. And we might think that many of those who were involved in the organizing, the inciting, the encouraging, perhaps bear more responsibility than those who participated, or equal responsibility. and yet it does raise difficult First Amendment concerns. So when thinking about how high to go, how broadly to go in these prosecutions, when we move beyond the people who entered the Capitol to the people who were involved in the planning, the orchestrating, how do you think about the free speech concerns? And also how do you think about — this excellent question about the prior precedents? How conservative do you play it? Do you worry that if you are going to be conservative, the result is going to be an overly anemic form of justice.
Monaco: So a few points. One, on the question of how broad to go, how high to go, we’ve been exceptionally clear about this and let me restate it and be clear here. We will follow the facts and the law wherever they go, to hold perpetrators of January 6 accountable at any level. At any level. And we will do so whether or not individuals were present on that day or not. So we’ve been exceptionally clear and I want to make that clear here for this audience.
When it comes to making judgements about how to make these charging decisions, seditious conspiracy, I mentioned three pleas already, to seditious conspiracy. It won’t take a huge law school paper writing exercise to look at the history of the seditious conspiracy statute as the professor here can tell you, it does not — you won’t find a lot of cases. So something we take very seriously. And we appropriately, I think, brought these charges, which I’m not going to expound upon beyond what is in the charging papers, except to say that we think it appropriately gets at the gravity of the conduct, and again, we’ve gotten three guilty pleas to that particularly statute already.
Last point, on how we make these decisions, starting first with the crimes that are in front of us, and then working out from there, and the reasons for that. I think what you see in the charging decisions that we’ve made, the most serious charges and thus far the most serious sentences have been meted out against those individuals who engaged in assault. The 200+ individuals who I said we’ve arrested and charged with assaulting officers or members of the news media. Those who engaged in conspiracy acts to obstruct the peaceful transfer of power. Those are the most serious charges and thus far are garnering the most serious charges and ultimately sentences, most likely. Then, where that conduct is not present, either assault or a conspiracy to obstruct the peaceful transfer of power, you see us using lesser charges for those who entered the Capitol without authorization. Trespassing and the like. It is important to mete out those charges as well, however you’re seeing individuals both coming forward and taking responsibility, getting lesser sentences both because they are lesser charges and if they’ve come forward, accepted responsibility, and in some instances, cooperated with the government, you will see lesser sentences and lesser charges there.
At the risk of having BMAZ give me a new excretory pathway, there are people–myself included–who saw the events of 1/6 as a completely out-in-the-open attempt to interfere in the electoral vote count, something I believe to be a felony. The putative defendant never tried to deny it, and, in fact, cheered it on. This was 18 months ago. The lapse in time gives one–well, me, anyway–the impression that the JD isn’t so clear on what the entire country saw. As a relatively faithful reader of EW, I fancy myself as knowing more about the subject and, that, perhaps, is part of the cause of my frustration.
“Abundant clarity” is in the eye of the beholder. Proof beyond a reasonable doubt takes time to establish, even more time whenyou can expect to face the kind of fantastical, deceitful, slash-and-burn defense Trump and his direct reports are likely put up.
The DoJ has abundant faults, but it’s not Texas, where miscarriages of justice seem as abundant as oil industry lobbying dollars.
I think it comes down to intent. Sure, to a rational observer, it appears to be exactly as you describe. But the escape hatch that can be easily deployed by Acting President Individual-1 is to state, à la Steve Urkel “Did I do that?”, and have that as a legitimate defense in the eyes of the law. That’s why the J6 committee is laser focused on exactly what he said and did in those crucial hours.
To an extent. Basically, their mission, legislatively, is to take a look at how to prevent this from happening again via changes to the laws and directly related governance issues. We all know that they’re also there to make sure that there’s no shirking, to the extent they can in this crippled political environment, that there’s as much reining in of those bent on upending the old Constitutional order in the US.
As you suggest, they are doing what they can to point out where there are obvious areas where current laws have likely already been broken by various people in and around Twitler’s regime, either officials in the past “administration” who failed to uphold their oaths to the Constitution and duty to the people and the Congress, or those who, not part of the official government, directly attempted to subvert a legal election through various means that may or may not have been legal, etc.
The two things go hand in hand a lot of the time. The politics of this makes some of it also murky where the DP leadership (or lack thereof) and individual Congress members are concerned. Of one aspect that is readily apparent is that the Congress needs to get its own house (sic) in order when it comes to possible members there that conspired to foment the rioting on Jan 6 2021, etc.
Is there enough evidence for DOJ to file charges?
that probably only takes a few weeks.
Do we have a strong enough case to overcome defenses and convict?
that takes many months.
Can we have confidence we can sustain the conviction against every appeal?
that takes…well …at least this long.
“Is there enough evidence for DOJ to file charges?”
The answer, naturally, depends on who/what is being charged. With all the video evidence available in real time, some could probably have been arrested immediately. But Roger Stone? Trump? DOJ may have evidence from some of the militia conspirators who’ve pled that isn’t known to J6, but that part of the DOJ investigation is largely a black box. EW regulars, at least, know it’s happening, but there’s no indication yet that they have the goods, or ever will. J6 almost certainly hasn’t been able to make those connections, or they’d have trumpeted it loudly.
Tell me what cooperating witnesses DOJ has with direct knowledge of Trump’s actions?
Much like Schiff, I have no idea exactly what DOJ really has, including, obviously, Rule 6 material. But, personally, I have not seen that link close to solid enough, at all yet, to trot out charges.
And, as to John’s question, no, nothing is appeal proof. Nor, for that matter, hung jury proof.
Aye, there’s the rub. Trump will surely use “sensational, politically motivated televised J6 show, et al” to argue the entire adult population of the US is “tainted,” thus he’ll never be able to get a fair trial in this country.
It is not about “fair trial”, that is legally a fairly easy hurdle to clear. But what might one or more jurors buy off on? That is the question.
That’s what I see as the biggest problem going forward. Not just that Trump would claim a jury is prejudiced against him, but that any jury empaneled might have at least one member prejudiced for him, thus obviating any possibility of conviction.
I think it’s pretty clear (we’ve seen it often enough to know it’s the case) that truth is the ultimate victim in any scenario involving Trump or his supporters.
Maybe! But these are the kind of things prosecutors literally deal with every day, even on less huge matters. It is all part of “do we have a real expectation of conviction beyond a reasonable doubt?”
What is “truth” though? It is one thing for us here casually on the internets. It is quite another to a jury with properly engaged defense counsel and a live judge.
Any MAGA hatted juror that hangs a Trump trial gets a free lifetime membership to Mar-A-Lago.
Free lodging, free golf, free bar, free buffet.
Lisa Monaco provides some reassurance that while Lady Justice may not be totally blind, her vision is significantly obscured. And while Monaco’s answers are necessarily vague, it certainly appears that DOJ doesn’t believe that chargeable criminal acts committed by a high official should be off limits. The other key point is the last of the quoted text, and that is that they “avoid making decisions on PURELY political or partisan considerations.”
The operative question is whether or not prosecuting the organizers of the J6 insurrection is a purely partisan effort. My belief is that it is not, but I know that there are a goodly number of Americans who believe it to be. Should that fact enter into the decision making process? Hopefully not, but time will tell.
I am not a lawyer, but I interpret that as saying they will have concrete reasons to prosecute and decline, and make a decision based on the relative weight either way. Political considerations will have whatever normal weight they normally have, but they won’t prosecute the GOP just because they were appointed by a Dem, and they won’t decline to prosecute just because they don’t have an equal number of Dems to prosecute at the same time.
You can slice and dice the words to mean something else, like a lawyer trying to convince a judge that the Joint Session wasn’t a proceeding before the Congress, but I don’t see why you should ignore the plain meaning.
They don’t need concrete reasons to decline. That’s the problem in that the notion is an ideal, when the reality if that if you must believe that you have evidence beyond a reasonable doubt that it also must be beyond reasonable doubt to 12 random jurors, not just DOJ or arm-chair observers (ah, it is a comfy armchair I must say!). In the US, you are presumed innocent, not guilty, legally, in theory, technically, by the court system. That presumption of innocence means that there’s a much higher bar to climb over if you want to charge someone when the evidence is not solid, and your target has good lawyering resources to draw on throughout the entire process. What is irksome is that the Congress seems to be finding things out that the DOJ/FBI doesn’t seem to have investigated very thoroughly (if at all), and that on their face appear to be obstruction, non-compliance with various oaths and laws, etc, etc…1.5 years after the Congress was overrun with rioting insurrectionists.
The hope in the Congress, at least some in the Congress, is that there is some way to prevent this from happening again, an open invitation to disrupt the Congress during the peaceful transition of power by a sitting President who refuses to acknowledge that that President lost an electorial college plurality.
Yes, well put. Translated into probability language, “beyond a reasonable doubt” is roughly equivalent to greater than 95% confidence – similar to running a significance test. But then one must factor in the possible variations in the response of different juries. Think of these as random fluctuations around an “average” result. So if I, as a prosecutor, believed that the evidence was exactly 95% persuasive, I would expect to win conviction only 50% of the time. There are guidelines for when prosecutors should file charges, and I *think* that DOJ wants them to be 85% confident in winning conviction (that being a tad better than the average rate). Might be off on that last number, but not by much. So in practice, they’re looking for what strikes them as substantially more than 95% belief in the evidence.
I’ve been thinking about this in the context of a comment made in the Mueller Report. There was one instance where the authors believed sufficient evidence was present to justify charges of accepting foreign government assistance in the election: the Trump Tower meeting with the Russians. But they recommended against prosecuting because it would be difficult to convince a jury in the face of “a spirited defense.” In other words, if you are well-resourced and can summon the services of convincing lawyers, you really are protected against many credible prosecutions. By contrast, a penniless defendant likely to accept a plea bargain would be prosecuted even when the evidence was much less convincing.
“They don’t need concrete reasons to decline”
I think you misunderstood. They probably have reasons to decline in every case, the question is whether they can build up enough pros and mitigate enough cons to make proceeding with prosecution a good idea. I was vaguely imagining a big whiteboard with Pro and Con lists, but somehow I doubt that’s how things are actually done.
Imagine a mob case where there’s a whole bunch of peripheral people who you’re unlikely to ever get enough evidence against them. If you go after the boss, what will they do? Will Unimportant Flunky A tamper with witnesses, destroy records, shoot up the courthouse, or flee the country? What about Flunky B or Henchman C?
How likely is each act by each flunky, and what can you do to mitigate or prevent them?
If you wait will your case get stronger, or would you just be permitting more crime to occur? Or has your star witness been given a diagnosis of 1 year to live so you need to go now or never?
If the con is “We don’t have enough evidence for each element of the case” that’s a pretty strong con, but it also seems like one that’s amenable to change if you apply time and effort. On the other hand “the target’s political allies might riot” is a strong con, but you could mitigate it by pre-deploying riot police at key locations. If public perception is moving against the target, that suggests that waiting will make the riots less likely and smaller. On the other hand if public perception is moving the other way, going earlier would be better.
This caught my eye:
So for instance, I’ve spent a bunch of time in the last month talking about what we’re doing to go after Russian cyberattackers. What we’re doing to go back and seize back assets from Russian oligarchs. As our part of the whole of government effort to respond to the horror that’s happening in Ukraine.
Unless she is referring just to cyberattacks related to the Ukraine invasion (or maybe even if), this reads like “the horror that’s happening in Ukraine” implies on some level a degree of policy (i.e. political) context as opposed to only the nature of the crimes themselves. (As in “not totally blind, but significantly obscured”.
It is comments like these by Monaco and DOJ press releases about the “real estate priority” for Kleptocapture that make me hopeful that DOJ is still investigating the massive racketeering crimes by Russian oligarchs, Russian intelligence, Trump, and the Republican Party.
It is no small and disposable set of crimes for Putin to attempt to do here what he has done is other countries (like Ukraine) and set up a money laundering, bribery, blackmail, extortion, espionage, conspiracy and kompromat racket in which Trump facilitated the construction of a politically motivated criminal fifth column in the United States.
That is an existential threat to US national security and it can’t be set aside like it is a partisan political scandal in the past. It isn’t a matter of calculating whether a “spirited defense” could lose the case for the prosecution. I understand that experts opine that they must only bring the case if they think they have a high confidence that they will win it and sustain a conviction on appeal, BUT I disagree with the calculation that prosecutors must have such high confidence in this case or decline to bring the case at all.
They must bring this case and they are running out of time to bring it within a timely enough manner to defeat the existential threat. They must take a risk that they will lose it on appeal. The facts of the case must be elevated above the level of public discourse where they exist now. They must establish those facts in criminal convictions. That is the only way to defeat the political power of the frauds, the liars, the traitors, the racketeering criminals. They must bring the case in order to upend the criminal fifth column and disorganize them. Even if they lose convictions on appeal, this result will defeat the existential threat in the short term, and more normal electoral checks will be sufficient to defeat the existential threat until we no longer have Putin and his gang in power.
a bit off topic, I wondered if there are any reactions/thoughts wrt Dept of Homeland Security and Secret Service statements that the requested Secret Service texts from Jan 5 and Jan 6 were deleted after being requested. Nor, were they backed up as required…and cannot be retrieved.
NYT’s reporting on it (7/19/22) yesterday lacked context for those quoted (spokesman, Anthony Guglielmi and inspector general, Joseph V. Cuffari, both Trump loyalist appointees ). Concluding it was a bureaucratic bungle,
The bulk of the piece provided agency protestations, “the agency provided thousands of documents”…(none of them included the Jan 5 and Jan 6 texts)….and ends with a quote from Larry Cosme, president of the Federal Law Enforcement Officers Administration
So there it is folks, “Over time…and when appropriate….” we just might provide relevant facts….sometime in the future….you know, when all this legal stuff blows over.
I wondered who pulled this agency perspective together and was unsurprised to see M. Haberman attached to it.
I’m pretty certain that there are copies of the texts somewhere, even if not fully complete. I’m sure some of these went into WH communications (yes, I’m aware of who was running things then) or Stone’s unofficial side of the conspiracy. Given how ‘ANTIFA’ was alleged to be going to DC that day, I have no doubt that the electronic communications were being monitored during the whole day. Whether those records were ‘edited’ afterward I do not know but there are potential opportunities for loose ends to pull.
As it is, we have tomorrow’s hearing and a note from the J6SC that the proverbial flood of new witnesses will extend their work. Maybe some of these new witnesses have texts to share. So while Garrett Ziegler (who has a smirk I’d like to slug as much as Pharma Bro’s) was unhelpful, even he saw the need to come in to assert the 5th.
I wouldn’t be too sure that USSS communications involve Stone directly during Jan 5/6, aside from any visits he or his representatives may have had personally to the White House during that period. It appears that there was some CYA when it comes to Meadows and other WH officials not appearing personally at the Williard during that period. What would be good to have is texts detailing discussions about that as it might corroborate testimony already in the Congressional record (and hopefully DOJ/FBI investigative efforts as well.)
There are parallel areas of the J6 investigations that could also be corroboratory in those texts as well; place, time, and manner of other officials, their locations and actions or inactions, etc during the period in which the sedition conspiracy and live insurrection at the Capitol where promulgated and carried forward, etc.
Garrett Ziegler, the guy who let Sidney Powell, Mike Flynn and the Overstock Guy into the Oval for the craziest meeting in White House history sounds like quite a guy.
As typical with these folks he livestreamed a 27-minute “profane and sexist rant” after talking to the Jan 6 committee yesterday according to CNN.
https://www.msn.com/en-us/news/politics/former-trump-white-house-aide-who-met-with-january-6-panel-attacks-witnesses-lawmakers-in-profane-and-sexist-rant/ar-AAZNqbL.
He’s Navarro’s Navarro.
In “The Final Days”, Woodward and Bernstein describe “Haldeman’s Haldeman”, who as I remember was a guy named Higby, and there was also “Higby’s Higby”.
Speaking of those folks, does anyone know whether Garrett Ziegler is related to Ron?
Yes, he is. Cousin or something similar. He’s acknowledged that it’s part of why he got into politics.
Where did you find that (connection between Garrett and Ron Ziegler), PJ Evans? I just spent an hour looking for it. Could not find that, but found some other interesting things I just posted on the Mastriano thread because they have a Pennsylvania nexus.
Garrett yaps constantly about Hunter Biden’s laptop, the secrets of which he is supposedly going to reveal, and Bolsheviks, but seems to me to have scrubbed his origins and family as much as possible. He says he’s from Effingham, IL, but might as well have sprung from the head of … well, not Zeus. Maybe Jordan Peterson.
Here’s one source:
Garrett said “My dad’s second cousin, Ronald Ziegler, was a press secretary for President Nixon, but nobody else in my family has ever been involved with politics.”
https://etnewsreport.com/ziegler-gains-valuable-experience-intern-white-house/
He is in fact related to Ron.
Cousins.
The Jose Rodriguez Gambit. I’m surprised they haven’t already requested that John Durham investigate the matter.
Coincidentally. . . awhile back the state AG for North Dakota had a heart attack and died at home, I believe he was planning to retire after his present term.
Turns out his exec asst asked IT to delete his account and emails, telling them “We want to make sure no one has an opportunity to make an Open Record request for his emails, especially as he kept EVERYTHING.” She also claimed this was under the direction of the Deputy AG who apparently knew nothing about it. The emails are not recoverable unless through recipients (who, if govt, *should* still have them).
Then she quit when the gov said he was appointing new AG. Her account was deleted 2 months later (one would think her active directory account would be immediately disabled), no info about any archiving there my maybe that was done.
New AG has not said anything yet about potential charges–he belongs to same party as the former guy. Speaking of prosecutorial discretion . . . . (he used to be the US attorney in ND, Bush appointed)
The Republican Party is an organized crime syndicate masquerading as a political party.
For good measure, they are also a criminally insane cult who believe that God has chsen them to overthrow the Satanic Liberal Democracy and, because they are “fighting Satan,” they are “forgiven like King David” when they commit felonies and shouldn’t be prosecuted and shouldn’t prosecute other cult members.
KICK every Republican out of elected office, and have them fired from any other position of authority or influence. We simply cannot tolerate any such crackpot criminals in any position of authority at any level.
In the current situation, would the DOJ be considering charges that were not only appellate-proof but also trying to find sufficient grounds to make convictions SCOTUS-proof?
Or am I being paranoid now that Thomas and Alito have bench buddies?
“SCOTUS proof” isn’t really a thing, especially given the current court.
My argument is that DOJ must bring multiple cases and win criminal convictions against Trump and perhaps hundreds of Republicans.
They must do it even if there is a 40% chance of being overturned on appeal, because the facts must be established in criminal conviction cases and elevated above the level of public discourse where they exist now.
It would be better for criminals to go free on a technicality on appeal than it would be to decline prosecution and preserve all of their lies and crimes as mere political opinion differences.
If they are convicted then they must forever try to overcome that stigma in the political arena. Winning appeal on a technicality may be a technical vindication, but it will never erase the conviction politically.
I know the DOJ leadership probably finds such views distasteful, but saving the republic from Putin’s criminal fifth column is worth the discomfort and they should get over it.
In case that seems like a disconnect for you: Trump facilitated the kompromat of the Republican Party by flooding the party with Russian mafia money. I’m sure the DOJ is being very meticulous and careful as they plod along, but they need have fire lit underneath their asses on this one.
Oh, that is “your” view, is it? At what point did your sorry ass internet rant come to replace actual considerations of justice? Would you be in favor of modern day lynch mobs? Is that your desire?
By the way, what Constitutional protections do “you” consider mere appropriate?
The real problem comes in when prosecutors start trying to second guess how the Supreme Court might overrule current precedent to protect political allies of sitting Justices. Too afraid to bring a case because it might reveal how corrupt the system has become is a thing in some countries…is it one in ours now too?
I saw an article about the missing Secret Service text messages yesterday. A former FBI agent suggested an interesting work around. If the messages from January 6th are missing, subpoena their messages from the day (and day after) Cassidy Hutchinson testified publicly.
J6 (and DOJ) should be asking (subpoenaing) meta data and geofencing data related to USSS phones over that same time frame but perhaps a little wider, to include the first day’s rally January 4 through the day after.
And by geofencing I mean J6 needs to know where USSS personnel were including proximity to the Willard Hotel and the unexploded pipe bombs.
Yeah, that’s got to be interesting in the USSS texts from Jan 6… the pipebombs and Twitler wanting to rush to the Capitol to obstruct the Congress at the same time…
I would *really* like a window into what either investigation, DOJ or J6 committee, has uncovered about those bombs and how they fit in with the overall picture.
I have yet to see any discussion of why kitchen timers were the triggers for the pipe bombs. Someone would have to manually set them 1 hour before the bombs were to explode. Any thoughts on this?
I commented on this a while back, but just to the effect that, yeah, it seemed odd to use such low-tech means, plus, put yourself in danger once more (of being spotted) just to set the timer. Even the Tsarnaevs (Boston Bombers) knew enough to use a phone call as a detonator, and found information online on how to do it. The only other thing I gleaned from the videos was that – to me – it seemed possible that the bomber was female and that they were quite young, like, teenaged. My other worry was that if some rando 17-year-old was up for doing this, what is their ongoing state of mind, and what will they try next?
Modern teenagers now live in a gossip filled realty show, it would be hard to fathom a teenager that would not post it on social media or at least let the cat out of the bag which would quickly be shared by others
I don’t buy that. There are enough teens who know cell phones and social media are 7/24 surveillance systems.
But I also don’t think the person who placed the bombs was a teen. No idea where John Paul Jones came up with that theory apart from personal conjecture. If the bomber was connected to the J6 insurrectionists, they are more likely to fit their profile — white, 30-something, middle class, adequate money for discretionary travel, and whiny entitled nationalist.
Pure conjecture, but something about the way the person walked suggested youth. Yeah, I know, eye of the beholder stuff; and “youth” in terms of gait is a wide target (16-36 at least).
That would be your personal opinion shaped by your own biases. My own biases suggest a woman in their early 30s since men rarely perform the shrugging motion made by the perp as if they were adjusting the straps of their ill-fitting bra. Shoes appeared slightly too large and untied as well, which would also mask gait. Men also tend to walk like they sit, legs wider apart during stride than women whose knees tend to be kept closer together due to years of socialization and women’s footwear.
Remember that other Secret Service issue:
“Secret Service agents assigned to Biden, Harris suspended amid bribery investigation” – Nicole Darrah, 4/8/22
https://news.yahoo.com/secret-service-agents-suspended-bribery-plot-170142622.html
Funny how that story completely dried up, hmm?
Would seeing thier responses to Hutchinson’s testimony be enough of a legal justification to scroll through thier phones?
“the requested Secret Service texts from Jan 5 and Jan 6 were deleted after being requested. Nor, were they backed up as required…and cannot be retrieved.”
“Russia, if you’re listening …”
I seem remember a vast structure being constructed in Utah I think, by the NSA to sweep up all telephone comms in the USA.
Would the NSA have those SS texts?
If they do, you/we will likely never see them. If the USSS can delete texts from multiple phones across multiple agents, etc, in one fell swoop, you gotta imagine that the NSA can do that too. “Oopsie, needed the server space a year later—nothing to see here any more!”
I’m not sure if this point has been made before. If it has, I apologize.
Although I tend to believe Marcy, I can’t blame the prosecution skeptics for thinking the way they do. They have a strong precedent to go on–the treatment of the bankers by the Obama Administration in the wake of the global financial crisis. The prosecutors got a few small fish and let all the big ones go. Doubtless those cases would have been difficult to prosecute due to the diffusion of corporate responsibility, but the evidence against some of the CEOs seemed reasonably strong.
That is called prosecutorial discretion. It is a real thing, whether people like it or not.
That is called to big to fail. It is a real thing, whether people like it or not.
No, that’s not what TBTF means. TBTF financial and corporate institutions were those which would have caused the nation’s economy greater hardship if allowed to collapse.
That’s a wholly separate issue from prosecuting banksters for fraudulent practices even if the banksters were those at the helm of the TBTF institutions.
One of the key reasons TBTF became TBTF was Congress itself which both failed to exercise adequate oversight on top of passing shitty legislation undermining previous safeguards because much of Congress was ‘captured’ by the same TBTF institutions.
What voters failed to do was end the ‘capture’ by electing better representatives who would move to publicly-funded elections and ban members of Congress from owning stock. We can see even now the continuing long tail of that failure in the 117th Congress.
I think they captured the regulators who were supposed to apply anti-trust laws.
Yes, they did, but they also captured the legislators who should have had SEC before them much earlier rather than allow SEC to operate as corruptly as it did for as long as it did.
Legislators also made a mess of stupid if not outright corrupt legislation like undermining Glass-Steagall Act with Gramm-Leach-Bliley Act and allowing electronic signature of banking documents in a way which severed mortgages from deeds, ultimately allowing bundling of collateralized debt objects.
I don’t like it when discretion serves wealth and power. That is bias and injustice in my book.
Lol, you ever go to a federal court, or even a significant state level court? Because I still go all the time and can tell you there are both rich people and poor people in them. Discretion does not serve only the wealth and power, that is a crock of shit generality. It is a very imperfect system, but it is better than the other such systems. What are you doing to make it better? Do you even go to jury service when summoned, or more interested in whinging here?
I’m not going to dispute the banksters got off easy. I wrote a lot about it. The entire world would have been better off it that hadn’t happened.
“I’m not going to dispute the banksters got off easy.”
ESPECIALLY in light of the massive leverage the Government (Federal Reserve, Treasury, SEC) had at the time whilst throwing MASSIVE piles of money around keeping those institutions afloat. Having spent a 30 yr career in Finance I knew all too well the gravity of the situation- a Global Financial System literally “teetering at the brink” and understood the necessity of keeping some Institutions afloat… but with hardly any strings attached!? At the time the Government was in a position to demand MASSIVE concessions from a regulatory, institutional structures and “Voluntary” leadership resignations (at the very least) standpoint.
From an insider perspective I was FURIOUS about the lack of consequences for behavior that should have been stopped long before the “house of cards” fell down.
How about this: you be right, we whingers will be wrong, we’ll have a big humiliating crow-eating session, and we’ll all live happily ever after … until the next atrocity. But in the meantime, I read that interview and (aside from “talk is cheap”) the part that gives me pause is this:
“The policy” explicitly includes Barr’s memo and all the other memos before it. And if you get past those multiply-moved goalposts– i.e., the OLC/DOJ-created asterisks to the quaint, starry-eyed notions of “no man is above the law; equal justice under the law; justice delayed is justice denied”–then you get to talk about charges.
I’d also implore the court that if Trump is indicted, that my sentences for the various things I’ve said that will have been proven wrong run concurrently.
They were always going to run concurrently, if there ever are any.
“So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have,” Trump said in the call, which was first reported by The Washington Post. “Because we won the state.”
Given the crushing public evidence that he lost, and the easily accessible additional evidence to DOJ [through subpoena] to confirm Trump privately repeatedly was told he lost, and thus knew he lost, DOJ long has had a viable case against Trump, which it elected to not pursue. The proposition that conviction was not absolutely certain — it rarely is against well heeled defendants — does not justify failure to bring this manifestly meritorious prosecution, i.e. one that would be supported by far more than enough evidence to allow a rational jury to convict. That is particularly so, since the crime was part of an attempt to end democracy in the U.S. by someone with the potential to succeed — and since non prosecution simply green lights the next potential autocrat to try again.
Even in the unlikely event of acquittal, there would be little lost. Trump’s ensuing allegations of persecution and bad faith would have little credibility outside his fascist base, which already is radicalized. The rest of the world easily could understand [as do jurors] the relatively simple proposition that acquittal does not mean innocent. That’s why verdicts of acquittal are labeled “not guilty,” which of course — and appropriately — encompasses “probably guilty.”
We don’t know for sure that they’re not pursuing it. However, given that Twitler hasn’t been whining about the DOJ and FBI openly being shills of “Joe Biden and Demosocialist witch hunters!”, it’s likely that DOJ is not pursuing it at this time…IMO, “fentanyl adled” or not.
I can’t remember which lawyer reporter said that Trump is still guilty of obstruction of gov’t proceeding etc. even if he believes his lie. Believing he won does not justify breaking the law, ie the fraudulent elector scheme, obstruction by force or any number of other illegalities.
One here?
My recollection is that it came up during discussions of the concept “willfully blind.” I think several people talked about it, but I can’t recall specifics. But in the J6 hearings, I believe Liz Cheney mentioned it, too.
Okay, just a slight reset here. Liz Cheney, and thousands of others, may think “willful blindness” is the correct term. It is not. The real legal term of art is “deliberate ignorance”. That is how actual federal jury instructions phrase it. If you want a primer, see this brief by Bill Taylor and Carl Cecere, both of whom are outstanding, and worth a follow if you are so inclined.
Thanks, bmaz!
Thanks, bmaz. Taylor and Cecere made compelling arguments. It’s unfortunate the SC denied the Okechuku v. USA cert petition.
By contrast with Okechuku, abundant potential evidence of Trump’s deliberate ignorance has been emerging.
Washington Post column from last month by Ryan Goodman and Norman Eisen: Did Trump believe his big lie? It’s irrelevant to proving his guilt.
Also, along similar lines, Harry Litman posted the following in the LA Times back in January: Trump may believe in his own Big Lie, but that shouldn’t save him from a guilty verdict for election tampering.
This is the key sentence from Monaco’s answers, above: “We will follow the facts and the law wherever they go, to hold perpetrators of January 6 accountable at any level.” Add to that the following (from Empty Wheel’s “Stop Whinging” post:
June 28, 2022: Testimony of Cassidy Hutchinson said to “jolt” DOJ to discuss Trump crimes other than those tied to inspiring rioters, though that report also says that, “change that was underway even before Ms. Hutchinson’s testimony.”
A reasonable inference is that the DOJ has been heavily focused on the assault on the Capitol, and not concerned about the broader effort to overturn the election. The interference in Georgia is on tape. The certificates of the false electors are fraudulent on their faces. The absence of indictments in those two matters after a year and a half is deeply troubling and consistent with an interpretation that Merrick Garland is just now waking up to the attempted coup (and then only because of the overwhelming evidence presented by the January 6th Committee).
Robert Hubbell, Much of the frustration expressed at DOJ’s supposed inertia seems predicated on that story about the department being “jolted” by the Hutchinson testimony. I’d simply remind people that this may represent the NYT’s own attempt to “jolt” clicks and sales by overselling conflict between branches (DOJ and J6C) as well as the narrative about Garland’s laggard ineffectiveness. Remember, this paper’s done more to tank Biden’s ratings than anyone except the rest of the corporate media.
Garland and Monaco express the theoretical posture of the DOJ and I believe/trust/hope/pray they are truly adhering to that. However, one need look no further back in history than the last administration to know that bad actors, like Barr and Rosenstein, corrupt the process.
Marcy, after causing panic yesterday with tales of Mastriano, I will sleep better after today’s article. As always, your important work is much appreciated.
One of my favourite Boys’ Own Adventure type novels is “The Three Musketeers”, which has been part of my summer reading program this year. Toward the end of the story, when Fate closes in on the evil Lady de Winter (whom Dumas describes as a fatal blonde beauty with a missing front tooth), the author writes:
“Great criminals are endowed with a kind of predestination which enables them to surmount every obstacle, and to escape every danger, until the moment on which a wearied Providence has fixed for the shipwreck of their unhallowed fortunes.”
I am confident that the time is coming when a wearied Providence will grow tired of the nefarious Donald J. Trump.
Thank you to Ms. Wheeler. Still no parallels to John Dean, Charles Colson, Ehrlichman and Halderman. Thus the DofJ plan is not visible to me, or to the public. Based on the historical examples. I am skeptical that there will be any prosecutions similar to those in Watergate, The Watergate example is the exception, not the rule.
I read somewhere that the laws used to prosecute watergate defendants have been weakened since then (though laws were created/ strengthened in its immediate aftermath supposedly.)
I don’t recall any specifics being given on which laws have been weakened so I hope it is not true.
[Welcome back to emptywheel. Please use a more differentiated username when you comment next as we have several community members named “Carolyn” or “Caroline” or “Caro.” Sorry not to have pointed this out in your previous 5 comments. Thanks. /~Rayne]
Excuse me, Ms. Monaco, what are you doing about the Secret Service coverup and willful destruction of evidence?
I don’t know why this has to be explained *again* and in this community which should have a better grasp of U.S. government.
The missing communications were both requested and subpoenaed by the House J6 Committee.
The House J6 Committee needs to make a criminal referral if it finds USSS obstructed a government proceeding in its handling of subpoenaed communications.
DOJ investigates upon receiving the referral and proceeds/declines prosecution based on its own investigation.
You can ask Ms. Monaco after J6 makes the referral, unless DOJ is already investigating USSS — in which case she will have no comment about an ongoing investigation.
Pardon my ignorance. https://jabberwocking.com/i-think-we-all-know-what-the-secret-service-did-last-year/ Are you saying the DOJ can ignore criminal activity looking it in the face for want of a referral? Hell, the activity is a referral.
Now, I think it’s past time for DOJ to stop complaining about not getting help from the J6 Committee and get off the dime. Get an indictment or two from one of your alleged grand juries. Stop wimping around and talking about the need for airtight cases and do something.
Some claim DOJ has already blown the SOL on any Trump crimes, e.g., the Mueller documented obstruction, etc., other than January 6. What next? Blow that off too?
Which is worse: no Trump convictions or just letting Trump off scot free? What message does that send? Authoritarian state here we come.
How would we know, from the outside? The DOJ could be preparing warrants as we speak but it would look exactly the same as what some think means no action.
May be counter-intuitive, but one of the strongest indications that “the game’s afoot” is that nobody’s leaked anything. If things were actually at the speed/reluctance/low intensity that you perceive and are unhappy about, don’t you think multiple people within the DOJ would also be upset? More outraged than you, and quit and or spill some snark?
Show exactly what evidence of criminal behavior you can see in front of you.
Because right now all we have is a hole where communications were expected.
Amazing how we’re supposed to be better than the GOP when it comes to the rule of law but don’t actually want to abide by the rule of law – in this case it means providing adequate evidence to engage law enforcement. Pointing to a hole and saying, “Investigate this because there’s supposed to be something there!” isn’t it.
Believe me, this site has already been round the bend on missing communications going close to two decades now.
As somebody who has been around that particular bend a few times on this site, I have some thoughts about this mess. The Secret Service is admitting to one crime to avoid admitting to another. They are so worried about obstruction of justice charges, they’re admitting to document destruction. It’s against the law to destroy records after receiving a FOIA request for them. Jason Leopold FOIA’ed those text messages on January 11, 2021. The SS acknowledged that they had responsive records on Jan 19.
To recap, the SS claims that the plan that resulted in the document destruction existed before Jan. 11. That means the document destruction was willful. And they acknowledge that they received the FOIA request which makes the document destruction unlawful. I believe that constitutes what the lawyers call “specific intent”. 18 U.S. Code § 2071(b) says:
Yup, Leopold’s FOIA set one avenue in motion, but it’s not like DOJ is supposed to sit around and watch the news for the appearance of criminal behavior before they pursue it. What’s the trigger mechanism? Did Leopold file a complaint or begin a FOIA lawsuit?
Another avenue is the one NARA set in motion with USSS to investigate this gross failure under PRA.
But there’s a much, MUCH larger problem with this entire scenario, and that’s the role DHS and DHS IG played by delaying awareness of the communications’ disappearance. How does an investigation into that angle which encompasses USSS get triggered?
Yes. As you point out, the likelihood of multiple investigations into Jan. 6th was extraordinary. The disinterest – really, the reckless data “management” policies – by the DHS and the USSS regarding the safekeeping of their records looks like both had a lot to hide.
As WilliamOckham suggests, they seem to be playing a standard DC two-step: admit to a lesser crime in the hope it deters investigators from inquiring into more devastating crimes. Plea bargaining in advance of an indictment.
So, if Tony Ornato ordered these texts deleted, does that mean he’s analogizing a willingness to fall on his sword over that to his willingness to take one for the Gipper? If so, perhaps the DoJ should promptly take him up on his offer.
I have seen nothing so far to indicate Ornato ordered the communications deleted let alone the “upgrade” to the system. House J6 needs to ask Ornato more questions if they haven’t already done so wrt communications; either House J6 and/or NARA need to make a referral soon to DOJ about obstruction and destruction of presidential records.
Folks need to ask more questions about USSS leadership, specifically the Trump appointed who took the helm in 2019.
I picked it up from your twtr feed.
https://twitter.com/raynetoday/status/1549969242782683137
Helminski is no longer with USSS, no longer in US govt. He retired in 2015, was elected to a local county role in Washington State in 2017. He offered his opinion based his past experience as USSS Deputy Assistant Director.
Helminski’s opinion suggests that Ornato needs to appear before the House J6 Committee again so he can be asked if in any capacity for the U.S. government he either deleted or instructed others to delete any communications between federal government employees and/or elected officials, and/or non-elected citizens.
Helminski did NOT offer any evidence Ornato was directly responsible for the loss of any USSS communications. Furthermore, it’s not clear that Ornato in his role as White House Deputy Chief of Staff for Operations as of December 2020 had the authority to 1) order deletion of USSS communications, and/or 2) order replacement of USSS communications’ system or devices.
Ornato does need to be asked about this, as does the former Director of USSS James Murray and the former Director, Raymond Alles, who was ‘removed’ by Trump from the role in May 2019 (about the same time former ambassador to Ukraine Marie Yovanovitch was removed from her role).
Ornato isn’t the only person who should have that question asked of them with regard to the USSS et al.
The Archivist (who does explicitly watch the news for stories of document destruction) has the responsibility to bring this to the DOJ. And he’s already set things in motion.
https://www.archives.gov/files/records-mgmt/resources/ud-2022-0054-dhs-usss-open.pdf
(I am traveling this week. Responses may be delayed. )
Yup, noted in another comment NARA was working on this. It’s going to be another 30-90 days, though before this gets any traction adequate to trigger a referral.
But there’s a problem right here on the face of it: why did NARA not know back in February that USSS had deleted presidential records? Why isn’t there some sort of automated confirmation of records being retained on the regular? I think back to the days when I handled incremental/weekly/monthly/quarterly backups for a Fortune 100 company and I would have had someone up in my grill if I missed a week’s retention.
William,
Sorry for repeating some of what you said. I didn’t reload the page before replying and so didn’t see your comment til after I’d submitted mine.
Jason Leopold: “On Jan 11, 2021, I filed a broad #FOIA request w/Secret Service for text messages & other docs related to Jan 6. On Jan 19, Secret Service said it searched & found potentially responsive docs. Sued the agency 2 mos later. Docs should have been preserved” You can read the summary of the request here: https://www.secretservice.gov/sites/default/files/reports/2022-03/FY21%20FOIA%20Logs.pdf — page 30, #20210270.
Other House Committees had previously requested them. They are also subject to the Federal Records Act.
This should not depend on a criminal referral from the J6 Committee. 36 CFR Part 1230:
“Unlawful or accidental destruction (also called unauthorized destruction) means disposal of an unscheduled or permanent record; disposal prior to the end of the NARA-approved retention period of a temporary record (other than court-ordered disposal under § 1226.14(d) of this subchapter); and disposal of a record subject to a FOIA request, litigation hold, or any other hold requirement to retain the records. … The penalties for the unlawful or accidental removal, defacing, alteration, or destruction of Federal records or the attempt to do so, include a fine, imprisonment, or both (18 U.S.C. 641 and 2071).”
Jeebus. You are awfully bold about something you seem to not be very well versed in. “Alleged grand juries”? Do you have evidence there were “not” GJs being used by DOJ? Secondly, if the predicate for an investigation is present, DOJ does not need a “referral”.
Seriously, WTF is wrong with you? Do you ever stop and listen to yourself on these angry rants? For th 9,332 time, the criminal justice system is not about your little fee fees, it does not operate to serve them and is not timed to your political desires. That is exactly the kind of blatant garbage the other side is known for.
“Some say” statutes of limitation have been “blown” as to the Mueller Report. Yeah? I am one of those people. And that is fine, because only a blithering idiot would charge off the Mueller Report. It was already toxic before Barr’s antics. It is a surprisingly good compendium of Russian election interference in 2016, but it was never designed as a charging document, and the decision not to use it as such was a fair one.
Finally, tell me “Hollywood” how many criminal cases you have been involved in? How many jury trials have you conducted? Don’t worry, those are rhetorical questions, I can tell from your outraged ranting the answer is zero to both questions. What “message does it send” when the criminal justice system operates by concern for lame public opinion polls and people like you ranting in the streets and internets? I’d argue that would be far worse than which you constantly bitch about here.
Maybe consider getting a grip on things.
I read recently that DOJ has (or had) six grand juries working on these investigations. Garland signaled yesterday that they are on it, while attempting to remind the public that divulging details would compromise the very cases they are clamoring for.
I think Marcy said six. She knows better than I, but I think it is at least that.
Commenter in Wash Post said last month Garland has called 146 grand juries in total since he was sworn in, but not how many would be an average amount.
Woke up on the wrong side of the bed again?
No, I’ve never tried a criminal case. I have tried about 25 civil cases.
Satisfied?
Jenna Ellis has more criminal experience than you have. No pardons coming your way.
Nope, no criminal experience, but I know a non sequitur when I see one.
Really?
>> your alleged grand juries…
So, we know with certainly you are ignorant with respect to that (at least by a count of 6). And we know with certainty that you have zero criminal trial experience.
Could you post a link to the page on which you showed “only a blithering idiot would charge off the Mueller Report.” I missed it.
There were quite a few as I recall though I don’t have the actual time or patience to go and look. They probably didn’t use exactly those words; BMAZ was not quite as cantankerous then as he is now, but the import was the same.
Yes. I will stick right where I am, thank you. And, Mr. Baker, can “you” post something different where I said otherwise? Don’t make demands you cannot meet.
Oh, I am sorry, can YOU post one in the last couple of years where I did NOT say that?
Sorry, I didn’t mean to suggest you never had advanced that proposition in the past. By showed, I meant proved, demonstrated. As we know, anyone can assert anything, which makes mere assertion rather uninteresting.
You have a whopping 45 comments here to date, with your first shared 13 months ago. You’ll pardon the moderator/contributor who’s been here since the site launched well more than a dozen years years ago if they don’t jump and chase your request when you could use either the site’s search tool or Google.
Meanwhile, in Feb. 2022, Homeland Security’s IG learned that the Secret Service had scrubbed the texts. https://www.washingtonpost.com/national-security/2022/07/20/secret-service-national-archives/
[FYI, link edited to removing tracking. Please clean up URLs before sharing. /~Rayne]
Thank you.
Zoe Lofgren just told Nicole Wallace on MSNBC, that the Secret Service has retained private counsel.
I wonder how that works, given that agencies are routinely defended either by in-house counsel or the DoJ. Who authorizes that probable multi-million dollar expense?
No idea. I posted some other comments by a former Asst. Director of the FBI, and they went to moderation.
He additionally said that retaining private counsel was very unusual, because they would normally be defended by in-house counsel.
Some times security may kick comments to moderation for screening if it detects problematic words or phrases. It may also be triggered sporadically with active links in comments.
We’ll clear them as fast as we can but the moderation is a necessary feature for community members’ benefit. You definitely do not want to see the crap we see backend.
I really appreciate all of the ‘sifting’ that you do. I just always want to be sure that I haven’t triggered moderation by posting something that causes a problem, unbeknownst to me.
I actually would find it interesting to see some of what you strain out of the sewer influx. Maybe some time you can do a weekend posting of greatest hits with attribution scrubbed for our viewing edification !
Oh. No, no, no. There is some really, truly vile stuff going through the filters.
Frank Figliuzzi speaking with Nicole Wallace now on MSNBC, just asked a very interesting question, “Why didn’t the Secret Service take Trump to a secure location instead of back to the general White House ? ”
“With an assault at the Capitol ongoing and two bombs being discovered elsewhere in DC, he said that it didn’t make sense that the SS didn’t hustle him right to a secure location outside the area. That is unusual.”
Figliuzzi is the retired former Assistant Director of the FBI. He also finds it extremely unusual for them to seek private counsel.
According to MSNBC, DHS has launched a criminal probe of the destruction of the text messages by USSS.
This sounds like DHS is still trying to control the ball. It shouldn’t. Hard to see how it can credibly conduct an investigation. If nothing else, senior officers at DHS oversaw the USSS, not to mention that one would expect DHS’s CIO would have overseen USSS’s CIO and how it designed and executed any telecoms/records retention policies.
DoJ needs to take over, especially because the Trump-appointed DHS IG and others at DHS and USSS might be witnesses and/or targets of an investigation.
FWIW, a DKos diary:
There Is No One I Trust More At This Moment In History Than Attorney General Merrick Garland
…which basically refers to a piece by Lawfare Blog’s editor in chief, Benjamin Wittes.
I hope time proves the writer correct. OTOH, IIRC, Wittes at one point had big hopes for the Mueller investigation.
It’s hard to decide if the profit-seeking mass media (even the well intentioned and relatively non-biased news outlets), has turned the news into all clickbait, all the time from stupidity, cupidity, morbidity, or perfidy.
Hat tip to Charles P. Pierce:
Steve Bannon’s ‘Medieval’ Legal Strategy Turns Out to Be a Vow of Silence