I, Too, Got Hoodwinked by Donald Trump’s Demands to Be Tried Like a Seditionist

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I’m about to write a post about what, per the DOJ, the discovery in Trump January 6 case is like.

But first, I have to confess.

When I read Trump’s own pitch for a trial in 2026, I missed one of his more clever deceits. It’s this one:

Indeed, the median time from commencement to termination for a jury-tried § 371 charge is 29.4 months—many times longer than the government’s proposal schedule. 12 (And this reflects only the median, meaning half of all such cases take more time based on individualized assessments of discovery volume, complexity, and similar concerns.)

12 Administrative Office of the United States Courts, Table D-10: U.S. District Courts–Median Time Intervals From Commencement to Termination for Criminal Defendants Disposed of, by Offense, During the 12-Month Period Ending September 30, 2022, at 2, jb_d10_0930.2022.pdf (uscourts.gov). [my emphasis]

To be sure, I should have been alerted to the deceit by this paragraph, in the same section.

Likewise, this Court regularly allows far more time than the government proposes, even in cases involving protests at the Capitol on January 6, 2021. See, e.g., United States v. Foy, No. 21- cr-0108 (28 months from indictment to stipulated bench trial on 4-page indictment); United States v. Nordean, et al, No. 21-cr-0175 (TJK) (21 months); United States v. Crowl, et al, No. 21-cr-0028 (APM) (23 months); United States v. Kuehne, et al, Case No. 21-cr-160 (29 months); United States v. Hostetter, et al, Case No. 21-cr-0392 (RCL) (24 months). [my emphasis]

Trump was calling now-convicted seditionists — and other militia members accused of attacking our democracy — “protestors”!!!!

My only excuse is that I read it in the middle of the night and figured I’d deal with it–as I intend to–once the government replied, which they now have.

One reason I’m so angry that I didn’t see this particular lie, though, is because I’ve pointed out what a blindspot this is among TV lawyers and insipid NYT columnists who like to blather about the investigation taking too long.

Everything got held up by COVID, not just the January 6 investigation. The first felony trial for Jan6ers was delayed until March 2022, partly because of COVID backlogs, and partly because of discovery challenges.

Only after that did Trump stall everything with frivolous Executive Privilege claims in the wake of SCOTUS upholding Judge Chutkan’s own ruling on the topic (another complaint Trump raised in his motion almost no one called out).

It turns out, as DOJ explained in a filing today, that Donald Trump was using the delays in the January 6 investigation necessitated by COVID to claim he shouldn’t be tried for January 6 until he gets a shot at being President again.

The defendant’s references to Section 371 statistics and January 6th cases overlook important underlying facts and context. See ECF No. 30 at 12. First, the defendant cites the median time from commencement to termination for jury trials of Section 371 charges—29.4 months—without explaining that this median time runs through the completion of sentencing, not the beginning of trial. That means that it includes the time required for jury selection, trial, verdict, and several months (or more) afterward before sentencing and final judgment. See https://www.uscourts.gov/sites/default/files/data_tables/jb_d10_0930.2022.pdf. The question here is when it is appropriate to start trial in this case, and statistics regarding the length of time from indictment to sentencing in other Section 371 cases have no bearing on that decision

Second, the data cited by the defendant spans October 2021 through September 2022, when federal courts were pulling out of a backlog caused by COVID-19 closures. During that period, only 22 cases went to trial nationwide. This small and skewed sample provides no help to the Court in deciding an appropriate trial date.

The defendant’s listed January 6th cases also omit important details and context. He fails to mention, for instance, that in one case he cites, disposition was delayed because of, among other reasons, litigation over pre-trial detention, a superseding indictment, and plea negotiations. See United States v. Foy, 21-cr-108, ECF No. 55, Superseding Indictment (11/10/21); 2/7/22 Minute Entry (setting jury trial for 9/19/22); ECF No. 67, Defendant’s Unopposed Motion to Vacate Trial Date (for, among other reasons, plea negotiations). All of the defendant’s other cited cases included multiple co-defendants—as many as seventeen. See United States v. Crowl, et al., 21- cr-28 at ECF No. 328, Fifth Superseding Indictment. The Court should set these inapposite comparisons aside when weighing the individual factors here under the Speedy Trial Act.

Trump was cherry picking data skewed by the catastrophe that might have been mitigated had his own COVID response been less irresponsible. He was cherry picking from among the other January 6 defendants (some adjudged seditionists), some of whose trials established precedents for his own.

Donald Trump argued that his trial, all by himself, should take as long as the Proud Boy leaders and other charged militia defendants, even without the COVID delays. He’s demanding that his trial take as long as it could if Jack Smith chose to try him for the whole kit and kaboodle, in which he might be guilty, but of which he is not yet charged.

And I fell for it.

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On Visibility and [dis]Covering Kenneth Chesebro

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Yesterday, CNN reported that Kenneth Chesebro, identified as co-conspirator 5 in Trump’s DC indictment and charged in the Georgia one, in both indictments for actions limited to the fake electors scheme, trailed Alex Jones while he was present at the Capitol on January 6, apparently recording Jones’ actions and words for most of the time he’s at the Capitol.

CNN cites Ryan Goodman — who has steadfastly refused to look closely at much of the crime scene video evidence (much less credit the investigators who have meticulously catalogued it) — making a nonsense legal argument about the significance of Chesebro’s actions, one that clings to a cognitive distance between the white collar planning, to which he assigns Chesebro, and the blue collar execution of the attack).

Ryan Goodman, a law professor at New York University who previously served as the special counsel to the general counsel at the Department of Defense, told CNN that Chesebro’s presence on the Capitol grounds could be cited by prosecutors.

“Regardless of Chesebro’s potential criminal liability for being in the restricted areas of Capitol grounds, this evidence could be cited by prosecutors as further proof that Chesebro was not operating as a bona fide legal advisor but rather was an activist aligned in the cause to overturn the election,” Goodman said. “It undercuts defenses Chesebro might mount that he was functioning only in the role of providing legal advice for clients.”

The NYT version of the same story makes an equally nonsensical observation about what it means, claiming that this is the first evidence that “different tentacles of the efforts to keep Mr. Trump in power [] overlapped.”

Until now, there appeared to be different tentacles of the efforts to keep Mr. Trump in power that had not overlapped. But Mr. Chesebro hinted at those connections in an email exchange with John Eastman, another lawyer who was instrumental in the plan to pressure Mr. Pence with the fake elector scheme.

In late December 2020, the two lawyers discussed how to get a case before the Supreme Court. Mr. Chesebro told Mr. Eastman as they discussed filing a legal action that in terms of the highest court, the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”

The pressure on state legislators brought to bear by Stop the Steal, ginned up at rallies headlined by Jones and Alexander, has always been a necessary component of the fake electors plan. The Georgians charged in the Trump side of the fake elector charges in the Georgia indictment, Robert Cheeley and Scott Hall, were also coordinating with the people pressuring Ruby Freeman. The political violence was not an afterthought, it was part of the plan.

Indeed, Thomas Joscelyn, a key author of the January 6 Report, noted that this overlap is in no way new and reminded that Jones and Owen Shroyer were in contact with the Proud Boys who are awaiting sentencing on their sedition conviction.

There is no firm dividing line between those orchestrating the political conspiracy to overturn the election and the extremists who led the attack on the Capitol.

He cited back to the passage of the report describing that Jones’ entourage was in direct contact, in real time, with the Proud Boys, even as they kicked off the riot.

Other, more prominent members of the Proud Boys appear to have been in contact with Jones and Shroyer about the events of January 6th and on that day. Records for Enrique Tarrio’s phone show that while the attack on the Capitol was ongoing, he texted with Jones three times and Shroyer five times.124 Ethan Nordean’s phone records reflect that he exchanged 23 text messages with Shroyer between January 4th and 5th, and that he had one call with him on each of those days.125 Records of Joseph Biggs’s communications show that he texted with Shroyer eight times on January 4th and called him at approximately 11:15 a.m. on January 6th, while Biggs and his fellow Proud Boys were marching at and around the Capitol.126

Those ties have remained close. Indeed, Jones and Shroyer — who were asked to lead Trump’s mob to the Capitol by someone in Trump’s immediate vicinity — have shared a lawyer, Norm Pattis, with former InfoWars employee and seditionist Joe Biggs for over a year; Pattis has also even taken over the defense of Zach Rehl.

But the limited visibility J6C had on that key node, the Jones entourage (largely because of their obstruction), ultimately prevented it from connecting all the dots and indeed the full extent of those dots remains obscure.

Even before you add Chesebro to the equation, in that entourage you had Jones who understood he was sent to lead the mob by Trump himself (J6C concludes it must have been conveyed through Caroline Wren, though for reasons I included in this post, that’s not entirely convincing). You had Shroyer, who shared that understanding, and who was coordinating with those launching the attack. And in addition to his frequent updates from Wren and coordination with Garrett Ziegler (now a central player in the Hunter Biden information operation led by Rudy Giuliani), Ali Alexander was also coordinating closely with Paul Gosar’s office — the guy who’d kick off the challenges. And all of them have exceptionally close ties to Roger Stone, including membership in the Friends of Stone list.

And, as CapitolHunters reminded in response to this coverage — and backed with a new researcher-compiled video of Jones’ movements that day — Jones played an absolutely central role in the success of the attack, first by bringing reinforcements to those leading the attack, and then, once he got there, by leading a huge chunk of those mobsters to the East side of the Capitol, where they’d serve a crucial role in a second, pincer attack on the building.

The convergence of first Jones and then key members of two militias on the East doors is the easiest place to see that the attack on the Capitol wasn’t random, but — at least in key movements — was fairly well executed. That convergence — and collection of evidence showing the import of Jones’ actions, for which people have already done time — has been an investigative focus from the start.

And Chesebro was there, capturing Jones’ actions.

Jones is a blowhorn-wielding asshole. But he commands almost the same kind of rabid loyalty as Trump does (Alexander estimated that a third of the attendees that day were Jones’ people). And via whatever means (the new Jones compilation video makes me wonder about potential uneven understanding of the events of the day, between Jones, Alexander, and Jones’ handlers) Jones played a central role in events of the day.

That entourage was a bunch of men checking in with at least Wren and possibly Ziegler, with Gosar’s office, and with the Proud Boys as they launched the attack on the Capitol. That entourage led a mob from the Ellipse, and then wittingly or not, deployed the mob where they would be the most effective, right there on the East steps before a second major breach would occur.

That’s the background one should bring to the images showing Chesebro, someone always associated with the plotting in the Willard, filming Jones as that entourage moved around the Capitol.

It’s not clear who sent him or why. NYT quotes a Jones lawyer — probably the same lawyer that Jones, Shroyer, Biggs, and Rehl share, Norm Pattis — disclaiming any knowledge of why Chesebro was shadowing Jones that day (though, given Jones’ paranoia and Shroyer’s pending sentencing, I’d find the denial more credible if Jones were squawking about being spied on by the Deep State).

It remains unclear why Mr. Chesebro was with Mr. Jones’s group outside the Capitol or how he came to be with them. A lawyer for Mr. Jones said that Mr. Jones was unaware that Mr. Chesebro had been following his entourage that day.

Plus, at one point, Chesebro seems to share something on his phone with a member of Jones’ security.

It is clear that Chesebro is not participating in the riot. Chesebro never indulges in the kind of fan worship of Jones as everyone else following him around does. Nor does he ever get distracted by the far more significant spectacle happening just yards away. He appears to be, at a minimum, monitoring Jones (though CapitolHunters pointed to some mannerisms that could be the kind of signaling as other things seen in the crime scene footage). And when Jones leaves, Chesebro follows. Chesebro continues to monitor — and film — as Jones seeds a conspiracy theory about the attack being launched by provocateurs on his way out (Michael Coudrey is a key Alexander associate, another member of the entourage).

We have seen that members of both the Proud Boys and Oath Keepers monitored the proceedings of the attack remotely, with Proud Boy leaders — including Tarrio and Bertino — chiming into the command and control from afar. It may be that’s what we’re seeing here.

After thirty months of hypervisibility, it’s easy to forget that there were actually pockets of the attack (inside offices without surveillance cameras and under the scaffolding are two of them) that could only be rendered visible by the cameras of others onsite, making their own recording. There are parts of Jones’ movement — which his own entourage recorded with a GoPro and at least one phone — that he subsequently edited.

The actions of Ken Chesebro suggest that someone wanted to make sure Jones’ movements at the Capitol would be visible, possibly to people monitoring the attack remotely, perhaps even in real time. Indeed, given that we’ve never seen this footage published on Parler, it suggests someone wanted a record of Jones’ real-time movement for private consumption.

The two indictments implicating Ken Chesebro have brought new visibility to him, and his actions. The discovery of Chesebro monitoring Jones’ activities during the attack have made aspects of the coordination behind this attack visible to TV lawyers for the first time. But amid all that newfound visibility, it’s worth remembering that some people knew to — and did — monitor all this in real time.

Update: I may have overstated when I claimed that Chesebro hadn’t cheered Jones. At the very beginning of this clip, Chesebro (in the far left of the frame) yells out, “Alex Jones” with the rest inaudible to me.

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The Challenge of Treating the Proud Boy Leaders as Terrorists

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The omnibus sentencing memo for the Proud Boy Leaders — an 80-page document supplemented by another 15 pages for each — describes their crime this way:

The defendants organized and directed a force of nearly 200 to attack the heart of our democracy.

[snip]

None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.

For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.

[snip]

The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.

The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.

That language is a succinct statement of the terrorism committed by the Proud Boys.

But the document as a whole is a testament to how the asymmetrical treatment of terrorism in the United States makes it much harder to hold men like Enrique Tarrio and Joe Biggs accountable for attacking the Capitol that it would be if they were Islamic terrorists, rather than right wing Trump supporters.

The reason why the government had to dedicate 80 pages to justify sentences of 30 years for the core leaders of the January 6 attack is because it requires massaging the sentencing guidelines to treat white (or Afro-Cuban, as Tarrio identifies as) person terrorism like the US has long treated Islamic terrorism.

Here’s what DOJ had to in order to justify calling for these sentences:

  • Ask for consecutive sentences, effectively stacking some sentences on others
  • Adopt the treason sentencing guideline for sedition (which doesn’t otherwise have one), even while the maximum sentence for sedition is just 20 years
  • Ask that Judge Tim Kelly use the conspiracy convictions to apply the conduct of each defendant against the other, to apply the assault and property damage done by Pezzola against the others and the sedition conviction against Pezzola
  • Use enhancements for property destruction, substantial interference in the vote certification, and extensive planning on the obstruction charges
  • Use leadership or management enhancements for everyone but Pezzola
  • Ask for additional departures from the guidelines for “conduct [that] resulted in a significant disruption of a governmental function” and an “intent to frighten, intimidate, and coerce” federal lawmakers
  • Dismiss challenges (led by Nordean attorney Nick Smith over two years) to the treatment of the vote certification as an official proceeding that can be obstructed
  • Ask for a terrorism enhancement for the destruction of property (tied to the window Pezzola broke and some bicycle racks)
  • Ask for terrorism enhancement based on the clear political intent of all these crimes, including sedition, which is explicitly political
  • Add enhancements for Biggs, Tarrio, and Rehl for obstructing the investigation or trial (which is why Nordean’s proposed sentence is lower than the other guys’)
  • Describe the Oath Keeper as late-comers to sedition, by comparison
  • Laugh at any claim these men accepted responsibility for their crimes

The sentences make sense — particularly when you compare the damage these terrorists did against the aspirational Islamic terrorists who have been sentenced to even longer sentences. But in the scope of the sentencing guidelines as they exist, it all comes off as funny math.

Update: I probably should have explained in the post why this happens. Because domestic terrorism is not a crime unto itself, but instead an enhancement (which is the way it is being used with the destruction of property here), it is not finally used as a label until sentencing. Prosecutors have, in fact, been calling the Oath Keepers and Proud Boys terrorists throughout their prosecution in detention memos (relying on the same destruction of property). I addressed this in this post and this one.

Update: Here’s a post I wrote in 2015 about this asymmetry.

Note: The image accompanying this post is a challenge coin for January 6 introduced as an exhibit in Christoper Worrel (who has skipped bail as he awaits sentencing). The Proud Boys literally made the attack on the Capitol into a coin of their terrorist group. Update: Added the image to the body of the post, too, bc I confused people by referencing it w/o including it. 

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Death by Tweet: “User Attribution Is Important”

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Donald Trump nearly killed his Vice President by tweet — the tweet he sent at 2:24PM on January 6, 2021.

111. At 2:24 p.m., after advisors had left the Defendant alone in his dining room, the Defendant issued a Tweet intended to further delay and obstruct the certification: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

112. One minute later, at 2:25 p.m., the United States Secret Service was forced to evacuate the Vice President to a secure location.

113. At the Capitol, throughout the afternoon, members of the crowd chanted, “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence!”

114. The Defendant repeatedly refused to approve a message directing rioters to leave the Capitol, as urged by his most senior advisors-including the White House Counsel, a Deputy White House Counsel, the Chief of Staff, a Deputy Chief of Staff, and a Senior Advisor.

As the indictment tells it, at the time Trump sent his potentially lethal tweet, inciting the mob bearing down on Mike Pence, Pence’s spouse, and daughter, Donald Trump was alone in his dining room with the murder weapon: an unknown phone, and his Twitter account.

But when DOJ served a warrant on Twitter for Trump’s Twitter account on January 17, they couldn’t be sure who was holding the murder weapon. They also wouldn’t know whether triggering the murder weapon was coordinated with other events.

That explains why, as Thomas Windom described in a February 9 hearing, metadata from Trump’s Twitter account showing any other account associated with his own may have been just as important for the investigation as any DMs obtained with the warrant.

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information. [my emphasis]

By that point, DOJ would have had Cassidy Hutchinson’s testimony describing what she saw sitting outside Trump’s dining room door (and once, going in to pass off Mark Meadows’ phone). They would have had two grand jury appearances from the two Pats, Cipollone and Philbin, the White House Counsel and Deputy Counsel described in the passage. They would have had at least one interview with Eric Herschmann — the Senior Advisor trying to calm him down.

They did not yet have privilege waived testimony from the Chief of Staff — Mark Meadows — or the Deputy Chief of Staff — Dan Scavino.

And Dan Scavino was the most likely other person to know about that near murder by tweet, because Dan Scavino was in his position, the Deputy Chief of Staff, first and foremost because he had masterminded Trump’s own mastery of Twitter going back to 2016.

So one thing DOJ needed to know before they conducted an interview that took place after Beryl Howell rejected yet another frivolous Executive Privilege claim in March was how Dan Scavino accessed Trump’s Twitter account when he did, from what device.

Who else had access to Trump’s Twitter account, one part of the murder weapon?

When DOJ asked Twitter to go back and figure out which other accounts shared IP addresses, cookies, or other device identifier with Trump’s Twitter account, they were asking for a list of other people (or at least clues to identify those people) who might be holding that murder weapon on January 6, Trump’s Twitter account, instead of Donald Trump.

Before Dan Scavino told the grand jury that he wasn’t in the room when that tweet was sent, as he must have, DOJ would have needed a better idea whether Scavino sent the tweet, to know whether he was telling the truth once he did sit for a privilege waived interview.

But they were also asking for a very specific clue about the other part of that murder weapon: some way to identify the phone from which the potentially deadly tweet was sent. Identifying which phone was alone in the room with Donald Trump on January 6 would also identify which phone to go seize to learn who else Trump was communicating with when he was sitting alone in his dining room as he watched his supporters assault the Capitol. Identifying which phone was alone in the room with Donald Trump on January 6 would help to fill the gap in communications that the January 6 Committee never completely filled.

And not just that phone.

Obtaining the associations to Trump’s Twitter account would also help explain one of the most enduring mysteries about January 6: What happened between the time Sidney Powell left after a screaming meeting on December 18 and the time Trump announced the rally in the early hours of December 19, leading thousands of his most rabid followers to start planning to come to DC?

87. On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, “Big protest in D.C. on January 6th. Be there, will be wild!” Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

That December 19 tweet, and the phone it was sent from, was another kind of murder weapon, the shot that would set off the entire riot. And to figure out who was wielding it, the circumstances in which it went off, investigators would work backwards from where it was stored, on Twitter.

They would want to know, too, how Ali Alexander and Alex Jones copped on so quickly — whether any of the participants in the DM lists via which Stop the Steal was coordinated had a user who also had access to Trump’s Twitter account.

Even before Trump became President, his communication habits made it very difficult to pin down his actions. Roger Stone, for example, would call Trump during the 2016 election on Trump’s cell, his Trump Tower phone, two work phones, via three different assistants, and Keith Schiller. And Stone often used other people’s phones to call on.

Trump still has a habit of using other people’s phones. The stolen documents indictment reflects Molly Michael telling Walt Nauta that Trump had had her phone. Several of Trump’s aides were asked by J6C whether Trump ever used their phones; several probably didn’t tell the truth in response.

But much of execution of January 6 went through the single most stable means of communication Donald Trump had: his Twitter account. And to attribute any actions that happened using Trump’s Twitter account, DOJ needed as much data as possible about who else used it and in what circumstances.

User attribution is important. Especially with a guy who has the ability to murder by tweet.

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Trump’s Federated Conspiracies and Racketeering: How Georgia and the Federal Charges May Interact

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The Georgia indictment and Trump’s federal indictment tell the same story. But those stories have some key differences, that will create an interesting prisoner’s dilemma for those involved. The different exposure of Sidney Powell in both and the different treatment of Ruby Freeman show how they’re different.

Sidney Powell’s lawsuits and alleged hacking

The last overt act described in the federal indictment against Donald Trump describes how, at 3:41AM, Mike Pence certified the election for Joe Biden.

123. At 3:41 a.m. on January 7, as President of the Senate, the Vice President announced the certified results of the 2020 presidential election in favor of Biden.

But two of the charged conspiracies — the 18 USC 371 conspiracy to defraud the US and the 18 USC 241 conspiracy against rights — go through January 20. Since they are charged as conspiracies, anything Trump’s co-conspirators said and did after January 6 can also be used to prove the case against Trump.

That’s particularly notable for Trump’s Crazy Kraken Conspirator, Sidney Powell. As noted, the only overt act of hers described in Trump’s federal indictment has to do with her lawsuits targeting Dominion.

Those lawsuits don’t figure in the Georgia indictment at all — not even the November 25 one against Georgia explicitly described in the federal indictment. Instead, Powell’s primary criminal exposure in the Georgia indictment has to do with her conspiracy to get access to Dominion data from Coffee County, a conspiracy that — the Georgia indictment alleges — started on December 1, continued through their access of the data on January 7, after which the data continued to be exploited until at least April. Powell’s larger effort to exploit Dominion data, even that obtained in Michigan, plays a part in the RICO conspiracy.

In the federal case, Powell’s lawsuits serve both to justify backstopping of the electoral certification (meaning, you had to have lawsuits to justify having fake electors) and to prove that Trump was magnifying fraud claims from someone — Powell — everyone openly labeled as batshit. If and when Jack Smith ever adds charges — against Powell, Trump, or his PAC — for fraudulent fundraising, his embrace of claims sourced to Powell will be important to prove he knew he was lying in his fundraising.

In the Georgia case, by contrast, she is charged with outright conspiracy to illegally access computers and election fraud associated with accessing the Dominion data.

The overall arc of the conspiracies is the same; the criminal exposure is radically different.

Death threats and interstate entrapment efforts

Paragraph 26 of the federal indictment describes how Rudy Giuliani lied in a Georgia hearing, including but not limited to about Ruby Freeman and Shaye Moss, which resulted in death threats.

26. On December 10, four days before Biden’s validly ascertained electors were scheduled to cast votes and send them to Congress, Co-Conspirator 1 appeared at a hearing before the Georgia House of Representatives’ Government Affairs Committee. Co-Conspirator 1 played the State Farm Arena video again, and falsely claimed that it showed “voter fraud right in front of people’s eyes” and was “the tip of the iceberg.” Then, he cited two election workers by name, baselessly accused them of “quite obviously surreptitiously passing around USB ports as if they are vials of heroin or cocaine,” and suggested that they were criminals whose “places of work, their homes, should have been searched for evidence of ballots, for evidence of USB ports, for evidence of voter fraud.” Thereafter, the two election workers received numerous death threats.

Prosecutors are well aware of the import of Trump’s bullying — they made it part of their bid for a protective order. But, probably in an effort to stave off any real claim about charging First Amendment protected speech, such bullying is not charged, not even Trump’s targeting of Mike Pence.

The Georgia indictment, as Rick Hasen also notes, focuses much more on crimes targeting Freeman and Moss.

Rudy is charged for the lies he told on December 10 in Count 7. He and Ray Stallings are charged with soliciting Georgia Representatives to violate their oaths in Count 6.

But in addition to that, Lutheran minister Steve Lee is charged with two counts for trying to trick Freeman, once on December 14 and again on December 15, into confessing to voter fraud that didn’t happen. And he is charged along with Kanye’s publicist, Trevian Kutti, and Black Votes for Trump official Harrison Floyd with another attempt to get her to confess to voter fraud on January 4 and an attempt to get her to lie to the state.

These are alleged crimes that arise from Freeman’s status as a Fulton County election worker and as such are properly the concern of Fani Willis, not Jack Smith.

All of which is to say that even though both the RICO charge and Trump’s conspiracies map the same conduct, they tie to different crimes, with different kinds of exposure for different people.

Prisoner’s Dilemma: Already Charged Co-Conspirators versus Not-Yet Charged Co-Conspirators

One way the Georgia and federal indictments will interact is in the relative pressure between already being charged, in a state with strict pardon rules, and being not-yet charged, in a venue where Trump has pardoned his way out of criminal trouble in the past.

Five people are named as co-conspirators in both: Rudy (CC1 in the federal indictment), John Eastman (CC2), Powell (CC3), Jeffrey Clark (CC4) and Ken Chesebro (CC5).

Some of these people, like Sidney Powell, Trump might not consider pardoning in any case. Plus, Trump’s closest associates have spent the last week or so throwing her under the bus. But thus far at least, Powell’s personal legal risk is far greater in Georgia than federally.

Others, though, may think seriously about how much harder it would be to get a pardon for Georgia than a Federal indictment, where the next Republican President, possibly including Donald Trump, would be able to pardon them.

In other words, if people who are likely to be indicted by Jack Smith think the charges in Georgia are at all serious, they may flip sooner rather than later, which will likely lead them to cooperate in the DC case as well.

There’s a reason why prisoner’s dilemma is the basis for so much game theory. The way these two competing indictments intersect may rewrite that doctrine, something called Trump defendant dilemma.

Then consider the timing. Later this month — potentially on August 28, three days after all Willis defendants have to turn themselves in — Jack Smith’s prosecutors will fight for a January 2 trial date, which is ambitious. Last night, Fani Willis said she wanted to bring all 19 defendants to trial within 6 months, which would be late February or March.

Even if one or both of those dates would hold, it might require Alvin Bragg be willing to reschedule his own trial on the hush payment cover-up.

But if even just one of these trials goes forward on such an ambitious schedule, it would mean that this Trump defendant dilemma will be playing out even as GOP primary voters go to the polls.

The Bubble Three

One of the most interesting other ways the Georgia indictment and the federal one will interact is in how the three men on the bubble — Mike Roman, Boris Epshteyn, and Mark Meadows — respond. While we’re not yet sure whether Boris or Roman is CC6 in the federal indictment, there’s more support right now for it being Boris. Both men had their phones seized by DOJ in September. Both men sat (or said they’d sit) for proffers with Jack Smith’s team; neither has been (publicly) charged by DOJ yet.

Roman is charged in the Georgia indictment, both with the RICO charge and the Trump side of each of the fake elector charges. He’s the guy who was interacting directly with people in Georgia (and with CC4, Robert Sinners, who cooperated even with the January 6 Committee). If Roman actually did start cooperating with Jack Smith’s team, there’d be no down-side to doing so with Willis’ team, either.

Boris, by contrast, is almost certainly CC3; Act 109, describing a Chesebro email to Eastman and CC3 matches this passage from the January 6 Report.

By that point, Chesebro and Eastman were coordinating their arguments about the fake-elector votes and how they should be used. On January 1, 2021, Chesebro sent an email to Eastman and Epshteyn that recommended that Vice President Pence derail the joint session of Congress. In it, he raised the idea of Vice President Pence declaring “that thereare two competing slates of electoral votes” in several States, and taking the position that only he, or possibly Congress, could “resolve any disputes concerning them.”122

So Boris is not facing the charges that can’t be pardoned but may he facing the charges that can be.

Finally, there is Meadows. The slim exposure for Meadows in this indictment — he is charged in the RICO charge and the solicitation charge tied to the Raffensperger call — may explain why he was not listed as a co-conspirator, yet, for the Jack Smith indictment. The most damning acts attributed to him in the indictment were:

  • Sometime in December: Meeting with Johnny McEntee and asking him for a plan to throw out half the electoral votes in some states
  • December 22: Unsuccessfully attempting to enter the audit site in Georgia
  • December 27: Offering Trump campaign funds if it would help get signature verification done by January 6

Other than that, Meadows’ actions entail setting up phone calls on which Trump lied and solicited unlawful acts. Meadows has a superb lawyer and might try his luck with these charges.

If any of these men cooperated — if any already is (though I really think Meadows is not) — then it would provide both prosecutors a pivotal person in the conspiracies (and, in Boris’ case, the stolen documents conspiracy as well).

As I said above, the interaction of these two indictments, along with the uncertainty as Jack Smith continues to investigate, creates a fierce game of prisoner’s dilemma. And that’s before Smith charges any financial crimes tied to fraudulent fundraising.

Update: Meadows has moved to remove the charges against him to federal court — a move he may have more success doing than Trump.

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The Various Kinds of Georgia Crimes in the RICO Indictment

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There’s so much good reporting out of Georgia that I’m going to mostly leave close coverage of the Georgia case to them going forward.

But the Georgia prosecution will interact with Jack Smith’s ongoing investigation in interesting ways. To explain how, I want to first show that the indictment is, fundamentally, about protecting the integrity of Georgia’s government and elections. To see that, it helps to read counts 2 through 41 before reading the RICO charge, which is laid out in 70 pages describing 161 overt acts, many of which took place outside of Georgia.

Those counts fall into the following groups:

Lies to and solicitation of Georgia officials

Count 2 though Count 7: False claims and illegal requests made, many by Rudy Giuliani, before the fake electors scheme. These were lies told to official bodies of Georgia state government, and charging them is an attempt to prevent corruption in state government.

Count 23 through Count 26 charge Rudy, Ray Smith, and Robert Cheeley with false claims and solicitations on December 30 — similar in structure and purpose to Counts 2 through 7.

Count 28 charges both Trump and Mark Meadows for the January 2 call to Brad Raffensperger. Count 29 charges Trump for the lies he told during the call.

Counts 38 and 39 charge Trump with lies and solicitations of Brad Raffensperger on September 17, 2021.

Fake electors

Count 8 through Count 19: These are a series of six paired charges tied to various kinds of fraud involved with the fake electors. In each pair, the first count charges David Shafer, Shawn Still, and Cathleen Latham for doing the fraudulent thing, and the second count charges Trump, Rudy, John Eastman, Ken Chesebro, Ray Smith, Robert Cheeley, and Mike Roman with soliciting the fraudulent thing. They’re a near parallel to the Michigan charges against the fake electors, except that in Georgia only the three most culpable fake electors are charged, and there’s a mirror charge for Trump’s side of the conspiracy.

Attempts to entrap Ruby Freeman

Counts 20 and 21 and : These charge two efforts to defraud Ruby Freeman by offering her help when in fact they were an attempt to entrap her.

Count 30 and Count 31 charge aspects of a plot to get Kanye’s publicist to travel from Illinois to Georgia to entrap Ruby Freeman into making false claims.

Lies about Georgia

Count 22 charges Jeffrey Clark for his attempts to get DOJ to claim the Georgia election was fraudulent.

Count 27 charges Trump and Eastman with lying about Georgia’s results in a lawsuit.

Tampering with Coffee County tabulators

Count 32 through Count 37 charge Sidney Powell, Latham, and two others for tampering with the Coffee County vote tabulators. Again, this has a parallel in the Michigan charges against Matt DePerno and two others.

Lies during the investigation

Count 40 charges David Shafer with false statements told during the investigation.

Count 41 charges Robert Cheeley with perjury for false claims made during the investigation.

As I understand it, these are the charges on which the RICO conspiracy is built. The RICO conspiracy gives prosecutors additional tools and penalties with which to prosecute this (similar to the conspiracy law charged at the federal level). But ultimately it is built on a series of crimes charged to protect the integrity of Georgia’s government. They stand for the principle that you can’t simply come into Georgia and lie and defraud in an attempt to get state officials to violate their oaths of office.

Update: Corrected spelling of Cheeley’s last name.

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Alberto Gonzales Lectures Jack Goldsmith about Perception versus Reality in a Democracy

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I never, never imagined I’d see the day when Alberto Gonzales would school Jack Goldsmith on how to defend democracy.

Once upon a time, remember, it fell to Goldsmith to school Gonzales that the President (or Vice President) could not simply unilaterally authorize torture and surveillance programs that violate the law by engaging in cynical word games.

But now, Goldsmith is the one befuddled by word games and Gonzales is the one reminding that rule of law must operate in the realm of truth, not propaganda.

In a widely circulated NYT op-ed last week, Goldmith warned that democracy may suffer from the January 6 indictment of Donald Trump because of the perceived unfairness (Goldsmith doesn’t say, perceived by whom) of the treatment of Trump.

This deeply unfortunate timing looks political and has potent political implications even if it is not driven by partisan motivations. And it is the Biden administration’s responsibility, as its Justice Department reportedly delayed the investigation of Mr. Trump for a year [1] and then rushed to indict him well into the G.O.P. primary season. The unseemliness of the prosecution will most likely grow if the Biden campaign or its proxies use it as a weapon against Mr. Trump if he is nominated.

This is all happening against the backdrop of perceived unfairness in the Justice Department’s earlier investigation, originating in the Obama administration, of Mr. Trump’s connections to Russia in the 2016 general election. Anti-Trump texts by the lead F.B.I. investigator [2], a former F.B.I. director who put Mr. Trump in a bad light through improper disclosure of F.B.I. documents and information [3], transgressions by F.B.I. and Justice Department officials in securing permission to surveil a Trump associate [4] and more were condemned by the Justice Department’s inspector general even as he found no direct evidence of political bias in the investigation. The discredited Steele dossier, which played a consequential role in the Russia investigation and especially its public narrative, grew out of opposition research by the Democratic National Committee and the Hillary Clinton campaign. [5]

And then there is the perceived unfairness in the department’s treatment of Mr. Biden’s son Hunter, in which the department has once again violated the cardinal principle of avoiding any appearance of untoward behavior in a politically sensitive investigation. Credible whistle-blowers have alleged wrongdoing and bias in the investigation [6], though the Trump-appointed prosecutor denies it. And the department’s plea arrangement with Hunter Biden came apart, in ways that fanned suspicions of a sweetheart deal, in response to a few simple questions by a federal judge [7]. [my emphasis; numbers added]

Rather than parroting perceptions, in his op-ed, Gonzales corrects a core misperception by pointing out a key difference between Hillary’s treatment and Trump’s: Hillary cooperated.

I recently heard from friends and former colleagues whom I trust and admire, people of common sense and strong values, who say that our justice system appears to be stacked against Trump and Republicans in general, that it favors liberals and Democrats, and that it serves the interests of the Democratic Party and not the Constitution. For example, they cite the department’s 2018 decision not to charge Hillary Clinton criminally for keeping classified documents on a private email server while she was secretary of state during the Obama administration.

I can understand the skepticism, but based on the known facts in each case, I do not share it.

[snip]

A prosecutor’s assessment of the evidence affects decisions on whether to charge on a set of known facts, and government officials under investigation, such as Clinton, often cooperate with prosecutors to address potential wrongdoing. By all accounts, Trump has refused to cooperate.

By contrast, Goldsmith simply ignores the backstory to virtually every single perceived claim in his op-ed.

  1. Aside from a slew of other problems with the linked Carol Leonnig article, her claims of delay in the investigation do not account for the overt investigative steps taken against three of Trump’s co-conspirators in 2021, and nine months of any delay came from Trump’s own frivolous Executive Privilege claims
  2. Trump’s Deputy Attorney General chose to release Peter Strzok’s texts (which criticized Hillary and Bernie Sanders, in addition to Trump), but not those of agents who wrote pro-Trump texts on their FBI devices; that decision is currently the subject of a Privacy Act lawsuit
  3. After Trump used Jim Comey’s gross mistreatment of Hillary in actions that was among the most decisive acts of the 2016 election as his excuse to fire Comey, DOJ IG investigated Comey for publicly revealing the real reason Trump fired him
  4. No Justice Department officials were faulted for the Carter Page errors, and subsequent reports from DOJ IG revealed that the number of Woods file errors against Page were actually fewer than in other applications; note, too, that Page was a former associate of Trump’s, not a current one
  5. Investigations against both Hillary (two separate ones predicated on Clinton Cash) and Trump were predicated using oppo research, but perceptions about the Steele dossier ended up being more central because in significant part through the way Oleg Deripaska played both sides
  6. One of the IRS agents Goldsmith treats as credible refused to turn over his emails for discovery for eight months when asked and the other revealed that he thought concerns about Sixth Amendment problems with the case were merely a sign of “liberal” bias; both have ties to Chuck Grassley and one revealed that ten months after obtaining a laptop that appears to have been the result of hacking, DOJ had still never forensically validated the contents of it
  7. In the wake of that organized campaign against Hunter Biden, a Trump appointed US Attorney limited the scope of the plea which led to a Trump appointed judge refusing to accept it

For each instance of perceived unfairness Goldsmith cites — again, without explaining who is doing the perceiving — there’s a backstory of how that perception was constructed.

Which is the more important insight Gonzales offers: That perceived unfairness Goldsmith merely parrots, unquestioned? Trump deliberately created it.

[A]s I watched a former president of the United States, for the first time in history, be arraigned in federal court for attempting to obstruct official proceedings and overturn the results of the 2020 presidential election, I found myself less troubled by the actions of former president Donald Trump than by the response of a significant swath of the American people to Trump’s deepening legal woes.

[snip]

While Trump has a right to defend himself, his language and actions since 2016 have fueled a growing sense among many Americans that our justice system is rigged and biased against him and his supporters.

Sadly, this has led on the right to a growing distrust of and rage against the Justice Department.

[snip]

We have a duty as Americans not to blindly trust our justice system, but we also shouldn’t blindly trust those who say it is unjust. Our government officials have a duty to act at all times with integrity, and when appropriate to inform and reassure the public that their decisions are consistent based on provable evidence and in accordance with the rule of law.

Defendants do not have the same duty. They can, and sometimes do, say almost anything to prove their innocence — no matter how damaging to our democracy and the rule of law. [my emphasis]

Trump’s false claims of grievance, his concerted, seven year effort to evade any accountability, are themselves the source of damage to democracy and rule of law, not the perception that arises from Trump’s propaganda.

Which beings me back to the question of who is perceiving this unfairness. By labeling these things “perceived” reality, Goldsmith abdicates any personal responsibility.

Goldsmith abdicates personal responsibility for debunking the more obvious false claims, such as that Hunter Biden, after five years of relentless attacks assisted by Bill Barr’s creation of a way to ingest known Russian disinformation about him without holding Rudy legally accountable for what he did to obtain it, after five years of dedicated investigation by an IRS group normally focused on far bigger graft, somehow got a sweetheart deal.

More troubling, from a law professor, Goldsmith abdicates personal responsibility for his own false claims about the legal novelty of the January 6 indictment against Trump.

The case involves novel applications of three criminal laws and raises tricky issues of Mr. Trump’s intent, his freedom of speech and the contours of presidential power.

One reason the investigation took so long — one likely reason why DOJ stopped well short of alleging Trump incited the violence on the Capitol and Mike Pence personally, in spite of all the evidence he did so deliberately and with malign intent — is to eliminate any First Amendment claim. One might repeat this claim if one had not read the indictment itself and instead simply repeated Trump’s lawyers claims or the reports of political journalists themselves parroting Trump’s claims, but not after a review of how the conspiracies are constructed.

As to the claim that all three statutes are novel applications? That’s an argument that says a conspiracy to submit documents to the federal government that were identified as illegal in advance is novel. Kenneth Chesbro wrote down in advance that the fake elector plot was legally suspect, then went ahead and implemented the plan anyway. John Eastman acknowledged repeatedly in advance that the requests they were making of Mike Pence were legally suspect, but then went ahead and told an armed, angry crowd otherwise.

The claim that all three charges are novel applications is especially obnoxious with regards to 18 USC 1512(c)(2) and (k), because the application has already been used more than 300 times (including with people who did not enter the Capitol). The DC Circuit has already approved the treatment of the vote certification as an official proceeding. And — as I personally told Goldsmith — whatever definition of “corruptly” the DC Circuit and SCOTUS will eventually adopt, it will apply more easily to Trump than to his 300 mobsters. And if SCOTUS were to overturn the application of obstruction to the vote certification — certainly within the realm of possibility from a court whose oldest member has a spouse who might similarly be charged — the response would already be baked in.

To argue that 300 of Trump’s supporters should be charged and he should not is simply obscene.

American democracy, American rule of law, is no doubt in great peril and the prosecutions of Donald Trump for the damage he did to both will further test them.

But those of us who want to preserve democracy and rule of law have an ethical obligation not just to parrot the manufactured grievances of the demagogue attempting to end it, absolving ourselves of any moral responsibility to sort through these claims, but instead to insist on truth as best as we can discern it.

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Cruikshank, Gun Control, And Bad Rulings

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Index to posts in this series

We’ve looked at two early cases interpreting the Reconstruction Amendments, The Slaughterhouse Cases and US v. Cruikshank. These cases are still in force, and have done massive damage, to Black people especially and others who hoped to gain their rightful freedom; to the balance of power among the three branches of government; and to our jurisprudence. Recent 2nd Amendment cases are good examples of this damage.

Gun control

Recapitulation of the old cases. In The Slaughterhouse Cases the Supreme Court analyzes §1 of the 14th Amendment (text below). The second sentence bars states from abridging the privileges or immunities of “citizens of the United States”. The Court says this provision applies only to the tiny number of privileges or immunities that attach to people solely as citizens of the US. It doesn’t apply to their rights as citizens of a specific state.

The Court says that the !4th Amendment doesn’t change the relationship between state and federal governments. 83 US 77-78. It’s a negative argument: such a monumental change must be in very clear language, and this isn’t clear enough to suit the Court.

In Cruikshank, the Court examines the rights which the defendants allegedly illegally conspired to violate. One is the right to keep and bear arms for a lawful purpose. Here is the Cruikshank Court’s entire discussion of that issue.

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

Citing several older cases, the Court says that the 2nd Amendment does not guarantee the right to keep and bear arms; all it does is bar the US from infringing on that right. It says that states can regulate the ownership of arms as part of their police power.

To summarize:
1. The 14th Amendment didn’t change the power relations between the state and federal governments.
2. Rights not specific to the Constitution are solely the domain of the states under their police power.
3. The 2nd Amendment does not grant any rights to anyone. It merely prohibits the US from infringing the right to bear arms.
4. Any important change in the laws or Constitution must be clear enough to suit the Supreme Court.

Current cases. Eventually the Supreme Court started applying the Bill of Rights to the states using the Due Process Clause. By the time Heller v. Dist. of Columbia was decided, most of the Bill of Rights had become more or less applicable to the states.

In Heller Scalia cites Cruikshank approvingly. He writes: “States, we said, were free to restrict or protect the right under their police powers.” He completely ignores the holding of Cruikshank and several older cases that the only function of the 2nd Amendment is to prohibit the US from infringing the right, as well as the holding that the right does not arise from the Constitution. He simply imposes his own textualist reading of the 2nd Amendment as if it were written today instead of 240 years ago.

A few years later in Macdonald v. City of Chicago Alito put SCOTUS in charge of controling state power over guns. The Seventh Circuit had upheld Chicago’s gun regulations, relying in part on Cruikshank. Alito says the issue is: “… whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process,” an issue not considered by the lower courts. Cruikshank isn’t applicable because it only considered the Privileges or Immunities Clause.

Alito gives a short history of cases applying the Due Process Clause to the Bill of Rights starting with this: “The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system.” He doesn’t tell us what that change is, or how it applies to guns.

He cites Heller for the proposition that the 2nd Amendment creates a right to bear arms. Then he announces that the right to and bear arms is covered by the Due Process Clause. There isn’t really an explanation for this. Alito just says it’s, like, you know, fundamental to the concept of ordered liberty, amirite, for every American to carry a gun for “self-defense”. Like this guy.

Then in Bruen, Clarence Thomas says that the only allowable limits on the the right to keep and bear arms are those the states imposed prior to either 1789 or 1868. Whatever that right was, the states obviously regulated it under their police powers, but Thomas doen’t even mention Cruikshank and The Slaughterhouse Cases. I guess Macdonald says it was unconstitutional for states to regulate guns after the ratification of the 14th Amendment, even though they had that right under Cruikshank and used it for 130 years.

Conclusion. The end result is that we can only regulate guns if five members of the NRA Court permit it. And now we learn that Bruen didn’t slake the blood lust of Thomas, Alito, Gorsuch and Kavanaugh. They want to flood the country with ghost guns.

Why Not Overrule Those Old Cases?

I think one reason SCOTUS doesn’t overrule Cruikshank and The Slaughterhouse Cases is that it would change our understanding of our dual sovereignty system. In The Slaughterhouse Cases the Court said that a broad interpretation of the 14th Amendment “…would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.” Of course SCOTUS is already doing that, as in gun regulation cases.

But if we dropped the pretense that the states are the dominant power in deciding the rights of citizens, SCOTUS would lose one of its go-to arguments against federal laws it doesn’t like. Dobbs, for example, says that the right to abortion should be decided by the states. Section 5 of the Voting Rights Act offends the dignity of the states (no, really), according to Shelby County v. Holder. And in NFIB v. Sebelius, SCOTUS says that the US can’t pressure the states to provide Medicaid to all their citizens, who, I note, are also citizens of the US, because state dignity is so important to suffering people.

There’s another possibility. The right-wing six simply don’t care about any of the traditional pillars of jurisprudence, such as stability, deference to the other branches, institutional reputation, and procedural constraints on power. And they’re careless. They don’t even try to be coherent or to clean up the loose ends of precedent that held for 150 years, or to create workable rules. See part IIIB of Breyer’s dissent in Heller and the dangers to society created by Bruen, as in the Rahimi case.

It’s bad enough that we’re goverened by five or six unelected lawyers. It’s worse that tbese second-rate people do such shoddy work.

———————
Section 1 of the 14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

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The Overt Investigative Steps into Trump’s Co-Conspirators TV Lawyers Ignored

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The first overt act in the investigation into Donald Trump’s six co-conspirators happened on January 25, 2021.

The Jeffrey Clark investigation started at DOJ IG

On that day, DOJ Inspector General Michael Horowitz announced that he was opening an investigation, “into whether any former or current DOJ official engaged in an improper attempt to have DOJ seek to alter the outcome of the 2020 Presidential Election.” The announcement came three days after Katie Benner did a story laying out Jeffrey Clark’s efforts to undermine the election results. Horowitz explained that he made the announcement, “to reassure the public that an appropriate agency is investigating the allegations.”

We don’t know all the details about what happened between Horowitz’s announcement of that investigation and last week’s indictment describing Clark as co-conspirator 4. Probably, when Merrick Garland arranged for Joe Biden to waive Executive Privilege so Jeffrey Rosen and others could tell the Senate Judiciary Committee what happened in July 2021, that freed up some communications to DOJ IG. For the record, I raised questions about why it took so long — though I suspect the delay in restoring the contacts policy at DOJ was part of it. Some time before May 26, 2022, DOJ obtained warrants for a private Jeffrey Clark email account and on May 26, Beryl Howell approved a filter process. On June 23, 2022, the FBI seized Clark’s phone — with some involvement of DOJ IG — and the next day DOJ seized a second email account of Clark’s. When FBI seized Clark’s phone, I predicted it would take at least six months to fully exploit Clark’s phone, because that’s what it was generally taking, even without a complex privilege review. Indeed, five months after first seizing some of Clark’s cloud content, on September 27, 2022, he was continuing to make frivolous privilege claims to keep his own account of the events leading up to January 6 out of the hands of investigators.

The first overt act in the investigation into one of Trump’s co-conspirators happened 926 days ago. Yet TV lawyers continue to insist the investigation that has resulted in an indictment including Clark as Donald Trump’s co-conspirator didn’t start in earnest until Jack Smith was appointed in November 2022.

A privilege review of Rudy’s devices was set in motion (in the Ukraine investigation) in April 2021

Clark is not the only one of Trump’s co-conspirators against whom investigative steps occurred in 2021, when TV lawyers were wailing that nothing was going on.

Take the December 6, 2020 Kenneth Chesebro memo that forms part of the progression mapped in the indictment from Chesebro’s efforts to preserve Wisconsin votes to trying to steal them. NYT liberated a copy and wrote it up here. It’s not clear where DOJ first obtained a copy, but one place it was available, which DOJ took steps to obtain starting on April 21, 2021 and which other parts of DOJ would have obtained by January 19, 2022, was on one of the devices seized from Rudy Giuliani in the Ukraine influence-peddling investigation. The PDF of a December 6 Kenneth Chesebro memo shows up in Rudy’s privilege log in the Ruby Freeman suit, marked with a Bates stamp from the Special Master review initiated by SDNY.

While Rudy is claiming privilege over it in Freeman’s lawsuit, it is highly likely Barbara Jones ruled that it was not (only 43 documents, total, were deemed privileged in that review, and there are easily that many emails pertaining to Rudy’s own defense in his privilege log).

The way in which SDNY did that privilege review, in which SDNY asked and Judge Paul Oetken granted in September 2021 that the review would cover all content post-dating January 1, 2018, was public in real time. I noted in December 2021, that Rudy’s coup-related content would be accessible, having undergone a privilege review, at any such time as DC investigators obtained probable cause for a warrant to access it.

Since then, Rudy has claimed — to the extent that claims by Rudy are worth much — that all his coup-related content would be available, and would only be available, via materials seized in that review. (In reality, much of this should also have been available on Gmail and iCloud, and Rudy’s Protonmail account does not appear to have been captured in the review at all.)

But unless you believe that Rudy got designated co-conspirator 1 in the indictment without DOJ ever showing probable cause against him, unless you believe DOJ decided to forego directly relevant material that was already privilege-reviewed and in DOJ custody, then we can be certain January 6 investigators did obtain that content, and once they did, the decisions made in April and August and September 2021 would have shaved nine months of time off the investigation into him going forward.

Indeed, those materials are one likely explanation for why DOJ’s investigation, as represented by subpoenas sent starting in May 2022, had a slightly different focus than January 6 Committee did. The first fake elector warrants sent in May 2022 as well as those sent in June and November all included Victoria Toensing and Joe DiGenova. Rudy’s known J6C interview included the couple as key members of his post-election team. But no one else seems to have cared or figured out what they did. After Rudy listed them in his January 6 interview, the Committee never once raised them again. But they were always part of a sustained focus by DOJ.

The more explicit investigative steps targeting Rudy have come more recently. Rudy was subpoenaed for information about how he was paid in November 2022. He sat for an interview in June.

But a privilege review on the coup-related content on seven of Rudy’s devices would have been complete by January 19, 2022 — the day before the long privilege battle between J6C and John Eastman started.

DOJ’s investigation of Sidney Powell’s graft was overt by September 2021

The investigation into one more of the six co-conspirators described in Trump’s indictment was also overt already in 2021: Sidney Powell.

Subpoenas sent out in September — along with allegations that Powell’s associates had made damning recordings of her — were first reported in November 2021. The investigation may have started under the same theory as Jack Smith’s recent focus on Trump: That Powell raised money for one thing but spent the money on something else, her legal defense. Molly Gaston, one of the two prosecutors who has shown an appearance on Trump’s indictment and who dropped off her last crime scene cases in March 2021, played a key role in the investigation.

By the time of DOJ’s overt September steps, both Florida’s Nikki Fried and Dominion had raised concerns about the legality of Powell’s graft.

According to Byrne, Powell had received a wave of donations in the aftermath of the election after being praised by mega-popular right-wing radio host Rush Limbaugh. But the donations were often given haphazardly, sometimes as a dollar bill or quarter taped to a postcard addressed to Powell’s law office. Byrne claims he discovered that Powell had amassed a fortune in contributions, somewhere between $20 and $30 million but provided no evidence to support the claim. A projected budget for Defending the Republic filed with the state of Florida lists only $7 million in revenue for the group.

Defending the Republic’s funds weren’t going towards the pro-Trump goals donors likely envisioned, according to Byrne. Instead, he claimed they were spent on paying legal bills for Powell, who has faced court disciplinary issues and a daunting billion-dollar defamation lawsuit from Dominion Voting Systems.

“It shouldn’t be called ‘Defending the Republic,’” Byrne said in the recording. “It should be called ‘Defending the Sidney Powell.’”

Attorneys for Dominion have also raised questions about the finances for Defending the Republic, which the voting technology company has sued alongside Powell. In court documents filed in May, Dominion accused Powell of “raiding [Defending the Republic’s funds] to pay for her personal legal defense.”

Dominion attorneys claimed in the filing that Powell began soliciting donations to Defending the Republic before officially incorporating the group. That sequence, they argued, meant that donations for the group “could not have been maintained separately in a bank account” and “would have necessarily been commingled in bank accounts controlled by [Powell].”

[snip]

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

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

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

All that graft would directly overlap with the sole focus on Powell in the indictment: on her false claims about voting fraud, particularly relating to Dominion. Aside from a claim that Powell was providing rolling production of documents in January 2022, it’s not clear what further steps this investigation took. Though it’s not clear whether Powell showed up on any subpoenas before one sent days after Jack Smith’s appointment in November.

Unlike Clark and Eastman, there have been no public reports that Powell had her phone seized.

DOJ may have piggybacked off John Eastman’s legislative purpose subpoena

DOJ’s overt focus on John Eastman came after the January 6 Committee’s long privilege battle over his Chapman University emails. Two months after Judge David Carter found some of Eastman’s email to be crime-fraud excepted (at a lower standard for “corruptly” under 18 USC 1512(c)(2) than was being used in DC District cases already), DOJ obtained its own warrant for Eastman’s emails, and a month later, his phone.

While it seems like DOJ piggybacked off what J6C was doing, the phone warrant, like Clark’s issued on the same day, also had involvement from DOJ IG.

Whatever the import of J6C, it’s notable that J6C was able to get those emails for a legislative purpose, without first establishing probable cause a crime had occurred. DOJ surely could have subpoenaed Eastman themselves (though not without tipping him off), but it’s not clear they could have obtained the email in the same way, particularly not if they had to show “otherwise illegal” actions to do so, which was the standard Beryl Howell adopted in her first 1512(c)(2) opinion, issued orally on January 21, 2022.

DOJ’s focus on Kenneth Chesebro (whom J6C didn’t subpoena until July 2022, months after DOJ was including him on subpoenas; see correction below) and whoever co-conspirator 6 is likely were derivative of either Rudy and/or Eastman; J6C subpoenaed Rudy, Powell, and Epshteyn on January 18 — though Epshteyn did not comply — and Mike Roman on March 28. Epshteyn shows up far more often in Rudy’s privilege log than Roman does.

But of the four main co-conspirators in Trump’s indictment, DOJ opportunistically found means to take investigative steps — the DOJ IG investigation, probable cause warrants in another investigation, and a fundraising investigation — to start investigating at least three of the people who last week were described as Trump’s co-conspirators. Importantly, with Clark and Rudy, such an approach likely helped break through privilege claims that would otherwise require first showing the heightened probable cause required before obtaining warrants on an attorney.

We know a fair amount about where and when the investigation into four of Trump’s six co-conspirators came from. And for three of those, DOJ took investigative steps in 2021, before the January 6 Committee sent out their very first subpoena. Yet because those investigative steps didn’t happen where most TV commentators were looking — notably, via leaks from defense attorneys — those steps passed largely unnoticed and unobstructed.

Update, August 20: The J6C sent a subpoena to Chesebro in March, before the July one that was discussed at his deposition.

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The “Crazy” Kraken Conspirator

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Sidney Powell is undoubtedly co-conspirator 3 in Trump’s January 6 indictment.

Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation.

But her role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

What a remarkable structure, then, for including Sidney Powell in this indictment.

From the description of Powell at the beginning, it makes it sound like she is in there as proof that Trump knew his claims were false: In November, he declared her crazy. But he nevertheless kept magnifying her craziness.

That would almost help prove that Trump knew she was a liar when he used her propaganda.

But paragraph 20 says something different: It says that on November 16, on a date she was still ostensibly on Rudy’s team, Trump fed her the Dominion voting machine false claims and told her — Trump told Powell, not vice versa — to include the Dominion claims.

The false claims about Dominion, according to this, came from Trump.

And then, after Rudy and Jenna Ellis publicly separated themselves from her, Powell submitted the first of a number of lawsuits that would rely on the Dominion claim.

And when called on her crazy, Sidney Powell claimed that, “no reasonable person would conclude that [her] statements were truly statements of fact.”

It’s not just Trump who thinks she’s crazy, she thinks she’s crazy.

But once she filed that lawsuit, on November 25, Trump boosted it.

That’s all pretty interesting timing given something else that was occurring at the very same time. At a time when they were both together in South Carolina plotting how to steal the election for Trump, Trump pardoned Mike Flynn.

The same crazy that went into Sidney Powell’s election disinformation went into her claims about Flynn. If Trump thought she was crazy, he should never have pardoned Flynn.

It gets still more interesting from there — including to where Powell funded at least some of the Oath Keepers’ defense — including, possibly, Kelly Meggs’ attorney, Stan Woodward.

You get the idea.

Even without her plan to seize the voting machines on December 18, even without Flynn’s call for martial law in the days leading up to it, the timeline laid out in the indictment — where Trump gave Powell the Dominion claims, then decided she was crazy, then pardoned her client based off her crazy claims — sure piles up some interesting implications in what are just two paragraphs of a 130-paragraph indictment.

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