Trump’s Role in a Seditious Conspiracy Won’t Go Away with an Impeachment Vote

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There’s a conventional wisdom about the Donald Trump’s second impeachment trial, scheduled to start in ten days. WaPo predicts that impeachment will leave no more than a “bitter aftertaste.”

The Senate is hurtling toward an impeachment trial that will accomplish almost nothing by design and likely leave everyone with a bitter aftertaste.

Democratic voters will be furious that GOP senators refused to hold former president Donald Trump accountable for his role in encouraging supporters to march to the Capitol on Jan. 6. Republicans will be upset that congressional Democrats went through with an impeachment trial three weeks after Trump left the White House.

And independent voters, more focused on the health and economic crises fueled by the coronavirus pandemic, will wonder why Congress prioritized an impeachment process at all.

Perhaps most telling, WaPo describes Trump’s role as “encouraging” his supporters to march to the Capitol.

It’s true the word, “encouraged” appears in the article of impeachment against Trump.

He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘‘if you don’t fight like hell you’re not going to have a country anymore’’. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. [my emphasis]

But that description skips the “foreseeably result[ing]” in the interruption of the certification of the vote, the threats to Members of Congress, the deadly sedition that are also included in the article of impeachment.

Moreover, it ignores the other part of the article of impeachment, Trump’s other efforts to subvert democracy (the article describes his January 2 call to Brad Raffensberger explicitly), to say nothing of the description of Trump as a threat to national security.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election.

[snip]

Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

That’s a notable oversight, particularly given the — inexplicable — claim from ascendant Senate Judiciary Committee Chair Dick Durbin that we may never learn the full extent of Trump’s role in the coup attempt.

Sen. Richard J. Durbin (D-Ill.), the incoming chairman, said he would leave procedural questions up to the House managers.“I’m waiting to hear what their proposal is, but for us to suggest a trial strategy for the House managers, I don’t think that’s our job,” Durbin said.

So, instead, the Senate will rush through a trial in which the only evidence likely to be presented will be the stuff that senators themselves already lived, video clips of rioters breaking into the Capitol as senators fled through underground tunnels to their secure location.

Senators will likely not even attempt to answer the fundamental questions of every impeachment trial — what did the president know and when did he know it?

“It will be surprising to me if we ever know the answers to that,” Durbin said.

It may be true that impeachment managers will restrict themselves to the public record, though even that might include testimony from Raffensperger and evidence collected as part of the prosecution of insurrectionists. Q-Shaman Jacob Chansley even says he’d be willing to testify.

Lawyer Albert Watkins said he hasn’t spoken to any member in the Senate since announcing his offer to have Jacob Chansley testify at Trump’s trial, which is scheduled to begin the week of Feb. 8. Watkins said it’s important for senators to hear the voice of someone who was incited by Trump.

Watkins said his client was previously “horrendously smitten” by Trump but now feels let down after Trump’s refusal to grant Chansley and others who participated in the insurrection a pardon. “He felt like he was betrayed by the president,” Watkins said.

The words of Trump supporters who are accused of participating in the riot may end up being used against him in the impeachment trial. Chansley and at least four others people who are facing federal charges stemming from the riot have suggested they were taking orders from Trump.

If insurrectionists were to testify in person, the attendant security of orange jumpsuits and leg manacles might provide some sobering visuals (though COVID and real security concerns almost certainly rules that out).

But it seems foolish for any Senator to assume that the vote they’ll cast in a few weeks will make this thing go away forever.

That’s not even true for their Ukraine impeachment votes. Yesterday, Ukraine announced (much to Lev Parnas’ glee that Rudy Giuliani finally got Ukraine to announce an investigation) that it is launching a criminal probe into those — inside and outside Ukraine — who attempted to interfere in the 2020 election.

Andriy Yermak, the head of the office of Ukrainian President Volodymyr Zelenskiy, said on January 28 that Ukraine would do everything in its power to bring to justice forces within the country and outside it who attempted to damage relations between Ukraine and the United States.

“The State Bureau of Investigation has opened a criminal case,” Yermak was quoted as saying in an interview to the Ukrainian news outlet NV that was posted on the presidential website.

“The investigation is under way, and we are waiting for its results. The investigation must answer a lot of questions,” Yermak added.

Without anyone in the United States lifting a finger, then, Ukraine may provide damning new evidence about Trump’s attempt to coerce assistance on his “perfect phone call” with Volodymyr Zelensky that will make GOP negligence during the last impeachment more damning.

And in the case of the January 6 insurrection, DOJ has already mapped out a conspiracy charge that Trump could easily be charged under as well.

PURPOSE OF THE CONSPIRACY

18. The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

MANNER AND MEANS

19. CALDWELL, CROWL, and WATKINS, with others known and unknown, carried out the conspiracy through the following manner and means, among others, by:

a. Agreeing to participate in and taking steps to plan an operation to interfere with the official Congressional proceeding on January 6, 2021 (the “January 6 operation”);

b. Using social media, text messaging, and messaging applications to send incendiary messages aimed at recruiting as large a following as possible to go to Washington, D.C., to support the January 6 operation;

Meanwhile, Acting DC US Attorney Michael Sherwin has repeatedly refused to rule out incitement charges. Indeed, I’ve argued that DOJ almost certainly will need to incorporate at least Mike Flynn, if not Trump himself, in their description of the crimes of January 6, if only to distinguish the events of that day from other protected First Amendment activity — and at least some prosecutors in DC closer to the overall investigation seem to be doing that.

There’s no guarantee that Merrick Garland’s DOJ will have the courage to pursue Trump’s role in this (though thus far, Bill Barr appointee Michael Sherwin has not shied from such an investigation, and if he oversaw such a decision it would mitigate the political blowback). There’s no sign, yet, that DOJ has identified how the coup attempt tied into Rudy’s attempts to delay the certification.

But no Senator serving as juror in this impeachment should assume the investigation won’t, inevitably, disclose the machinations that tied Trump’s efforts to stay in office to the death and destruction on January 6. Indeed, there’s no guarantee that the actions of key jurors — like Josh Hawley and Ted Cruz for inciting the mob, Tommy Tuberville for his direct coordination with Rudy, and Lindsey Graham for his own efforts to throw out votes in Georgia and his meeting with accused insurrectionist Joe Biggs — won’t ultimately be incorporated into the larger conspiracy.

And so while it may be easy for lazy political journalism to spout conventional wisdom about everyone wanting to move on, this time around it is as likely as not that the votes cast next month will age poorly as the investigation into how Trump’s action ties to the death and destruction continues.

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A Tale of Two Zip-Tie Guys: Criminal Protestor or Armed Insurrectionist?

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There was a fair amount of disbelief last week when Eric Munchel, better known as Zip-Tie Guy, was given bail by a magistrate judge in Tennessee. But as I noted, the evidence as presented to Judge Chip Frensley did not allege preplanning and did not show Munchel engaged in violence. As laid out in the detention memo, Munchel owns an arsenal of guns, but they are all legal. As such, Frensley’s decision was probably correct.

As I noted in an update to that post, however, the evidence prosecutors presented to obtain the emergency stay of Munchel’s release did include an act of violence, targeted at Bloomberg reporter William Turton, who filmed Munchel in the Grand Hyatt after the riot.

On the evening of January 6, 2021, after the insurrection, an individual posted a video of the Grand Hyatt hotel lobby on Twitter. The person then posted a message that read: “After I took this video, several Trump supporters harassed me and tried to follow me to my room. One accused me of being ‘antifa.’3 Hotel security intervened and moved me to new room. What a weird day.” See https://twitter.com/WilliamTurton/status/1346980284252745729 (Last accessed on January 23, 2021). The person added: “The Trump supporters demanded that I delete the video. One woman flashed her taser at me, and threatened to mace me.” See https://twitter.com/WilliamTurton/status/1347024856416714752 (last viewed January 23, 2021). Two days later, on January 8, based on another video from the Grand Hyatt posted to social media, the person identified the defendant as “one of the people in the hotel lobby who demanded I delete the video, put his hands on me, and screamed at me . . . .” See https://twitter.com/WilliamTurton/status/1347699125408641024 (last viewed January 23, 2021); https://twitter.com/WilliamTurton/status/1347699345345417217 (last viewed January 23, 2021). Evidence of this encounter was not presented at the preliminary and detention hearing in the Middle District of Tennessee.

There’s a more important difference between the detention motion submitted in Tennessee and the one submitted in DC, beyond the fact that one was presented in a conservative state and the other was presented to a Democratically appointed judge in the city targeted in the insurrection.

The initial detention motion describes Munchel’s actions as those of a protestor who committed crimes in the process of protesting, while threatening violence.

The United States of America, by and through its attorney, the United States Attorney for the Middle District of Tennessee, respectfully files this memorandum in support of pre-trial detention. The defendant, Eric MUNCHEL, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where he intended to protest the outcome of the 2020 Presidential election. MUNCHEL was prepared for conflict: as he told a reporter, he was ready to “rise up” and “fight if necessary.” After the rally concluded, MUNCHEL—who was dressed in tactical gear and carried a taser on his hip, and stashed other “weapons” in a tactical bag outside the Capitol—unlawfully entered the U.S. Capitol along with a mob of rioters who smashed windows and broke through doors. MUNCHEL gleefully acquired several sets of plastic handcuffs as he walked through the Capitol and entered the Senate chamber, where only moments earlier the Vice President of the United States was certifying the results of the 2020 Presidential election. In the Senate gallery, MUNCHEL stood with a crowd whose members shouted “Treason!” and lamented the disappearance of lawmakers from the chamber moments earlier. MUNCHEL’s conduct here was dangerous and extremely serious. This Court should adopt the recommendation of the Pretrial Services Office and detain MUNCHEL pending trial. [my emphasis]

The first paragraphs of the emergency motion, by contrast, describe him as one of a concerted pack of insurgents who successfully used terror to halt constitutionally mandated proceedings.

Armed with a taser and clad for battle in fatigues, a tactical vest, combat boots, gloves, and a gaiter that revealed only his eyes, the defendant, Eric Munchel, stormed the United States Capitol on January 6, 2021. Upon penetrating the building through a door breached by insurgents, the defendant grabbed a handful of Capitol Police flexicuffs and exclaimed: “Zip ties. I need to get me some of them mother—-s!” Then, with his co-conspirator, Lisa Eisenhart—who also wore a tactical vest and took flexicuffs—the defendant joined a group of insurgents searching for Members of Congress. Surrounded by insurgents exhorting veiled threats such as “Treason!”, “Anybody home?”, “They’re cowards!”, and “Are you afraid?”, the defendant infiltrated the Senate chamber—only minutes after the Senate body, including the Vice President of the United States, had been evacuated. The invasion halted the proceedings of a Joint Session of Congress, which had convened to certify the Electoral College vote as required by the Twelfth Amendment. [my emphasis]

A later paragraph discounts the claim that Munchel intended to do nothing more than protest.

First, the nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that he went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that he intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. This is illustrated by the defendant’s preparation before reaching the Capitol and expressly stated intent: the defendant dressed in combat attire from head to toe; armed himself with a taser (and, appearing from his own cell phone video and audio recording, a more dangerous weapon); and told a reporter that his intent in going to the Capitol was “a kind of flexing of muscles” and that he was ready to “fight if necessary.” Once at the Capitol, the defendant’s conduct was consistent with that expressly stated intent: the defendant helped and encouraged other insurgents to ascend a wall to access the Capitol; exclaimed that he was “F—ing ready to f–k s–t up”; affirmed cries of “Treason” by other insurgents; responded to the chaos by exclaiming, “I guess they thought we were playing!”; stormed into the Capitol through a breached door; grabbed Capitol Police plastic flexicuffs, comprehending that they are instruments of restraint and kidnapping; marched throughout the Capitol searching for Members of Congress who he believed had committed “Treason”; and infiltrated the Senate chamber. The nature and circumstances of the alleged offenses all indicate forethought and specific intent to obstruct a congressional proceeding through fear, intimidation, and, if necessary, violence. These threads—planning, forethought, intent—are all indicative of a capacity and willingness to repeat the offense and pose a clear threat to community safety. As the defendant himself told The Times reporter, “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added).

As with her son, the government told two different stories about the actions of Munchel’s mother, Lisa Eisenhart, who like him was first granted bail then detained on an emergency motion.

The introductory paragraph of her TN detention motion mentions her boast that she was willing to die rather than live under oppression. But even where it reviews her language in more depth later in the filing, it portrays as it as mere, “disillusionment with the outcome of the 2020 Presidential election,” not a willingness to overthrow the Constitutional order because of it.

The defendant, Lisa EISENHART, traveled to Washington, D.C. to attend the “Stop the Steal” rally on or about January 6, 2021, where she intended to protest the outcome of the 2020 Presidential election. EISENHART was prepared for conflict: as she told a reporter, she would rather “die” and “fight” than “live under oppression.”

[snip]

EISENHART also made statements evincing an intent to engage in violent conduct, and even sacrificing her own life, because of her disillusionment with the outcome of the 2020 Presidential election. [my emphasis]

And as the emergency motion for her son described his own act of violence, Eisenhart’s emergency detention motion describes her approval of the violence around her. (Munchel’s federal defender got prosecutors to admit at his bail hearing that his mom voiced more overt support for violence than he espoused; he even pointedly called out, “Don’t break shit,” … “No vandalizing shit”.)

Down the road, prosecutors will describe these statements from her as one after another agreement with others to engage in violent insurrection.

The nature and circumstances of the offense involve fear, intimidation, and violence— directed at law enforcement, elected public officials, and the entire country. The defendant can make no serious claim that she went to the Capitol on January 6 intending to engage in peaceful protest or civil disobedience. Instead, the evidence supports the conclusion that she intended to contribute to chaos, obstruct the Electoral College certification, and sow fear. Specifically, Eisenhart, dressed for combat in a tactical or bulletproof vest, stormed the Capitol building with other insurgents and:

  • carried dangerous “weapons” onto Capitol grounds and stashed them before storming the Capitol building, because “We’re going straight to federal prison if we go in there with weapons”;
  • encouraged insurgents to climb a Capitol wall and storm inside, exhorting: “Yeah, go up in there. You can go up in there now”;
  • encouraged Munchel to go inside the Capitol despite knowing that Capitol Police were trying to keep insurgents out—including by using tear gas (“we’re going in”; “the [tear] gas isn’t bad”);
  • cheered on another insurgent who she understood to have “punched two of them in the face”—likely a reference to Capitol Police;
  • celebrated as her “best day” an assertion by another insurgent that Members of Congress had been tear gassed (“That is [unintelligible] my best day, to know they got tear gassed.”);
  • grabbed Capitol Police flexicuffs from inside the Capitol and searched for Members of Congress alongside other insurgents, together shouting threatening chants of: “Anybody home?”; “They went into the tunnels”; “Where’d you go?”; “They’re cowards!”; “Are you afraid?”; and “Treason!”; and
  • cognizant of the severity of her and Munchel’s crimes, advised before leaving the Capitol: “Don’t carry the zip ties, just get ‘em out of their hand, out of [unintelligible] get ‘em out of our hands.”

The offense circumstances illustrate a profound disrespect for the rule of law and law enforcement, indicating that the defendant’s unwillingness and incapacity to respect court-imposed conditions and demonstrating that no release condition will reasonably assure the community’s safety.

Both emergency motions for detention include a paragraph describing the danger mother and son pose as an unprecedented threat to democracy.

Finally, as we asserted in the Munchel appeal, it is difficult to fathom a more serious danger to the community—to the District of Columbia, to the country, or to the fabric of American Democracy—than the one posed by armed insurrectionists, including the defendant and Munchel, who joined in the occupation of the United States Capitol. Every person who was present without authority in the Capitol on January 6 contributed to the chaos of that day and the danger posed to law enforcement, the Vice President, Members of Congress, and the peaceful transfer of power. The defendant’s specific conduct aggravated the chaos and danger. It was designed to intimidate Members of Congress and instigate fear across the country. The defendant’s active participation in a violent insurgency on the Capitol designed to undermine the democratic process poses a serious and ongoing danger to the community that no release condition can reasonably assuage. As co-conspirator Munchel told The Times reporter: “[t]he point of getting inside the building [was] to show them that we can, and we will” (emphasis added); and as the defendant maintained, she would rather “die” and “fight” than “live under oppression.” Only detention mitigates the grave danger the defendant and Munchel pose. [my emphasis]

I expect readers of this site will agree with the latter emergency motions, and I definitely agree about the threat the insurrection posed to democracy.

But it is critical to understand that legally, both motions are true.

The difference lies in the additional overt act including in Munchel’s emergency motion and the import ascribed to Eisenhart’s statements in hers. More importantly, the difference lies in the effect of their actions — and the actions of others that, videos show, they encouraged: to halt a constitutionally mandated act using terror.

Defense attorneys will argue, the threats to Turton notwithstanding, that there is no definitive evidence that Munchel or Eisenhart intended to engage in violence at the Capitol (and in Munchel’s case, they’ll cite his own statements warning against destruction). Outside the context of a concerted plan to prevent the certification of the election, one can make a compelling case that Munchel and Eisenhart are nothing more than protestors who broke the law.

It’s possible that prosecutors in Tennessee didn’t include that because they view the election outcome differently or simply view these two as individual defendants outside the context of the larger goal. It’s possible they’re simply not privy to much of the evidence that gives prosecutors in DC confidence they’ll be able to prove a more concerted effort, a concerted effort that Munchel and Eisenhart both willingly took a part in. It’s likely that DC prosecutors aren’t including other prosecutors in plans to build the sedition charge mentioned in the emergency motions.

The evidence amassed so far subjects the defendant to felonies beyond that with which he has been charged so far, including obstructing Congress, interstate travel in furtherance of rioting activity, sedition, and other offenses.

But the successful prosecution of Zip-Tie Guy and his mom will depend on prosecutors’ success at making that larger case and showing that both of them agreed to the larger goal.

I’ve alluded to, several times, how the case against the Hutaree Militia foundered based on two things: prosecutors’ reliance on speech as proof that each member of the conspiracy entered into a goal of attacking the US government, and insufficient proof that the federal government itself was the target.

The lesson is important background for the January 6 insurrection. In her opinion throwing out most of that prosecution, Judge Victoria Roberts emphasized the meticulous scrutiny that a charge of seditious conspiracy must give to speech acts.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” United States v. Dellinger, 472 F.2d 340, 392 (7th Cir. 1972). It is black-letter law that “[a] defendant cannot be convicted of conspiracy merely on the grounds of guilt by association, and mere association with the members of the conspiracy without the intention and agreement to accomplish an illegal objective is not sufficient to make an individual a conspirator.” Lee, 991 F.2d at 348. Likewise, mere presence at the scene does not establish participation in a conspiracy. United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

And she cited precedent that requires that seditious conspiracy must target the US government itself (the Hutaree allegedly hoped to spark a larger rebellion by killing some cops — not far different from what the Boogaloo espouse).

In Anderson v. United States, the Eighth Circuit applied Baldwin and dismissed a seditious conspiracy charge where the force sought to be exerted was “not against those whose duty it should be to execute the laws.” 273 F. 20, 26 (8th Cir. 1921). Defendants were charged with seditious conspiracy for conspiring to prevent, hinder and delay by force, various laws of the United States, including the congressional declaration of war with Germany, and laws relating to conscription. Id. at 22-23. In furtherance of the seditious conspiracy, the Indictment alleged that the defendants circulated books and periodicals calling for strikes and the overthrow of the capitalist system and criticizing the war and individuals who joined the armed services. Id. at 24- 24.

Relying on Baldwin, the Court stated that for the Indictment to sufficiently charge seditious conspiracy, the purpose of the conspiracy must be “the exertion of force against those charged with the duty of executing the laws of the United States . . . .” Id. at 26. The court then held that the Indictment was insufficient because the “force was to be exerted, not against those whose duty it should be to execute the laws, and while attempting to do so, but its application was to be made against industrial and commercial activities by lawless acts during strikes for the purpose of accomplishing alleged socialistic ends . . . .” Id.

The law is clear that seditious conspiracy requires an agreement to oppose by force the authority of the United States itself. It must be an offense against the Nation, not local units of government. See Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 505 (1956) (“Sedition against the United States is not a local offense. It is a crime against the Nation.” (citation and quotation marks omitted)). Any overt act in furtherance of seditious conspiracy must further a common plan to oppose the United States by force; otherwise, “the seditious conspiracy statute would expand infinitely to embrace the entire agenda of anyone who violated it . . . .” United States v. Rahman, 854 F. Supp. 254, 260 (S.D.N.Y. 1994); see also Haywood v. United States, 268 F. 795, 800 (7th Cir. 1920) (“[The seditious conspiracy statute] should not be enlarged by construction.”).

In that case, Roberts found that a plan to murder cops did not amount to seditious conspiracy.

The discussions of seditious conspiracy in Baldwin and Anderson are important to this case; while the Government presented evidence of vile and often hateful speech, and may have even shown that certain Defendants conspired to commit some crime – perhaps to murder local law enforcement — offensive speech and a conspiracy to do something other than forcibly resist a positive show of authority by the Federal Government is not enough to sustain a charge of seditious conspiracy. A conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.

The attack on the Capitol is an entirely different matter from that attempt by right wing militia members to spark an uprising in 2010. The targets of the January 6 conspiracy included the first and second in line to the Presidency, Mike Pence and Nancy Pelosi. Among the cops who were targeted — including the one who was murdered — were Capitol Police. The act that rioters were impeding was the execution of a duty laid out in the Constitution, certifying the Presidential election.

There’s little question that this amounts to a conspiracy against the government of the United States.

Nevertheless, as prosecutors tell one after another story about the individuals involved, they are going to have to make it clear, in each case, how each individual’s actions and stated goals tie to that larger effort to overthrow the constitutional working of the US government.

Update: Corrected where in succession Pence and Pelosi were.

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Just Another Manic Sunday Conference Championship In Pandemic

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The time is here. First game of the day, Bucs at Packers, starts in less than an hour. Never pick against the Pack at home, but the Bucs and Brady may give them a game on the Tundra. I have no clue how it plays out, and make no pick. Yes, it is probably cowardly of me.

The second game is Bills at Chefs. On paper, this is an easy pick. Games are not played on paper though. on the field, there is no way to sell the Bills short as to having cause to be here. They are great, and a great story. I, again, will coward out and have no clue how it unfolds.

Two great matchups and four great, and admirable, teams. That is how it should be. Games on!

Mondays may be manic, but the Bangles knew/wished Sundays were too. There is goodness that there is no Trump dick wagging on social media to interrupt this day. Let’s have some fun, and rock the day.

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The Baraitser Decision’s Impact (or Not) on Journalism

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Before and since Joe Biden was inaugurated, Julian Assange supporters are unsurprisingly pushing for Biden to direct DOJ to adopt a different stance in the prosecution of Assange.

I suspect that’s unlikely. Indeed, while I’m not sure how any of this would work under the extradition law or be tempered by the UK’s rejection of extradition based on humanitarian grounds and ongoing appeal of that decision, I think it more likely that DOJ does one of the following:

  • Supersedes the existing indictment to incorporate (at least) Vault 7
  • Adds conspiring with Russia, potentially showing a timeline of doing so that goes back up to a decade
  • Charges non-national security crimes (the quid pro quo for the pardon and possibly extortion) as a way to get around the finding that he’d be put in a SuperMax
  • Indicts an omnibus conspiracy naming others, or
  • Asks the UK to prosecute Assange under the equivalent crimes (including, possibly, for Vault 7)

I think that not because I believe Joe Biden will be shitty or good on issues pertaining to journalism or because I have it in for Assange. I think that because unlike virtually everyone weighing in on this topic (Alexa O’Brien is the sole exception I know of) I’ve actually been covering what has happened to WikiLeaks cases in the US and the public record shows that the US government as a whole and DOJ as an institution — not Presidents Obama, Trump, or Biden — have come to the conclusion that WikiLeaks is not a journalistic institution.

To that end, I want to return to Vanessa Baraitser’s ruling in Assange’s case, because most people weighing in about how and why Biden might change course are misrepresenting what she said about two issues.

The first issue pertains to the impact of her ruling on journalism. Yes, Baraitser ruled for the US. But all she had to do on this issue was weigh whether the crimes alleged in the indictment have a parallel in UK law (which in this case would be the far more onerous Official Secrets Act) and are permitted under European Convention on Human Rights law’s Article 10.

With regards to the former, Baraitser could have just noted that the Official Secrets Act clearly criminalizes the publication of classified information like that covered by the indictment. That was what most people I know honestly expected (even if they didn’t say as much publicly).

She didn’t. With regards most charges, her ruling relied heavily on the intersecting conspiracies alleged in the superseding indictment that most Assange boosters have not read, one to violate the Espionage Act and the other to violate CFAA (hacking). For the bulk of the charges (the ones covered by Theory One in this post), Baraitser described what Assange does to include a hacking element.

Mr. Assange is accused of aiding and abetting Ms. Manning in her theft and disclosure of the information, as an accessory to her offending. The defence submits that no offence is committed by Mr. Assange unless he has engaged in a criminal activity separate from Ms. Manning’s act of whistle-blowing. However, in my judgment, Mr. Assange’s alleged activities went beyond the mere encouragement of a whistle-blower.

Tseehe [sic] design and purpose of WikiLeaks, it is alleged, was to obtain protected information and publish it. Mr. Assange was willing to achieve this, it is alleged, through computer hacking, both by engaging in hacking activities himself but also by recruiting and soliciting others to do the same. This is amply demonstrated in the request in his work with various hacking groups. His work with Ms. Manning, it is alleged, was part of this plan.

[snip]

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Thus, even though she didn’t have to do so to rule for the US on this point, she nevertheless distinguished what Assange does from what journalists do because, as alleged in the indictment and in actual fact, hacking is such a central part of what Assange does. It’s not clear she would have gotten to this ruling without the language included in the superseding indictment (a superseding indictment which, again, virtually all Assange boosters either willfully ignore or are genuinely ignorant exists). But as it happened, she relied heavily on the language in the superseding indictment and very clearly distinguished what Assange does from what journalists do.

Of particular interest (because this is the language in the indictment that I believe sets up adding Vault 7 to the indictment), Baraitser accepted the US government’s description of Assange recruiting people to hack.

Mr. Assange, it is alleged, had been engaged in recruiting others to obtain information for him for some time. For example, in August 2009 he spoke to an audience of hackers at a “Hacking at Random” conference and told them that unless they were a serving member of the US military they would have no legal liability for stealing classified information and giving it to Wikileaks. At the same conference he told the audience that there was a small vulnerability within the US Congress document distribution system stating, “this is what any one of you would find if you were actually looking”. In October 2009 also to an audience of hackers at the “Hack in the Box Security Conference” he told the audience, “I was a famous teenage hacker in Australia, and I’ve been reading generals’ emails since I was 17” and referred to the Wikileaks list of “flags” that it wanted captured. After Ms. Manning made her disclosures to him he continued to encourage people to take information. For example, in December 2013 he attended a Chaos computer club conference and told the audience to join the CIA in order to steal information stating “I’m not saying don’t join the CIA; no, go and join the CIA. Go in there, go into the ballpark and get the ball and bring it out”.

Again, it’s not just that Assange solicited people to share classified information with him (which journalists do), but that he also explicitly encourages people to hack to get it.

And while the way Baraitser distinguished Assange from others in her ruling on the three most dangerous charges, publishing informants’ identities (Theory Three in this post), is less compelling, she nevertheless went beyond a ruling on the act itself. She distinguished Assange’s publication online (in bulk, though that distinction is less clear and not one of great comfort to someone who also publishes online) from traditional journalism.

More importantly, Baraitser talked about the balancing involved in Article 10 (particularly with regards to the right of private life).

The defence submits that, by disclosing Ms. Manning’s materials, Mr. Assange was acting within the parameters of responsible journalism. The difficulty with this argument is that it vests in Mr. Assange the right to make the decision to sacrifice the safety of these few individuals, knowing nothing of their circumstances or the dangers they faced, in the name of free speech. In the modern digital age, vast amounts of information can be indiscriminately disclosed to a global audience, almost instantly, by anyone with access to a computer and an internet connection. Unlike the traditional press, those who choose to use the internet to disclose sensitive information in this way are not bound by a professional code or ethical journalistic duty or practice. Those who post information on the internet have no obligation to act responsibly or to exercise judgment in their decisions. In the modern era, where “dumps” of vast amounts of data onto the internet can be carried out by almost anyone, it is difficult to see how a concept of “responsible journalism” can sensibly be applied.

[comparison with other outlets and their condemnation of him]

The law already constrains in various ways what may be published in order to avoid damage to private interests. For example, the High Court recently awarded damages against the Associated Newspaper Ltd, after the MailOnline website published an article , reporting on the arrest of the claimant in the aftermath of the Manchester Arena bombing, and disclosing details capable of leading to his identification (Alaedeen Sicri v Associated Newspapers Limited, [2020] EWHC 3541 (QB)). Free speech does not comprise a ‘trump card’ even where matters of serious public concern are disclosed (see Stoll above), and it does not provide an unfettered right for some, like Mr. Assange, to decide the fate of others, on the basis of their partially informed assessment of the risks.

This was not necessarily a national security stance. Rather, in language that would apply equally to Assange’s indiscriminate publication of the DNC and Podesta emails (as well as the publication of the Turkish and Saudi emails), Baraitser argued that Assange’s publication in bulk was not protected because it did not and could not properly weigh the risk to others.

This part of the ruling, in particular, would not translate into US law. There is no such privacy balance in the US outside of much weaker defamation laws. And so this part of the ruling does not offer much comfort with regards the existing charges as precedent in the US context.

But that’s an issue Assange supporters have with US law, not with the Baraitser ruling.

With regards to the impact on journalism, Baraitser ruled that the charges before her (which contrary to a lot of WikiLeaks propaganda, doesn’t include the Collateral Murder video) were distinguishable from what journalists do.

As such, unless press organizations want to claim hacking is within the job description of journalists, this ruling should not chill journalism.

There’s certainly real concern about the charges as precedent in the US, particularly the publishing charges. But that’s different than the Baraitser ruling itself.

Update: Corrected ECHR thanks to Chetnolian.

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In November, Emmet Sullivan Suggested He Might Not Be Done with DOJ and Mike Flynn

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I’d like to return to Judge Emmet Sullivan’s opinion dismissing the Mike Flynn case. This post was written at the time of the opinion.

As I noted at the time, Sullivan did several things in conjunction with the opinion.

The first thing he did was to strike some documents which the government had not authenticated in response to his order that they do so. That may be mere housekeeping, but at a time when it was effectively too late for the government to try to withdraw any of the other documents, it left those exhibits it had authenticated — with at times dodgy claims of authentication and in one case no claim (some Lisa Page and Peter Strzok texts, a significant portion of which were entirely off-topic, which the government admitted it had submitted for shits and giggles) — in his docket.

Then, he issued his order. In it, he granted one of the government’s two requests, to dismiss the case as moot. But in the same order, he denied the government’s motion to dismiss pursuant to Rule 48(a), denying it as moot.

This step may have more significance that most at first realized. That’s because by mooting DOJ’s effort to dismiss the prosecution pursuant to Rule 48(a), Sullivan refused to sanction the effort DOJ had been pursuing since May to undo the Flynn prosecution.

Once Sullivan issued the order mooting the case, DOJ was left with very little ground to further intervene, not least because they themselves declared the case moot.

Then Sullivan issued his opinion explaining how the case became moot. As I noted at the time, in the opinion he:

  • Affirmed the authority of a District Court to review whether a motion to dismiss serves the public good (but stopped short of doing so on mootness grounds)
  • Laid out evidence that the motion to dismiss was pretextual and corrupt (but stopped short of making that finding on mootness grounds)
  • Along the way, made judicial findings of fact regarding the propriety of the Mike Flynn investigation; effectively this was a ruling that the new reality Bill Barr attempted to create in Sullivan’s docket did not replace the prior reality DOJ had presented

I’ll elaborate on that below.

After having issued his opinion, Sullivan then denied as moot a number of other pending requests. With that order he mooted:

  • The government’s request that Flynn get a downward departure on sentencing
  • Flynn’s request to withdraw his guilty plea
  • Flynn’s request to dismiss the case based on a claim of prosecutorial misconduct
  • A Flynn request to force Covington & Burling to turn over an expansive set of documents, including their own internal discussions about ethics or about the case itself
  • A Flynn request to withdraw those three earlier requests
  • A really belated Flynn demand that Sullivan recuse from the case
  • Amicus John Gleeson’s request for clarification about what should happen given Flynn’s petition for a writ of mandamus
  • Flynn’s demand that Judge Sullivan strike the communications from Peter Strzok and Andrew McCabe about the alterations made to their documents submitted in the docket

Mostly, this is housekeeping, the mooting of all pending issues in the case. Except it has the effect of removing any claim that Flynn might have an interest in Sullivan’s recusal. Indeed, that’s a step Sullivan noted explicitly in the opinion.

In that motion Mr. Flynn requested, among other things, that the Court grant the government’s motion to dismiss pursuant to Rule 48(a) and that, upon dismissal of the case, the Court recuse itself from further proceedings. After the Court dismisses the case as moot pursuant to the presidential pardon, the Court will deny the motion for recusal as moot.

By mooting the motion to strike, Sullivan similarly moved any claim Flynn had in the Strzok and McCabe interventions going forward.

Of particular interest, that means that not only do DOJ’s dubiously authenticated documents remain before Sullivan, but so does the correspondence from Strzok and McCabe making it clear that their documents were altered (though their assertions that Jocelyn Ballantine lied to the court are not in the docket).

To sum up then: DOJ’s altered documents and evidence that they were altered remains before Sullivan, and any interest that DOJ or Flynn have in this docket — including a claim that Sullivan is biased and so must recuse — has been officially mooted.

With that background laid out, I want to look at a few more things that Sullivan did with his order.

  • Reaffirmed Flynn’s guilt as a legal question
  • Laid out the President’s interest in the pardon
  • Set the operative time of Flynn’s pardon
  • Did not address Flynn’s false statements before him
  • Observed the scope of the pardon but agreed that it covered Flynn’s false statements crime

Reaffirmed Flynn’s guilt as a legal question

First, Sullivan made it clear in several different ways that Flynn’s guilty verdict remains.

In the section laying out the posture of the case, Sullivan described how Flynn pled guilty twice.

Under oath and with the advice of counsel, Mr. Flynn pled guilty to the crime on December 1, 2017.

[snip]

On November 30, 2017, Mr. Flynn entered into a plea agreement with the government upon the advice of counsel. See Plea Agreement, ECF No. 3 at 10. Judge Rudolph Contreras accepted Mr. Flynn’s guilty plea on December 1, 2017, finding that Mr. Flynn entered the plea knowingly, voluntarily, and intelligently with the advice of counsel.

[snip]

On December 18, 2018, this Court accepted Mr. Flynn’s guilty plea a second time. Sentencing Hr’g Tr., ECF No. 103 at 5, 16. During that hearing, the Court extended the plea colloquy in view of Mr. Flynn’s statements in his sentencing memorandum, which raised questions as to whether Mr. Flynn sought to challenge the conditions of the FBI interview. See generally Def.’s Mem. in Aid of Sentencing, ECF No. 50 at 6-18. Under oath, Mr. Flynn confirmed that his rights were not violated as a result of the circumstances of his January 24, 2017 FBI interview and the allegations of misconduct against FBI officials. Id. at 11-12. And Mr. Flynn declined the Court’s invitation for the appointment of independent counsel to advise him. Id. at 9-10.

He also noted that when Flynn moved to dismiss his guilty plea, DOJ never got as far as responding (he doesn’t note that, rather than doing so, they moved to dismiss the prosecution).

The government did not file a response to Mr. Flynn’s motions to withdraw his guilty pleas due to its incomplete review of Mr. Flynn’s former counsel’s productions relevant to Mr. Flynn’s claims of ineffective assistance of counsel, as well as a dispute between Mr. Flynn and his former counsel.

Then, in the section on the legal status of a pardon, Sullivan emphasized that accepting a pardon may be an admission of guilt. Note the emphasis is Judge Sullivan’s.

On the other hand, a pardon does not necessarily render “innocent” a defendant of any alleged violation of the law. Indeed, the Supreme Court has recognized that the acceptance of a pardon implies a “confession” of guilt. See Burdick, 236 U.S. at 94 (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”); see also United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A]cceptance of a pardon may imply a confession of guilt.” (citing In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994)). As Chief Justice Marshall wrote, “[a] pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 32 U.S. 150, 150 (1833) (emphasis added). In other words, “a pardon does not blot out guilt or expunge a judgment of conviction.” In re North, 62 F.3d at 1437. Furthermore, a pardon cannot “erase a judgment of conviction, or its underlying legal and factual findings.” Arpaio, 2017 WL 4839072, at *1 (citing United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004)); but see Schaffer, 240 F.3d at 38 (vacating “all opinions, judgments, and verdicts of this court and the District Court” where “[f]inality was never reached on the legal question of [the defendant’s] guilt” (emphasis added)).

After citing the Arpaio precedent, where the corrupt sheriff tried to expunge his guilty status, Sullivan then cited the Schaffer precedent in the DC Circuit treating the question of a defendant’s guilt as a legal question, not a political one. Sullivan added emphasis to four things in this opinion. Two of them, appearing in this passage, focus on two circumstances that mean Flynn is still guilty of his crimes. By giving Flynn a pardon, Trump excused the consequences for his crimes, but he didn’t change the legal fact that Flynn was guilty, and Flynn’s own acceptance of the pardon imputes that he committed the crime.

Note, I don’t think Sullivan was making a general comment about pardons generally (and I also think it a mistake to read his citation to Burdick as a general comment about accepting pardons amounting to an admission of guilty; he instead seems to be saying it might be). He was making a comment about this one, the legal question before him. Sullivan issued a ruling, then, that circuit and Supreme Court precedent mean that Flynn’s guilty verdict remains and that by accepting a pardon, he confessed to his guilt.

Laid out Trump’s interest in the pardon

Before the sections in which Sullivan analyzes why DOJ’s claims in moving to dismiss the prosecution are bunk, Sullivan first described how interested Trump was in Flynn’s prosecution. Along the way, he notes Sidney Powell’s admission at a September hearing that she had spoken with Trump and asked Trump not to pardon Flynn.

For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trumpinterview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

Given this context, the new legal positions the government took in its Rule 48(a) motion and at the motion hearing raise questions regarding its motives in moving to dismiss.

That is, it was in light of Trump’s claimed “absolute right to do what [he wants with DOJ],” that Sullivan reviewed DOJ’s claimed excuses for blowing up the prosecution and found them pretextual.

Set the operative time of Flynn’s pardon

Perhaps most curiously, Sullivan went to some lengths to mark the precise time of Flynn’s pardon: November 25, 2020, at 4:08PM ET.

Rather than treating the filing of the notice of appeal or the appeal itself (the time of which is suspect) as operative, Sullivan instead treated Trump’s tweet announcing the pardon as definitive, going so far as including a legal basis to depend on Trump’s Tweets as operative.

On November 25, 2020, President Trump granted Mr. Flynn a “full and unconditional pardon” for: (1) “the charge of making false statements to Federal investigators,” in violation of 18 U.S.C. § 1001, as charged in the Information in this case; (2) “any and all possible offenses arising from the facts set forth in the Information and Statement of Offense” filed in this case “or that might arise, or be charged, claimed, or asserted, in connection with the proceedings” in this case; (3) “any and all possible offenses within the investigatory authority or jurisdiction of the Special Counsel appointed on May 17, 2017, including the initial Appointment Order No. 3915-2017 and subsequent memoranda regarding the Special Counsel’s investigatory authority”; and (4) “any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings” in this District or in the United States District Court for the Eastern District of Virginia. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1; see also Donald Trump (@realDonaldTrump), Twitter (Nov. 25, 2020, 4:08 PM), https://twitter.com/realDonaldTrump/status/1331706255212228608.6

6 The Court takes judicial notice of President Trump’s tweet as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); see Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), vacated on other grounds, 138 S. Ct. 377 (2017).

Only after pointing to Trump’s tweet of 4:08PM on November 25, 2020 as the operative moment of Trump’s pardon of Flynn did Sullivan mention the filings in his docket as basis for the proof that Flynn had accepted the pardon.

Mr. Flynn accepted the pardon, and Mr. Flynn and the government subsequently moved to dismiss this case as moot. See Consent Mot. Dismiss, ECF No. 308 at 2.

I don’t know why Sullivan did this. But he did. He set a time — 4:08 PM ET on November 25, 2020 — when Trump’s pardon of Flynn went into effect, based on the legal authority of Trump’s Tweet, and then made it clear that after the time of the pardon, Flynn accepted it.

Did not address Flynn’s false statements before him

Almost as interesting as the way Sullivan set the precise time when Trump issued a pardon for Flynn is what Sullivan did with the lies Flynn told in his own court. As a reminder, Flynn submitted a declaration that materially conflicted with sworn statements he had made before two judges and the grand jury. When he appointed John Gleeson, Judge Sullivan asked Gleeson to review whether he should consider holding Flynn in criminal contempt. When he reviewed that in his history of the case, Sullivan stated that Gleeson had convinced him that holding Flynn in contempt would be an atypical way of dealing with the issue.

On May 13, 2020, the Court appointed John Gleeson (“Mr. Gleeson”) as amicus curiae to present arguments in opposition to the government’s Rule 48(a) motion and to address whether Mr. Flynn should be held in criminal contempt for perjury pursuant to 18 U.S.C. § 401; Federal Rule of Criminal Procedure 42; the Court’s inherent authority; and any other applicable statutes, rules, or controlling law.3

3 The Court is persuaded by the arguments presented that issuing an Order to Show Cause would amount to an atypical action and so does not address this issue in this Memorandum Opinion.

Gleeson had favored taking Flynn’s further perjury into account at sentencing, but now Sullivan won’t be sentencing Flynn. DOJ had said that the proper way to deal with such perjury is to refer it to DOJ for prosecution.

Sullivan’s language here didn’t say he’s not going to deal with Flynn’s perjury; rather, he just said he’s not dealing with it in this particular opinion.

Observed the scope of the pardon but agreed that it covered the issues in this docket

That’s important for Sullivan’s discussion of the power of Trump’s pardon. Sullivan laid out the awesome scope of the pardon power. Before he did so, though, he first laid out the power of the courts to interpret the law, including the scope of the pardon power specifically, tying the pardon power to Marbury versus Madison.

Though the Constitution confers the pardoning power on the President generally, it is well-established that “the judiciary has served as the supreme interpreter of the scope of the constitutional powers since Marbury v. Madison.” See William F. Duker, The President’s Power to Pardon: A Constitutional History, 18 Wm. & Mary L. Rev. 475, 506 (1977); see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

[snip]

Thus, the Supreme Court in Marbury laid the foundation for the view that the President has a “general, unqualified grant of power to pardon offenses against the United States.” The Laura, 114 U.S. 411, 413 (1885).

Among the judgements he relies on showing the Supreme Court exercising judicial review and finding the pardon power unlimited, however, Sullivan cites language noting that pardons can only be issued after their commission.

In view of the principles set out in Marbury, the Supreme Court thereafter instructed that the President’s power to pardon is “granted without limit.” United States v. Klein, 80 U.S. 128, 147 (1871); see also Ex parte Garland, 71 U.S. 333, 380 (1866) (“This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”). The “executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” Ex parte Grossman, 267 U.S. 87, 120 (1925) (emphasis added).

This was the third of four things to which Sullivan added emphasis in his opinion — that according to Supreme Court precedent, pardons can only issue after the offense has been committed.

And that’s interesting, in an opinion that marked the exact moment when this pardon was granted, in the language Sullivan used to apply the precedent he reviews on pardons to the pardon before him.

Sullivan observed that the pardon itself is very broad, observing as I did that the pardon “purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation.” But then Sullivan said the only decision before him was just the crime Flynn twice pled guilty to.

Here, the scope of the pardon is extraordinarily broad – it applies not only to the false statements offense to which Mr. Flynn twice pled guilty in this case, but also purports to apply to “any and all possible offenses” that he might be charged with in the future in relation to this case and Special Counsel Mueller’s investigation. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. However, the Court need only consider the pardon insofar as it applies to the offense to which Mr. Flynn twice pled guilty in this case. Mr. Flynn has accepted President Trump’s “full and unconditional pardon.” See Consent Mot. Dismiss, ECF No. 308 at 2. The history of the Constitution, its structure, and the Supreme Court’s interpretation of the pardon power make clear that President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot. However, the pardon “does not, standing alone, render [Mr. Flynn] innocent of the alleged violation” of 18 U.S.C. § 1001(a)(2). Schaffer, 240 F.3d at 38. Accordingly, in view of the Supreme Court’s expansive view of the presidential pardon power, the Court grants the consent motion to dismiss this case as moot. See, e.g., id. [my emphasis]

Of course, that’s not all that DOJ had asserted were before Sullivan. It had also included the Turkey FARA crimes (which were a benefit of Flynn’s guilty plea) and the lies Flynn told before Sullivan and the grand jury. This opinion is silent on the pardon’s applicability to them, even though both crimes were committed before the pardon.

The language at the end here may become important in the future. As noted above, DOJ had asked Sullivan both to dismiss the prosecution and to moot it. Sullivan did only the latter, asserting that the pardon only extends to political questions, not legal ones. Even as he made that distinction, he reemphasized that Flynn was guilty of the crime he was being pardoned for.

Whatever else he did, Sullivan made it clear that, under pressure from the President, DOJ went to some lengths to try to exonerate a guilty man.

Update, January 21: In a media lawsuit asking for the declassification of documents pertaining to Flynn’s sentencing as well as the one for his warrants, Judge Sullivan issued an order on Tuesday (the day before inauguration), for a status update on remaining sealed language to be submitted on January 26. I don’t expect much new to be declassified. There’s one passage about Flynn’s cooperation that DOJ might be able to unseal; given the focus of questions in Flynn’s early interviews, I wonder if it pertained to Flynn’s involvement in the fall 2016 Egyptian discussions that Mueller suspected ended up in a $10 million bribe, an investigation that was closed by Bill Barr since the last unsealing. But I do expect it will reveal whether Jocelyn Ballantine under whose discretion altered documents were submitted to the main Flynn docket, remains the AUSA in control of this case.

Update: This post seems rather quaint given how Mike Flynn called for martial law twice in the lead up to his QAnon followers attacking the Capitol. And as WaPo reported last night, Mike Flynn’s brother, Lieutenant General Charles Flynn, was part of the DOD call that responded slowly to deploying the National Guard as the insurgents overran the Capitol.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s when things got interesting.

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

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

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

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

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

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

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

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

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

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Why I Agreed to Stop Calling Liz Cheney “BabyDick”

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I made a vow on Twitter one of these days that I would no longer refer to Liz Cheney as “BabyDick” if she voted for impeachment.

She is going to vote for impeachment — the second Republican House member to announce their vote.

So I’m on my last legs using the term that invokes her protection of her own father for torture. But this seems like an obviously smart strategic position, as I laid out in this thread;

  • Dems need to realize the GOP wants to be purged of Trumpism
  • After Trump lost, Mitch McConnell thought he could make demands as the senior elected GOP
  • That didn’t happen
  • Then Trump lost the GA vote
  • Then Trump almost got Mitch killed
  • That gives Dems an opportunity to demand the purge of insurrectionists like Mo Brooks, Paul Gosar, Andy Biggs, Boebert, Taylor Greene, Madison Cawthorn, Ted Cruz, Josh Hawley, and Tommy Tuberville
  • That means institutional Republicans — like “BabyDick” and McConnell — actually have an incentive to use impeachment to cleanse their party

It’s a small ask for the GOP, because they’d like to get their corporatist party back, thank you.

Liz “BabyDick” Cheney and I will never be friends. But she will have served a key leadership role in this troubled time in providing another path for the Republican party by voting to impeach an authoritarian.

May she help others feel safe in rejecting this scourge.

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Four Data Points on the January 6 Insurrection

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The NYT and WaPo both have stories beginning to explain the failures to protect the Capitol (ProPublica had a really good one days ago). The core issue, thus far, concerns DOD’s delays before sending in the National Guard — something that they happened to incorporate into a timeline not long after the attack, before the Capitol Police or City of DC had put their own together (the timeline has some gaps).

I can think of two charitable explanations for the lapses. First, in the wake of criticism over the deployment of military resources and tear gas against peaceful protestors to protect Donald Trump in June, those who had been criticized were reluctant to repeat such a display of force to protect Congress (and Mike Pence). In addition, in both DOJ and FBI under the Trump Administration, job security and career advancement depended on reinforcing the President’s false claims that his political supporters had been unfairly spied on, which undoubtedly created a predictable reluctance to treat those political supporters as the urgent national security threat they are and have always been.

Those are just the most charitable explanations I can think of, though. Both are barely distinguishable from a deliberate attempt to punish the President’s opponents — including Muriel Bowser and Nancy Pelosi — for their past criticism of Trump’s militarization of the police and an overt politicization of law enforcement. Or, even worse, a plan to exploit these past events to create the opportunity for a coup to succeed.

We won’t know which of these possible explanations it is (likely, there are a range of explanations), and won’t know for many months.

That said, I want to look at a few data points that may provide useful background.

Trump plans to pardon those in the bunker

First, as I noted here, according to Bloomberg, Trump has talked about pardoning the four men who’ve been in the bunker with Trump plotting recent events, along with Rudy Giuliani, who is also likely to be pardoned.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

I like to think I’ve got a pretty good sense of potential legal exposure Trump’s flunkies have, yet I know of nothing (aside, perhaps, from McEntee’s gambling problems) that these men have clear criminal liability in. And yet Trump seems to believe these men — including the guy with close ties to far right Congressmen, the white nationalist, the guy who remade several agencies to ensure that only loyalists remained in key positions, and the guy who tweets out Trump’s barely-coded dogwhistles — need a pardon.

That may suggest that they engaged in sufficient affirmative plotting even before Wednesday’s events.

Mind you, if these men had a role in coordinating all this, a pardon might backfire, as it would free them up to testify about any role Trump had in planning what happened on Wednesday.

Trump rewards Devin Nunes for helping him to avoid accountability

Several key questions going forward will focus on whether incompetence or worse led top officials at DOD to limit the mandate for the National Guard on January 6 and, as both DC and the Capitol Police desperately called for reinforcements, stalled before sending them.

A key player in that question is Kash Patel, who served as a gatekeeper at HPSCI to ensure that Republicans got a distorted view of the Russian intelligence implicating Trump, then moved to the White House to ensure that Trump got his Ukraine intelligence via Patel rather than people who knew anything about the topic, and then got moved to DOD to oversee a takeover of the Pentagon by people fiercely loyal to Trump.

And a key player in coordinating Kash’s activities was his original boss, Devin Nunes. On Monday, Trump gave Nunes the Medal of Freedom, basically the equivalent of a pardon to someone who likely believes his actions have all been protected by speech and debate. The entire citation for the award is an expression of the steps by which Trump, with Nunes’ help, undermined legitimate investigations into himself. In particular, Trump cited how Nunes’ efforts had hollowed out the FBI of people who might investigate anyone loyal to Trump.

Devin Nunes’ courageous actions helped thwart a plot to take down a sitting United States president. Devin’s efforts led to the firing, demotion, or resignation of over a dozen FBI and DOJ employees. He also forced the disclosure of documents that proved that a corrupt senior FBI official pursued a vindictive persecution of General Michael Flynn — even after rank and file FBI agents found no evidence of wrongdoing.

Congressman Nunes pursued the Russia Hoax at great personal risk and never stopped standing up for the truth. He had the fortitude to take on the media, the FBI, the Intelligence Community, the Democrat Party, foreign spies, and the full power of the Deep State. Devin paid a price for his courage. The media smeared him and liberal activists opened a frivolous and unjustified ethics investigation, dragging his name through the mud for eight long months. Two dozen members of his family received threatening phone calls – including his 98 year old grandmother.

Whatever else this debasement of the nation’s highest award for civilians might have done, it signaled to Nunes’ team — including but not limited to Patel — Trump’s appreciation for their work, and rewarded the guy he credits with politicizing the FBI.

That politicization is, as I noted above, one of the more charitable explanations for the FBI’s lack of preparation on Wednesday.

Interestingly, Nunes is not one of the members of Congress who challenged Biden’s votes after law enforcement restored order.

Corrected: Nunes did object to both AZ and PA.

Trump takes steps to designate Antifa as a Foreign Terrorist Organization

The day before the insurrection, Trump signed an Executive Order excluding immigrants if they have any tie to Antifa. Effectively, it put Antifa on the same kind of exclusionary footing as Communists or ISIS terrorists. Had Trump signed the EO before he was on his way out the door, it would have initiated a process likely to end with Antifa listed as a Foreign Terrorist Organization, giving the Intelligence Community additional intelligence tools to track members of the organization, even in the United States (the kind of tools, not coincidentally, that some experts say the FBI needs against white supremacist terrorists).

The EO will have next to no effect. Joe Biden will rescind it among the other trash he needs to clean up in the early days of his Administration.

But I find it curious that Trump effectively named a domestic movement a terrorist organization just days before multiple Trump associates attempted to blame Antifa for the riot at the Capitol.

That effort actually started before the order was signed. Back in December, Enrique Tarrio suggested that the Proud Boys (a group Trump had called to “Stand by” in September) might wear all black — a costume for Antifa — as they protested.

“The ProudBoys will turn out in record numbers on Jan 6th but this time with a twist…,” Henry “Enrique” Tarrio, the group’s president, wrote in a late-December post on Parler, a social media platform that has become popular with right-wing activists and conservatives. “We will not be wearing our traditional Black and Yellow. We will be incognito and we will spread across downtown DC in smaller teams. And who knows….we might dress in all BLACK for the occasion.”

The day after the riot, Matt Gaetz relied on a since-deleted Washington Times post to claim that the riot was a false flag launched by Antifa.

In a speech during the process of certifying President-elect Joe Biden, Gaetz claimed there was “some pretty compelling evidence from a facial recognition company” that some Capitol rioters were actually “members of the violent terrorist group antifa.” (Antifa is not a single defined group, does not have an official membership, and has not been designated a terrorist organization, although President Donald Trump has described it as one.)

Gaetz attributed this claim to a short Washington Times article published yesterday. That article, in turn, cited a “retired military officer.” The officer asserted that a company called XRVision “used its software to do facial recognition of protesters and matched two Philadelphia antifa members to two men inside the Senate.” The Times said it had been given a copy of the photo match, but it didn’t publish the picture.

There is no evidence to support the Times’ article, however. An XRVision spokesperson linked The Verge to a blog post by CTO Yaacov Apelbaum, denying its claims and calling the story “outright false, misleading, and defamatory.” (Speech delivered during congressional debate, such as Gaetz’s, is protected from defamation claims.) The Times article was apparently deleted a few hours after Apelbaum’s post.

Rudy Giuliani also attempted to blame Antifa.

And Captain Emily Rainey, who resigned today as DOD investigates the PsyOp officer for her role in the insurgency, also blamed Antifa for the violence.

Her group — as well as most at Wednesday’s rally — were “peace-loving, law-abiding people who were doing nothing but demonstrating our First Amendment rights,” she said.

She even shared a video on Facebook insisting that the rioters were all Antifa, saying, “I don’t know any violent Patriots. I don’t know any Patriots who would smash the windows of a National jewel like the [Capitol].”

It is entirely predictable that Trump loyalists would blame Antifa for anything bad they do — Bill Barr did so as the formal policy of DOJ going back at least a year. But Trump seems to have prepared the ground for such predictable scapegoating by taking steps to declare Antifa a terrorist “organization” hours before a riot led by his supporters would storm the Capitol.

The White House makes DHS Secretary Chad Wolf’s appointment especially illegal

I’m most intrigued by a flip-flop that had the effect of making DHS Acting Secretary’s appointment even more illegal than it has already been at times in the last two years.

On January 3, the White House submitted Chad Wolf’s nomination, along with those of 29 other people, to be DHS Secretary. Then, on January 6, it withdrew the nomination.

Wolf himself was out of the country in Bahrain when the riot happened. But he did tweet out — before DOD mobilized the Guard — that DHS officials were supporting the counter-insurgency. And he issued both a tweet and then — the next day — a more formal statement condemning the violence.

It’s not entirely clear what happened between his renomination and the withdrawal, but Steve Vladeck (who tracks this stuff more closely than anyone), had a lot to say about the juggling, not least that the withdrawal of his resubmitted nomination made it very clear that Wolf is not now legally serving.

This could have had — and could have, going forward — a chilling effect on any orders Wolf issues to deploy law enforcement.

Thus far, we haven’t seen much about what DHS did and did not do in advance of the riot — though its maligned intelligence unit did not issue a bulletin warning of the danger.

The Federal Bureau of Investigation and an intelligence unit inside the Department of Homeland Security didn’t issue a threat assessment of the Jan. 6 pro-Trump protests that devolved into violence inside the Capitol, people briefed on the matter said.

In the weeks leading up to the protests, extremists posted about their plans to “storm” the Capitol on social media.

The joint department bulletin is a routine report before notable events that the agencies usually send to federal, state and local law-enforcement and homeland security advisers. The reports help plan for events that could pose significant risks.

At the DHS unit, called Intelligence and Analysis, management didn’t view the demonstrations as posing a significant threat, some of the people said.

Last year, Ken Cuccinelli forced whistleblower Brian Murphy to change language in a threat analysis to downplay white supremacist violence and instead blame Antifa and related groups.

In May 2020, Mr. Glawe retired, and Mr. Murphy assumed the role of Acting Under Secretary. In May 2020 and June 2020, Mr. Murphy had several meetings with Mr. Cuccinelli regarding the status of the HTA. Mr. Cuccinelli stated that Mr. Murphy needed to specifically modify the section on White Supremacy in a manner that made the threat appear less severe, as well as include information on the prominence of violent “left-wing” groups. Mr. Murphy declined to make the requested modifications, and informed Mr. Cuccinelli that it would constitute censorship of analysis and the improper administration of an intelligence program.

Wolf had been complicit in that past politicization. But something happened this week to lead the Trump White House to ensure that his orders can be legally challenged.

Update: Jake Gibson just reported that Wolf is stepping down.

These are just data points. We’ll learn far more about Trump’s involvement as the FBI obtains warrants for the communications who have ties to both groups like the Proud Boys and Trump associates like Roger Stone and Steve Bannon. But these are a few data points worth keeping an eye on.

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Once Again Trump’s Self-Victimhood Distracts from His Negligence

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It will be the subject of extensive discussion going forward how plans for an insurrection made in plain sight on social media went from being viewed, by the FBI and DHS, as First Amendment protected speech to so dangerous that social media shut down key influencer accounts and Apple and Google kicked entire platforms out of their stores within days. But that’s what happened.

On Thursday, a various law enforcement agencies tried to explain why they had allowed the Capitol to be overrun by terrorists, they claimed not to have seen the signs many of us were seeing of plans for violence.

Federal and local officials said Thursday they did not have intelligence suggesting any violent mob was preparing to attack the Capitol, even as demonstrators were publicly saying on social media they were not planning a typical protest.

Despite weeks of preparations, “obviously, what happened no one anticipated,” Michael Sherwin, acting US Attorney for the District of Columbia, told reporters in a telephone press conference Thursday. “Things could have been done better.”

[snip]

Police were caught flat-footed the next day. DC Police Chief Robert Contee told reporters Thursday there was no intelligence that suggested there would be a breach of the US Capitol on January 6. Three DHS sources, who usually receive such reports, were unaware of a threat assessment being shared from the DHS intelligence office ahead of Wednesday’s siege.

But just over a day later, Apple announced that it was giving Parler 24 hours to come into compliance with its moderations guidelines; Google just removed Parler from its stores entirely. Twitter first removed various QAnon supporters, including Sidney Powell and Mike Flynn. Then, finally, after allowing him to Tweet twice after a short-term ban, Twitter announced it was removing Trump permanently and those social media platforms that hadn’t already done so removed Trump as well.

Trump spent the night trying to find workarounds, using the POTUS account, attempting to have one of his sons tweet out his content, and having his social media staffer tweet on his own account. Unless the Tweet included a presidential message, the content was removed.

In response, Trump, his supporters, and the usual commentariat have decried a purportedly authoritarian “censorship” of Donald Trump. Indeed, most of the discussion since then has focused on whether Twitter and other social media platforms acted appropriately.

That has, as has happened so many times in the last four years, distracted from Trump’s own refusal to act.

Here’s Twitter’s description of why it found that Trump had violated Twitter’s Glorification of Violence prohibition.

Overview

On January 8, 2021, President Donald J. Trump tweeted:

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

Shortly thereafter, the President tweeted:

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Due to the ongoing tensions in the United States, and an uptick in the global conversation in regards to the people who violently stormed the Capitol on January 6, 2021, these two Tweets must be read in the context of broader events in the country and the ways in which the President’s statements can be mobilized by different audiences, including to incite violence, as well as in the context of the pattern of behavior from this account in recent weeks. After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.

Assessment

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

This determination is based on a number of factors, including:

  • President Trump’s statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate and is seen as him disavowing his previous claim made via two Tweets (1, 2) by his Deputy Chief of Staff, Dan Scavino, that there would be an “orderly transition” on January 20th.
  • The second Tweet may also serve as encouragement to those potentially considering violent acts that the Inauguration would be a “safe” target, as he will not be attending.
  • The use of the words “American Patriots” to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol.
  • The mention of his supporters having a “GIANT VOICE long into the future” and that “They will not be disrespected or treated unfairly in any way, shape or form!!!” is being interpreted as further indication that President Trump does not plan to facilitate an “orderly transition” and instead that he plans to continue to support, empower, and shield those who believe he won the election.
  • Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.

As such, our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so.

Effectively, Twitter is saying that these Tweets have been exploited by the terrorists supporting Trump as support for further violence. It specifically described plans, being made both on and off Twitter, for a follow-on attack no January 17 (apparently because Q is the 17th letter in the alphabet).

Twitter is not actually arguing that Trump intended to incite violence. Rather, they’re saying that his Tweets are being interpreted as encouragement of more violence that is already being actively planned, regardless of what Trump actually meant by it.

Now, maybe Trump didn’t intend that to be the effect, though Twitter makes a fair point that both the reference to a “GIANT VOICE” in the future — one that may depend on further terrorism — and the formal announcement that the inauguration could be targeted without endangering Trump himself might be seen as inviting more violence.

But if he didn’t mean to do so, the proper response of any marginally responsible adult would be to say, “Golly, I didn’t realize how my own words were being used in ways I didn’t intend. Let me take the next few weeks off to cool off, or better yet, let me find other ways to correct any misinterpretation that I supported violence.” The appropriate response for the Commander in Chief would be to say, “Wow, that was a totally unprecedented attack on our Capitol the other day, I’m deploying all the resources of the Federal government to ensure these planned follow-up attacks will not take place.”

Have you noticed that Trump hasn’t actually said he has ordered the government to prevent further violence?

That’s all the more alarming, given that US law enforcement agencies increasingly share intelligence with the social media platforms, which suggests that Twitter’s reference to “a number of factors” doesn’t rule out specific intelligence about follow-on plans that aren’t visible on social media.

Twitter said, tucked away there in a fifth bullet, that one of the reasons they (and presumably Facebook and Apple and Google and everyone else) acted is because there are specific plans for future terrorist attacks.

And instead of talking about the fact that the man who remains President is doing nothing to prevent those follow-on attacks, we’re talking about what a victim he is.

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Bunker: Trump’s Exposure in the Insurrection Makes PardonPalooza More Complicated

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There have been numerous accounts of Trump’s desperate days since he incited a coup attempt. Most, including this CNN version, describe how — on the advice of (among others) White House Counsel Pat Cipollone — Trump recorded and released a very heavily edited video from a script written for him in an attempt to stave off removal proceedings.

His daughter Ivanka Trump, White House counsel Pat Cipollone, chief of staff Mark Meadows and others told Trump there was a real chance he would be removed from office — whether by his own Cabinet or lawmakers — if he did not more forcefully denounce the actions of his supporters who attacked the US Capitol the day before.

Trump did not initially want to issue a video decrying the loyalists whose actions he largely supported — and whom he said he “loved” a day earlier — but he told aides to prepare a speech and then he would decide.

Once he read over the brief script they had prepared, Trump agreed to record it Thursday evening — a relief to the senior staff, though concerns lingered he could backtrack during his final days in office given his actual position has remained unchanged: that he lost the election unfairly.

This WaPo version describes him holing up with really unsavory characters, including white supremacist Stephen Miller and John McEntee, who previously had been forcibly removed from his position at the White House because of gambling problems.

Trump spent Wednesday afternoon and evening cocooned at the White House and listening only to a small coterie of loyal aides — including Meadows, Deputy Chief of Staff Dan Scavino, personnel director Johnny McEntee and policy adviser Stephen Miller. McEnany also spent time with the president. Jared Kushner, the president’s son-in-law and senior adviser, was described as disengaged.

CNN also reports that’s he’s still planning on pardonpalooza covering at least his kids

And a raft of pardons, including potentially for himself and his family, are expected in the coming days.

According to this Bloomberg piece, he’s considering pardoning his bunker mates, Meadows, Miller, and McEntee, along with Kimberly Guilfoyle, none of whom had any obvious legal exposure before the last several weeks.

The biggest question facing his legal team may be whether the president has the authority to pardon himself, as he has discussed in recent weeks with top aides, according to the people familiar with his conversations. Trump has previously claimed the power, though it’s a matter of legal dispute and has never before been attempted by a president.

A self-pardon could also prove a major political liability and hamstring another presidential bid, with opponents sure to suggest the self-pardon amounted to an admission that he thought he might be prosecuted for breaking the law.

Preemptive pardons are under discussion for top White House officials who have not been charged with crimes, including Chief of Staff Mark Meadows, senior adviser Stephen Miller, personnel chief John McEntee, and social media director Dan Scavino.

The president’s eldest daughter, Ivanka Trump, her husband, Jared Kushner, who both hold White House positions, are also under consideration, the people said. Trump’s personal lawyer Rudy Giuliani has also discussed the issue of a pardon with the president.

Preemptive pardons are also under consideration for other members of the president’s family, as well as friends and allies. For instance, Trump has floated a preemptive pardon for Kimberly Guilfoyle, the former Fox News host who is dating his eldest son, Donald Trump Jr.

The president wants the preemptive pardons to shield recipients from prosecutions for any federal crimes committed before the pardons were issued.

It notes that White House Counsel Pat Cipollone is “vetting” the pardons, with some concern that they create more exposure for obstruction of justice.

Trump’s list is currently being vetted by lawyers who are concerned that pardons could create new allegations of obstruction of justice for members of the administration. The process is being managed in part by White House Counsel Pat Cipollone.

Except, CNN also reports that Pat Cipollone is considering resigning.

Trump’s role in (at a minimum) inciting an insurrection the other day may make his effort to pardon himself and his associates out of legal trouble more difficult.

Start with a self-pardon. Before the insurrection, Cipollone might have advised Trump he might as well try it. He literally has nothing to lose, since he’s unlikely to trust Pence with a pardon at this point, so even if the self-pardon doesn’t work, he would be no worse off. Except, as a number of people have suggested, a self-pardon makes it far more likely DOJ will test the concept and prosecute him (though I think he’s done enough to be charged anyway). And because Trump’s exposure now includes insurrection, the conservative majority on SCOTUS might find the self-pardon particularly offensive. In addition, because Clarence Thomas’ wife Ginni was cheering on the terrorists, DOJ might — fairly — ask Thomas to recuse.

Then there’s Rudy. He was always going to be pardoned, because he knows where the bodies are buried and Trump believes (mistakenly) that Rudy has served his interests loyally. Except, to a far greater extent than before November, a Rudy pardon frees him to testify about crimes that Trump committed for which Rudy does not have attorney-client privilege, such as coordinating with coup plotters. This is exacerbated by the byzantine legal structure behind the fraudulent Trump lawsuits, where there was never any clarity about who was representing Trump and who was not. Once upon a time, Trump might have been able to pardon Rudy without increasing his own legal exposure. That’s probably not true anymore.

Then there’s Cipollone himself, a formidable lawyer who wants to get the fuck out of dodge. Cipollone, briefly, got Trump to see reason in making that video. Then as soon as Trump got his Twitter account he sent more messages riling up his terrorists. That suggests Cipollone recognized that Trump had real exposure in the insurgency, and took measures to limit them. Then Trump ignored his advice. All while asking Cipollone to help him pardon his co-conspirators.

While Cipollone has limited Executive Privilege with Trump (one breached in case of crime), under Clinton precedent he doesn’t have attorney-client privilege with Trump. That makes it likely that no matter what happens, he’ll be sitting for lengthy sessions with prosecutors in months ahead, just as Don McGahn also did.

When this whole Transition process started, Trump had Cipollone and Bill Barr — the latter the best cover-up artist in recent US history — around to help him out of his legal troubles. Now, his post-election antics have drove both of them away.

Once upon a time, Trump might well have been able to pardon himself out of a good deal of the criminal exposure he already faced. That’s far less likely now.

Update: Just in the last hour, Ginni Thomas made her Facebook account unavailable.

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