How and Why to Charge Trump First

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In the wake of the news of Trump’s target letter in the January 6 investigation, journalists have found no Trump associate willing to admit, on the record, to having received a target letter themselves, leading to questions about whether Jack Smith might charge Trump and only later add co-conspirators.

In this thread, I suggested there might be (unusual) merit to charging Trump — the head of the conspiracy — first, then add in everyone else. A bunch of people asked what I meant — so this post attempts to explain my thinking.

It builds on this post, written before the first January 6 Committee hearings. That post relied on three judge’s opinions conceiving Trump’s role in the January 6 attack:

  • Amit Mehta’s opinion sustaining the lawsuits against Trump for January 6
  • David Carter’s opinion finding crime-fraud exception for some John Eastman’s email
  • Reggie Walton’s opinion that proving Trump’s effect on the rioters must stem from the Trump communications the rioters actually knew of, including Trump’s December 19 tweet announcing the event and (for those who watched) his Ellipse speech; the Proud Boys are a special case because of Trump’s September 29 debate comment and because almost all Proud Boys skipped Trump’s speech

I used those opinions to lay out what the judges — two who were familiar with January 6, one who relied on J6C’s representations about it — viewed as evidence supporting that Trump committed a crime. Once you understand that the bodies at the Capitol were a key way Trump obstructed the vote certification (something included in Judge Carter’s opinion but often overlooked), then the import of Trump’s impact on rioters becomes more clear. It narrows the evidence needed to prove Trump’s obstruction beyond what most people understand — and very nearly maps the dozens of successful obstruction prosecutions DOJ already obtained, which I first started mapping out in August 2021.

This table updates my earlier one (and remains mostly a talking document — there’s a lot missing). It adopts the two most likely standards for “corrupt purpose” that the DC Circuit might adopt in the Thomas Robertson appeal. And it includes a number of details — largely focused on Mike Pence — on which both J6C and the investigation have focused for over a year.

My argument is that, to prosecute Trump, you need to obtain proof of the stuff highlighted in yellow, largely focused on his effect on Pence and on the mob. To prosecute Trump’s lackeys, you need to collect a lot more information and, likely, will need to flip some people. The rest of the table shows what it would take to include the others.

Jack Smith obviously thinks he has the evidence to charge Trump (though the circus involving Will Russall yesterday could have created a few hurdles).

With the obstruction charge — assuming the reports of a “witness tampering” charge really refer to 18 USC 1512(c)(2) — Smith has obviously already secured almost all the Pence-related people whose testimony really matters, including Pence himself. Two key exceptions are Rudy Giuliani and John Eastman. But the testimony of the former was locked in in a two-day proffer a few weeks ago and the testimony of the latter was locked in in sworn testimony in Eastman’s disbarment trial in the same time period.

The one other exception I can think of is Ivanka.

With regards to the mob, Smith can rely on the statements of offense of hundreds of convicted defendants, including people who had a key role in the attack, including the Proud Boys and even some others who played a key role in specific breaches.

That’s my understanding of how you could charge Trump (at least with obstruction) before charging a bunch of his lackeys: the evidence requires less proof of the conspiring on comms that may still be in filter reviews.

Why is another matter.

First, if you’re going to charge Trump you need to do so as soon as possible, because of the election. If you charge Trump alone (though it’s not clear that’s really happening), you might be able to get to trial before August 2024.

Another reason to charge Trump is that it undercuts his ability to buy silence from other witnesses. If people are no longer protecting Trump, they may be less willing to add to their own legal jeopardy by lying.

It’s possible, too, that some of the charges would be prophylactic. If Smith were charging Trump as well for attempting to tamper with Cassidy Hutchinson’s testimony to J6C — something about which we know she gave testimony last September — it might give Trump somewhat more caution before tampering with the testimony of others.

If Smith charged Trump with attempting to discount Black and Latino voters, as opposed to just all Biden voters, it might raise the stakes on Trump’s efforts to disenfranchise minority voters in 2024.

In both cases, such charges might give prosecutors cause to include specific prohibitions in release conditions (though Trump will undoubtedly still be released).

It’s still not clear what conduct Smith would charge as a conspiracy (18 USC 371). It could be attempting to install Jeffrey Clark to aid his attempts to discredit the election (privilege reviews for which started in May 2022). It could be the fake electors plot (though I’m not convinced that Smith has locked in the testimony of all relevant witnesses yet). But here, too, charging Trump with conspiracy while identifying as-yet uncharged co-conspirators might lead them to hesitate before helping Trump.

I think, in general, anxious commentators underestimate the degree to which Smith is going to want to lock in each and every witness before charging a certain part of this larger conspiracy. J6C’s delay in releasing transcripts actually contributed to the difficulty, and probably added several months of delay in January and February. But if Smith were to charge obstruction on a narrowly targeted Pence-and-the-mob charge, then it would limit the necessary evidence to testimony and evidence DOJ already spent years collecting.

Update: Very belatedly fixed Will Russell’s last name.

Royce Lamberth Not as Easy to Fool as Tucker Carlson’s “Cousin-Fucking” “Terrorist” Viewers

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Royce Lamberth just denied Q-Shaman Jacob Chansley’s bid to vacate his conviction based off footage Tucker Carlson falsely claimed was new and hadn’t been provided in discovery to Chansley.

The whole opinion is worth reading, both for Lamberth’s explanation of what a hack Tucker Carlson is, and for the extent to which Lamberth substantiates Chansley’s guilty verdict, again. For example, Lamberth complains at

Finally, the Court would be remiss if it did not address the ill-advised television program of March 6, 2023. Not only was the broadcast replete with misstatements and misrepresentations regarding the events of January 6, 2021 too numerous to count, the host explicitly questioned the integrity of this Court-not to mention the legitimacy of the entire U.S. criminal justice systemwith inflammatory characterizations of cherry-picked videos stripped of their proper context. In so doing, he called on his followers to “reject the evidence of [their] eyes and ears,” language resembling the destructive, misguided rhetoric that fueled the events of January 6 in the first place. 16 The Court finds it alarming that the host’s viewers throughout the nation so readily heeded his command. But this Court cannot and will not reject the evidence before it. Nor should the public. Members of the public who are concerned about the evidence presented in Mr. Chansley’s case and others like may view the public docket and even attend court proceedings in these cases. Those ofus who have presided over dozens of cases arising from, listened to hundreds of hours of testimony describing, and reviewed thousands of pages of briefing about the attack on our democracy of January 6 know all too well that neither the events of that day nor any particular defendant’s involvement can be fully captured in a seconds-long video carelessly, or perhaps even cynically, aired in a television segment or attached to a tweet.

But a more important part of the opinion pertains to this: the decision once again vindicates DOJ’s decision to give every January 6 defendant access to all the discovery in the case.

Lamberth included a table showing when the government had provided Chansley with each (but one 10 second clip) of the videos Tucker showed in his program.

The opinion discusses the government’s approach to discovery in this case at length. Ultimately, he credits the government’s decision to make all the video available to all the defendants — something which created a significant delay in these cases.

The vast majority of the CCTV footage aired on the program, which did not contain any new facts, was made discoverable through Evidence.com prior to Mr. Chansley’s sentencing. Gov’t Opp’n at 16-17.

[snip]

In alternative, Mr. Chansley argues that even if the videos were disclosed, the government provided too many videos too late because it would have been physically impossible for defense counsel to review the 4,800 hours of footage disclosed on October 22, 2021 before Mr. Chansley’ s sentencing in mid-November 2021. Def.’s Mot. at 16 & n.3. Aside from the fact that “[Mr. Chansley] cite[ s] no authority for the proposition that the government fails to meet its Brady [] obligations by providing too much discovery,” United States v. Bingert, Nos. 21-cr-91-1, 21-cr91-2 (RCL), 2023 WL 3203092, at *6 (D.D.C. May 9, 2023) (emphasis in original), this argument is an obvious red herring.

[snip]

[I]t it is precisely the government’s recognition of this District’s exacting Brady standards that compelled the government to contract for, fund, and facilitate the introduction of a platform to disseminate massive amounts of discovery in cases related to January 6, 2021, and to equip defense teams with the tools necessary to digest the information made available on the platform. To be sure, this unprecedented prosecutorial effort places enormous disclosure burdens on the government and necessitates novel approaches to sharing discovery information with defendants. That said, Mr. Chansley has not demonstrated how the government’s approach is inconsistent with Brady.

As with Dominic Pezzola’s similar attempt to use the Tucker Carlson show to muck up his prosecution, this vindicates DOJ’s decision to take the laborious and time-consuming effort to put this together.

Trump’s Attack on Black Votes Was There the Whole Time, We Just Didn’t Call It a Crime

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As I noted in an update to this post, NYT and the Guardian have clarified that the third charge mentioned in Trump’s target letter was 18 USC 241, Conspiracy against Rights, not — as Rolling Stone originally reported — 18 USC 242.

This piece, from November 2021, explains why 241 is such a good fit to Trump’s efforts to discount the votes of 81 million Biden voters.

The Supreme Court has stressed that Section 241 contains “sweeping general words” and directed courts to give the provision “a sweep as broad as its language.” In United States v. Classic it established that the statute protects not only the right to vote but the right to have one’s vote properly counted. Classic upheld an indictment of officials who sought to aid one candidate by refusing to count votes cast for his opponent.

The broad language of Section 241 clearly encompasses the actions of those involved in Trump’s coup attempt, and the Court’s precedents support that conclusion. Evidence currently available shows that the conspirators agreed to a common scheme to overthrow the results of the 2020 presidential election, took innumerable acts designed to accomplish that goal, and intended thereby to effectively deprive millions of voters in half a dozen states—and the rest of the 81 million Americans who voted for Joe Biden—of their right to vote and have their votes properly counted.

In Anderson v. U.S. the Court explicitly held that Section 241 reaches conspiracies designed “to dilute the value of votes of qualified voters.” It requires only an intent to prevent votes from being “given full value and effect,” an intent that includes an intent “to have false votes cast.” Evidence suggests that Trump and his supporters attempted exactly that in Georgia. They pressured local officials to somehow, some way magically “find” 11,780 additional votes to give Trump victory there and negate the votes of nearly two and a half million Georgia voters.

And it’s not just the concerted effort to eliminate the votes of 81 million Biden voters on January 6.

The recent news that Jack Smith has subpoenaed the security footage from the State Farm arena vote count location in Georgia, taken in conjunction with Trump’s efforts in places like Michigan — where his efforts focused on preventing a fair count of Detroit, where he had actually performed better than in 2016, rather than Kent County, the still predominantly white county where he lost the state — is a reminder that Trump and his mobs, many associated with overt white supremacists like Nick Fuentes, aggressively tried to thwart the counting of Black and Latino people’s votes. It was the same play Roger Stone used when he sent “election observers” to Black precincts in 2016, just on a far grander scale, and backed by the incitement of the sitting President.

As I said in the other post, we’ll see how Jack Smith charges this soon enough.

For now, I want to talk about how the press cognitively missed this — myself included. I want to talk about how the press — myself included — didn’t treat an overt effort to make it harder to count the votes of Black and Latino voters as a crime.

In its piece (including Maggie, but also a lot of people who aren’t as conflicted as she is), NYT points to both Norm Eisen (who didn’t see this, either, and whose recent prosecution memo on the charges we did expect didn’t even cite the pending decisions in the DC Circuit) and the January 6 Committee as if they are where this investigation came from.

Two of the statutes were familiar from the criminal referral by the House Jan. 6 committee and months of discussion by legal experts: conspiracy to defraud the government and obstruction of an official proceeding.

[snip]

The prospect of charging Mr. Trump under the other two statutes cited in the target letter is less novel, if not without hurdles. Among other things, in its final report last year, the House committee that investigated the events that culminated in the Jan. 6 attack on the Capitol had recommended that the Justice Department charge the former president under both of them.

Alan Feuer (who is bylined along with Maggie) knows as well as I do, neither ConfraudUS (18 USC 371) nor obstruction (18 USC 1512(c)(2)) came from the January 6 Committee. J6C — and people like Eisen — were still looking at insurrection long after I was screaming that DOJ would use obstruction. They — and people like Eisen — still hadn’t figured out how DOJ was using obstruction even after Carl Nichols specifically raised the prospect of using it with Trump.

NYT’s discussion of the pending appeal from Thomas Robertson in the DC Circuit (in the last paragraphs of the article) is as good as you’ll see in the mainstream press. They know well the obstruction charges builds on years of work by DOJ’s prosecutors, but nevertheless point to J6C’s fairly thin referral of it, as if that, and not the charges in 300 January 6 cases already, is where it comes from.

The reason we knew DOJ would use obstruction is because DOJ has been, overtly, setting that up for years.

In its description of the unexpected mention of 241, though, NYT describes that “prosecutors have introduced a new twist.”

Federal prosecutors have introduced a new twist in the Jan. 6 investigation by suggesting in a target letter that they could charge former President Donald J. Trump with violating a civil rights statute that dates back to the post-Civil War Reconstruction era, according to three people familiar with the matter.

Again, it was a surprise to me, too. I’m not faulting the NYT for being surprised. But that doesn’t mean prosecutors “introduced a new twist,” as if this is some fucking reality show. It means journalists, myself included, either don’t know of, misinterpreted the investigative steps that DOJ has already taken, or simply didn’t see them — and I fear it’s the latter.

To be sure, in retrospect there are signs that DOJ was investigating this. In December, WaPo reported that DOJ had subpoenaed election officials in predominantly minority counties in swing states (notably, the journalists on the story were local reporters, neither Trump whisperers nor the WaPo journalists who’ve given scant coverage to the crime scene investigation).

Special counsel Jack Smith has sent grand jury subpoenas to local officials in Arizona, Michigan and Wisconsin — three states that were central to President Donald Trump’s failed plan to stay in power following the 2020 election — seeking any and all communications with Trump, his campaign, and a long list of aides and allies.

The requests for records arrived in Dane County, Wis.; Maricopa County, Ariz.; and Wayne County, Mich., late last week, and in Milwaukee on Monday, officials said. They are among the first known subpoenas issued since Smith was named last month by Attorney General Merrick Garland to oversee Trump-related aspects of the investigation of the Jan. 6, 2021, attack on the U.S. Capitol, as well as the criminal probe of Trump’s possible mishandling of classified documents at his Florida home and private club.

The subpoenas, at least three of which are dated Nov. 22, indicate that the Justice Department is extending its examination of the circumstances leading up to the Capitol attack to include local election officials and their potential interactions with the former president and his representatives related to the 2020 election.

The virtually identical requests to Arizona and Wisconsin seek communications with Trump, in addition to employees, agents and attorneys for his campaign. Details of the Michigan subpoena, confirmed by Secretary of State Jocelyn Benson, were not immediately available.

[snip]

Previous subpoenas, in Arizona and other battleground states targeted by Trump, have been issued to key Republican players seen as allies in his pressure campaign to reverse the results of the 2020 election. Maricopa County, the sprawling Arizona jurisdiction that is home to Phoenix and more than half the state’s voters, was among several localities on the receiving end of that pressure.

The Post could not confirm Tuesday whether the latest round of subpoenas went to local officials in any other states. The office of the secretary of state in Pennsylvania, another 2020 contested state, declined to comment. State and local election officials in another contested state, Georgia, said they knew of no subpoenas arriving in the past week. Officials in Clark County, Nev., the sixth contested state, declined to comment.

The Arizona subpoena was addressed to Maricopa County’s elections department, while the Wisconsin versions were addressed to the Milwaukee and Dane clerks. All seek communications from June 1, 2020, through Jan. 20, 2021. [snip]

These subpoenas asked for Trump’s contacts with local election officials, in the predominantly minority counties that Democrats need to win swing states, going back to June 2020, well before the election itself. By December 2022, DOJ was taking overt steps in an investigation that even before the election Trump had plans targeting minority cities.

And there may have been a still earlier sign of this prong of the investigation, from the NYT itself. Alan Feuer (with Mike Schmidt) reported in November that prosecutors were investigating Stone’s rent-a-mob tactics, going back to 2018 but really going back to the Brooks Brothers riot in 2000, the same fucking MO Stone has adopted for decades, using threats of violence to make it harder to count brown people’s votes.

The time was 2018, the setting was southern Florida, and the election in question was for governor and a hotly contested race that would help determine who controlled the United States Senate.

Now, four years later, the Justice Department is examining whether the tactics used then served as a model for the attack on the Capitol on Jan. 6, 2021.

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

[snip]

The 2018 demonstrations in Florida did not come close to the scale or intensity of the assault on the Capitol by a pro-Trump mob, but the overlap in tactics and in those involved was striking enough to have attracted the attention of federal investigators.

Information obtained by investigators shows that some of those on the ground in 2018 called the protests “Brooks Brothers 2.0,” a reference to the so-called “Brooks Brothers riot” during a recount of the presidential vote in Florida in 2000. During that event, supporters of George W. Bush — apparently working with Mr. Stone — stormed a local government building, stopping the vote count at a crucial moment.

As I noted at the time, the NYT story ignored Stone’s 2016 efforts, but his efforts to intimidate Black voters at the polls in that year was the origin of the Stop the Steal effort that Ali Alexander was entrusted to implement in 2020 while Stone awaited his pardon.

And we know from evidence submitted at the Proud Boys trial that their role in mobs was not limited to January 6, but was instead mobilized on a moment’s notice immediately after the election.

Tarrio even indicated that he had gotten instructions from “the campaign.”

Finally, for all my complaints about the treatment of Brandon Straka, this prong may have — should have — gone back still earlier, to the belated discovery of Straka’s grift.

This investigation has been happening. It’s just that reporters — myself included — didn’t report it as such.

It’s not just the epic mob Trump mobilized on January 6, an attempt to use violence to prevent the votes of 81 million Biden voters to be counted. It was an effort that went back before that, to use threats of violence to make it harder for election workers like Ruby Freeman to count the vote in big cities populated by minorities.

One reason TV lawyers didn’t see this is they have always treated Trump’s suspected crimes as a white collar affair, plotting in the Willard, but not tasing Michael Fanone at the Capitol.

But it is also about race and visibility.

January 6 was spectacular, there for the whole world to see.

But those earlier mobs — at the TCF center in Detroit, the State Farm arena in Atlanta, Phoenix, Milwauke — those earlier mobs were also efforts to make sure certain votes weren’t counted, or if they were, were only counted after poorly paid election workers risked threats of violence to count them, after people like Ruby Freeman were targeted by Trump’s team to have their lives ruined.

And we, the press collectively, didn’t treat those efforts to disqualify votes as the same kind of crime, as part of the same conspiracy, as Trump’s more spectacular efforts on January 6.

Update: Added the campaign texts. Thanks to Brandi, who knew exactly where to find them.

Update: Ironically, Bill Barr’s testimony may be pivotal to prove that Trump targeted Detroit because of race. That’s because Barr specifically told Trump he had done better in Detroit than he did in 2016.

Trump raised “the big vote dump, as he called it, in Detroit,” Barr said. “He said ‘people saw boxes coming into the counting station at all hours of the morning’ and so forth.”

Barr said he explained to Trump that Detroit centralized its counting process at the TCF Center downtown convention hall rather than in each precinct. For the November 2020 general election, Michigan’s largest city counted its absentee ballots at the convention center under the supervision of state Bureau of Election Director Chris Thomas. Because of the COVID-19 pandemic, most ballots cast were absentee.

“They’re moved to counting stations,” Barr said. “And so the normal process would involve boxes coming in at all different hours.”

“I said, ‘Did anyone point out to you … that you did better in Detroit than you did last time? There’s no indication of fraud in Detroit,” Barr said he told Trump.

Everyone in MI knows — and I’m sure Trump knows — he lost MI because he lost Kent County, which as more young people move into Grand Rapids has been getting more Democratic in recent years. That Trump targeted Detroit and not Kent (or Oakland, which has also been trending increasingly Democratic) is a testament that this was about race.

Update, 7/30: Both NAACP and ACLU recognized this in real time. Here’s ACLU’s suit.

The Three Reported Charges against Trump: 371, 1512, and (maybe) 242

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I want to caution about the reports on the charges named in Trump’s target letter. Even after Jim Trusty got the summons for Trump’s Espionage Act indictment, reporting based on his representation of the charges turned out to be inaccurate — not least, because what was assumed to be one 18 USC 793 charge turned out to be 31.

All the more so here, where Trump’s team has even less information to work with.

That said, since comments on that other thread on the target letter have gotten so long, I’ll note that Rolling Stone says the target letter cites three charges.

The letter mentions three federal statutes: Conspiracy to commit offense or to defraud the United States; deprivation of rights under color of law; and tampering with a witness, victim, or an informant.

Once you’ve translated from the legalese, two of these are totally expected:

18 USC 371: Conspiracy to Defraud the US has generally been discussed in terms of the fake elector scheme — basically, an effort to get 16 electors in all the swing states to submit fraudulent certificates to NARA. That the scheme was fraudulent is easy to prove. What’s harder to prove is Trump’s personal involvement it, which will have required DOJ to breach several levels of privileged communication to prove (something they took steps to do on Lisa Monaco’s first day on the job). That said, we’ve seen that they’ve been doing that, most recently with proffers from both Boris Epshteyn and Rudy Giuliani, who implemented the scheme.

But this is a broad statute, and DOJ could also charge Trump with ConFraudUS for campaign finance crimes, among other known Trump acts.

18 USC 1512(c)(2): What is described as witness tampering here is almost certainly obstruction of an official proceeding, the same crime with which 300 other alleged January 6 criminals have been charged. The title for that crime is witness tampering. (Though Jack Smith could also charge Trump for attempting to tamper with Cassidy Hutchinson’s testimony.) I first started laying out how Trump might be charged for this in August 2021. More recently, I’ve recommended people read Royce Lamberth’s Findings of Fact in the Alan Hostetter case — a VIP, like Trump, who was prosecuted in part for inciting others to obstruct the vote certification — to see how judges are applying this law to January 6.

In summary, if my assumptions that this would be charged in conjunction with January 6 are correct, it would require the government to prove that:

  • Trump took steps to obstruct the certification of the votes. I would expect this to consist both of his pressure on Mike Pence, but also on his support for the mob, including for the threats the mob made on Congress.
  • Trump intended to obstruct the vote certification. This would require proving that he knew the significance of the event, which DOJ will prove with the weeks of plotting he put in before the event.
  • Trump had corrupt purpose in doing so. The standard for corrupt purpose as regards this statute is still being decided by the DC Circuit, but it will end up being some combination of “otherwise illegal activity” and “corrupt benefit.” The former might be proven by showing that Trump knowingly gave an illegal order to Mike Pence. The latter would easily be proven by showing that Trump wanted to retain an office he didn’t win.

Note that DOJ has been charging conspiracy tied to this statute under 18 USC 1512(k) and I would be unsurprised to see that happen with Trump.

The last of these statutes is more of a surprise.

[See correction below] 18 USC 242: It prohibits someone from impeding someone’s rights “under color of law,” which can mean “beyond the scope of one’s official duties.” Charging Trump with 242 may be a way to charge him for attempting to deprive 81 million Biden voters of their right to vote, to deprive Joe Biden of his right to be assume the Presidency, and to deprive election workers of their right to work safely. Charging him under 242 would eliminate any dodge Trump might make — for example on the call to Brad Raffensberger — that he was simply acting within his official role as President.

This charge may be why, since last year and increasingly in recent weeks, Jack Smith has focused on the harassment of election officials. Just today, AJC reported that Smith subpoenaed footage from the State Farm arena counting center, suggesting Ruby Freeman might be treated as a victim here as well, which would be well, well deserved.

Two other potential implications of this. When January 6 defendants have argued that Trump authorized them to attack the Capitol, DOJ has always responded that the President has no role in the vote certification. So if DOJ were to include January 6 in such a charge, it would be an area — one of the most clear cut areas in the Constitution — where the President literally has no authority, and so easy to show that Trump was exceeding his authority.

Additionally, as noted above, the standard for corrupt purpose on obstruction is not yet settled. The DC Circuit might yet require “corrupt purpose” to be shown via some “otherwise illegal activity.” If that happens, DOJ may want to have several other crimes charged that will prove that prong of the offense, of which 242 could be one.

In other words, the thinking may be, in part, that it’s clear the President has no authority in the Electoral vote certification. Trump tried to deprive Biden voters of their franchise with his efforts on January 6. And that is one of a number of other crimes he committed in his efforts to obstruct the vote certification.

All that said, note my caution about the giant game of telephone this discussion relies on. Ultimately, we’ll learn what the charges are soon enough.

Update: Both the NYT and Guardian have reported that the third charge is 18 USC 241, not 242. Jack Smith is going to accuse Donald Trump of voting fraud.

Michigan Attorney General Dana Nessel Charges Michigan’s Fake Trump Electors

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The whole time that DC journalists were focused on Fani Willis’s Georgia fake electors investigation and — more recently — Arizona, I was laughing because I knew prosecutors in Michigan were working away quietly.

Today, Attorney General Dana Nessel charged Trump’s 16 fake electors with 8 felonies apiece.

They include very senior Republicans, including former GOP Chair, Meshawn Maddock, and close Ronna McDaniel associate Kathy Berden.

As I noted in March, one thing horse race considerations always forgot is that very senior Republicans in at least three swing states risked charges themselves. They risked charges — and Trump attorney Kenneth Chesbro knew they did, because he wrote that down in a December memo.

Several States also had rules requiring electors to cast their votes inthe State capitol building, or rules governing the process for approving substitutes if any original proposed electors from the November ballot wereunavailable. As a result, Chesebro’s December 9, 2020, memo advised the Trump Campaign to abide by such rules, when possible, but also recognizedthat these slates could be “slightly problematic in Michigan,” “somewhat dicey in Georgia and Pennsylvania,” and “very problematic in Nevada.”18

In the case of Michigan’s electors, Michigan law requires electors sign their paperwork in the Capitol. Instead, Trump’s fake electors did that in the basement of their own party headquarters.

These defendants are alleged to have met covertly in the basement of the Michigan Republican Party headquarters on December 14th, and signed their names to multiple certificates stating they were the “duly elected and qualified electors for President and Vice President of the United States of America for the State of Michigan.” These false documents were then transmitted to the United States Senate and National Archives in a coordinated effort to award the state’s electoral votes to the candidate of their choosing, in place of the candidates actually elected by the people of Michigan.

As I said in March, no one can predict how the party will respond if Trump’s recklessness starts getting other senior Republicans charged.

We’re about to find out.

Update: Here’s the affidavit behind the charges.

Jack Smith Gives Trump Until Thursday to Explain Himself to the January 6 Grand Jury

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Trump has released this post on his failing social media site, which I’ve altered to remove the garbage.

Maggie and Mike Back Together Again, This Time on, or with, January 6 Corrupt Purpose

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Yesterday, the NYT broke the news that Jared Kushner testified before Jack Smith’s grand jury last month and told them — in testimony that conflicts with other witness testimony — that his father-in-law really did believe he had won the election.

Federal prosecutors investigating former President Donald J. Trump’s attempts to overturn the 2020 election have questioned multiple witnesses in recent weeks — including Mr. Trump’s son-in-law, Jared Kushner — about whether Mr. Trump had privately acknowledged in the days after the 2020 election that he had lost, according to four people briefed on the matter.

The line of questioning suggests prosecutors are trying to establish whether Mr. Trump was acting with corrupt intent as he sought to remain in power — essentially that his efforts were knowingly based on a lie — evidence that could substantially bolster any case they might decide to bring against him.

Mr. Kushner testified before a grand jury at the federal courthouse in Washington last month, where he is said to have maintained that it was his impression that Mr. Trump truly believed the election was stolen, according to a person briefed on the matter.

The scoop, which brings the old team of Maggie and Mike back together again, is fine. Whoohoo! Another top witness.

Just as interesting that Jared has testified is the news — buried in paragraph 31 — that Ivanka has not yet testified before the grand jury, though there’s a good deal of wiggle room about whether she has complied with a document subpoena or whether she has spoken with prosecutors outside of a grand jury.

The New York Times reported in February that Mr. Smith’s office had subpoenaed Mr. Kushner and his wife, Ivanka Trump, to testify before the grand jury. The special counsel’s office has yet to question her before the grand jury. Ms. Trump testified before the House committee last year.

Maggie and Mike, always solicitous of Ivanka and her family, mention Ivanka’s testimony to the January 6 Committee, but they neglect to mention that after Ivanka testified to the January 6 Committee, the committee specifically called her out for her lack of candor, effectively inviting DOJ to consider false statements charges for her. So it may not be a good sign for Ivanka that she hasn’t been called before the grand jury.

That’s an interesting detail, but given that this is Maggie and Mike, I’m as interested in what appears between the Jared news and the Ivanka news: Maggie and Mike’s explanation for why (they claim) this matters. They explain that asking whether Trump knew he lost is important to ascertaining whether he had a “corrupt purpose” in obstructing the vote certification. Based on that premise, Maggie and Mike raise doubts about whether Jack Smith will be able to charge this, because without that, they suggest, Smith will lack one key element of the obstruction statute.

Maggie and Mike don’t mention that dozens — probably over a hundred — people have been convicted under 18 USC 1512(c)(2) for their actions on January 6 already; by DOJ’s most recent count, 310 people have been charged with it. Many if not most of them tried to argue at some point that their crimes were cool because they really did believe Donald Trump’s lies.

To be fair to poor Maggie and Mike, who after all are mere journalists, the conceit that Trump might dodge obstruction charges because he believed his own hype is one that has long been parroted by TV lawyers, and Maggie and Mike do cite several lawyers talking about how having proof that Trump knew he lost would strengthen the case.

But we have two years of public record showing that’s not how it works.

What VIP obstruction looks like: Alan Hostetter

Here’s what a guilty verdict for obstructing January 6 looks like in reality, taken from findings that Reagan-appointed Judge Royce Lamberth wrote up to support his guilty verdict yesterday for Alan Hostetter, a southern California anti-mask activist who played a key role in organizing others from southern California to come to DC on January 6.

In December 2021, I wrote about the challenges and import of prosecuting people like Hostetter — I called him and similar figures organizer-inciters — for obstruction, in part because it’s a test of whether DOJ will be able to hold even more senior people accountable for inciting others to commit violence.

Like Trump, Hostetter is a VIP who didn’t enter the Capitol, but who spent the weeks leading up to January 6 riling up others to obstruct the vote certification. As such, he’s a really good read on how obstruction might apply to Trump.

Every time Lamberth presides over a bench trial, he writes up and dockets his findings. I could hug him for doing so, because they provide a really superb way to understand how a very senior judge who has been presiding over these cases for over two years views them. Journalists and TV lawyers who, unlike Lamberth, haven’t been living and breathing January 6 for two years could learn a lot from reading every one of his findings reports, or at least this one.

Lamberth pointed to the following evidence to support his guilty verdict that Hostetter had obstructed the vote certification:

After arriving at the West Plaza, Mr. Hostetter advanced underneath the inauguration stage scaffolding and up a set of stairs leading to the inauguration stage. While on the stairs, Mr. Hostetter used a bullhorn to cheer on the crowd below as it violently fought against police and attempted to break the lines. Meanwhile, on a landing at the top of the stairs, several officers formed a line to prevent a group of rioters from reaching the inauguration stage. Mr. Hostetter’s co-conspirator, Mr. Taylor, joined the group of rioters and began pushing against the officers who were blocking access to the stage.

[snip]

Mr. Hostetter’s actions obstructed and impeded the proceeding by, together with the actions of others, forcing the evacuation of Congress and the end of the certification session, as shown in the testimony of Inspector Hawa and Mr. Schwager. By joining the riot, exhorting the crowd, standing with a vanguard of rioters making a highly-visible and violent effort to access the inauguration stage, and remaining on the Upper West Terrace for two hours while police attempted to clear out rioters, Mr. Hostetter helped ensure that Congress was under a sufficient security threat requiring adjournment and then an inability to resume the official proceeding that their actions helped to disrupt.

It’s not just that Hostetter’s own physical premise obstructed the vote certification, his exhortations to other, more violent people, did too.

Lamberth specifically noted that Hostetter’s purpose was to obstruct an election result he viewed as fraudulent.

Among other evidence … Mr. Hostetter’s own testimony[] demonstrate[s] that Mr. Hostetter understood his purpose on that day to be stopping an election result that he viewed as fraudulent by obstructing or impeding the Electoral College Certification.

Lamberth cited multiple exhibits and testimony showing that Hostetter knew the significance of the Electoral Certification. Notably, he describes how Hostetter listened to Trump explaining what he wanted, and then took action.

Mr. Hostetter testified that he had been closely following the efforts to overturn the 2020 Presidential Election and news about what was happening with the Electoral College Certification. Additionally, Mr. Hostetter testified that he listened to speeches at the Ellipse given by Rudy Giuliani and President Trump, was engaged by them, and remembers President Trump talking about Vice President Pence. During President Trump’s speech, President Trump made statements concerning what he wanted to happen with the certification and Vice President Pence’s role in the certification, which Mr. Hostetter heard.

Lamberth substantiated Hostetter’s corrupt purpose — what Maggie and Mike claim requires proof of knowledge that Trump lost — by pointing to the former cop’s consciousness of wrong-doing by walking, armed with a hatchet, onto Capitol grounds, what Dabney Friedrich adopted as “otherwise illegal means” standard to meet the statute’s corrupt purpose requirement.

Mr. Hostetter had the necessary mental state to meet the “corruptly” requirement. First, by himself carrying an inherently dangerous weapon into the restricted grounds of the Capitol, Mr. Hostetter used an unlawful means, specifically the independently felonious means of entering and remaining in a restricted building with a deadly or dangerous weapon.

Lamberth also pointed to Hostetter’s own incitement of others as evidence of corrupt purpose.

Additionally, Mr. Hostetter sent numerous messages and made speeches before and immediately after January 6 effectively calling for revolution. He also recorded videos in which he called for executions of public officials in connection with the 2020 Presidential Election.

Importantly, Lamberth specifically addresses, and dismisses the import of, Hostetter’s claims that he believed he was doing something good.

I also find that even if Mr. Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing. Belief that your actions are ultimately serving a greater good does not negate consciousness of wrongdoing.

[snip]

[T]he point isn’t that the defendant needs to understand what he’s doing is morally wrong; it’s that he needs to understand that what he’s doing is unlawful. Even if Mr. Hostetter sincerely believed–which it appears he did–that the election was fraudulent, that President Trump was the rightful winner, and that public officials committed treason, as a former police chief, he still must have known it was unlawful to vindicate that perceived injustice by engaging in mob violence to obstruct Congress.

And Lamberth addresses the mid-point of the appellate debate at the DC Circuit on corrupt purpose in the Fischer decision — requiring an unlawful benefit to find corrupt purpose.

I find that Mr. Hostetter took these actions in order to provide an unlawful benefit to his preferred presidential candidate, President Trump–by disrupting the Electoral College Certification that would have led to President Trump’s loss of the presidency.

Requiring finding an unlawful benefit is not, yet, the standard for obstruction in the DC Circuit. A separate panel considered the standard for corrupt purpose in Thomas Robertson’s appeal on May 11. But it is likely to be the most conservative standard that the DC Circuit (and even SCOTUS) would adopt, so Lamberth is protecting this verdict in advance of further rulings from the Circuit.

In any case, as I’ve noted over and over, even if that were the standard, it would apply to Trump if he were charged far more easily than any of the 300-plus people who’ve already been charged with obstruction for January 6. For Trump, whether he believes he won or not is not only unnecessary, but because he was trying to steal the election, it’s easier to prove corrupt purpose under this standard for him than for anyone else.

This is what applying the obstruction statute to January 6 looks like in real life. One after another judge has, like Lamberth, explained why it doesn’t matter whether someone believed that Trump won.

It doesn’t matter. Maggie and Mike built an entire story around a standard that two years of directly applicable precedents — precedents that will dictate terms of the elements of offense if Trump ever is charged under 18 USC 1512(c)(2) — show doesn’t matter.

Whether Trump believes he won doesn’t matter for 18 USC 1512(c)(2).

Jared Kushner’s central role in monetizing the lies

Whether Trump knew he won doesn’t matter for 18 USC 1512(c)(2).

It does matter — a lot — for any campaign finance charges arising out of January 6, and in that, it could have an indirect impact on Jack Smith’s charging decisions.

And, in part because Jared made himself scarce for January 6 itself, that’s actually the area where the former President’s son-in-law has more personal exposure than on the conspiracy to obstruct the vote certification.

This is a point MSNBC’s Lisa Rubin made at length in response to this news yesterday (and her coverage of this is so good I hereby create a special category of people who happen to be lawyers but even in spite of that provide superb TV analysis based on the actual facts).

Here’s how J6C addressed it.

Several days earlier, Trump Campaign Senior Advisor Jason Miller had explained the intention for this round of advertisements in an email. He wrote that, “the President and Mayor Giuliani want to get back up on TVASAP, and Jared [Kushner] has approved in budgetary concept, so here’s the gameplan” in order to “motivate the GOP base to put pressure on the Republican Governors of Georgia and Arizona and the Republican controlled State legislatures in Wisconsin and Michigan to hear evidence of voter fraud before January 6th.”317 Miller anticipated a budget of $5 million and asked for the messaging to follow an earlier round of advertisements, “but the endings need to be changed to include phone numbers and directions to call the local Governor or state legislature.”318 On December 22nd, Jason Miller texted Jared Kushner that “POTUS has approved the buy.”319

[snip]

Trump Campaign leadership was fully aware of post-election fundraising totals. According to Coby, President Trump’s son-in-law and senior advisor Jared Kushner “had the most interest in the digital program” and “would just check in on [fundraising] results,” and routinely received updates regarding fundraising from Coby.70 Coby also made clear that Kushner was heavily involved in the Campaign’s budget process71 and that he updated Kushner on TMAGAC’s post-election fundraising totals.72

The Select Committee received documents confirming Kushner’s involvement. For example, on November 8, 2020, Kushner requested that a daily tracker be created showing the Trump Campaign’s financial position from election day forward.73 In an email, Kushner noted that the tracker would allow the Campaign to consider its cash flow ahead of the creation of “a new entity for POTUS[’s] other political activities.”74 Just days after the election, and after the Campaign had three of its four best fundraising days ever on November 4th, 5th, and 6th,75 Kushner was preparing for the launch of President Trump’s new leadership PAC, Save America. Kushner stated that he needed this new daily tracker because the Trump Campaign was going to continue fundraising post-election.76 Kushner continued to receive these detailed daily trackers, which included Save America’s fundraising hauls, through at least December 2020.77

Jared Kushner isn’t much use as a witness about Trump’s actions and intent on January 6 itself.

He’s a central witness to the decision to monetize Trump’s lies by sowing violence — and even, to then use that money for purposes other than addressing election integrity. That’s why his grand jury testimony last month is of interest.

And his claim that Trump really believed he won may not help Trump; it may hurt Jared. But then, Jared has a very direct interest in claiming that all this fundraising based off lies were based on a good faith belief Trump had won.

Campaign finance fraud is an otherwise illegal action

I’m not promising here that Trump will be charged with obstruction — though, as noted, I long ago pointed to people like Hostetter as early tests of whether he could be, and his conviction yesterday shows how that might work.

I’m saying that people who came late to the understanding that DOJ is using obstruction to prosecute January 6 — which I first mapped out 23 months ago — seem little interest in the two years of precedent about how it will be applied. I include, for special notice, this “model prosecution memo” from JustSecurity — which doesn’t even mention the Justin Walker concurrence in Fischer (which Lamberth addressed in his findings), much less the pending Robertson decision in the DC Circuit that will dictate this application for Thomas Robertson, for Alan Hostetter, and for Donald Trump — in that category.

Trump’s knowledge of his loss matters far more for his decisions about fundraising than it does for obstruction charges. But they may influence any obstruction charges, because campaign finance violations — Trump’s fundraising through the moment he sicced his mob on the Capitol — would be one way DOJ could prove otherwise illegal conduct to meet that corrupt purpose standard under 18 USC 1512(c)(2) if that’s what the DC Circuit adopts in Robertson.

Plus, profiting off false claims of being robbed is another way that Trump personally benefitted from the incitement, even ignoring his bid to stay in power.

Update: This post on Maggie’s curious foray into campaign finance journalism notes that shortly after that misleading story, she and Mike broke the news of the Jared and Ivanka subpoena, which Maggie and Mike claimed was about calling off dad’s attack.

After I started unpacking Maggie’s story, I got distracted with the possibility that DOJ will tie Trump and Rudy Giuliani and John Eastman directly to the almost-murder of Michael Fanone. So, in the interim, Maggie broke the news that Smith’s prosecutors had subpoenaed Jared and Ivanka.

That story, written with Mike Schmidt, is exceptional only for the fact that they managed to avoid most of the hype about “aggressive steps” that peppers most reporting on Jack Smith. It pointed to things like the morning Oval Office meeting (Ivanka’s response to which her Chief of Staff Julie Radford was likely already questioned about, since — as the J6C Report noted explicitly — Radford was far more candid about it than Ivanka) and efforts to get Trump to call off his mob as likely topics of questioning.

Smith no doubt wants to get Jared and Ivanka’s stories about such topics locked in. Given questions about their candor before J6C, too, Smith will likely also give them an opportunity to revise their prior answers so they more closely match known facts.

Back to Maggie’s solo endeavor to read FEC filings.

[snip]

As it happens, all this ties back to Maggie’s newest story breaking the news of a subpoena to Ivanka and Jared. I’m sure Jack Smith wants to ask Ivanka and Jared about their efforts to get dad to call off his mob.

But he may also want to know why Herschmann — a lawyer whose legal status in the White House remains entirely unexplained — why Herschmann, according to Pat Cipollone’s testimony, told the White House Counsel not to join in that Oval Office meeting where Trump ordered Pence to break the law because “this is family.”

“This is family,” Cipollone said Herschmann told him before he walked in the door. “You don’t need to be here.”

I would imagine that Jack Smith wants to know why, at that moment when Trump prepared to give his Vice President an illegal order, Herschmann was treated as family.

 

Rudy’s Even Worse Week

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Back in May, I wrote a post called, “Rudy’s very bad week.”

It described:

  • He had lost his lawyer for a PA suit against him
  • Judge Beryl Howell was forcing him to cooperate in the Ruby Freeman lawsuit against him
  • Rudy claiming he faced no legal risk from Jack Smith
  • He was being sued by a former associate Noelle Dunphy who claimed to have two years of his email

He had a worse week this week.

That’s true, in significant part, because yesterday the DC Board on Professional Responsibility recommended he be disbarred in DC. the committee basically said he made false claims based on no evidence to disrupt the peaceful transfer of power.

The documentary evidence that Respondent did produce is fundamentally vague, speculative, or facially incredible. We have reviewed it and have examined with particularity the materials cited by Respondent in his posthearing filings. Respondent’s PFF 36-37. Although the materials identify a handful of isolated election irregularities, they completely fail to demonstrate that the observational boundaries or Notice and Cure procedures facilitated any meaningful fraud or misconduct that could have possibly affected the outcome of the presidential election.

[snip]

Mr. Giuliani’s argument that he did not have time fully to investigate his case before filing it is singularly unimpressive. He sought to upend the presidential election but never had evidence to support that effort. Surely Rule 3.1 required more.

[snip]

Mr. Giuliani brought a case that had no factual support. It caused an astonishing waste of the resources of the District Court, the Third Circuit, and multiple defendants in a compressed time frame.

[snip]

We cannot blind ourselves to the broader context in which Mr. Giuliani’s misconduct took place. It was calculated to undermine the basic premise of our democratic form of government: that elections are determined by the voters. The Pennsylvania claims were carefully calibrated to blend into a nationwide cascade of litigation intended to overturn the presidential election. FF 9. Since John Adams established the precedent in 1800, no president – until 2020 – refused to accept defeat and step away from that office. And no lawyer – until 2020 – used frivolous claims of election fraud to impede the peaceful transition of presidential power and disenfranchise hundreds of thousands of voters.

[snip]

His frivolous claims impacted not only the court and parties involved but threatened irreparable harm to the entire nation.

Even before that, though, Rudy was taking steps to settle a lawsuit for his conduct after he gave up filing frivolous lawsuits based on no evidence — the attacks he made on Ruby Freeman and her daughter.

On Thursday, Rudy’s attorney Joe Silbey reached out to Freeman’s lawyers and, less than a day later, they asked for time to come to some settlement.

On July 6, 2023, counsel for Defendant Giuliani approached counsel for Plaintiffs to discuss a potential negotiated resolution of issues that would resolve large portions of this litigation and otherwise give rise to Plaintiffs’ anticipated request for sanctions. Throughout July 6 and July 7—and into the evening on July 7, counsel for both parties have worked diligently to negotiate a resolution and believe they are close.

Silbey’s approach for a settlement came one day after Freeman’s lawyers asked for $89,172.50 in legal fees for all the stalling that Rudy has already done.

The same day as Freeman asked for sanctions, they also filed a motion to compel Bernie Kerik’s cooperation. They included a revised privilege log that — while they still argue it is noncompliant with legal standards — nevertheless points to a whole slew of interesting communications in Kerik’s possession. For example, there’s a January 4, 2021 briefing for members of the Senate on which Steve Bannon was CCed (note, Katherine Freiss used both protonmail and hushmail to conduct her coup plotting; I’m leaving these emails unredacted to show the stealth with which these people were trying to steal an election).

There’s a FISA proposal from Mark Finchem.

There is what appears to be a request that Mark Meadows clear them into the White House for the December 18 meeting that doesn’t even get Meadows’ first name right.

There’s an email showing MI fraudster Matthew DePerno receiving Peter Navarro’s report even before Trump sent it out, right along with the rest of Rudy’s team (and other emails show that Victoria Toensing was closely involved in the MI shenanigans).

And the emails give a better sense of what Sidney Powell and Mike Flynn were up to.

Almost none of this would be privileged, because Rudy was no longer pursuing litigation after the PA lawsuit.

All this comes amid more reporting on Rudy’s recent 8 hour interview with Jack Smith’s team, which itself follows voluntary interviews with (at least) Mike Roman and Boris Epshteyn.

During Rudy’s last really really bad week, he had the fantastic belief he wasn’t in any legal trouble.

He may finally understand how ridiculous that is.

Update: I hadn’t been tracking the Dunphy suit, but Rudy narrowly missed being assessed attorney fees there, too, this week.

 

OATH KEEPER SEDITIOUS CONSPIRACY CONVICTIONS WERE THE BATTLE; APPEALS MAY BE WAR

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From emptywheel: Thanks to past support from readers, we can bring you Brandi’s preview of sedition appeals. To support Brandi’s larger book project on sedition, you can donate at the link here.

With the Oath Keepers’ historic seditious conspiracy trials now in the rearview, a new fight with significant implications is on the horizon. Almost all of the defendants—including and perhaps most unsurprisingly of all, Oath Keeper founder Elmer Stewart Rhodes are appealing their convictions.

Between two respective Oath Keeper trials involving seditious conspiracy that played out late last year and early into this one, prosecutors and defense attorneys spent an excess of 16 weeks duking it out in court, poring over mountains of evidence and examining dozens of witnesses including cooperating Oath Keepers. The Proud Boys seditious conspiracy trial stretched for more than 60 days and with verdicts reached in May, sentencing is expected in late August and early September. 

It is often repeated and rightfully so: seditious conspiracy is one of the gravest charges that can be brought in the U.S., and it is very rarely prosecuted. When it is, it is not often a successful endeavor. The bar is high and narrow given that the line between First Amendment-protected activities and sedition can be razor-thin.

The U.S. has endured major setbacks in prosecuting sedition cases before, so with two sets of juries delivering guilty verdicts on this count for most of the Oath Keepers indicted on it, (and then later for the Proud Boys), these were huge victories for the Justice Department. 

Huge but tempered.

Tempered because a conviction can also merely mark the end of one chapter and the start of another very tricky one once appeals are in the mix.

In a recent interview with NPR analyzing the Oath Keepers sedition verdicts, extremism expert and author Kathleen Belew pointed out that seditious conspiracy prosecutions can be a useful tool to combat extremist violence in society. She argues that it sends the message to extremist and militia groups, or other groups who use force as a movement, that they won’t be treated with kid gloves or prosecuted as lone actors. The risk of prosecuting extremists includes violent retaliation but as Belew also noted, these same prosecutions have the power to rouse people to the realization that their conduct is risky and potentially quite expensive to cope with legally. 

Perhaps most eloquently, Belew underlined that the only way to tamp down on extremism is to confront it, not look away from it.  

Recently, a report by The Washington Post suggested none of the sedition charges may have even come to pass if a reported skittishness to bring them had persisted at upper levels of the Justice Department at the outset of the Jan. 6 investigations. To read it, it would seem that many felt sedition was a bridge much too far or too risky politically. Marcy picked that WaPo report apart already and exposed key gaps and blind spots in the story so I won’t belabor those points here. 

I will, however, belabor others. 

First, Marcy’s unwinding of the Post story isn’t just context for context’s sake nor is it to browbeat a reporter like Carol Leonnig who is esteemed for good reason. (I have a lot of respect for her work and that of others at the Post, for the record). But Marcy does provide useful context by raising questions that, it would appear, the Washington Post seemed to miss or perhaps failed to appreciate when relying on its sources and then sharing those findings with a public largely unversed in the nuances of Jan. 6 and its related investigations. 

In the same way that Belew suggests sedition trials and convictions can act as an important deterrent to possible criminal extremists, it would seem just as vital that non-criminal, non-seditious Americans accurately grasp these serious proceedings, too. Being empowered with the ability to cut through the bullshit being spun by the far right, or Jan. 6 conspiracy theorists, hinges considerably on having a clear understanding, or at least a thorough consideration, of the historical evidence at the trials themselves.  

For my purposes, perhaps most striking in that Post piece was a detail that later needed to be corrected. In the first iteration of its story, the Post incorrectly stated that the Justice Department attempted to prosecute those involved in the kidnapping plot of Michigan governor Gretchen Whitmer with the sedition statute. 

But they did not use it in that case; so the comparison wasn’t just incorrect but it wasn’t apt at its inception. What would be more apt would be to mention how prosecutors used it in the Hutaree Christian militia case from 2010. This is a critical distinction because the Hutaree case is deeply relevant as Oath Keepers appeals are underway. With the Hutaree militia, the judge acquitted the defendants of seditious conspiracy after the government closed its case. U.S. District Judge Victoria Roberts felt prosecutors had failed to sufficiently prove the militia members intended to forcibly resist the U.S. government. It was a just lot of vile talk, she found, but it didn’t rise to seditious conspiracy. 

I will broach more about this later in this piece but first, let’s return to some baseline details on the appeals in progress. 

OATH KEEPERS ON APPEAL 

At his sentencing in May, Rhodes puffed up his chest to deliver a self-aggrandizing diatribe extremely short on remorse and extraordinarily heavy on claims of political persecution by the U.S. government and the “weaponization” of free speech by the Justice Department. His attorneys said early into the trial that if they lost, an appeal would certainly follow. 

And it has. 

Rhodes’ lawyers, James Lee Bright and Phillip Linder, did not return a request for comment to emptywheel this week but for the moment, according to the docket at the U.S. Court of Appeals for the D.C. Circuit, Rhodes and almost all of his co-defendants from the first trial group including Kelly Meggs, Kenneth Harrelson, and Jessica Watkins, have consolidated their efforts to attempt an appeal.

Another batch of Oath Keepers tried, charged, and convicted of seditious conspiracy include Roberto Minuta, David Moerschel, Edward Vallejo, and Joseph Hackett. They were split off into a second trial group for logistical reasons. 

The only Oath Keepers convicted of seditious conspiracy as of Thursday who have yet to officially indicate whether they will appeal are Ed Vallejo and Joseph Hackett.

Vallejo’s attorney, Matthew Peed, wrote in an email to emptywheel this week that he felt it was “likely” his client would appeal. Hackett’s lawyer, Angie Halim, did not return multiple requests for comment. (Key to note: An appeal cannot be formally entered until a defendant’s final judgment makes it onto the docket and neither Vallejo nor Hackett’s final judgment has appeared yet.) 

Rhodes’ attorney Phil Linder told CBS recently he expects it will take months to craft an appeal and one can only assume the same would apply to Kelly Meggs’ attorney Stanley Woodward given the demands on his schedule of late. Woodward also represents Waltine Nauta, former President Donald Trump’s valet and alleged co-conspirator in the Mar-a-Lago classified documents case. Woodward also represents Ryan Samsel, a Jan. 6 defendant who figures prominently in most “fedsurrection” conspiracy theories and he represents Frederico “Freddie” Klein, a former Trump-era State Department official. Klein faces a number of charges including assaulting police on Jan. 6, and he goes to trial in October. Woodward will also represent Trump’s former trade adviser Peter Navarro once Navarro’s trial for criminal contempt gets underway in September. Navarro, prosecutors say, defied a subpoena issued to him by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol. 

Over the next 30 days, the Oath Keepers will continue to get their houses in order. Rhodes’ lawyers, according to a recent letter from the court clerk, have not yet been admitted to practice before the appeals court in but they have until July 12 to get admitted. 

 THE DEVIL IN THE DETAILS

After the massive unraveling of evidence and testimony at trial, it is hard to imagine a scenario in which an appeal, especially one from Rhodes, will contain, well, anything particularly novel. But the far more important factor will be whether his appeal will convince an appellate judge that his speech was not seditious.

Another one of his attorneys, Ed Tarpley, said after Rhodes was sentenced to 18 years in prison that the former far-right leader wouldn’t stop speaking up because it was a matter of principle. 

The Justice Department had “weaponized” the First Amendment and used Rhodes’ own words against him to secure a conviction, Tarpley said. 

Rhodes’ words were “used against him” technically speaking. But it wasn’t just his words that helped get him convicted though jurors did see mind-boggling amounts of evidence featuring his communications. 

They heard speeches and reviewed texts and phone calls as well as a recorded meeting where he called for revolution days after the 2020 election. He decried the election as unconstitutional and fraudulent and promoted disinformation to rile up his group or to entice them to act in concert with him. He directed Kelly Meggs, a Florida division leader, to coordinate operations in advance of the 6th and on the 6th. He oversaw the coordination of the gigantic weapons stash, or a quick reaction force (QRF) with the help of his co-defendants. The cache was set up at a hotel in Virginia, just over the Potomac River from the Capitol. Aware of the gun laws in D.C., Oath Keepers, from points all over the U.S., understood and received directions to drop their weapons at the QRF. Rhodes’ future co-defendant Ed Vallejo would stand by awaiting Rhodes’ orders to haul the weapons in if asked. 

The beginnings of Rhodes’ intent were aired out in trial courtesy of a recorded GoTo Meeting with fellow Oath Keepers on Nov. 9, 2020.. Rhodes didn’t mince words and in fact, his fury was so complete, he scared one Oath Keeper into eventually reporting the call to the authorities. 

They would have to fight to keep Trump in office and this wasn’t a metaphorical “fight.”

“Let’s make no illusion about what’s going on in this country. We’re very much in exactly the same spot that the founding fathers were in like March 1775. Now—and Patrick Henry was right. Nothing left but to fight. And that’s true for us too. We’re not getting out of this without a fight. There’s going to be a fight. But let’s just do it smart and let’s do it while President Trump is still Commander in Chief and let’s try to get him to do his duty and step up and do it,” Rhodes said. 

Trump would not urge his supporters to descend on D.C. until Dec. 19, but prosecutors demonstrated that the Oath Keepers’ seditious conspiracy didn’t simply or only start to exist once Trump called for the “wild” event. 

During that Nov. 9 call, Rhodes’ told members they would need to be willing to travel to Washington and prepare to war with “antifa.” This was something he explained had multiple benefits. 

If they were there to stop “antifa” from attacking Trump supporters, it would give Trump a reason to invoke the Insurrection Act and raise Oath Keepers to his side.

“I’m willing to sacrifice myself for that. Let’s start the fight there, OK? That would give President Trump what he needs frankly,” Rhodes said.

Getting Trump to invoke the Insurrection Act so the “fraudulent” election could be stopped was ideal for Rhodes and as the weeks after the election passed and Trump lost lawsuit after lawsuit challenging the results, his desperation grew. 

On Jan. 6, Rhodes never stepped foot inside the Capitol. He stalked its grounds as he communicated with Oath Keepers on site and just moments before Oath Keepers breached, cell phone data showed Rhodes had called Meggs in what prosecutors argued was an order to get inside the Capitol and plow ahead. Prosecutors said the defendants understood, even without it being said explicitly, that this was a means to stop Congress from doing its duty.  At trial, footage after this call in question appears to show Meggs entering the Capitol as if on cue. 

Rhodes wasn’t indicted for propagandizing. He wasn’t indicted for having an opinion contrary to fact. He wasn’t indicted for wanting Trump to be in office even after Trump lost the election and then lost dozens of lawsuits seeking to overturn the results.

Rhodes wasn’t indicted for writing public letters and posting them online urging Trump to invoke the Insurrection Act in order to stop the “fraudulent” election of Joe Biden, a man Rhodes proclaimed was a “puppet” for communist China. (For the record, Rhodes wrote two of these letters; one was published on Dec. 14 and another on Dec. 23, 2021.) 

And Rhodes certainly wasn’t indicted for merely traveling from Texas to D.C. on Jan. 6 to attend a rally with thousands of other people who showed up to support Trump’s Big Lie. 

Rhodes was charged and convicted of seditious conspiracy, obstructing an official proceeding, and tampering with evidence because his words, when coupled with his conduct and the conduct of the men he oversaw, far exceeded the protections the First Amendment has to offer. 

Rhodes didn’t simply oversee a bunch of loudmouth oafs hand-painting protest signs in a hotel in Virginia before sauntering over to the Capitol to chant outside of it peacefully. 

When he was en route to D.C. from Texas,  bank statements and receipts showed. Rhodes spent more than $10,000 on firearms and gear like sights, scopes, ammunition, and night vision equipment. On their return to Texas after the 6th, Rhodes didn’t stop spending. In fact, he spent at least another $30,000 on weapons and equipment. Jurors saw maps and cell extraction reports that showed how, when, and where Rhodes coordinated these purchases and communications. Jurors saw how Rhodes coordinated with Oath Keeper Joshua James while returning to Texas and how they worked together to collect firearms and tactical gear. And all the while, Rhodes angled to conceal his movements, using his then-girlfriend Kellye SoRelle as a cutout to communicate with Oath Keepers via text through her and her phone. It was revealed to jurors also that James, who pleaded guilty to seditious conspiracy, sent a message to Rhodes as late as Inauguration Day saying, “After this… if nothing happens, it’s Civil War 2.0.” 

When former Oath Keeper Terry Cummings, who traveled with other members to D.C. for the 6th, testified against Rhodes in court, he said not since his time in the military had he ever seen so many guns in one place. 

Rhodes’ defense hinged on the argument that Oath Keepers came to Washington merely to serve as a security force for Trump VIPs attending speeches or rallies. One of those VIPs was ratfucker Roger Stone. Oath Keepers Joshua James and Roberto Minuta were tasked to guard him. Yet they would leave Stone at the hotel and speed towards the Capitol on golf carts as soon as Rhodes called them to his side. Meanwhile, Stone hightailed it out of D.C. 

At other times, the defense claimed Oath Keepers came to Washington to provide medical support as needed. Defendant and former Army medic Jessica Watkins had medical training, that was true, but her defense was undercut by her own admission on the witness stand: She did impede police when she forced her way into the Capitol and pushed past them. 

At sentencing, she wept when she recalled memories of the police officer who was overrun thanks to her conduct.

It seemed at trial the defense’s goalposts shifted depending on which defendant was under questioning or how a witness performed. The disclosed purpose for amassing the weapons cache or going to the Capitol regularly shifted around its edges in the Rhodes trial, and so many stories simply didn’t hold up under the scrutiny of cross-examination or redirect.

Memorably, assistant U.S. Attorney Jeffrey Nestler remarked to jurors during closing arguments in the first Oath Keepers trial that for all the claims of Oath Keepers being an organized security force on Jan. 6,  not one defendant was licensed or insured to provide security services and no one held any contracts for these supposed clients. 

And if the evidence from before Jan. 6 or the day of didn’t sink him, what followed proved Rhodes wanted to overthrow a government where Joe Biden was its executive. On Jan. 10, 2021, while downtown D.C. was still bustling with National Guard left over to protect the Capitol and nearby federal buildings, Rhodes took a meeting in a parking lot in Texas with U.S. veteran Jason Alpers. 

Alpers testified that he had “indirect” ties to the Trump White House but no further description was offered in court. Alpers said he linked up with Rhodes through an associate of Allied Security Operations Group, the same group that led an “audit” of voting machines in Antrim County, Michigan. (Michigan, of course, was one of several battleground states where Trump’s lawyers, including Sidney Powell and others, claimed fraud was pervasive. Powell was sanctioned for her role in pursuing such baseless claims in the courts last week.)

The meeting was set so Rhodes could pass a message to Trump. Alpers would secretly record the exchange. Rhodes was furious. He wouldn’t condemn the violence on the 6th but he had other regrets.

If Trump was going to just let himself be removed illegally, Rhodes remarked, “then we should have brought rifles.”

“We could have fixed it right then and there,” he said on the recording before adding that he would “hang fucking [then Speaker of the House Nancy] Pelosi from the lamppost.”

Furious, he tapped out a message into Alpers’ phone because he expected Alpers would pass it along to his Trump contact. 

Trump would be killed by his enemies if he didn’t act now, Rhodes warned.

‘You must use the Insurrection Act… if you don’t, you and your family will be imprisoned or killed. You and your children will die in prison… you must do as Lincoln did. He arrested congressmen, state legislators and issued a warrant for SCOTUS Chief Justice Taney. Take command like Washington would… Go down in history as a savior of the Republic, not the man who surrendered it… I’m here for you and so are all of my men. We will come help if you need us,” Rhodes wrote. 

He claimed he had 40,000 Oath Keepers backing him and millions of others who felt as they did.

He added: “There’s gonna be combat here on U.S. soil no matter what” and warned that the Biden administration would “disarm us all,” if allowed to take office. 

The message was too extreme for Alpers to pass along. It didn’t help, the veteran testified, that Rhodes’ then-lover Kellye SoRelle, who was also there, was drunk. It put  Alpers off. It was all too unprofessional and his confidence was shaken. On cross-examination, Alpers said he delayed reporting the meeting to the FBI because he didn’t want to get involved any further. 

All of these elements are just slivers of what jurors heard in the weeks-long trial.

There were also several intense days where emotions ran high, including those where the parties started to dig into claims that Oath Keepers went to help Capitol Police after getting inside. 

Meggs, Harrelson, and Watkins attorneys insisted their clients “assisted” U.S. Capitol Police Officer Harry Dunn who was stationed outside then-House Speaker Nancy Pelosi’s office. Armed with a rifle, Dunn told jurors he knew it wouldn’t take much for someone to grab it off him and make a bad situation worse. He told Oath Keepers to leave, he told them they were hurting police; he told them police were “getting the shit kicked out of them.”

The Oath Keepers wouldn’t leave right away though, they hung around him a bit longer instead. When prosecutors asked Dunn on redirect at trial what would have helped him that day, the officer was succinct: if they left, or never come in, that would help. 

So, to review, here are the convictions from the Oath Keepers sedition cases. (It is worth noting that if Rhodes manages to pull off an appeal, he could also be resentenced.)

On seditious conspiracy:

  • Elmer Stewart Rhodes, Kelly Meggs, Roberto Minuta, David Moerschel, Joseph Hackett

On conspiracy to obstruct an official proceeding: 

  • Kelly Meggs, Jessica Watkins, Roberto Minuta, David Moerschell, Edward Vallejo, Joseph Hackett

On obstruction of an official proceeding: 

  • Elmer Stewart Rhodes, Kelly Meggs, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, David Moerschel, Edward Vallejo

On conspiracy to prevent officials from discharging their duties: 

  • Kelly Meggs, Jessica Watkins, Kenneth Harrelson, David Moerschel, Edward Vallejo, Joseph Hackett

On tampering or destruction of evidence: 

  • Elmer Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Thomas Caldwell, Roberto Minuta, Joseph Hackett

Impeding officers during a civil disorder:

  •  Jessica Watkins

IS EVERYTHING OLD NEW AGAIN?

When the federal judge presiding over the Hutaree matter tossed all of the sedition charges against those defendants, she explained that prosecutors had failed to prove beyond a reasonable doubt that the Christian militia members took concrete steps to violently revolt against the federal government with the aid of weapons of mass destruction.

The Hutarees were recorded discussing how police were their enemies and how they wanted to kill them. They discussed how a war against the U.S. government was necessary, too. But Judge Victoria Brown ruled that a conspiracy required a specific plot or a knowing agreement to break the law or a knowing intent to join that effort. Guilt by association was not enough, she said, and neither was repugnant conversation.

A Hutaree defense attorney noted in an interview with The Guardian last October when the Oath Keepers went on trial, that when it came to the Hutaree militia, beyond a lack of a plan, there was also “no action taken.” Hutarees may have shared disdain for law enforcement, communications showed, but, he argued, it pretty much stopped there. 

After the sedition acquittals for the Hutarees in 2012, a law professor from Wayne State University noted to the New York Times that the outcome just went to show how difficult it is to prosecute cases involving groups engaged in political speech. The professor also noted how  Hutarees were “a fairly disorganized group” who may have “talked big” but didn’t seem to be doing much otherwise. 

At the Oath Keepers trial, the defense was insistent that because there was not a concrete plan laying out the Oath Keepers’ precise efforts up to, on, or after Jan. 6, the government’s case was overcharged and amounted to a gross infringement on their First Amendment rights. 

But neither Judge Mehta nor the jury believed that was the case for the Oath Keepers who were ultimately convicted of seditious conspiracy. At Rhodes’ sentencing, Judge Mehta was unequivocal on this point, telling Rhodes he posed an “ongoing peril to democracy.” 

He was the one giving orders, Mehta said. 

“He was the one organizing teams that day. He was the reason they were, in fact, in Washington, D.C. Oath Keepers wouldn’t have been there but for Stewart Rhodes, I don’t think anyone contends otherwise. He was the one who gave the order to go, and they went,” he said. 

When the jury was instructed before deliberations, they were told that a conspiracy was defined as two or more people trying to accomplish some unlawful purpose and in order to sustain a seditious conspiracy charge, they must agree that a defendant conspired with at least one other person to oppose the government by force to delay and impede it; or they reached an agreement to use force in the ordinary sense of the word; or simply that they contemplated using force while at least one defendant actually used it. 

The government had no burden, Mehta said, to prove beyond a reasonable doubt that there was an express agreement or an implied one. They just had to prove that the members of the conspiracy met, talked about unlawful objectives, and agreed to some of the details or what the means were by which objectives could be accomplished. The success of that aim was irrelevant. 

Jurors deliberated for three days in the Rhodes trial; jurors in the second trial group took just over a week to reach a verdict. The end results were a mixed bag of verdicts, suggesting that jurors meticulously reviewed each defendant’s conduct. 

Watkins was acquitted of sedition but convicted of conspiracy to obstruct a proceeding, obstructing an official proceeding, conspiracy to prevent officials from discharging their duties, and impeding officers during a civil disorder. She recruited Oath Keepers and coordinated with them to breach the building and disrupt police on Jan. 6, but the jury, in the end, wasn’t fully convinced her role was central to that of a seditious conspiracist. 

The bar to convict remained high even for someone who recorded themselves breaching the building while actively and repeatedly encouraging others to “push, push, push” because the police “can’t hold us.” Before sentencing her to 8.5 years, Judge Mehta remarked that no one would suggest she is Rhodes or even Kelly Meggs. 

“But your role in those events is more than that of a foot soldier. I think you can appreciate that,” he said. 

Will these words haunt an appeal to come? 

When sentencing Rhodes and Meggs, Judge Mehta was far harder on them than their co-defendants also convicted of seditious conspiracy. He handed down an 18-year sentence to Rhodes and 12 years to Meggs with terrorism enhancements applied. The maximum on seditious conspiracy alone is  20 years. Minuta was sentenced to just 4.5 years; Joseph Hackett to 3.5 years. Vallejo and Moerschel received just 3 years. And again, that would include all of the convictions weighed in. 

Mehta emphasized to Rhodes at his sentencing that there was no question he “took up arms and fomented a revolution” on Jan. 6.

“That’s what you did. Those aren’t my words. Those are yours,” Mehta said. “You are not a political prisoner, Mr. Rhodes. You are not here for your beliefs.”

Perhaps this encapsulates the very reason why it matters that the sedition charge was used instead of abandoned early on. The evidence would indicate this wasn’t merely a First Amendment matter. Perhaps it may have been easier for Rhodes or Meggs or other Oath Keepers charged and convicted of seditious conspiracy to wriggle out of an obstruction charge if the focus on sedition wasn’t also on the table to start. 

But whatever the case may be, that’s the recent past. And while important, there’s now an equally if not more important future to ponder just ahead. 

At a time when the U.S. is awash in far-right extremism; when the man who incited the insurrection on Jan. 6 is now twice-indicted yet still running for president and running on a vengeance platform; at a time when he and other right-wing politicians vow to pardon all Jan. 6 defendants if ever given power by the body politic to do it—it will matter what happens with these appeals. 

Will the Oath Keepers convicted of sedition appeal their sentences? Or will they appeal the conviction? Appealing the conviction would seem the likely route given Mehta’s light touch at sentencing for most. And as part of his tough-guy-patriot-against-the-Deep-State-routine, Rhodes has already said he’s willing to do prison time for his beliefs. An appeal on the conviction that could potentially humiliate the U.S. government would seem too tantalizing for a man like Stewart Rhodes to pass up. 

If terabytes of evidence weren’t enough, if hours and hours of video footage weren’t enough, if proclamations and concerted efforts to foment an armed rebellion live on television aren’t enough to maintain the Oath Keepers seditious conspiracy convictions, then one must wonder, what will happen if history repeats itself?

FBI Saw Itself “Managing What the Elephant Sees and Hears” in Advance of January 6

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According to a report released yesterday by the Senate Homeland Security and Governmental Affairs Committee (HSGAC), on January 2, 2021, then FBI Washington Field Office Assistant Director Steve D’Antuono came away from some kind of exchange with then Deputy Director David Bowdich and described to two top WFO officials, Matthew Alcoke (in charge of counterterrorism) and Jennifer Moore (in charge of intelligence) how he tried to “tamp down” concerns about or plans for January 6.

Alcoke thanked D’Antuono for “ramp[ing] down” expectations, since really all the FBI’s WFO was doing was passing on information from partners like the DC Cops and Capitol Police.

Alcoke then made a shocking suggestion about intelligence sharing:

[M]anaging what the elephant sees and hears is sometimes the best way to control the elephant’s movements.

He seems to have suggested that the FBI might manage how the Federal government would respond to January 6 by managing what kind of intelligence the FBI passed on — and his assumption was that the FBI was only passing on intelligence from partners, not collecting any of its own.

It turns out that the Federal government — that elephant Alcoke imagined he might control — didn’t respond, not adequately. In the aftermath of that shoddy response, D’Antuono claimed that the FBI had seen nothing other than First Amendment protected activity.

During a briefing with reporters on Friday, Steven D’Antuono, FBI Washington Field Office assistant director in charge, told reporters that the bureau’s threat assessments leading up to Wednesday’s mobbing of the Capitol showed “there was no indication that there was anything other than First Amendment protected activity.”

Virtually every Federal official blamed local cops and the Capitol Police, insisting the Feds weren’t supposed to be the ones moving at all, the Capitol Police were.

D’Antuono, we’ve since learned, repeatedly tried to limit the investigation in the aftermath, playing a key role in thwarting any investigation into Trump’s actions for ten months.

Manage the elephant by controlling what it sees and hears.

A day after D’Antuono and Alcoke discussed tamping or ramping down, WFO personnel sent D’Antuono, Alcoke, and Moore a summary describing the following open source intelligence:

On January 3rd, an internal WFO email marked “for FBI internal use only” cited “unsubstantiated” open-source reporting that “ranges from threats to the DC water supply to armed insurrection to various groups threatening to kill those with opposing viewpoints.”156 Among the reports cited, the email noted an open-source post regarding January 6th that said “[i]t needs to be more than a protest. We need to kick doors down and fuck shit up” and another user commented, “will kill if necessary.”157

Another social media post stated, “I’m just waiting for the 6th so I can 1776 them… January 6th we burn the place to the ground, leave nothing behind.”158

The internal FBI-WFO email noted that a tipster reported that individuals on fringe websites were discussing an overthrow of the government if President Trump did not remain in office, and stated “[d]ate of attack 01/06.”159 A Parler user stated, “[b]ring food and guns. If they don’t listen to our words, they can feel our lead. Come armed.” 160

The email also reported social media posts that noted plans to bring firearms into the District and “set up ‘armed encampment’ on the [National] Mall,” and that the Proud Boys planned to “dress ‘incognito’ in order to more effectively target ‘antifa’ in the city.”161

A tipster from Georgia told FBI that the Proud Boys were planning to come to D.C. on January 6th and warned “[t]hese men are coming for violence.” 162 Another tipster told FBI that a Proud Boy told her they were planning an attack on January 6th to shut down the government. 163

Another tip stated “there is a TikTok video with someone holding a gun saying ‘storm the Capitol on January 6th.’”164

As the HSGAC report notes, even in spite of the two warnings about the Proud Boys and threats of violence, WFO concluded that this described just First Amendment protected activities.

Despite all of that reporting, the FBI summary concluded, “FBI WFO does not have any information to suggest these events will involve anything other than [First Amendment] protected activity” and that FBI had “identified no credible or verified threat to the activities associated with 6 January 2021.”165 This was also despite the fact that the Proud Boys were known to engage in violence, including at protests in Washington, D.C. in late 2020.166

As Alcoke described, the FBI marked the summary of these warnings “Internal” because sources were sensitive about sharing it outside the FBI.

A day after discussing “tamp[ing] down” concerns with Bowdich, D’Antuono just sent this entire email to the Deputy Director.

I just sent the whole thing, I don’t want him getting a sanitized version of events.

This is a report that attempts to do what January 6 Committee largely abdicated doing, looking at intelligence failures in advance of January 6.

The House Select Committee’s final report found that President Trump engaged in a multipronged effort to overturn the 2020 election by knowingly disseminating false and fraudulent allegations, pressuring state officials to submit false elector slates, pressuring DOJ officials to make false statements alleging election fraud, and calling on supporters to join him in Washington, D.C. on January 6 th and subsequently encouraging them to march on the Capitol.23 The House Select Committee’s report largely focused on President Trump’s role in attempting to overturn the 2020 election, and only briefly discussed federal intelligence efforts in the lead-up to the events of January 6th . 24 The House Select Committee report found that intelligence agencies, including FBI and I&A, had received intelligence on the potential for violence at the Capitol.25 This intelligence included discussions of the Capitol complex’s underground tunnels alongside violent rhetoric, information on the movements of violent militia groups like the Proud Boys and Oath Keepers, and numerous social media posts discussing storming the Capitol.26 The report also found that security agencies did not adequately prepare for and respond to the threat.27

At the direction of U.S. Senator Gary Peters, Chairman of the Homeland Security and Governmental Affairs Committee (HSGAC), and following the Committee’s initial review of the security, planning, and response failures in advance of and during the January 6th attack, Majority Committee staff conducted a subsequent review focused on the intelligence failures leading up to the attack on the U.S. Capitol on January 6th.

What it describes is utterly damning.

Yet, in spite of a laudable effort to do what J6C didn’t do, there are obvious gaps.

First, as described, HSGAC met the same kind of stonewalling others received.

The Committee received responses to many of its questions and numerous document productions from the agencies in its investigation, including DOJ-FBI and DHS-I&A. However, at various points throughout its investigation, the Committee encountered significant delays, incomplete responses, denied document requests (including documents required to be provided to the Committee under federal law), and refusals to make certain witnesses available to the Committee for interviews. The Committee sought to obtain the necessary information through voluntary compliance by the agencies in its investigation, but this lack of full cooperation hinders the ability of the Committee, and Congress more broadly, to effectively and efficiently conduct legitimate oversight of the Executive Branch.

The Chair of HSGAC, Gary Peters, has broad subpoena power. Yet this report remains wildly inadequate to the task of cataloging FBI’s failures to prevent January 6.

Worse, there are several known intelligence problems that it doesn’t address.

For example, it doesn’t chase down warnings floated in both militia leader trials in the last eight months.

It doesn’t pursue what happened after Oath Keeper “Abdullah Rasheed” called into an FBI tip line reporting on the November 9, 2020 GoToMeeting call in which Stewart Rhodes started talking about a revolution.

Listening to the meeting was Abdullah Rasheed, a Marine Corps veteran and a member of the far-right group from West Virginia. During testimony on Thursday at the trial of Mr. Rhodes and four of his subordinates, Mr. Rasheed told the jury that he was so disturbed by what he heard during the meeting that he recorded the conversation and ultimately called the F.B.I. to alert them about Mr. Rhodes.

“The more I listened to the call,” he said, “it sounded like we were going to war against the United States government.”

The testimony by Mr. Rasheed, a heavy-equipment mechanic, was clearly intended to bolster accusations by the government that Mr. Rhodes and his co-defendants — Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell — committed seditious conspiracy by using force to oppose Mr. Biden’s ascension to the White House.

[snip]

On Tuesday, prosecutors at the Oath Keepers trial played several clips of Mr. Rasheed’s recording for the jury. The jurors heard Mr. Rhodes make baseless claims about foreign interference in the election and declare that he would welcome violence from leftist antifa activists because that would give Mr. Trump an excuse to invoke the Insurrection Act and call on militias like his own to quell the chaos.

“We’re not getting out of this without a fight,” Mr. Rhodes said. “There’s going to be a fight. But let’s just do it smart, and let’s do it while President Trump is still commander in chief.”

While Mr. Rasheed initially called an F.B.I. tip line to complain about Mr. Rhodes not long after the meeting took place, the bureau did not reach out to him until March 2021, two months after the Capitol was attacked. He also tried to warn other law enforcement agencies, he testified, writing to the Capitol Police that Mr. Rhodes was “a friggin’ wacko that the Oath Keepers would be better without.”

It doesn’t consider whether Shane Lamond, Enrique Tarrio’s MPD buddy who was charged in May with obstructing the investigation into Proud Boy activities in December 2020, tainted FBI’s own understanding of what would occur on January 6.

It only mentions the FBI’s own informants once, describing how FBI’s confidential human sources led the Bureau to believe the number of “protestors” on January 6 would be lower than in November and December — something any passing glance at social media would have debunked.

WFO sent an email that afternoon that appeared to rely only on its confidential human sources and other investigative leads, concluding, “[a]s of today, WFO has no information indicating a specific and credible threat. All [confidential human sources] and Guardians are not indicating anything specific and credible. Most of what WFO is seeing are random chatter with no specificity. […] WFO expects the number of participants to be fewer than the previous times – each time the numbers get smaller.”174

Most importantly, it doesn’t consider how FBI’s decision to pay a bunch of Proud Boys to inform not on the Proud Boys, but on Antifa, guaranteed that FBI would wrongly see things in terms of protestors and counter-protestors. Two witnesses testified at the Proud Boy leader trial that they were never asked to — nor would they have agreed to — inform on their buddies. Descriptions of seven other FBI informants similarly suggest the FBI had tasked a bunch of Proud Boys and friends to narc out Antifa.

If you pay a bunch of gang members to tell the FBI that their largely manufactured adversaries are the same kind of threat, rather than paying them to tell you about the attack on the Capitol the gang has planned, you have tainted your understanding of things at the outset.

And not even the behavior of those with good intelligence on the far right — those very same counter-protestors — led the FBI and DOJ to reconsider that understanding. When anti-fascists didn’t show up, DOJ concluded nothing would happened, not that the people who really did track what the far right had in mind had concluded that January 6 would be something different.

Former Principal Associate Deputy Attorney General Richard Donoghue also told the Committee that then-FBI Deputy Director Bowdich gave a briefing the morning of January 4th to Acting Attorney General Rosen and Donoghue regarding January 6th, and that while they recognized the potential for violence, they felt “relief” that counter-protesters were not expected to attend in large numbers, as there would likely not be “a situation that concerned us so much, where you would have two different political factions fighting in the streets.”324

The HSGAC Report scratches the surface of how badly FBI did in advance of January 6. It suggests that FBI affirmatively tried to prevent the Federal government from responding with due concern.

But it doesn’t begin to consider how the FBI’s own relationship with the Proud Boys, in which the Bureau deemed the militia that would lead the attack on the Capitol as partners rather than adversaries, guaranteed that the FBI would miss the attack.