January 6 Insurrection Archives - Page 28 of 75

The “Escalating,” “Aggressive,” “Intensifying” Step of Subpoenaing Key Witness Mark Meadows

February 16, 2023/74 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

CNN and WSJ have reported, using all the typical hype words (see this thread for a collection of similar bullshit language), that Jack Smith’s team has subpoenaed Mark Meadows. But neither has included the most important information about the subpoena: what they’re really looking for.

They report only that Smith wants documents and testimony pertaining to January 6.

Special counsel Jack Smith’s office is seeking documents and testimony related to January 6, and Meadows received the subpoena sometime in January, the source said.

Neither Meadows’ attorney, the very good George Terwilliger, nor DOJ commented on this news, meaning it almost certainly came from one of the Trump lawyers who feeds all these stories, possibly even with the inflammatory adjectives.

It is not “aggressive” to subpoena one of the centrally important witnesses. It was not “aggressive” for the January 6 Committee to subpoena Meadows among their first investigative steps. It was not “aggressive” for Fani Willis to subpoena Meadows.

What is unusual is subpoenaing someone who is likely a key subject if not a target of the investigation, two years into the investigation, especially after he spent at least nine months trying to retroactively comply with the Presidential Records Act by providing the Archives communications he should have preserved in the first place, after which prosecutors obtained the communications from the Archives directly.

Indeed, DOJ’s Justice Manual requires specific approvals before subpoenaing someone if the person is a target.

If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the United States Attorney or the responsible Assistant Attorney General have approved the subpoena. In determining whether to approve a subpoena for a “target,” careful attention will be paid to the following considerations:

The importance to the successful conduct of the grand jury’s investigation of the testimony or other information sought;

Whether the substance of the testimony or other information sought could be provided by other witnesses; and

Whether the questions the prosecutor and the grand jurors intend to ask or the other information sought would be protected by a valid claim of privilege.

Mind you, DOJ’s investigation, going back long before Smith joined it, has had to reach this bar on the testimony or legal process covering others by dint of various privileges, including attorney-client, executive, and speech and debate. But thus far, DOJ has usually used warrants, not subpoenas, with people who might be subjects or targets of the investigation.

There’s one known exception, of a person at the center of suspected crimes who nevertheless received a subpoena: Rudy Giuliani, in November (the CNN report on the subpoena emphasized the request for documents, but Reuters’ coverage said the subpoena asked for testimony as well). Notably, though, given how centrally involved Rudy was in suspected crimes leading up to the coup attempt, that subpoena asked for documents pertaining to the potential criminal behavior — the misspending of money raised by Save America PAC — of others. Indeed, DOJ seems to be treating subpoenas about discreet topics individually, meaning a witness who might have a good deal of exposure in one area may nevertheless be asked to testify about another area.

Something similar could be true here.

Trump’s PAC gave Meadows’ NGO, Conservative Partnership Institute, $1 million long after January 6, and CPI received the bulk of the money spent by the PAC.

Trump’s Save America PAC on July 26 gave $1 million to the Conservative Partnership Institute, the group where Meadows is a senior partner.

The donation came less than four weeks after the House voted to establish a select committee to investigate the January 6, 2021, insurrection at the US Capitol. In December, the House voted to recommend that the Department of Justice pursue criminal charges against Meadows for refusing to cooperate with the committee’s probe.

Trump’s political organization has amassed $122 million in cash reserves, his team announced Monday.

The $1 million to Meadows’ non-profit made up most of the $1.35 million in donations that Trump’s PAC disbursed to political organizations and candidates in the second half of 2021.

Since then, the organization has been described as the “insurrectionists’s clubhouse,” the key player in efforts to push the Republican Party even further right, including during Kevin McCarthy’s fight to be Speaker. The policies pursued by Meadows’ organization are not, on their face at least, criminal; they would be protected by the First Amendment. But Trump’s decision to fund it using funds raised promising the money would be used for something else might be.

Who knows? Maybe the subpoena seeks information more central to the events leading up to January 6. Perhaps it’s an effort to obtain Signal texts that Meadows didn’t otherwise turn over to the Archives. Perhaps Terwilliger is just that good, and Meadows is out of legal danger for his role in stoking a coup attempt.

But the most interesting detail of this subpoena is not that DOJ sent it, but that someone so obviously exposed himself would get one.

Update: Roger Sollenberger, one of the best campaign finance reporters, has a long discussion of how Trump laundered money from the Save America PAC through other entities, including CPI.

Judge Kelly’s Basis for His “Tools” Determinations

February 14, 2023/6 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Since the beginning of the Proud Boys case, there has been an ongoing dispute about the government’s “tools” theory of the conspiracy, which argued that there were a bunch of people (which was trimmed after pre-trial hearings) whom Proud Boy leaders used to execute their conspiracy. This post explains that dispute.

These people are not accused or alleged to be part of one of the parallel conspiracies charged against the Leaders, and so normal hearsay rules will not apply as normal. But they are people who, the government alleges, the Leaders pulled together as recruits to make the attack happen.

Part of this dispute pertains to whose actions at the Capitol can be shown, as video evidence, to the jury in association with the Proud Boy Leaders. I think the case presents what I call a “view-say” exception, in which assaults committed by associates in places at the Capitol where no Leader was present, may or may not be shown to the jury. On the first day of trial, for example, Judge Kelly deferred on whether assaults that took place in the Tunnel should be shown, since no Leader was present.

But a big part of the debate pertains to how many of the communications on one or another of the Telegram threads the Leaders used to organize the Proud Boys can be introduced as evidence.

Last Friday, Judge Kelly issued his order on the issue verbally in what takes up about 80 pages of transcript. I wanted to lay out his logic here, so it is broadly accessible.

First, let me clarify an issue that came up on Monday, as we argued this, about who might count as a tool. On the one hand — it seems to me that the tools fall into two buckets for purposes of this case generally, as the Government has argued it. On the one hand, you have people whom the defendants or their cooperator — or their co-conspirators marched toward the Capitol on January 6th to whom they had some alleged nexus or relationship in the, sort of, physical effort of what happened that day on January 6th. And in — separately, you have the group we’re dealing with here, which is Proud Boys whom the defendants and their co-conspirators hand-selected to join the MOSD. Of course, there’s some overlap between these two groups of people. But I certainly don’t think, over the argument of some defendants, that someone ultimately had to be in one group for their statement to — or their conduct to be relevant for the — to this case. In other words, to be a tool, you didn’t have to necessarily believe — belong to both of those, sort of, groups.

I’ll next note that, again, by and large with regard to the tools evidence, I didn’t see any true hearsay issues there. It’s clear to me that the bulk of these statements, at least, were not offered as assertions but rather as circumstantial evidence of the tools’ motive and intent in the days leading up to January 6th. And to the extent they are assertions of the tools, they would fall under Rule 803(3) which allows statements expressing the declarant’s motive, intent, or plan to be admitted for the truth of the matter asserted.

But, of course, after clearing the hearsay bar, statements must still be relevant and satisfy Rule 403 balancing. So here’s the line I drew on that front. Where a purported MOSD tool’s statement expressed a more specific, concrete intent to use force or to act unlawfully on January 6th, I admitted them. But — or at least where the statement could — where you could infer that. But where, in my view, a statement was less specific, or tended to be more — a general reference to violence or perhaps even to a joke, I excluded them.

For — as for those I admitted, I think the statements are relevant/admissible because they do shed light on what the purpose of the MOSD was, which is a central issue in the trial. As I mentioned, the defendants have consistently argued — and even opened on the idea — that the MOSD was intended to create more of an organizational structure and a hierarchy at rallies for defensive purposes. And in short, the Government’s theory is that, at least with regard to January 6th, it was intended for an offensive purpose.

Thus, I think that the state of mind, in the days leading up to January 6th, of those that the co-conspirators and the defendants in this case vetted to be in the MOSD is relevant. And it’s an important factor supporting — and it is an important factor that, sort of, reinforces their relevance that the evidence shows that the defendants and their co-conspirators did select them. In fact, as Mr. Rehl says in Exhibit 503-10, everyone in the group was, quote, Represented by someone who trusted them to be there. That’s a little bit of a butchering of that quote, but I think that’s the essence of it.

The relevance of these exhibits is further buttressed by the fact that these statements were not rebuked by any of the defendants or their co-conspirators that were present in these chats as MOSD organizers. Now, we’ve talked about this a lot. I think, ordinarily, the idea that a single individual’s failure to respond to a comment in a chat — the idea that that can be relevant or some kind of adoptive admission in some way is a stretch in general, and it’s probably not a theory that would fly in a typical situation. Certainly, the bigger the chat that there is, the more public it is, and all the rest. But I think, here, that the failure to do so — not of one person, but collectively of all the people at issue, the four defendants here who were in those chats, plus their alleged co-conspirators — all those people’s non-responsiveness to some of these things is relevant, and it bolsters the overall relevance of the exhibits I decided to admit, especially because it’s clear that at least some of the defendants — again, there is evidence here — some of the defendants were monitoring the MOSD chats to ensure they stayed on topic.

Indeed, the stated rules of the MOSD chat made clear that the members had to stay on topic, and on a couple of occasions to which the Government has directed me, defendants or co-conspirators did, either in the group or amongst themselves, rebuke members’ suggestions that they viewed as outside the MOSD’s parameters. For example, in Exhibits 505-20 and 505-21, Mr. Stewart, Mr. Bertino, and Mr. Tarrio criticize an MOSD member in the MOSD Op group for suggesting that the group discuss what to do about, quote, Unaffiliated Proud Boys wearing colors, closed quote. Stewart admonished that there was nothing to talk about because the MOSD has a mission; either get with it or eff off, and that they were there for a reason. And Mr. Tarrio followed up by instructing everyone to focus. Mr. Bertino stepped in to emphasize that the member’s comment was not appropriate in the MOSD chat because the group had a mission and they didn’t want to be distracted from it. And in Exhibit-525-7, Defendant Biggs messaged Defendant Tarrio expressing in the — that the MOSD chat had already become annoying because members were talking about other events.

So importantly, in weighing whether to admit certain tools exhibits and drawing the line I did, I admitted only those exhibits where I thought there was a stronger inference that the comment would have drawn a rebuke from one of the defendants or one of their co-conspirators if the mission of the MOSD had truly only been defensive in nature.

So for all those reasons, I found the handful of the exhibits I admitted on this theory — the tools theory — were relevant, and also, satisfied Rule 403.

Before I move on to the categories of the documents, as one more offshoot of the tools issue — it doesn’t go to the admissibility of these documents, but it goes to the grounds for admissibility of statements made to — by other people, including the defendants, to the tools — I want to address one additional point that came up on Monday. Counsel for Mr. Nordean argued to me that several exhibits that the Government offered as co-conspirator statements could not have been in furtherance of the conspiracy simply because the statements at issue were made to non-co-conspirators, including tools. But in the United States v. Tarantino, the D.C. Circuit explained that if a statement, quote, Can reasonably be interpreted as encouraging a co-conspirator or another person to advance the conspiracy, or as enhancing a co-conspirator or another — or other person’s usefulness to the conspiracy, then the statement is in furtherance of the conspiracy and may be admitted. That case is 846 F.2d 1384 at 1412, a D.C. Circuit case from 1988. So to the extent that Mr. Nordean objected on that basis to several of the exhibits I’m about to discuss, particularly those involving the defendants’ or the co-conspirators’ statements to tools, that argument is foreclosed by Circuit precedent.

Trump’s National Security Adviser Responded to an Attack on the Capitol by Sending Personal Tweets

February 13, 2023/30 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As former National Security Adviser Robert O’Brien tells it — or told it, in his August 2022 interview with the January 6 Committee — he responded to an attack on the Capitol by sending personal tweets.

CNN reported last week that O’Brien will soon have the opportunity to tell a more credible story to both of Special Counsel Jack Smith’s grand juries, which is why I decided to read the transcript of O’Brien’s interview with the January 6 Committee.

Presumably, Smith wants to ask O’Brien about Trump’s firing of people who questioned his authority to invoke the Insurrection Act, a topic that like recent witness Johnny McEntee, O’Brien addressed in his January 6 interview. Perhaps Smith wants him to explain the plot to seize voting machines and other details surrounding the December 18 meeting, which recent witness Ken Cuccinelli addressed. O’Brien may be asked about his challenge to Cassidy Hutchinson’s credibility in his own January 6 testimony, perhaps the only person who has questioned her testimony who hasn’t since been discredited.

Given the CNN report that he would testify before both the January 6 and the stolen document grand juries, he may be asked about his knowledge of plans to take documents pertaining to topics Trump obsessed about, not just the Russian investigation (which O’Brien calls, “Russiagate hoax documents”), but also specific intelligence about Venezuela; O’Brien claims not to remember anything about the efforts to declassify documents to take.

But the most striking aspect of O’Brien’s transcript was his admitted failure to do much of anything as the Capitol was attacked.

To be fair, the appearance of O’Brien’s almost complete inaction as the Capitol was attacked stems, in part, from his own forgetfulness. He claims to remember only one interagency planning meeting in advance of January 6, even though other witnesses testified to several. He only recalls a concern about threats to the White House in advance, not the Capitol. He doesn’t recall briefing the President, the Chief of Staff, or the White House Counsel of intelligence in advance of the attack. He doesn’t recall any talk of Trump marching to the Capitol.

He recalls speaking to Mike Pence during the attack, but can’t recall most details about the conversation.

He recalls speaking to Biden National Security Adviser Jake Sullivan, who would not assume power for another two weeks. But he can’t recall whether he spoke to Chief of Staff Mark Meadows during the attack.

He recalls that his Deputy Matthew Pottinger called him and told him he had to resign, but can’t recall that he did so specifically in response to Trump’s text targeting Mike Pence.

He’s certain he made no effort to speak to the President as a mob of his supporters attacked a co-equal branch of government. He did not do so, he explained, because he was in Miami and wanted to speak to the President in person.

The story O’Brien told of his actions leading up to and on January 6 was of breath-taking dereliction of duty.

When asked specifically how he responded to learning that the President’s supporters were attacking the Capitol, he explained he sent some personal Tweets.

Q Okay. All right. So let’s talk about then what you did after receiving that information. What steps did you take now that you’re aware of this violence at the Capitol and had this conversation with the [Vice, sic] President? What did you do next?

A So I did a couple of things. I’m not sure the exact order in which I did them.

Q Okay.

A One is I put out a series of tweets on my personal Twitter account.

[snip]

Q Okay. All right. So, again, you didn’t take any action in particular response to this [Trump’s tweet].

Your tweets don’t start until a bit later, your personal tweets that you sent out.

A Yeah, I’m not sure what time my tweets came out, but I wouldn’t say it’s in direct response to this, but I did tweet that I thought the Vice President was courageous.

Q Yeah, you did.

[snip]

All right. The next one up says, “My first experience in government was serving as an intern for Senator Hayakawa of California. What the mob did to our Senate chamber today was an utter disgrace.”

Again, what motivated you to put that out? And do you remember roughly when that was?

A So, again, I don’t recall — and I don’t have a time or a date stamp on this. I think that was the first tweet that I put out on my personal account.

Q I think this is — you’re right — from your personal account, not the official NSA account.

A Correct. And I wanted to get some tweets out on my personal account because I didn’t have to go through a White House clearance process or get others involved. I wanted to try and act, you know, somewhat quickly and make sure the people that — to the extent anyone followed it or was interested, that was my view.

There were some other calls — to Mike Lee and Mitt Romney, for example. But seemingly no coordination of any response. Just tweets about the internship he had when he was 14.

There are certainly reasons to doubt his forgetfulness. At other times, he uses other tactics to avoid discussing whether he had direct contacts with Trump or anyone else of substance, like invoke Executive Privilege over his own feelings.

Q Were you frustrated, Ambassador O’Brien, with the President’s conduct on January 6th?

Mr. Larson. I think this starts to get into — invariably gets into communications with the President and impressions of the President and all that. So I’m going to assert executive privilege here.

And there’s good question of how diligently O’Brien searched for communications relevant to his testimony.

For example, there was a damning document: a draft concession speech that O’Brien wrote for Trump on December 21. O’Brien sent it from his home email account to his White House email account — because maybe his printer was out of paper, he mused.

Q 9 o’clock at night on the 21st.

A Yeah. So I was obviously at home. I probably sent it because I didn’t have a printer. I probably didn’t want to print it or didn’t have a printer at home or it may have been out of paper or something.

And this is something I did on what I considered was my own time. I thought it was — I think by this time the electoral college had already voted, and I think that the primary lawsuits that the President’s legal team had brought had been decided. You know, I can’t be certain, but I’d probably seen that on the news.

And I thought it would be — I thought I’d draft up what was in essence a concession speech, but put it in language that might appeal to the President and I thought might be something that the President could — the type of speech that the President would feel comfortable giving, but at the same time would convey the message that he conceded the election. And I thought it would be good for him and for the country.

O’Brien claims the only one he shared it with at the White House was his own Chief of Staff, not Trump’s or not Trump himself.

Q Did you share this with anyone after you sent it to your own official White House account?

A Yes.

Q With whom?

A I believe I shared it with Alex Gray, my chief of staff.

Q Your chief of staff. I see.

A Right.

Q How about Mark Meadows or the President himself?

A No. I don’t believe I did.

What’s interesting is not just that O’Brien sent it, but that he didn’t turn over an email sent from his own account in his production to the committee. The document should have been turned over to the committee by both O’Brien himself and the Archives. The committee only got the Archives copy

Q Okay. Let me show you another exhibit, this is No. 9, that is an email from your personal account to your official account. I don’t recall if this came from your production or from the Archives.

A I think this came from your production.

Q Yeah. I think that’s right. This is a record produced by the National Archives.

O’Brien wasn’t giving anything up.

And that’s why I find this exchange showing the National Security Adviser — the National Security Adviser!!! — explaining how he was doing business on Signal and WhatsApp and no, he’s not entirely sure whether all his texts got archived properly so suspect.

Q Ambassador O’Brien, how about any other messaging applications, like Signal or Telegram or WhatsApp? Did you use any of those platforms to conduct any official business when you were National Security Advisor?

A I did.

Q Okay. Which of those platforms did you use?

A I think I received some messages from people on WhatsApp and on Signal.

Q All right. And again, tell us what the circumstances would be that would trigger the use of those platforms versus the White House email account or your official device.

A So on the official devices, there was no ability, I don’t think, to put on Signal or any of the other applications.

There were some foreign ambassadors or foreign ministers that would want to get in touch with you and they tended to us Signal or WhatsApp.

[snip]

Q I’m just wondering sort of the general circumstances that would cause you to go to WhatsApp or Signal. Was it just, hey, it’s a foreign leader, so that’s the platform that he or she uses? Or would you, beyond that, use it for other reasons as well?

A Yeah. So I’m not a consumer of social media or those sorts of applications for the most part. There were some foreign leaders that asked for my cell phone number so that they could connect via Signal, because I think some foreign leaders from time to time would reach out and they were concerned about intercept and they felt there was some safety — that was their opinion — there was some safety. My opinion was different. But they wanted to communicate by Signal or WhatsApp, but it was on rare occasions.

Q I see. Okay. And beyond that, Ambassador O’Brien, would you use WhatsApp or Signal to talk to someone on a personal matter or campaign related or things that you wanted to ensure were kept off of the official government channel?

A Yeah, not that I recall. That was not my practice.

Given how little else he recalls about his job, suffice it to say this “do not recall” whether he used Signal or WhatsApp for other purposes deserves some skepticism, particularly given that everywhere he relies on the committee to pull up call records. Especially given his lackadaisical attitude about preserving whatever Signal texts he sent, at least with foreign ambassadors.

Q Got it. All right. Now, on the subject of these personal devices or accounts, did you provide all [inaudible] with the official communications from these personal accounts to the National Archives when you completed your tenure as National Security Advisor?

A So I don’t know if I had any information on those devices. I do know that when I left the job at the State Department there were some conversations I took screenshots of and I left those behind for the State Department for my files. So that was my practice there.

When it comes to the leaving as NSA, I may have had — you know, I don’t recall, I don’t recall if I screenshotted. I know I screenshotted a few things. I don’t know if they were left behind for the Archives. That would have been my practice. But again, I can’t recall.

It is undeniably true that Robert O’Brien responded to an attack on the Capitol by Tweeting, on his personal account, that Mike Pence was courageous.

But it is also the case that there’s a whole lot of forgetting going on here that looks more like a gap in communications records than anything else.

Which may be on of the biggest things for which Jack Smith would like to get O’Brien on the record.

Roger Stone’s Stop the Steal Effort Included as Proof of Milkshake’s Obstruction

February 10, 2023/16 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Dan “Milkshake” Scott pled guilty to obstruction and assault yesterday. He faces 41 to 63 months of prison.

His plea does not include a cooperation agreement, so unless DOJ has kept that hidden in some way (everything about the Proud Boy cases is weird, so I don’t rule it out, and his plea also does not include the standard cooperation paragraph, which often means someone has already been interviewed), Scott will not be called as a witness in the Proud Boy leader trial to explain why he yelled, “Let’s take the fucking Capitol” two hours before the Proud Boys did just that.

Indeed, his statement of offense is interesting for the abundant evidence that Scott knew his objective for the day was to stop the vote certification, but did not know Joe Biggs and Ethan Nordean’s plans for doing so. In addition to his “take the fucking Capitol” comment, for example, Scott is quoted as gleefully saying, “Oh god, we’re going to the Capitol, guys.” And he admitted that,

Scott’s purpose in being in this restricted area was to influence or impede Congress’s certification of the results of the 2020 presidential election, which was occurring inside the U.S. Capitol Building.

But the statement of offense also repeatedly describes that he was not aware of the alleged conspiracy to obstruct the vote or engage in sedition that Biggs and Nordean are being tried for.

Scott did not attend any meetings with Ethan Nordean, Joseph Biggs, or Zachary Rehl on January 5, 2021
Scott also was not a member of the Proud Boys’ coordination chats on Telegram, “Ministry of Self-Defense” (or “MOSD”) or “Boots on the Ground,” and did not know the content of the messages in those chats
Prior to his entry onto Capitol grounds, Scott had not been told the details of any plans made by Proud Boy leaders, such as Nordean, Biggs, and Rehl, for January 6

This statement of offense, even without a cooperation component, is written just as prosecutors on the Leader prosecution team would need it to support their argument that the Leaders used people like Scott as “tools,” not co-conspirators, to achieve their alleged goal of stopping the vote certification. The statement describes how the Leaders moved behind him, and then after he assaulted two cops, they went up the stairs towards the Capitol.

Scott did not go up the stairs after the assault. Once he saw them going up the stairs, Scott believed that that [sic] the group of Proud Boys led by Nordean, Biggs, and Rehl would attempt to enter the building to obstruct Congress’s certification of the vote including through the use of force if necessary.

Milkshake’s complete dissociation from the even the Telegram chats used to plan the attack and his acute awareness that the goal was to storm the Capitol is interesting for the one other detail used to substantiate his obstruction: Roger Stone.

It turns out, Milkshake was helping Roger Stone intimidate Rick Scott on January 3.

On January 3, 2021, Daniel Scott, Worrell, and other members of their local Proud Boy chapter attended a “Stop the Steal” rally in Naples, Florida. The headline speaker at this event was Roger Stone. Daniel Scott helped Stone up a ladder that Stone used to talk to the crowd. During this speech, Stone asserted that the 2020 presidential election was rigged due to voting fraud, and urged Florida’s U.S. Senators to vote against the certification of the Electoral College vote. Stone stated: “Rick Scott has a fundamental choice. He will either stand up for the constitution…” At that point, Daniel Scott yelled “Or give him the rope!” At another point in the rally, Daniel Scott chanted “Stop the Steal!” into a megaphone, along with the crowd at the rally.

I can’t recall another statement of offense that mentions that earlier Stop the Steal efforts — not even Brandon Straka or Baked Alaska, who were key players in the movement (though both, inexplicably, got off without pleading to obstruction). Even Jacob Chansley, who played a key role in storming the AZ Capitol prior to January 6 and who did plead to obstruction, does not include that earlier action.

Again, unless I’m mistaken, this is also the first mention of Roger Stone in a statement of offense, even among the cooperating Oath Keepers who had interaction with Stone in the weeks before the attack on the Capitol.

Milkshake, in this statement of offense, is described as a tool used by Nordean and Biggs.

But, by description, Roger Stone is what made him one.

Maggie Haberman Claims Asking a Witness to Repeat What He Said in Print Is “Most Aggressive” Move Yet

February 10, 2023/61 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Exactly three months ago, I noted how some journalists were sowing false drama over whether DOJ would subpoena Mike Pence, given that he wrote up key details about January 6 in the WSJ (and his book).

For months, the press has been squawking about how unprecedented it would be to subpoena the former Vice President. But he just made the case for doing so, right here.

That post preceded, by almost two weeks, a 1,600-word piece from Maggie and Mike, squawking about how unprecedented it would be.

The effort to seek an interview with Mr. Pence puts both the department and the former vice president in uncharted territory.

For the record, it is not unprecedented for a Vice President to appear before a grand jury: Dick Cheney was interviewed by Pat Fitzgerald in what was treated as a grand jury appearance (though it was in Jackson Hole); he did so while he was still VP.

In that November piece, Maggie and Mike allowed Pence to make bullshit claims about profound separation-of-powers issues, even though they noted Pence already wrote it up.

However, in interviews for the release of his new book, “So Help Me God,” Mr. Pence has been more emphatic in his opposition to providing testimony to the House committee, asserting that “Congress has no right to my testimony” about what he witnessed.

“There’s profound separation-of-powers issues,” Mr. Pence told The New York Times in an interview. “And it would be a terrible precedent.”

[snip]

Mr. Pence has written in detail in his book about Mr. Trump’s efforts to stay in power and the pressure campaign he imposed on his vice president beginning in December 2020.

Maggie continues the hype in her story about the subpoena, with Glenn Thrush, from yesterday, claiming the mere act of asking a witness to repeat for a grand jury claims he already made in print is an aggressive act.

The move by the Justice Department sets up a likely clash over executive privilege, which Mr. Trump has previously used to try to slow, delay and block testimony from former administration officials in various investigations into his conduct.

The existence of the subpoena was reported earlier by ABC News.

It was not immediately clear when the special counsel, Jack Smith, sought Mr. Pence’s testimony. The move is among the most aggressive yet by Mr. Smith in his wide-ranging investigation into Mr. Trump’s role in seeking to overturn the outcome of the 2020 election. He is also overseeing a parallel inquiry into Mr. Trump’s handling of classified documents.

It’s not until the 16th paragraph before Maggie reveals that Pence wrote all this up in his book — which is nine paragraphs after NYT reveals that talks about voluntary testimony broke down.

Mr. Pence’s team held discussions with the Justice Department about a voluntary interview, according to the person familiar with the matter, but those talks were at an impasse, leading Mr. Smith to seek the subpoena.

[snip]

Mr. Pence described some of his ordeal in his recently published book, “So Help Me God.”

When a politician resists saying under oath what he has said in a book, you start the story with that fact. And if a politician has already said something in print, then stop pretending it’s really aggressive to expect him to say that to a grand jury.

This story should be about why Mike Pence is resisting repeating, under oath, claims he made as part of a presidential run.

DOJ Is Silent that Enrique Tarrio Is a “Friend of Stone”

February 9, 2023/17 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

There’s something curious about the Proud Boys trial.

Thus far, DOJ has made no mention of the Friends of Stone thread that Enrique Tarrio was part of, along with Alex Jones, Owen Shroyer, Ali Alexander, and Kellye SoRelle, as well as the rat-fucker himself.

That’s true even though it was mentioned repeatedly at Stewart Rhodes’ trial. DOJ submitted some texts Rhodes sent, including one seeming to ask Stone to get Trump to invoke the Insurrection Act.

And DOJ used those comms as part of their graphic showing the ties between all the alleged co-conspirators.

I find the silence about Tarrio’s involvement in the FOS list especially interesting given some Telegram texts submitted yesterday at trial.

In a thread of Telegram texts showing how the Proud Boys went from being called out by Donald Trump to planning for actions in DC, it included an exchange between Tarrio and Jeremy Bertino from November 7, showing their response to the media calling the election for Joe Biden.

Bertino immediately says, “should we roll out to the state houses?”

“Yes,” Tarrio says.

At the time, Ali Alexander, another participant on the Friends of Stone list, was working on a series of events at which mobs intimidated election workers.

On the 8th, Bertino informed Tarrio, “we[‘]re going to Raleigh this afternoon.”

Tarrio instructs, “Make sure…no colors,” meaning not to wear Proud boy yellow and black.

“Why not?” Bertino asks.

“The campaign asked us to not wear colors to these events,” says the guy whose relationship with Donald Trump’s rat-fucker goes back years.

Defense attorneys renewed their fight yesterday, without success, to prevent prosecutors from introducing Trump’s Stand Back and Stand By comment. It’s now officially an exhibit in a seditious conspiracy case, along with Trump’s December 19 tweet announcing January 6 that has been introduced in scores of January 6 cases.

But thus far, DOJ has made no move to mention Tarrio’s tie with Trump’s rat-fucker. Or to explain whether the Proud Boys were coordinating these efforts to intimidate election workers with Stone’s protégé, Alexander.

DOJ Has Spent Five Months Trying to Access Scott Perry’s Phone

January 31, 2023/63 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

Earlier this month, I noted the difficulty created by the fact that 25 of the known witnesses or investigative subjects in the January 6 investigation were attorneys. Days later, I reiterated the difficulty presented by the six or so key participants in Trump’s suspected crimes who are members of Congress.

An important scoop from Politico demonstrates how difficult that is. It confirmed that a still-sealed appeal of a Beryl Howell decision pertains to DOJ’s efforts to get into Scott Perry’s phone.

The existence of the legal fight — a setback for DOJ reported here for the first time — is itself intended to be shielded from public scrutiny, part of the strict secrecy that governs ongoing grand jury matters. The long-running clash was described to POLITICO by two people familiar with the proceedings, who spoke candidly on the condition of anonymity.

The fight has intensified in recent weeks and drawn the House, newly led by Speaker Kevin McCarthy, into the fray. On Friday, the chamber moved to intervene in the back-and-forth over letting DOJ access the phone of Perry, the House Freedom Caucus chair, reflecting the case’s potential to result in precedent-setting rulings about the extent to which lawmakers can be shielded from scrutiny in criminal investigations.

The House’s decision to intervene in legal cases is governed by the “Bipartisan Legal Advisory Group,” a five-member panel that includes McCarthy, his Democratic counterpart Hakeem Jeffries, and other members of House leadership. The panel voted unanimously to support the House’s intervention in the matter, seeking to protect the chamber’s prerogatives, according to one of the two people familiar with the proceedings.

[snip]

More than four months after the government obtained Perry’s phone, Howell sided with DOJ. While Howell’s rulings in the dispute remain under seal, along with any rationale that appeals court judges may have offered for their actions, some spare details about the fight appear in that court’s public docket.

Remember: When DOJ was trying to breach the privilege claims of lawyers Jeffrey Clark and Ken Klukowski, they appeared to do so, in part, by prioritizing Perry’s contacts, emails that could not be privileged given the clients that Clark and Klukowski should have been representing — for a significant period for both, US taxpayers. Yet for most of the time since then, DOJ has been blocked from getting the non-lawyer’s contacts, even though he played a central role in attacking the peaceful transfer of power.

I have not yet been proven correct in my speculation that one reason Merrick Garland appointed a Special Counsel was because the Republican majority in the House made it more difficult to investigate those members of Congress, starting with Perry, who participated in Trump’s coup attempt. But Jack Smith’s background in investigating former members of Congress sure will help this investigation.

More on Brandon Straka’s So-Called Cooperation

January 26, 2023/21 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

There was a funny moment in Brandon Straka’s February 24, 2022 January 6 Committee interview.

Close to the beginning of the interview, he provided a description of how, he claimed, the idea for Stop the Steal came about: someone, probably Ali Alexander, simply renamed a pre-existing MAGAt Twitter DM list sometime after the election.

A So there was a Twitter DM thread, which s to say, like, a private message thread that somebody had created — I have no idea who because in all likelihood it was probably created significantly before I was added to it. It was called MAGA Verified, which essentially means anybody who is a MAGA or, you know, Donald Trump supporter, who has a blue checkmark next to their name, so as in verified on Twitter.

And so somebody had created a group, a direct message group, and so I don’t know if anyone here maybe does or does not understand how Twitter works, but with a Twitter DM group, somebody can create a group and just add people. They don’t have to have your permission. Then it’s up to you to either leave the group or decide if you want to stay in the group. 1) So, like, as right now as we speak, I’m probably added to hundreds of groups because I don’t really check my DMs that thoroughly, and I don’t make it an effort to go through and remove myself from every group that I’m added to.

But this particular group was called MAGA Verified, and it was a collection of people who are verified, you know, Republicans or Donald Trump supporters.

And then as (he claims) results started changing, people on the group decided to adopt the hashtag #StopTheSteal.

And at after the election, so I guess around November 5th, I would say, of 2020, 6several of us were in that group just sort of expressing confusion, exasperation, sadness about how the election results had suddenly changed during the night on November 4th going into November 5th.

And thenI think over the course I mean, I’d have to go back and look, but it was over the course of, I think, a day or two that plans started getting made to kind of deploy to swing States and host these First Amendment-protected events to encourage people to keep their spirits up and encourage their State legislators to hold a thorough forensic audit of the votes in theirStates, because people were very concerned about irregularities. So I’m going to go out on a limb and assume it was probably Ali Alexander who started using the Stop the Steal hashtag.

According to the cooperation memo the government filed in advance of Straka’s sentencing last year, which just got unsealed, it’s the same story he told to the FBI.

The “Stop the Steal” effort was formed through a private Twitter group of which Straka was a member. The group was formed “long before” the 2020 election and referred to itself as the “MAGA Verified” group because it was comprised of MAGA followers who were verified on Twitter. The members of the group used Twitter to exchange private direct messages with one another. Straka provided information about an individual, Ali Alexander, who was part of the MAGA Verified group.

There are a few problems with the story. First, as J6C pointed out to Straka, he was already organizing a vote fraud event, to take place after the election, before the election.

So we’ll give you time to look at this document, but it is it looks like it’s a permit 3 application filed by WalkAway Campaign. ~The date is October 28 of 2020. It’s for John 4 Marshall Park, and it’s scheduled — the proposed scheduled date is for November 15th.

If we go down to the second, page, the purpose of the event is a demonstration for free and fair elections. So help us understand, why did you –what were you thinking about on October 28th to want to have an event on November 15th about free: and fair elections?

In response to this observation, Straka bullshitted for a while and then gave up.

It just didn’t make sense, he said.

A Julie Hanson is an event planner that we’ve worked with over – for years on various events that we’ve done. I can’t answer this question, because this doesn’t make sense to me. I don’t know if she made a mistake when she put the date on the application, or if I don’t want to speculate why Julie put that date on the application, but I can tell you this doesn’t make sense to me, because I thought that Donald Trump was going to win the election, and my reaction to how the election turned out began on November 5th. So it makes no sense to me that I would’ve done – I would’ve asked to submit an application a week before the election. That doesn’t make sense to me.

Q So it’s your just want to make sure we have your testimony clear. You don’t recall instructing Ms. Hanson or approving an application in October for this event after the election on November 15th?

A Not in October, I don’t recall that. I — again, it just doesn’t make sense.

Right: This story doesn’t make sense. That’s the problem.

Plus, as J6C pointed out, the hash tag was actually in use well before the election. After Straka engaged in a really long spiel about how he didn’t much care of Ali Alexander registered the hash tag — “I just want[] to be told where to show up, what time, and where’s the microphone” — (as he said about January 6), J6C asked about the timing again.

Q Got it. That brings me back thank you, that was helpful. That brings me back, though, to the permit application from October 28th. It looks like Stop the Steal, the hashtag, I mean, was really starting to get traction early as September 7th of 2020.

We’ve seen tweets of Jack Posobiec doing it.

So do you recall maybe filing this application in October, for November 15th, to advance the Stop the Steal messaging that was starting to percolate in September, October, and November of 2020?

A Again, it just doesn’t make any sense to me. That – because I believed wholeheartedly that Donald Trump was going to win the election. ~ So it ~ it just doesn’t make sense to me that I would’ve decided a week before the election to submit a permit under the assumption that we’re going to lose the election. It just – that just doesn’t add up inmy mind.

In fact, J6C already knew that the hashtag had been in use even longer than that.

Though Ali Alexander, in his December 9, 2021 testimony, had tried to distinguish the hashtag from everything else, when asked why he suggested he should sue the Kremers after Roger Stone was denied a speaking slot on January 6, Alexander explained,

And there was all this pretense that, you know, Roger Stone is the gentleman who came up with the phrase Stop the Steal. I have, you know, this gentleman’s agreement with him that I have a perpetual use of the license.

And the FBI would know that Stop the Steal went back to 2016, because abundant evidence about it would have been collected by Robert Mueller’s team.

So no one should have believed Straka’s explanation.

I have long raised questions about whether DOJ allowed itself to be snookered in giving Straka a sweet plea, when instead they should have charged him with obstruction. There’s nothing in the filings unsealed in recent days to alleviate my concerns.

That’s true, first of all, because two of the things he threw at prosecutors seem to have been chum, waste material thrown out to distract predators. Straka provided second-hand information from someone who may have been in Nancy Pelosi’s office.

Information that Elijah Schaffer was inside of Nancy Pelosi’s office that is currently being investigated. It is unknown whether any other information has been discovered by the Government concerning this lead.

The government still had not verified the tip a year later.

On March 5, 2021, Straka was interviewed by the FBI a second time. Sometime after his first interview, Straka recalled that an individual, David Leatherwood, told him that an individual, Elijah Schaffer, was inside of Nancy Pelosi’s office on January 6. This information is being investigated for its accuracy.

And Straka, just before sentencing, provided the name of a guy he lived close to in Nebraska (but had not previously known), an identification he claimed came from someone he didn’t even know on Twitter.

On information and belief, Mr. Straka positively identified Gavin Crowl as an individual who participated in January 6. Mr. Crowl’s identity had not been previously provided by anyone to Law Enforcement for almost eleven months. Mr. Crowl is a convicted Sex Offender who has been placed on the Sex Offender Registry in Nebraska. His identity was confirmed by using information provided on the Sex Offender Registry, and by cross-referencing public information from his LinkedIn profile with information he provided in an Internet interview with Bobby Powell, a Government-identified “insurrectionist advocate”. This individual can be heard encouraging the crowd to take the shield of the officer in the video recorded by Mr. Straka. Other video information provided by Mr. Straka shows this individual moving toward entering the Capitol before he was stopped. It is unknown whether this individual actually did enter the Capitol Building; and what other criminal activity he participated in.

His J6C interview makes it clear Straka shared this guy’s name for the purpose of floating conspiracy theories about Antifa.

A Okay. So I — it had been brought to my attention by somebody on social media who I don’t know, a complete stranger, had essentially reached out to me to tell me that they had identified somebody in a video who was at the Capitol who they said this person told me that they identified a person who they said was a member of antifa.

This person told me, I watched this person dressed entirely in black from head to toe, and they said, then he went away for 10, 15 minutes or whatever, and he came back dressed asa Trump supporter. And he was causing agitation, you know, et cetera.

I engaged in a conversation with this person, because the person said to me, I have this on video, or something like that, and I said, Okay. So I looked at the video that the person was talking about, just because it sounded interesting to me, and I was shocked when I discovered that recognized this person as being somebody who was standing directly beside me in my video when I was on the Capitol steps.

Now, you know, I know for a fact that one of the crimes I’m — I was accused of committing was being in a restricted area. So this person had certainly committed the same crime that I committed, and I was also very curious if this person might’ve been encouraging the crowd in ways that it was alleged that I was encouraging the crowd.

And so, I asked this person if they knew the identity of this individual, and this person said, Yes. And so he gave me the name of this individual. I googled this individual and discovered that this individual has a violent criminal record.

At that point – and –and I also discovered that this person lives, coincidentally, very close by where I live.

According to the government sentencing memo, they did open an investigation into Crowl; it was new information for them.

On December 8, 2021, counsel for Straka provided the government with information regarding a United Capitol rioter who was at the U.S. Capitol. Straka recalled observing the individual while he was standing outside on the steps outside of the East Rotunda Doors. This individual stood nearby as a U.S. Capitol Police Officer’s protective shield was taken away from him. Straka believes that the individual joined in with the crowd yelling “take it, take it,” as rioters struggled with the officer to take his shield. After January 6, the individual, identified by Straka as Gavin Crowl, participated in an interview with insurrectionist advocate, Bobby Powell. Crowl recounted what he observed at the U.S. Capitol. Straka and Crowl reside in Nebraska and live within a short distance of each other. Straka’s information is beneficial in that Crowl was not previously identified by the FBI prior to Straka’s identification of Crowl.

[snip]

Based in the information provided by Straka, the FBI has opened an investigation into Crowl and his conduct at the U.S. Capitol on January 6.

Crowl is the one, notably, that Straka claimed to be afraid of, not Trump people threatening to retaliate (though DOJ submitted exhibits of texts from someone else demanding that Straka recant his testimony).

This violent sex offender, if he learns of Mr. Straka’s cooperation in identifying him (which would be the primary reason for any subsequent arrest and prosecution) has a predatory and aggressive history, which could easily result in retaliation against Mr. Straka or his family.

Crowl has not yet — publicly, anyway — been arrested, and even if he was, it’s not clear he ever did anything more than trespass outside the building.

While the tip may have been helpful, it was not cooperation about things that Straka was uniquely positioned to know.

The single prosecution on which Straka’s cooperation was said to help (usually the standard for credit at sentencing) was Simone Gold, the anti-vax activist who was arrested even before Straka was in January 2021, and who had already been charged with felony obstruction six days before the February 11 Straka interview where he first provided the information. In its sentencing memo, the government said Straka provided a voice mail that might help get Gold to plead.

Straka provided the government with voicemail messages that he received from Gold, whom he met in Washington D.C. on either January 5 or 6. The information contained in the voicemail messages is valuable in the government’s prosecution of Gold and may assist in a plea resolution of the Gold prosecution.

After further delay, Gold did plead out, not to the felony obstruction count, but to the more serious trespassing count. Her plea agreement had the standard cooperation paragraph in it, which sometimes suggests that the person had not yet sat for the further FBI interview required by virtually all misdemeanor pleas. The government sentencing memo in her case laid out several ways she continued to delegitimize her prosecution — and fundraise, to the tune of $430,000 — off it. In short, there’s absolutely no evidence that DOJ used the information Straka provided on Gold to advance the overall investigation. It made a misdemeanor plea easier to get, but not much more than that.

Gold is more likely to be held accountable in a lawsuit by her anti-vax group, which has split into factions over how she grifted the fundraising from it (though the failed attempt by Gold’s attorney, Kira West, to drop her as a client may suggest there might be legal accountability for the grift, as well).

The combined memos make it clear that the government viewed Straka’s cooperation to be most valuable for his insight into Stop the Steal, especially Alexander. Straka himself describes identifying people on one of the Stop the Steal threads (though this sounds like the known Twitter DM list; in his J6C transcript, he described a Signal thread as well).

Contact information regarding the following members of the Stop the Steal text thread, to include: Ali Alexander, Michael Coudrey, Scott Presler, Ashley St. Clair, Nathan Martin, Courtney Holland, Megan Barth, CJ Pearson, Ryan Fournier, and another telephone number unknown to Mr. Straka.

There’s a non-zero chance that the tenth number is either that of Paul Gosar or one of his staffers, because he was on that Twitter thread (and Straka filibustered about him when asked by J6C).

There are reasons for concern, though. None of the documents pertaining to Straka — from either J6C or DOJ — mention Mike Flynn, next to whom Straka sat at the Ellipse rally, which is particularly important given Straka’s description that he went back to the Willard after the rally.

And in the discussion of Straka’s information on the organizers of Stop the Steal (Straka did not mention Caroline Wren, though he may not have understood her role), DOJ adopts the same misspelling of the Kremers’ name as Straka did: “Kremmer” rather than “Kremer.”

Straka provided information about “Stop the Steal” members Amy Kremmer, Kylie Kremmer, Cindy Chafian. This information was useful in that it identified members of “Stop the Steal.” Neither the Kremmers nor Chafian are being prosecuted by the government at this time.

Note that J6C seemed not to have communications between Straka and Chafian that should have been in his production.

How aggressively must prosecutors be following this if, over a year into an investigation of January 6, they’re still not clear on who the Kremers are, whether or not their actions are deemed suspect?

And Straka’s memo seems to confirm my fear that DOJ had not yet turned to the earlier incitement from Stop the Steal — which was a key threat to state lawmakers are they were considering whether to support Trump’s coup attempt — until his third interview, in January 2022.

Additional information concerning Michael Coudrey, Scott Presler, Ashley St. Clair, Courtney Holland, Megan Barth, CJ Pearson, and Ryan Fournier, Amy and Kylie Kremmer, Cindy Chafian, Alex “Bruisewitz” (spelling unknown), Crystal (LNU) (an organizer and logistics person involved in rallies for President Trump), and Jenny Beth Martin; as well as information about specific rallies held in the months prior to January 6, was provided during Brandon’s third interview. [my emphasis]

Brandon Straka played a central role in intimidating election workers in my state of Michigan in 2020, and the government got all the way to sentencing before asking him about that process. That pisses me off and raises real questions about how thoroughly they investigated Straka before agreeing to a misdemeanor plea.

In his J6C interview, almost seven weeks after that third interview, Straka revealed that FBI at that point still retained all his devices except his phone. Three months after his third interview, DOJ subpoenaed Alexander. DOJ may not be done with Straka.

It may be that the trade-off — of getting immediate access to his devices rather than waiting to crack whatever security he had — still made the plea worth it. It may be that that early cooperation, and more importantly, the follow-up in January 2022, provided DOJ information they couldn’t have gotten without a lot more effort.

But J6C, without warrants, was able to poke a key hole in Straka’s story. At least on the public record, it seems that FBI was not so thorough, even with warrants and seized devices in hand.

Links

Timeline

January 11, 2021: Tip on Straka’s post to Twitter

January 13, 2021: Interview with Straka relative

By January 13, 2021: Straka removes January 5 video from Twitter; last view date for December 19, 2020 video cited in sentencing memo but not arrest affidavit

January 20, 2021: Straka charged by complaint

January 25, 2021: Straka arrest

February 17, 2021: First FBI interview

February 18, 2021: First continuance

March 25, 2021: Second FBI interview

June 3, 2021: Second continuance

July 2, 2021: Protective order

August 25, 2021: Third continuance

August 31, 2021: Date of plea offer

September 14, 2021: Deadline to accept plea

September 15, 2021: Straka charged by information

September 30, 2021: Stuart Dornan files notice of appearance for Straka

October 5, 2021: Updated information

October 6, 2021: Change of plea hearing (plea agreement; statement of offense); sentencing scheduled for December 17, with initial memo due December 10 and response due by December 15

Between October 7 and November 19, 2021: Pretrial services interview (sealed docket #28)

November 19, 2021: Brittany Reed substitutes for April Russo

December 8, 2021: Sentencing reset for December 22; sentencing memo due by December 15; Straka “provide[s] counsel for the government with information that may impact the government’s sentencing recommendation”

December 9, 2021: Ali Alexander J6C testimony

December 10, 2021: Straka shares sentencing position (possibly filed under seal)

December 11, 2021: Government tells defendants it seeks to continue, tells Straka it will consider request to dismiss case

December 16, 2021: Last view date for 2018 Straka video, Walkaway Foundation website, WalkAway Campaign PAC website, WalkAway Campaign YouTube Channel; ProPublica article on Michael Courdrey message (and attempts to distance Alex Jones and Ali Alexander)

December 17, 2021: Motion to continue (presented as joint) 30 days

By December 23, 2021: Sealed motion attempting to seal publicly filed motion to continue, denied by Judge Friedrich

January 5, 2022: Third FBI interview, this time including prosecutors (plural)

January 13, 2022: Government sentencing memo (sealed addendum at docket #37); government denies Straka request to dismiss case

January 14, 2022: Bilal Essayli files notice of appearance for Straka

January 20, 2022: Straka sentencing

February 22, 2022: Brandon Straka J6C testimony

April 8, 2022: Ali Alexander reports receiving a subpoena

June 24, 2022: Ali Alexander grand jury appearance

When Your Lawyer is Acting Like H.R. Haldeman, It’s Time to Get a New Lawyer

January 23, 2023/25 Comments/in 2020 Presidential Election, January 6 Insurrection, Trump Administration /by Peterr

President Richard Nixon and his Chief of Staff HR Haldeman, before Nixon resigned in disgrace and Haldeman went to prison for 18 months after being convicted of perjury, conspiracy, and obstruction of justice.

When Cassidy Hutchinson’s September 14, 2022 testimony to the J6 committee first came out, I remember being struck by three sentences in bold below (emphasis added) as I read it (from p. 48):

Ms. Hutchinson. And then just, at the end of that meeting, we had — because I had asked him about doing the, like, mock question preparation, and he said, “No.” So said, “Well, do you recommend anything that I can do to prepare for next week?” He’s like, “Get a good night’s sleep,” like, a few wishy-washy things.

And he said, “Don’t read anything about this on the internet.” He said, “Again, Cass, like, just trust me on this. I’m your lawyer. I know what’s best for you. The less you remember, the better. Don’t read anything to try to jog your memory. Don’t try to put together timelines.”

And he was like, “Especially if you put together timelines, we have to give those over to the committee. So anything you produce we have to give over to the committee. So l really” — he was like, “You can have things in front of you, but really don’t want you to, because we have to give that to the committee.”

So now I’m like, oh now I’m kind of scared. — Like, what if I want notes in front of me and he gets mad at me because I have to give them to the committee now? I didn’t know I would have to give them to the committee, but he told me I did, and he was my lawyer, so I was trying to trust him.

This wasn’t the only place in the transcript where words like these were used – they were almost a refrain. “Where have I heard this before?” I asked myself, then kept reading. Over this past weekend, while helping my mom clean out some old magazines, the penny dropped.

The date was March 21, 1974 1973 [corrected] – two days before the scheduled sentencing of the convicted Watergate burglars. At the White House, things were tense, as the scandal was growing and the coverup was in the process of unraveling. President Nixon, Chief of Staff H.R. Haldeman, and White House Counsel John Dean met for almost two hours, taking stock of the mess and looking for possible routes forward. They discussed additional payments to keep people quiet (noting that earlier payments had bought them silence through the 1972 election), and tried to figure out how to sideline the recently formed Senate Watergate committee chaired by Sen. Sam Ervin (D-NC).

Toward the end of the meeting, Nixon brought up a suggestion from his Domestic Policy Advisor (and former White House Counsel) John Ehrlichman: instead of letting the Ervin committee run riot in public, announce that all this was going to a new grand jury. From the transcript of the Nixon tapes (with all the typos, punctuation, etc. in the original, but with emphasis added):

PRESIDENT:    John Ehrlichman, of course, has raised the point of another grand jury. I just don’t know how you’re going to do it. On what basis. I, I could call for it, but I…

DEAN:              That would be, I would think, uh…

PRESIDENT:    The President takes the leadership and says, Now, in view of all this, uh, stripped land and so forth, I understand this, but I, I think I want another grand jury proceeding and, and we’ll have the White House appear before them.” Is that right John?

p. 89 [sic, should be 88]

DEAN:              Uh huh.

PRESIDENT:    That’s the point you see. That would make the difference. (Noise banging on desk) I want everybody in the White House called. And that, that gives you the, a reason not to have to go up before the (unintelligible) Committee. It puts it in a, in an executive session in a sense.

HALDEMAN:   Right.

PRESIDENT:    Right.

DEAN:              Uh, well…

HALDEMAN: And there’d be some rules of evidence. aren’t there?

DEAN:              There are rules of evidence.

PRESIDENT:    Both evidence and you have lawyers a

HALDEMAN: So you are in a hell of a lot better position than you are up there.

DEAN:              No, you can’t have a lawyer before a grand jury.

PRESIDENT:    Oh, no. That’s right.

DEAN:              You can’t have a lawyer before a grand Jury.

HALDEMAN: Okay, but you, but you, you do have rules of evidence. You can refuse to talk.

DEAN:              You can take the Fifth Amendment.

PRESIDENT:    That’s right. That’s right.

HALDEMAN: You can say you forgot, too, can’t you?

DEAN:              Sure. –

PRESIDENT:    That’s right.

p. 89

DEAN:              But you can’t…you’re…very high risk in perjury situation.

PRESIDENT:    That’s right. Just be damned sure you say I don’t…

HALDEMAN: Yeah…

PRESIDENT:    remember; I can’t recall, I can’t give any honest, an answer to that that I can recall. But that’s it.

Hutchinson is too young to have lived through Watergate, but she clearly recognized that Stefan Passantino was acting more like he was more worried about someone else’s legal issues and not her own. It took her a while, but she eventually punted him and found a legal team who agreed to work on her behalf.

Passantino was clearly channeling his inner Haldeman when he told Cassidy Hutchinson “The less you remember, the better.”

Maybe this is a new entry in the DC book of Proverbs: “When your lawyer is acting like H.R. Haldeman, it’s time to get a new lawyer.”

Johnny McEntee: Enforcer of Trump’s Authority to Invoke the Insurrection Act

January 23, 2023/20 Comments/in 2020 Presidential Election, January 6 Insurrection /by emptywheel

CNN’s ace Prettyman stakeout reporters spied John McEntee, Trump’s body man turned personnel enforcer, going into a grand jury appearance Friday.

That led me to spend quality time with his January 6 Committee transcript this weekend; I was trying to get a sense of whether this interview — one of the first that would have been scheduled after DOJ had an opportunity to read J6C transcripts turned over in early December — gave a sense of why Jack Smith prioritized McEntee.

I agree with CNN, this is likely part of it:

When testifying to the House committee, McEntee recalled a meeting in the Oval Office on Vice President Mike Pence’s role in certifying the election, in which he said he was asked to look into precedent. McEntee also recounted in-person exchanges between Trump and Pence, in which he heard Trump say, “Michael, do the right thing,” and “Do what you think is right, Mike.”

Here’s how it appears in the transcript.

Q Did you ever witness any conversations between the President and the Vice President about the Vice President’s role?

A No. No.

Q Or any phone calls? Anything like that?

A I remember the President saying, “Michael, do the right thing.” You know, “Do what you think is right, Mike.” That’s all I heard him say.

Q You heard him say that to Vice President Pence?

A Yeah.

Q Was it over the phone or in person?

A In person.

Q Okay. And was that in the Oval Office?

A Yeah.

Q Was anybody else there?

A I think Short was there, yeah.

Q Do you remember when that was?

A I don’t. It was, like, when he was going up for the evening, the President, and they were just finishing something up, so I came in to, like, grab all his stuff, and then he said that to him.

Q Okay.

A At the conclusion of the day at some point.

Q And did the Vice President say anything in response?

A No. He just nodded.

If credible, it would be exculpatory. DOJ needs to interview anyone who might have exculpatory information before they make a decision to charge Trump.

They may also be trying to get all testimony about Trump’s comments to Mike Pence before they move to interview Mike Pence, because they’d need to make a case they couldn’t get his testimony anywhere else.

But McEntee was not particularly credible, and I would imagine with call records and other testimony, DOJ would be able to prove that.

Indeed, even in the J6C testimony, McEntee got caught providing a dubious explanation for a call he had with Trump after the attack on January 6. At first, he claimed most of his conversation with Trump consisted of “colorful” comments about the people who resigned on January 6.

Q Did President Trump ever talk to you about the events of January 6th even after the fact?

A Just vaguely that night when we spoke.

Q Okay. Tell us about that conversation.

A I called, and I just went down the list of all the people who had resigned.

And then we discussed a little bit about each just colorfully. And then he just said this is a crazy day and, you know, I’ll see you tomorrow. But he didn’t go into many details.

Q Okay. Can you remember anything else he said about the events of that day?

A I can’t, other than he acknowledged that it was, like, wild, and we would talk tomorrow, you know, or next — we’ll see you in the morning, or something like that.

Q Okay.

A We were mostly going through all these people that resigned, and then kind of talked about them. And I was just relaying, because O’Brien called me and said you got to let him know I’m not resigning. So then I called, and he said, well, who has resigned? And then, like, I went through the list of the ones I knew at the time. And then the next day some more came out.

Q When the President said it was a crazy day, or something to that effect, what was his tone?

Q A Kind of like a little disbelief. Like, wow, like, can you believe this shit, you know?

A Did he express any sadness over the violence?

Q No. I mean, I think he was shocked by, you know, it getting a little out of control, but I don’t remember sadness, specifically.

But in a final question, J6C pointed out the problem with that. Trump didn’t know any of the people who resigned on January 6; the people he knew who resigned only resigned on January 7.

Q I just want to ask, that conversation that January 6th evening, I think from the — the diary indicates it’s a 20-minute-long conversation. And you described it.

Many of the people who resigned that day Mr. Trump didn’t even know. In fact, the ones that he did know didn’t resign till the next day.

So 20 minutes is a long conversation, Mr. McEntee, and I’m wondering if you could just describe, when you say “disbelief” and “day is crazy,” what more color can you add to the feelings of that day as expressed to you?

A You know, it’s hard to remember, honestly. I don’t remember any details we went into about it. I know we went through each person, and I had to explain who each person was, so that took a minute or two on each –

There are other parts of McEntee’s testimony that strain credulity. He has little explanation for how he spent his day on January 6. He claimed not to understand most of what he was doing as he served as a go-between, between Steve Bannon and the White House via Bannon’s Chief of Staff Alexandra Preate. His response to being asked about a rumor that he slept at the White House for several days after the attack was weak — “not that I’m aware of.”

McEntee also described Trump using his (McEntee’s) phone — and he was a bit squishy about whether it was just his White House phone, or also his personal one — from time to time. McEntee likely learned this habit from working with Keith Schiller, who offered the same service as a body man.

But there’s an aspect of McEntee’s testimony that is far more alarming.

Shortly after returning to the White House in 2020, he was elevated to run personnel. He was wildly unqualified for the task, as intended for a government bureaucracy, but he was quite adept at politicizing every bit of the political appointment process, and demanding absolutely loyalty in the process.

And in that role, McEntee served as a means to drive the policy of the entire Pentagon.

The committee first reviewed McEntee’s role in firing Mark Esper for refusing to invoke the Insurrection Act during the summer of 2020. Then it turned to how, after simply interviewing Douglas MacGregor for an advisory role at the Pentagon, McEntee sent a memo to DOD ordering them, days after the election was called for Biden, to withdraw from Afghanistan and Somalia.

The exchange led his attorney, David Warrington, who at the time was paid by Trump’s PAC and who still represents a slew of January 6 witnesses, to go on an extended complaint about the scope of questions.

McEntee’s role in enforcing policy came up again in an exchange about the response to Army Secretary Ryan McCarthy saying, on December 18, that the military would play no role in determining the outcome of the election.

On December 18th, the Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff issued a statement that there was no role for the U.S. military in determining the outcome of an American election.

Do you remember what impact, if any, that had on the White House?

A I don’t remember that being brought up.

Q Do you remember conveying a message to Secretary Miller about the White House’s frustration that DOD, particularly the Secretary of Army, had issued such a statement?

A No, I don’t remember. I don’t remember that.

Q Secretary Miller told the committee that he was contacted by you soon after the statement was made and you asked why McCarthy made the statement and, quote, “wanted me,” meaning Mr. Miller, “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He,” meaning you, “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

This was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

After getting McEntee to deny remembering this and claiming any interference at DOD was simply in his role as Assistant to the President, J6C then brought out a note, written by McEntee, that Trump or someone else had ripped up before it was preserved by the Archives.

It showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.

McEntee claimed he remembers none of that.

Q One second. Sorry.

These are handwritten notes that have been produced to us from the National Archives.

Is that your handwriting, Mr. McEntee?

A It looks like it, yes.

Q And it looks like the page has been torn. But it says, “Chris Miller spoke to both of them and anticipates no more statements coming out.” And then in parentheses, “If another happens, he will fire them.”

Do you remember writing this?

A No, I don’t remember writing this.

Q But this is your handwriting?

A Yes.

Q So, just want to be clear. This is your handwriting, but you have no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election?

This is important background to McCarthy’s indolent response to the attack on January 6. Trump’s chief enforcer had already intervened to make sure he didn’t do anything to fall afoul of Trump’s whims.

But it’s also important background to another comment in the interview.

As I suggested in this post, the J6C transcripts make it clear that a long-public reference to Trump requesting 10,000 National Guard on January 3 was misrepresented, no doubt deliberately so. Trump made the request not, as reported, in the interest of keeping his followers safe. Rather, he first floated having 10,000 Guard after it became clear the National Park Service would not approve a permit for a march to the Capitol, out of security concerns.

Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

And that, plus McEntee’s role in firing Esper because he refused to invoke the Insurrection Act and his threats of firing McCarthy because he said DOD would not intervene in the election, makes this reference all the more chilling. When asked about his role in the rally, McEntee described that he intervened to ask Christopher Miller to involve the Guard.

Q Did you have any conversations with the President that day?

A Only that night.

Q Okay. We’ll get to that in a minute. Did you go to the rally on the Ellipse?

A No.

Q Were you involved in any conversations about planning the rally?

A No.

Q Were you aware of any discussions about groups such as the Proud Boys, Oath Keepers, or anybody else being involved in the protests?

A I was not. The only thing I had to do that even remotely dealt with the rally was the President wanted to make sure it was safe. And either a day or two or three before, he had me call Chris Miller and ask if we could bring the National Guard in.

Q Okay. What did Mr. Miller say?

A I think he said he would look into it.

Q And do you know if anything happened after that?

A I don’t know if anything happened or came of it, no.

Q Did you report back to the President on what Secretary Miller said?

A I just let him know that I relayed his message to Chris, yeah.

Having earlier claimed not to recall using threats of firing to make demands on DOD and having earlier disclaimed any knowledge of Trump’s plan to walk to the Capitol, here’s the bullshit explanation McEntee offered for why Trump wanted to involve the Guard.

Q And did the President say anything about why he wanted the National Guard there?

A I think because that summer we had the Republican Convention. And if you remember, like, Rand Paul was getting attacked in the street. And, I don’t know, it just got kind of crazy. So this time he thought we’re going to have so many people, like, you know, we need to make sure that this city is safe. That kind of a thing.

Q Do you know why he said it to you?

A No, I think it was just on his mind and I just happened to be next to him. So he said call Chris and let him know. So I just called Chris.

Q Were you traveling at the time?

A We could have been, like, golfing, yeah, or something. You know, we could have been at his golf course maybe.

As I said above, I agree with CNN that one thing Jack Smith’s team would have wanted to ask McEntee about was his claim to have heard, alone among all known witnesses, Trump say something exculpatory.

DOJ would also want to see whether McEntee wanted to reiterate some of the more fantastic claims he made to J6C, especially knowing that DOJ would have the legal means to disprove some of them.

DOJ likely would want to ask about a conversation McEntee had with Trump, along with Dan Scavino (who has definitely appeared before the grand jury) and Molly Michael (who has definitely been interviewed in the stolen document case and likely interviewed in J6C), about testifying to J6C.

But depending on what other witnesses DOJ has already interviewed, DOJ may want to know more about McEntee’s role in arranging an ostensible Praetorian Guard for the President as he walked to the Capitol as they moved to certify his loss.

McEntee was among the people referred to, publicly at least, in the mix for a pardon after January 6. In his interview, McEntee only discussed that pardon, if it happened, in the context of a blanket pardon for staffers involved in January 6.

It was never entirely clear why McEntee might need one.

Unless he has knowledge of Trump’s attempt to use the National Guard as a Praetorian Guard to accompany his own march on the Capitol.