Trial by Combat: Rudy Giuliani and John Eastman Speeches Included in Ed Badalian Exhibit List

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In a pre-trial filing in the case of Ed Badalian — who is charged with conspiring with Michael Fanone’s now admitted assailant, Danny Rodriguez, to obstruct the vote certification — the government identified at least six exhibits pertaining to the events at the Ellipse on January 6 it may introduce at trial.

That includes not just video and a transcript of Trump’s speech, but also of John Eastman and Rudy Giuliani’s speeches.

Exhibit 311 likely references the documentary clip showing Rodriguez, seemingly responding to Trump’s call-out of Pence in his speech, turning to the camera, stating “Joe Biden,” and making a throat-slitting movement several times (See 25:43 in this video).

Focusing on what happened at the Trump rally is unusual in January 6 trials.

Not even with some of the defendants who seemed most enraged by Trump — such as Kyle Fitzsimons — did the government rely on more than a still picture of the Ellipse event. In the Dustin Thompson case, where Thompson had affirmatively claimed that Trump’s speech had authorized him to storm the Capitol (and where Thompson had falsely testified Rudy’s speech had done so too), the government included just a YouTube of Rudy’s speech that had been sent to Thompson. They had Trump’s speech available as an exhibit, but relied, instead, on Thompson’s Uber and GPS records to prove he hadn’t seen Rudy’s speech.

The government has more often than not tried to keep the Ellipse rally out of January 6 trials than include it.

But in this case, the government may be in a position to do something else: to tie Trump, Rudy, and Eastman directly to the violence at the Capitol, to tie Trump directly to the attack that almost killed Michael Fanone.

As DOJ has done with other charged conspiracies, the indictment, Rodriguez’ statement of offense, as well as that of co-conspirator Gina Bisignano trace how the co-conspirators — here, a group of anti-maskers from Southern California — responded to Trump’s call by arming themselves, traveling together to DC, getting riled up at Trump’s speech, then going to the Capitol to engage in some of the most important violence and destruction during the attack.

In response to Trump’s December 19 tweet, for example, someone in the group described that, “Trump is calling on everyone to go to DC Jan 6th.” Two days later, Badalian announced, “we need to violently remove traitors and if they are in key positions rapidly replace them with able bodied Patriots.” On December 29, Rodriguez boasted, “Congress can hang. I’ll do it. Please let us get these people dear God.” Sometime before leaving for DC, Rodriguez told someone else, he would “assassinate Joe Biden” if he got the chance. On January 5, Badalian said, “we don’t want to fight antifa lol we want to arrest traitors.” Also on January 5, Rodriguez promised, “There will be blood. Welcome to the revolution.”

In this case, they also have a remarkable confession. DOJ has Rodriguez explaining to the FBI that he didn’t plan on murdering anyone like Fanone, he just thought there might be casualties because, he believed, he was fighting a civil war.

I kept thinking that we were going to go to, like, a civil war and it’s going to go hot and we’re just — it’s all going to — you know? I don’t know. I didn’t know — we didn’t — nobody knew, so we just thought that it was going to — we were preparing for the — we’re trying to save the country. We thought we were saving the country. I thought I was helping to save the country.

[snip]

A. I didn’t go planning to murder anybody.

Q. I’m not saying that.

A. But I knew that it was a possibility that —

BY AGENT ELIAS: Q. There could be causalities and —

A. There could be causalities. That, like, if this was another civil war, this was another 1776, another 4th of July or something, that that could be a possibility and —

But what they also have are the immediate reactions to Trump’s speech (and perhaps Eastman and Rudy’s, too), that turn to a camera and the show of slitting Biden’s throat. Rodriguez is not the only one who responded to Trump’s incitement by voicing plans to attack the Capitol. Bisignano (who may yet live to regret her nine month effort to renege on her plea deal) also responded directly to Trump’s incitement. “I hope Mike Pence is going to do the right thing,” Trump called out. “I hope so too,” Bisignano responded, “he’s deep state.” And as she marched to the Capitol, Bisignano filmed herself describing that “we are marching to the Capitol to put some pressure on Mike Pence.” Once there, she described, “we are storming the Capitol,” before she, Rodriguez, and Badalian did just that together.

One of the key pieces of evidence Jack Smith’s prosecutors have tying Donald Trump and John Eastman and Rudy Giuliani to the attack on the Capitol are Greg Jacob’s retorts to Eastman that day. “The knowing amplification of [Eastman’s] theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law,” Jacob told Eastman at 3:05 PM on January 6, as he sheltered with the Vice President from Danny Rodriguez and Gina Bisignano and thousands of other attackers, “has led us to where we are.” At 2:14PM, just as attackers broke through a window of the Capitol, Jacob was more succinct: “[T]hanks to your bullshit, we are now under siege.”

An hour after that initial breach, Danny Rodriguez would grab Fanone and, using a taser he was handed inside the Tunnel, tase the officer twice in the neck, leading to a heart attack and other injuries that remain redacted in Rodriguez’ statement of offense. In the morning, Rudy Giuliani called for “trial by combat.” John Eastman told listeners, “We no longer live in a self governing republic” if they couldn’t get Pence to let Republicans investigate further. Trump told his followers that if they didn’t fight, they wouldn’t have a country anymore.

In the morning, Trump’s speech led Rodriguez to imagine knifing Joe Biden, and in the afternoon, Danny Rodriguez almost killed Michael Fanone.

I don’t know if DOJ intends to do this (and as noted in the exhibit list, Badalian wants these exhibits excluded from trial on relevance grounds), but Amit Mehta certainly believed Trump might bear Aid and Abet liability for assaults like the one Rodriguez committed on Michael Fanone.

And in the case where you can draw the clearest line between things that Trump and Rudy and Eastman said at the rally to an assault and other violence at the Capitol, DOJ has laid the ground work to make that case.

Update: Here’s the updated exhibit list for the trial with specific times for the video of Trump and Giuliani’s speeches. The times from the latter are from when Rudy spoke, not John Eastman; it appears to include his “trial by combat” line.

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The Evolving Robert Costello – Steve Bannon Timeline

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Robert Costello’s law firm, Davidoff Hutcher & Citron, is suing Steve Bannon.

Can you blame them? According to the complaint, Bannon has stiffed the firm on $480,487.87 out of $855,487.87 they’ve billed him.

I’m interested in the complaint, though, for something other than the details of what a cheapskate Bannon is.

Here’s how the complaint describes the firm’s work for Bannon.

From on or about November 2020 through on or about November 2022, DHC provided legal services on behalf of the Defendant regarding several matters that included, but not limited to, a federal action captioned, United States v. Stephen Bannon, 20 Cr. 412 (AT) (S.D.N.Y.) which was dismissed against Defendant subsequent to a presidential pardon of him that was secured through the aid of DHC, represented Defendant with regards to a subpoena issued by the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (“Subpoena”), subsequently represented Defendant in response to a criminal contempt proceeding captioned, United States v. Stephen K. Bannon, 21Cr. 670 (CJN) (D.D.C.) regarding that Subpoena, and represented Defendant in a case brought by the former Manhattan District Attorney Cyrus Vance, captioned In the Matter of the Application of Cyrus R. Vance, Jr. (collectively the “Legal Services”)

That mostly tracks what we know about Costello’s representation of Bannon. He publicly took over representing Bannon in the Build the Wall case on December 11, 2020 after Bannon’s prior criminal defense attorney, Bill Burck, fired him for threatening to execute Anthony Fauci and Chris Wray.

Costello represented Bannon in his contemptuous refusal to show up before the January 6 Committee and invoke Executive Privielge, and participated in two discussions with the government that the government treated as material to the contempt case against Bannon. There was a brief moment after Bannon was indicted on November 12, 2021, where it looked like David Schoen and Evan Corcoran would represent Bannon, alone. But on December 2, Costello filed to join the case, setting off a long discussion about whether Costello would be a witness or a lawyer on the case. That charade continued until July 2022, when Costello decided he might need to be a witness after all. See this post for some of that timeline.

It is true that Costello represented Bannon in the early period of NY State’s investigation into Bannon for the same fraud for which he was pardoned in the federal Build the Wall case. Though the November 2022 date roughly coincides with Bannon’s sentencing in October 2022.

Again, it mostly checks out.

The reason I’m interested, however, is that back in July 2022, when Costello was withdrawing from the Bannon contempt case, he gave a different timeline for his representation of Bannon, indicating that it went back two years earlier than the timeline DHC has laid out.

I am an attorney and Partner in the firm of Davidoff, Hutcher & Citron, LLP located at 605 Third Avenue, New York, New York. For the past 49 years I have been admitted to the bar of the State of New York, the Southern and Eastern Districts of New York, the Second and Third Circuit Courts of Appeals and the United States Supreme Court. I have been counsel to the above listed Defendant, Stephen K. Bannon on a number of different matters for the past three years. I am admitted to the bar of this District by way of pro hac vice motion. I have been co-counsel to Mr. Bannon throughout these proceedings as well as in connection with all interactions with the Select Committee which preceded the filing of Contempt of Congress misdemeanor charges in this Court. [my emphasis]

I noted at that time that it was a different timeline than was publicly known, the timeline that DHC lays out in its complaint.

Still, there may be a ready explanation for this discrepancy too: That Costello is including the period when he played a key role in the “Hunter Biden” “laptop” operation in the time period he represented Bannon, but DHC is not.

Even so, that timeline is a bit hazy, given some variation regarding whether he reached out in 2019 or 2020 in Mac Isaac’s story.

In any case, the discrepancy between DHC’s story and Costello’s about the length of time he represented Bannon may be of interest to Abbe Lowell, as he asks the Feds to investigate — among others — Bannon, Rudy Giuliani, and Costello.

These disputes are interesting for another reason. As the Daily Beast laid out, Bannon has also been stiffing Evan Corcoran. And his third lawyer from the contempt case, Schoen, said last month he can no longer work with him in the NYS Build the Wall charges.

Even after the irreparable split in NYS, Schoen remained on Bannon’s appeal, where he has been stalling and where briefing won’t be done until May. Any appeal would be premised on Bannon’s understanding of the expectations surrounding Executive Privilege, which would seem to rely on Costello’s testimony.

I have no idea where this is going. Perhaps Hunter Biden’s lawyer, Lowell, can sort it out.

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Kevin McCarthy Makes Sensitive Security Footage Available to the Insurrectionists’ Propagandist

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Yesterday, Mike Allen revealed that Kevin McCarthy had made all the security footage from January 6 available to Tucker Carlson.

House Speaker Kevin McCarthy has given Fox News’ Tucker Carlson exclusive access to 41,000 hours of Capitol surveillance footage from the Jan. 6 riot, McCarthy sources tell me.

  • Carlson TV producers were on Capitol Hill last week to begin digging through the trove, which includes multiple camera angles from all over Capitol grounds. Excerpts will begin airing in the coming weeks.

Why it matters: Carlson has repeatedly questioned official accounts of 1/6, downplaying the insurrection as “vandalism.”

That he did this is not a surprise. As Allen himself writes, McCarthy has been working on this since early February. And the extremists who used McCarthy’s Speakership to demand concessions have been calling for this almost from the start.

Of particular note, Marjorie Taylor Greene, who spent part of the day yesterday calling for the red states (which may no longer include Georgia) to secede, again, like the last time white supremacists grew impatient with living in an aspiring democracy, spent much of the rest of her day taking credit for the release, tying it directly to her support for McCarthy as Speaker.

Let me repeat that: The person who took credit for this release was, just two hours earlier, calling for Civil War.

And McCarthy provided access to this video to the biggest propagandist for those who attacked the Capitol. Starting almost immediately after  some of his viewers attacked the the Capitol, Tucker has been running insanely stupid conspiracy theories, claiming the attack was launched by the Deep State rather than his own viewers and allies. Tucker eventually packaged the propaganda into such a slick propaganda film, it led conservative journalists to leave.

This time around, Tucker might opt for instructing his viewers how to succeed with the next attack rather than lying about the last one.

Depending on the terms via which McCarthy made this footage available, it could also be shared with foreign adversaries. Tucker has long been chummy with Viktor Orbán, and he himself revealed he had been picked up on intercepts seeking a back channel with Russia.

The outcome of this release is hard to measure at this point.

While defendants already have access to any video to their case, when stuff gets released via an alternate channel like this, they often use it to launch new legal challenges and claims of discovery violations. At the very least, this will create new delays and headaches for already overburdened prosecutors.

The security implications, however, are more serious. I did a post in December 2021 showing how video from just one camera over the course of the day — in this case, from the Tunnel through which Joe Biden would walk to be inaugurated weeks later — would reveal where key security cameras were and how to disable them.

It’s likely that the Capitol police has replaced some of these cameras in the interim because the process of prosecuting all those who attacked the Capitol has already compromised their effectiveness.

The other thing making all the video available at once will do is identify where there aren’t (or weren’t) security cameras.

One of those places is McCarthy’s own office.

It’s bad enough that McCarthy made the unilateral decision to release these. It’s bad enough that he decided to release these to someone who, the Dominion lawsuit just revealed, was willing to undermine the democratically elected government of the country for partisan gain.

But McCarthy released them exclusively to Tucker Carlson, meaning they won’t be used to crowdsource more identifications, but will instead be used solely for the purpose of propaganda.

We have yet to get a full accounting for all the commitments McCarthy made to be elected Speaker. But this decision makes clear that he was willing to sell out the country to get the position.

Update: WaPo has a really helpful story on what this means.

The decision by McCarthy to provide the video to Carlson raised serious questions about whether the release of the footage would force U.S. Capitol Police to change the location of security cameras and why the speaker would give the material to a Fox News host who has peddled conspiracy theories about the attack and not share it with other news organizations.

McCarthy, who made numerous concessions to the far-right flank in his GOP conference to win enough votes to become speaker, has said that Republicans would investigate the work of the bipartisan Jan. 6 committee. McCarthy also vowed that Republicans would launch their own inquiry into “why the Capitol complex was not secure” on the day.

[snip]

People familiar with the video footage say that the committee investigating the Jan. 6 insurrection had access to a special dedicated terminal installed in the committee office that had password- protected access to the volume of footage. The committee asked for permission from U.S. Capitol police before they used any of the footage in public hearings, these people said, as they did not want to publicly disclose the location of security cameras in the building.

The committee cut and minimized use of the footage accordingly, these people added.

“We used the material that we thought was most important in demonstrating findings, and we were extremely cautious in what we chose to use,” said a former committee staffer who expressed concerns about the security risks posed by Carlson’s access to the entire trove of surveillance footage. The individual spoke on the condition of anonymity to talk freely about the internal work of the panel.

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“A Demonic Force:” Dominion Just Gave Jack Smith Useful Evidence

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As you read through Dominion’s motion for summary judgment against Fox News — and trust me, you should read it! — keep in mind not just how it proves Fox to be nothing but a propaganda platform aiming to help the Republican Party, but also the evidence it makes available to Jack Smith as he considers charges against those who used false claims about voting fraud to gin up a coup attempt.

Just as one example, Sean Hannity has played a role in every Trump legal scandal — serving as a back channel to Trump for Paul Manafort, participating in Rudy Giuliani’s attempts to gin up dirt on Hunter Biden as the first impeachment unfolded, and helping White House officials stave off the resignations of Trump’s White House Counsels in advance of January 6. But in each case, investigators only got his communications via other subjects of the investigation, as when DOJ found Manafort’s WhatsApp texts to Hannity saved in Manafort’s iCloud account or when the January 6 Committee got Signal texts Hannity exchanged with Mark Meadows from the former Chief of Staff’s production. Republicans chose not to call Hannity as a pro-Trump witness in the Ukraine impeachment.

With its filing, Dominion has given a snapshot of the ways and whys in which Fox News helped magnify false voter fraud claims, especially (though not exclusively) those of Sidney Powell.

It all takes place against the backdrop of a huge backlash against Fox after it called AZ for Joe Biden. When Fox presented the truth about the election, viewers started fleeing to Newsmax, with Trump’s encouragement. The filing describes the panic that ensued.

[O]n November 9, the impact of Fox’s Arizona call became more evident to Fox executives. Carlson told [Fox News CEO Suzanne] Scott directly: “I’ve never seen a reaction like this, to any media company. Kills me to watch it.” Ex.211. Scott immediately relayed the email to Lachlan Murdoch. Ex.212 . She told Briganti that Sammon “did not understand the impact to the brand and the arrogance in calling AZ,” which she found “astonishing” given that as a “top executive” it was Sammon’s job “to protect the brand.” Ex.213. And on that day–“day one,” as Scott termed it, Fox executives made an explicit decision to push narratives to entice their audience back. Ex.214 at FoxCorp00056542. Scott and Lachlan Murdoch exchanged texts about the plan going forward: “Viewers going through the 5 stages of grief. It’s a question of trust the AZ [call] was damaging but we will highlight our stars and plant flags letting the viewers know we hear them and respect them . at FoxCorp00056541 . Murdoch: “Yes. But needs constant rebuilding without any missteps. Id. Scott Yes today is day one and it’s a process.” [Dominion’s emphasis removed]

Hannity described how much reporting the truth (and Chris Wallace serving as a competent moderator for a Presidential debate) had undermined Fox’s brand.

Hannity told Carlson and Ingraham on November 12: “In one week and one debate they destroyed a brand that took 25 years to build and the damage is incalculable.”

The response to Jacqui Heinrich’s fact check of a Trump tweet is particularly stunning, as Carlson immediately called to have her fired for uttering the truth.

Meanwhile, later that night of November 12, Ingraham was still texting with Hannity and Carlson. In their group text thread, Carlson pointed Hannity to a tweet by Fox reporter Jacqui Heinrich. Ex.230 at FNN035_03890511 . Heinrich was “fact checking” a tweet by Trump that mentioned Dominion–and specifically mentioned Hannity’s and Dobbs’ broadcasts that evening discussing Dominion. Ex.232; Ex.231. Heinrich correctly fact-checked the tweet, pointing out that top election infrastructure officials said that, “‘There is no evidence that any voting system deleted or lost votes ,changed votes ,or was in any way compromised'” Id Ex.232.

Carlson told Hannity: Please get her fired. Seriously …. What the fuck? I’m actually shocked…It needs to stop immediately, like tonight. It’s measurably hurting the company. The stock price is down. Not a joke.” Ex.230 at FNN035_03890511. Tucker added: “I just went crazy on Meade over it.” Id. at FNN035_03890512 . Hannity said he had “already sent to Suzanne with a really?” He then added: “I’m 3 strikes . Wallace shit debate [] Election night a disaster [.] Now this BS? Nope. Not gonna fly. Did I mention Cavuto?”

The filing describes how after Hannity “dropped a bomb” about Heinrich’s fact check with Scott, Heinrich deleted her tweet.

Hannity indeed had discussed with Scott. Hannity texted his team: “I just dropped a bomb.” Ex.292 at FNN055_04455643. Suzanne Scott received the message. She told Jay Wallace and Fox News SVP for Corporate Communications Irena Briganti: “Sean texted me–he’s standing down on responding but not happy about this and doesn’t understand how this is allowed to happen from anyone in news. She [Heinrich] has serious nerve doing this and if this gets picked up, viewers are going to be further disgusted.” Ex.233 . By the next morning, Heinrich had deleted her fact-checking tweet. Ex.283.

For over two years, the right wing has squealed about a media outlet prohibiting the dissemination of dodgy claims from a Murdoch outlet. It turns out that Murdoch was, in that same time period, “censoring” true facts about Trump’s dodgy claims.

I wait with bated breath for James Comer to scheduled a hearing on the “censorship.”

Tucker Carlson, especially, recognized Trump’s role in this. He warned that Trump “could easily destroy us if we play it wrong.

“What [Trump]’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.”

After January 6, Tucker called Trump,”a demonic force, a destroyer.”

Fox appears to have perceived that they had to play along with Trump’s false claims or risk permanent damage to their brand.

As noted, this lawsuit focuses closely, though not exclusively, on Sidney Powell’s false claims, from which even Trump publicly dissociated on and off. As such, much of this evidence may be more useful to DOJ in any ongoing investigation (if there still is one) of Powell’s monetization of claims she knew to be false. But even there, the evidence is key for Smith’s lawyer inquiry into Trump’s lies.

In an effort to rebut any Fox claim that it was simply reporting on lawsuits, Dominion lays out how the lawsuits filed served only as a vehicle to make false claims publicly.

Infact, none ofthe accused statements even meets the basic requirement that it report on a pending proceeding. As the Court recognized in its prior ruling, any statement made in a broadcast that occurred before November 25, 2020 could not possibly satisfy the “of … proceedings” requirement because the lawsuits filed by Sidney Powell–the only Fox guest who actually filed a lawsuit containing the defamatory allegations about Dominion–had not been filed by that date. See FNN MTD Order, p.46. And even after that date, the broadcasts in question hardly mentioned the existence of legal proceedings concerning Dominion, let alone purported to be a substantially accurate report ofthose proceedings. “[A]t no point did Dobbs or Powell attribute the statements … to an official investigation or a judicial proceeding. A reasonable observer would have no grounds to believe that her statements constituted a report of an official proceeding.” Khalil, 2022 WL 4467622 at 6.

Fox wasn’t covering lawsuits. It was magnifying false claims, and doing so because it knew that’s what its viewers, and Trump, demanded.

One accused false claim is of particular import, given the bases Powell and others used to pursue outrageous actions: A December 10 Lou Dobbs broadcast on which Sidney Powell claimed there had been a Cyber Pearl Harbor.

Nonetheless, on the next day, December 10, Dobbs had Powell on again, where she repeated the false (and repeatedly debunked) story about the Smartmatic and Dominion machines being designed to flip votes to rig elections for Hugo Chavez,and allowing people to login and manipulate votes . See ¶179(q );Appendix D. But rather than questioning Powell’s claims, Dobbs attacked Attorney General Barr for saying he’d seen no sign of any significant fraud that would overturn the election and told Powell “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor,” noting “we have tremendous evidence already,” id. which he now admits was not true. See Ex.111,Dobbs 46:25-47:10,86:20-24 . Dobbs had seen no evidence from Powell, nor has he since. Id.

Powell had sent her claims about a “Cyber Pearl Harbor” to Dobbs (who forwarded to his team) in advance of the show. Ex.450;Ex.451. Prior to the show, Dobbs published a tweet to the @loudobbs Twitter account with the claim that “The 2020 Election is a cyber Pearl Harbor,” and embedding the very document Powell had sent to him just hours before which stated that Dominion was one off our entities that had “executed an electoral 9-11 against the United States” and “a cyber Pearl Harbor,” that “there is an embedded controller in every Dominion machine,” and that they had “contracts ,program details, incriminating information ,and history” proving these claims.¶179(p); Appendix D.

Later the same day, after Powell appeared on the 5pm broadcast and before the 7pm unedited rebroadcast of the show, Dobbs again tweeted “Cyber Pearl Harbor @SidneyPowell reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries.” ¶179(r); Appendix D. Dobbs conceded at his deposition that this tweet was false Powell had not presented any such evidence on his program that day. Ex.111,Dobbs 269 :2-271:5.

People have long used Trump’s favored Fox programs to lobby Trump (for example, Roger Stone did so spectacularly well to get a pardon). And this story appeared on one of Trump’s favorite shows just over a week before Powell and Patrick Byrne would use the Solar Winds hack (which would be exposed in the interim week, starting on December 14) as their excuse to get Trump to use a claim of foreign election interference to seize the voting machines. In other words, this was the national security excuse Powell and Byrne were seeking to give Trump an excuse to assert Executive authority to seize the voting machines.

Worse still, as Dominion notes, Fox did all this not just knowing that it would harm Dominion. They did this knowing the intent was to harm the United States.

On November 10, Steve Bannon told Maria Bartiromo, straight out, that THE PLAN was to delegitimize Joe Biden.

“71 million voters will never accept Biden. This process is to destroy his presidency before it even starts; IF it even starts … We either close on Trumps victory or del[e]gitimize Biden … THE PLAN.” Steve Bannon to Maria Bartiromo, November 10, 2020 (Ex. 157)

Carlson, too, knew what he was doing.

On November 18, [Tucker producer Alex] Pfeiffer texted Carlson that powerful election fraud allegations like Powell’s “need to be backed up” and could lead to undermining an elected president if Biden’s confirmed,to which Carlson responded, “Yep. It’s bad.”

“It’s bad,” Tucker recognized from the start. But that didn’t stop him from participating in efforts to undermining the duly elected President.

We’ve long known that Fox was better understood as a wing of the Republican party than as a news organization (indeed, the filing describes Rupert Murdoch looking for ways to “help[] any way we can” in Georgia).

But this filing makes it clear that in a bid to cater to viewers who were fed false claims by Trump, Fox played right along with the false claims that would lead to insurrection. Jack Smith is already examining multiple parts of this effort. This filing makes evidence that would otherwise be unavailable accessible to prosecutors.

Fox News knew their platforming of Trump’s false claims was doing damage to the country. And they did it anyway.

Update: Corrected that Tucker, not Hannity, is the one who immediately said Heinrich should be fired for speaking the truth.

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

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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.

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Judge Kelly’s Basis for His “Tools” Determinations

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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.

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

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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.

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

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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.

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

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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.

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

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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.

 

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